E9-17261. Approval and Promulgation of Air Quality Implementation Plans; State of Hawaii; Update to Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

EPA is updating the materials submitted by the State of Hawaii that are incorporated by reference (IBR) into the State Implementation Plan (SIP). The regulations affected by this update have been previously submitted by the State of Hawaii and approved by EPA. This update affects the SIP materials that are available for public inspection at the National Archives and Records Administration (NARA), the Air and Radiation Docket and Information Center located EPA Headquarters in Washington, DC, and the Regional Office.

DATES:

Effective Date: This action is effective July 22, 2009.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations and online at EPA Region IX 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, Headquarters Library, Room Number 3334, EPA West Building, 1301 Constitution Ave., NW., Washington, DC 20460.

Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, DC.

If you wish to obtain materials from a docket in the EPA Headquarters Library, please call the Office of Air and Radiation (OAR) Docket/Telephone number: [phone]; 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.

FOR FURTHER INFORMATION CONTACT:

Cynthia G. Allen, [phone] or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

The SIP is a living document which the State revises as necessary to address the unique air pollution problems. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations to make them 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 the Office of the Federal Register (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 August 4, 2005 (70 FR 44852), as corrected on August 23, 2005 (70 FR 49377), EPA published a document in the Federal Register beginning the new IBR procedure for the State of Hawaii. Today's action is an update to the August 4, 2005 document.

II. EPA Action

In this document, EPA is doing the following:

A. Announcing an update to the IBR material as of May 1, 2009; and

B. Revising the entries in paragraphs 52.620(b) and (c) to reflect this update.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure 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. 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. Likewise, there is no purpose served by delaying the effective date of this action. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect chart entries.

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. 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). 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 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 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 an economically significant regulatory action based on health or safety risks.

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). 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 is discussed in previous actions taken on the State's rules.

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 reformats the codification of provisions which are already in effect as a matter of law. 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 date of [July 22, 2009]. 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. This update to the Identification of plan for Hawaii is 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 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 this “Identification of plan” reorganization update action 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: May 25, 2009.

Laura Yoshii,

Acting Regional Administrator, Region IX.

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

PART 52—[AMENDED]

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

2. Section 52.620 is amended by revising paragraphs (b) and (c) to read as follows:

§ 52.620

Identification of plan.

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(b) Incorporation by reference. (1) Material listed as incorporated by reference in paragraphs (c) and (d) of this section with an EPA approval date prior to May 1, 2009, 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 on or after May 1, 2009 will be incorporated by reference in the next update to the SIP compilation.

(2) EPA Region IX certifies that the rules and 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 May 1, 2009.

(3) Copies of the materials incorporated by reference may be inspected at the EPA Region IX Office at 75 Hawthorne Street, San Francisco, CA 94105; the Air and Radiation Docket and Information Center, U.S. Environmental Protection Agency, Room 3334, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC; 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.

(c) EPA approved regulations.

EPA-Approved State of Hawaii Regulations

State citation	Title/subject	Effective date	EPA approval date	Explanation
Department of Health, Public Health Regulations, Chapter 43, Air Pollution Control Regulations:
Section 22	Hearings and Appeals	12/26/1972	05/14/1973, 38 FR 12711	See also 74 FR 11037 (March 16, 2009).
Section 23	Application	03/28/1972	05/31/1972, 37 FR 10842	See also 74 FR 11037 (March 16, 2009).
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, applicability	11/29/1982	08/18/1983, 48 FR 37403
11-60-3	Permit system, applications	11/29/1982	08/18/1983, 48 FR 37403
11-60-4	Permit system, conditions for considering applications	11/29/1982	08/18/1983, 48 FR 37403
11-60-5	Permit system, action on applications	11/29/1982	08/18/1983, 48 FR 37403
11-60-6	Permit system, performance testing	11/29/1982	08/18/1983, 48 FR 37403
11-60-7	Permit system, cancellation of authority to construct	11/29/1982	08/18/1983, 48 FR 37403
11-60-8	Permit system, suspension or revocation of permit to operate	11/29/1982	08/18/1983, 48 FR 37403
11-60-9	Permit system, transfer of permit to operate	11/29/1982	08/18/1983, 48 FR 37403
11-60-10	Permit system, reporting discontinuance or dismantlement	11/29/1982	08/18/1983, 48 FR 37403
11-60-11	Permit system, posting of permit to operate	11/29/1982	08/18/1983, 48 FR 37403
11-60-12	Permit system, fees	11/29/1982	08/18/1983, 48 FR 37403
11-60-13	Permit system, fee schedule for a permit to operate	11/29/1982	08/18/1983, 48 FR 37403
11-60-14	Permit system, period of permit	11/29/1982	08/18/1983, 48 FR 37403
11-60-15	Sampling, testing, and reporting methods	11/29/1982	08/18/1983, 48 FR 37403
11-60-16	Malfunction of equipment reporting	11/29/1982	08/18/1983, 48 FR 37403
11-60-17	Prohibition of air pollution	11/29/1982	08/18/1983, 48 FR 37403
11-60-18	Control of open burning	11/29/1982	08/18/1983, 48 FR 37403
11-60-19	Agricultural burning, permit requirement	11/29/1982	08/18/1983, 48 FR 37403
11-60-20	Agricultural burning, applications	11/29/1982	08/18/1983, 48 FR 37403
11-60-21	Agricultural burning, “no burn” days	11/29/1982	08/18/1983, 48 FR 37403
11-60-22	Agricultural burning, record keeping and monitoring	11/29/1982	08/18/1983, 48 FR 37403
11-60-23	Agricultural burning, action on applications	11/29/1982	08/18/1983, 48 FR 37403
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-burning boilers	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 emergency episodes	11/29/1982	08/18/1983, 48 FR 37403
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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