FR Doc 05-15436

[Federal Register: August 4, 2005 (Volume 70, Number 149)]
[Rules and Regulations]
[Page 44852-44855]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au05-4]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[HI 125-NBK; FRL-7946-7]

Revisions to the State of Hawaii State Implementation Plan,
Update to Materials Incorporated by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of administrative change.

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SUMMARY: EPA is updating the materials submitted by the State of Hawaii
that are incorporated by reference (IBR) into the State of Hawaii State
Implementation Plan (SIP). The regulations affected by this update have
been previously submitted by the territorial agency and approved by
EPA. This update affects the SIP materials that are available for
public inspection at the Office of the Federal Register (OFR), Office
of Air and Radiation Docket and Information, and the Regional Office.

DATES: Effective Date: This rule is effective on August 4, 2005.

ADDRESSES: SIP materials that are incorporated by reference into 40 CFR
part 52 are available for inspection at the following locations and
online at EPA Region IX's Web site:

Air Division, Environmental Protection Agency, Region IX, 75 Hawthorne
Street, San Francisco, CA 94105-3901.
Air and Radiation Docket and Information Center, U.S. Environmental
Protection Agency, Room B-102, 1301 Constitution Avenue, NW., (Mail
Code 6102T), Washington, DC 20460.
Office of the Federal Register, 800 North Capitol Street, NW., Suite
700, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Julie A. Rose, EPA Region IX, (415)
947-4126, rose.julie@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
A. State Implementation Plan History and Process
B. Content of Revised IBR Document
C. Revised Format of the ``Identification of Plan'' Section in
Subpart M
D. Enforceability and Legal Effect
E. Notice of Administrative Change
II. Public Comments
III. Statutory and Executive Order Reviews

I. Background

A. State Implementation Plan History and Process

Each State is required to have a SIP that contains the control
measures and strategies that will be used to attain and maintain the
national ambient air quality standards (NAAQS). The control measures
and strategies must be formally adopted by each State after the public
has had an opportunity to comment on them. They are then submitted to
EPA as SIP revisions on which EPA must formally act.
Once these control measures are approved by EPA after notice and
comment, they are incorporated into the SIP and are identified in Part
52, Approval and Promulgation of Implementation Plans, Title 40 of the
Code of Federal Regulations (40 CFR part 52). The actual State
regulations that are approved by EPA are not reproduced in their
entirety in 40 CFR part 52, but are ``incorporated by reference,''
which means that the citation of a given State regulation with a
specific effective date has been approved by EPA. This format allows
both EPA and the public to know which measures are contained in a given
SIP and insures that the State is enforcing the regulations. It also
allows EPA and the public to take enforcement action should a State not
enforce its SIP-approved regulations.
The SIP is a living document that the State can revise as necessary
to address the unique air pollution problems in the State. From time to
time, therefore, EPA must take action on SIP revisions containing new
and/or revised regulations as being part of the SIP. On May 22, 1997
(62 FR 27968), as a result of consultations between EPA and OFR, EPA
revised the procedures for incorporating by reference federally-
approved SIPs. EPA began the process of developing (1) a revised SIP
document for each State that would be incorporated by reference under
the provisions of 1 CFR part 51; (2) a

[[Page 44853]]

revised mechanism for announcing EPA approval of revisions to an
applicable SIP and updating both the IBR document and the CFR, and (3)
a revised format of the ``Identification of plan'' sections for each
applicable subpart to reflect these revised IBR procedures. The
description of the revised SIP document, IBR procedures, and
``Identification of plan'' format are discussed in further detail in
the May 22, 1997, Federal Register document.

B. Content of Revised IBR Document

The new SIP compilations contain the Federally-approved portion of
regulations submitted by each State agency. These regulations have all
been approved by EPA through previous rule making actions in the
Federal Register. The compilations are stored in hard covered folders
and will be updated, usually on an annual basis.
Each compilation contains two parts. Part 1 contains the
regulations and Part 2 contains nonregulatory provisions that have been
EPA-approved. Each part consists of a table of identifying information
for each regulation and each nonregulatory provision. The table of
identifying information corresponds to the table of contents published
in 40 CFR part 52 for each State and Territory. The Regional EPA
Offices have the primary responsibility for ensuring accuracy and
updating the compilations. The Region IX EPA Office developed and will
maintain the compilation for the State of Hawaii. A copy of the full
text of each State's current compilation will also be maintained at the
Office of the Federal Register and EPA's Air Docket and Information
Center.

C. Revised Format of the ``Identification of Plan'' Section in Subpart
M

In order to better serve the public, EPA is revising the
organization of the ``Identification of plan'' section to include
additional information that will make it clearer as to what provisions
constitute the enforceable elements of the SIP.
The revised ``Identification of plan'' section will contain five
subsections: (a) Purpose and scope, (b) Incorporation by reference, (c)
EPA approved regulations, (d) EPA approved source specific permits, and
(e) EPA approved nonregulatory provisions such as transportation
control measures, statutory provisions, control strategies, monitoring
networks, etc.

D. Enforceability and Legal Effect

All revisions to the applicable SIP become federally enforceable as
of the effective date of the revisions to paragraph (c), (d), or (e) of
the applicable ``Identification of plan'' found in each subpart of 40
CFR part 52. To facilitate enforcement of previously approved SIP
provisions and provide a smooth transition to the new SIP processing
system, EPA is retaining the original ``Identification of plan''
section, previously appearing in the CFR as the first section of part
52 for subpart M, State of Hawaii.

E. Notice of Administrative Change

Today's rule constitutes a ``housekeeping'' exercise to ensure that
all revisions to State programs that have occurred are accurately
reflected in 40 CFR part 52. State SIP revisions are controlled by EPA
regulations at 40 CFR part 51. When EPA receives a formal SIP revision
request, the Agency must publish the proposed revision in the Federal
Register and provide for public comment before approval.

II. Public Comments

EPA has determined that today's rule falls under the ``good cause''
exemption in section 553(b)(3)(B) of the Administrative Procedures Act
(APA) that, upon finding ``good cause,'' authorizes agencies to
dispense with public participation; and section 553(d)(3), which allows
an agency to make a rule effective immediately (thereby avoiding the
30-day delayed effective date otherwise provided for in the APA).
Today's rule simply codifies provisions that are already in effect as a
matter of law in Federal and approved State programs. Under section 553
of the APA, an agency may find good cause where procedures are
``impractical, unnecessary, or contrary to the public interest.''
Public comment is ``unnecessary'' and ``contrary to the public
interest'' since the codification only reflects existing law. Immediate
notice in the CFR benefits the public by removing outdated citations.

III. Statutory and Executive Order Reviews

A. General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review by the Office of Management and Budget. This rule is
not subject to Executive Order 13211, ``Actions Concerning Regulations
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. Because the agency has made a ``good
cause'' finding that this action is not subject to notice-and-comment
requirements under the Administrative Procedure Act or any other
statute as indicated in the Supplementary Information section above, it
is not subject to the regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C 601 et seq.), or to sections 202
and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L.
104-4). In addition, this action does not significantly or uniquely
affect small governments or impose a significant intergovernmental
mandate, as described in sections 203 and 204 of UMRA. This rule also
does not have a substantial direct effect on one or more Indian tribes,
on the relationship between the Federal government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999). This rule also
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant. This rule does not involve
technical standards; thus the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) do not apply. The rule also does not involve special
consideration of environmental justice related issues as required by
Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this
rule, EPA has taken the necessary steps to eliminate drafting errors
and ambiguity, minimize potential litigation, and provide a clear legal
standard for affected conduct, as required by section 3 of Executive
Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). EPA's
compliance with these statutes and Executive Orders for the underlying
rules are discussed in previous actions taken on the State's rules.

[[Page 44854]]

B. Submission to Congress and the Comptroller General

The Congressional Review Act (5 U.S.C. 801 et seq.), as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
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. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary or contrary to the public interest. Today's
action simply codifies provisions which are already in effect as a
matter of law in Federal and approved State programs. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefore, and established an effective [insert date of
publication]. 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. These corrections
to the ``Identification of plan'' for the State of Hawaii are not a
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

EPA has also determined that the provisions of section 307(b)(1) of
the Clean Air Act pertaining to petitions for judicial review are not
applicable to this action. Prior EPA rulemaking actions for each
individual component of the State of Hawaii SIP compilation had
previously afforded interested parties the opportunity to file a
petition for judicial review in the United States Court of Appeals for
the appropriate circuit within 60 days of such rulemaking action. Thus,
EPA sees no need in this action to reopen the 60-day period for filing
such petitions for judicial review for these ``Identification of plan''
reorganization actions for the State of Hawaii.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides.

Dated: July 15, 2005.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart M--State of Hawaii

0
2. Section 52.620 is redesignated as Sec. 52.622 and the section
heading and paragraph (a) are revised to read as follows:

Sec. 52.622 Original identification of plan.

(a) This section identified the original ``Implementation Plan for
Compliance With the Ambient Air Quality Standards for the State of
Hawaii'' and all revisions submitted by the State of Hawaii that were
federally approved prior to June 1, 2005.
* * * * *

0
3. A new Sec. 52.620 is added to read as follows:

Sec. 52.620 Identification of plan.

(a) Purpose and scope. This section sets forth the applicable State
implementation plan for State of Hawaii under section 110 of the Clean
Air Act, 42 U.S.C. 7401-7671q and 40 CFR part 51 to meet national
ambient air quality standards.
(b) Incorporation by reference.
(1) Material listed in paragraphs (c) and (d) of this section with
an EPA approval date prior to June 1, 2005, was approved for
incorporation by reference by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is
incorporated as it exists on the date of the approval, and notice of
any change in the material will be published in the Federal Register.
Entries in paragraphs (c) and (d) of this section with EPA approval
dates after June 1, 2005, will be incorporated by reference in the next
update to the SIP compilation.
(2) EPA Region IX certifies that the rules/regulations provided by
EPA in the SIP compilation at the addresses in paragraph (b)(3) of this
section are an exact duplicate of the officially promulgated State
rules/regulations which have been approved as part of the State
implementation plan as of June 1, 2005.
(3) Copies of the materials incorporated by reference may be
inspected at the Region IX EPA Office at 75 Hawthorne Street, San
Francisco, CA 94105; the Air and Radiation Docket and Information
Center, U.S. Environmental Protection Agency, 1301 Constitution Avenue,
N.W., Room B108, Washington, D.C.; or the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html
.

Table 52.620.--EPA Approved State of Hawaii Regulations
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EPA approval
State citation Title/subject Effective date date Explanation
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Department of Health, Title 11,
Chapter 60, Air Pollution Control
Regulations:
11-60-1........................ Definitions................ 11/29/1982 08/18/1983 48 FR 37403
11-60-2........................ Permit system, 11/29/1982 08/18/1983 48 FR 37403
applicability.
11-60-3........................ Permit system, applications 11/29/1982 08/18/1983 48 FR 37403
11-60-4........................ Permit system, conditions 11/29/1982 08/18/1983 48 FR 37403
for considering
application.
11-60-5........................ Permit system, action on 11/29/1982 08/18/1983 48 FR 37403
applications.
11-60-6........................ Permit system, performance 11/29/1982 08/18/1983 48 FR 37403
testing.
11-60-7........................ Permit system, cancellation 11/29/1982 08/18/1983 48 FR 37403
of authority to construct.
11-60-8........................ Permit system, suspension 11/29/1982 08/18/1983 48 FR 37403
or revocation of permit to
operate.
11-60-9........................ Permit system, transfer of 11/29/1982 08/18/1983 48 FR 37403
permit to operate.

[[Page 44855]]

11-60-10....................... Permit system, reporting 11/29/1982 08/18/1983 48 FR 37403
discontinuance or
dismantlement.
11-60-11....................... Permit system, posting of 11/29/1982 08/18/1983 48 FR 37403
permit to operate.
11-60-12....................... Permit system, fees........ 11/29/1982 08/18/1983 48 FR 37403
11-60-13....................... Permit system, fee schedule 11/29/1982 08/18/1983 48 FR 37403
for a permit to operate.
11-60-14....................... Permit system, period of 11/29/1982 08/18/1983 48 FR 37403
permit.
11-60-15....................... Sampling, testing, and 11/29/1982 08/18/1983 48 FR 37403
reporting methods.
11-60-16....................... Malfunction of equipment 11/29/1982 08/18/1983 48 FR 37403
testing.
11-60-17....................... Prohibition of air 11/29/1982 08/18/1983 48 FR 37403
pollution.
11-60-18....................... Control of open burning.... 11/29/1982 08/18/1983 48 FR 37403
11-60-19....................... Agricultural burning, 11/29/1982 08/18/1983 48 FR 37403
permit requirement.
11-60-20....................... Agricultural burning, 11/29/1982 08/18/1983 48 FR 37403
applications.
11-60-21....................... Agricultural burning, ``No 11/29/1982 08/18/1983 48 FR 37403
burn'' days.
11-60-22....................... Agricultural burning, 11/29/1982 08/18/1983 48 FR 37403
recordkeeping and
monitoring.
11-60-23....................... Agricultural burning, 11/29/1982 08/18/1983 48 FR 37403
action on application.
11-60-24....................... Visible emissions.......... 11/29/1982 08/18/1983 48 FR 37403
11-60-25....................... Control of motor vehicles.. 11/29/1982 08/18/1983 48 FR 37403
11-60-26....................... Fugitive dust.............. 11/29/1982 08/18/1983 48 FR 37403
11-60-27....................... Incineration............... 11/29/1982 08/18/1983 48 FR 37403
11-60-28....................... Bagasse-burn vehicles...... 11/29/1982 08/18/1983 48 FR 37403
11-60-29....................... Process industries......... 11/29/1982 08/18/1983 48 FR 37403
11-60-35....................... Prevention of air pollution 11/29/1982 08/18/1983 48 FR 37403
emergency episodes.
11-60-37....................... Penalties and remedies..... 11/29/1982 08/18/1983 48 FR 37403
11-60-38....................... Severability............... 11/29/1982 08/18/1983 48 FR 37403
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(d) EPA approved State source specific requirements.

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EPA approval
Name of source Permit No. Effective date date Explanation
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None.
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(e) [Reserved].

[FR Doc. 05-15436 Filed 8-3-05; 8:45 am]

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