03-31587. Approval and Promulgation of Air Quality Implementation Plans; Memphis-Shelby County; Revised Format for Materials Being Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

EPA is revising the format of 40 CFR part 52 for materials submitted by Memphis-Shelby County that are incorporated by reference (IBR) into the State Implementation Plan (SIP). The regulations affected by this format change have all been previously submitted by the local agency and approved by EPA.

This format revision will affect the “Identification of Plan” sections of 40 CFR part 52, as well as the format of the SIP materials that will be available for public inspection at the Office of the Federal Register (OFR), the Air and Radiation Docket and Information Center, and the Regional Office. The sections of 40 CFR part 52 pertaining to provisions promulgated by EPA or local-submitted materials not subject to IBR review remain unchanged.

EFFECTIVE DATE:

This action is effective December 29, 2003.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations: Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303; Office of Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, (Mail Code 6102T) NW., Washington, DC 20460, and Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Ms. Anne Marie Hoffman at the above Region 4 address, by phone at [phone], or by electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

The SIP is a living document which the State can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time 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) EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and OFR. 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. On June 30, 1999 EPA published a document in the Federal Register (64 FR 35009) beginning the new IBR procedure for Tennessee. In this document EPA is beginning the new IBR procedures for Memphis-Shelby County, Tennessee.

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) which, 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 which 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 updating citations.

Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will 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). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. section 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. 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. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 February 27, 2004. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: November 26, 2003.

A. Stanley Meiburg,

Acting, Regional Administrator, Region 4.

Chapter I, title 40, Code of Federal Regulations, is amended as follows:

PART 52—[AMENDED]

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

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

Subpart RR—Tennessee

2. Section 52.2220 is amended:

a. By revising paragraph (b) and

b. By revising the heading of the existing table in paragraph (c) to read “Table-1 EPA APPROVED TENNESSEE REGULATIONS” and adding a new table “Table-2 EPA APPROVED MEMPHIS-SHELBY COUNTY REGULATIONS” to the end of paragraph (c) to read as follows:

§ 52.2220

Identification of plan.

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(b) Incorporation by reference. (1) Material listed in paragraph (c) of this section with an EPA approval date prior to December 1, 1998, was approved for Tennessee (Table 1 of the Tennessee State Implementation Plan) and January 1, 2003 for Memphis-Shelby County (Table 2 of the Tennessee State Implementation Plan) and paragraph (d) of this section with an EPA approval date prior to December 1, 1998, was approved for Tennessee (Source-Specific Requirements) 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 Table 2 of paragraph (c) of this section with EPA approval dates after January 1, 2003, will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region 4 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 and Local Implementation Plans listed in paragraph (b)(1) of this section.

(3) Copies of the materials incorporated by reference may be inspected at the Region 4 EPA Office at 61 Forsyth Street, SW., Atlanta, GA 30303; the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC; or at the EPA, Office of Air and Radiation Docket and Information Center, Room B-108, 1301 Constitution Avenue, (Mail Code 6102T) NW., Washington, DC 20460.

(c) * * *

Table 2.—EPA Approved Memphis-Shelby County Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
Division I Generally
Section 16-46	Definitions	8/14/89	6/15/89, 54 FR 25456
Section 16-47	Abbreviations, Acronyms & Symbols	8/14/89	6/15/89, 54 FR 25456
Section 16-48	Words, Phrases Substituted in State Regulations Adopted by Reference	8/14/89	6/15/89, 54 FR 25456
Section 16-49	Ambient Air Quality Standards	8/14/89	6/15/89, 54 FR 25456
Section 16-50	Open Burning	8/14/89	6/15/89, 54 FR 25456
Section 16-51	Severability of Parts of Articles	8/14/89	6/15/89, 54 FR 25456
Division II Enforcement
Section 16-56	Violations of Chapter—Notice; Citation; Injunctive Relief	8/14/89	6/15/89, 54 FR 25456
Section 16-57	Penalties, Misdemeanor, Civil, Noncompliance	8/14/89	6/15/89, 54 FR 25456
Section 16-58	Variances	8/14/89	6/15/89, 54 FR 25456
Section 16-59	Emergency Powers of Health Officer	8/14/89	6/15/89, 54 FR 25456
Division III Air Pollution Control Board
Section 16-71	Created; Membership; Term of Office; Jurisdiction; Hearings; Appeals	8/14/89	6/15/89, 54 FR 25456
Division IV Source Emissions Standards
Section 16-77	Construction and Operating Permits	8/14/89	6/15/89, 54 FR 25456
Section 16-78	Process Emissions Standards	8/14/89	6/15/89, 54 FR 25456
Section 16-79	Nonprocess Emission Standards	8/14/89	6/15/89, 54 FR 25456
Section 16-80	Volatile Organic Compounds	8/14/89	6/15/89, 54 FR 25456
Section 16-82	Control of Sulfur Dioxide Emissions	8/14/89	6/15/89, 54 FR 25456
Section 16-83	Visible Emissions	8/14/89	6/15/89, 54 FR 25456
Section 16-84	Particulate Matter from Incinerators	8/14/89	6/15/89, 54 FR 25456
Section 16-85	Required Sampling, Recording, and Reporting	5/20/96	3/19/96, 61 FR 11136
Section 16-86	Methods of Sampling and Analysis	8/14/89	6/15/89, 54 FR 25456
Section 16-87	Limits on Emissions due to Malfunctions, Startups & Shutdowns	8/14/89	6/15/89, 54 FR 25456
Section 16-88	Nuisance Abatement	8/14/89	6/15/89, 54 FR 25456
Section 16-89	Fugitive Dust	8/14/89	6/15/89, 54 FR 25456
Section 16-90	General Alternate Emission Standard	8/14/89	6/15/89, 54 FR 25456
Section 16-91	Lead Emission Standards	8/14/89	6/15/89, 54 FR 25456

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