[Federal Register Volume 63, Number 228 (Friday, November 27, 1998)]
[Rules and Regulations]
[Pages 65559-65561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31541]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MO 055-1055; FRL-6134-3]


Approval and Promulgation of Implementation Plans; State of 
Missouri

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is taking final action to approve the State 
Implementation Plan (SIP) revisions submitted by the state of Missouri 
to broaden the current visible emissions rule exceptions to include 
smoke-generating devices. This revision would allow smoke generators to 
be used for military and other types of training when operated under 
applicable requirements.

DATES: This rule is effective on December 28, 1998.

ADDRESSES: Comment may be addressed to Kim Johnson, Environmental 
Protection Agency, Air Planning and Development Branch, 726 Minnesota 
Avenue, Kansas City, Kansas 66101.
    Copies of the state submittal are available at the following 
address for inspection during normal business hours: Environmental 
Protection Agency, Air Planning and Development Branch, 726 Minnesota 
Avenue, Kansas City, Kansas 66101; and the Environmental Protection 
Agency, Air & Radiation Docket and Information Center, Air Docket 
(6102), 401 M Street, SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Kim Johnson at (913) 551-7975.

SUPPLEMENTARY INFORMATION:

I. Background

    This amendment broadens the current rule exceptions to include 
smoke-generating devices in general when a required permit or a written 
determination that a permit is not required has been issued. The 
amendment defines a smoke-generating device as a specialized piece of 
equipment which is not an integral part of a commercial, industrial or 
manufacturing process and whose sole purpose is the creation and 
dispersion of fine solid or liquid particles in a gaseous medium. This 
revision would allow smoke generators to be used for military training 
at such facilities as Fort Leonard Wood as long as such facilities 
operate in accordance with applicable permit requirements.
    No comments were received in response to the public comment period 
regarding this rule action.
    For more background information the reader is referred to the 
proposal for this rulemaking published on May 7, 1998, at 63 FR 25191.

II. Final Action

    The EPA is taking final action to approve, as a revision to the 
SIP, the amendment to Rule 10 CSR 10-3.080, ``Restriction of Emission 
of Visible Air Contaminants,'' submitted by the state of Missouri on 
July 10, 1996.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
revision to any SIP. Each request for revision to the SIP shall be 
considered separately in light of specific technical, economic, and 
environmental factors and in relation to relevant statutory and 
regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866 entitled ``Regulatory 
Planning and Review.''

B. Executive Order 12875

    Under Executive Order 12875, the EPA may not issue a regulation 
that is not required by statute and that creates a mandate upon a 
state, local or tribal government, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by those governments or the EPA consults with those 
governments. If the EPA complies by consulting, Executive Order 12875 
requires the EPA to provide to the OMB a description of the extent of 
the EPA's prior consultation with representatives of affected state, 
local, and tribal governments, the nature of their concerns, copies of 
any written communications from the governments, and a statement 
supporting the need to issue the regulation. In addition, Executive 
Order 12875 requires the EPA to develop an effective process permitting 
elected officials and other representatives of state, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    Today's rule does not create a mandate on state, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of

[[Page 65560]]

section 1(a) of Executive Order 12875 does not apply to this rule.

C. 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 E.O. 
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.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under Executive Order 13084 the EPA may not issue a regulation that 
is not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments or the EPA consults with those 
governments. If the EPA complies by consulting, Executive Order 13084 
requires the EPA to provide to the OMB, in a separately identified 
section of the preamble to the rule, a description of the extent of the 
EPA's prior consultation with representatives of affected tribal 
governments, a summary of the nature of their concerns, and a statement 
supporting the need to issue the regulation. In addition, Executive 
Order 13084 requires the EPA to develop an effective process permitting 
elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to 
conduct a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements, 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 not-for-profit enterprises, and small governmental jurisdictions. 
This final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act (CAA) do not create any new 
requirements, but simply approve requirements that the state is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-state relationship under the 
CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids the EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to state, local, or tribal governments in the aggregate, or to 
private sector, of $100 million or more. Under section 205 the EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires the EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    The EPA has determined that the approval action proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either state, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves 
preexisting requirements under state or local law and imposes no new 
requirements. Accordingly, no additional costs to state, local, or 
tribal governments, or to the private sector, result from this action.

G. 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. The 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 U.S. Comptroller General prior to publication 
of the rule in the Federal Register. This rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

H. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 26, 1999. 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, Incorporation by 
reference, Particulate matter, Reporting and recordkeeping 
requirements.

    Dated: July 23, 1998.
Dennis Grams,
Regional Administrator, Region VII.

    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 AA--Missouri

    2. Section 52.1320 is amended by adding paragraph (c)(109) to read 
as follows:


Sec. 52.1320  Identification of plan.

* * * * *

[[Page 65561]]

    (c) * * *
    (109) This State Implementation Plan (SIP) revision submitted by 
the state of Missouri on July 10, 1996, broadens the current rule 
exceptions to include smoke-generating devices. This revision would 
allow smoke generators to be used for military and other types of 
training when operated under applicable requirements.
    (i) Incorporation by reference.
    (A) Regulation 10 CSR 10-3.080, ``Restriction of Emission of 
Visible Air Contaminants,'' effective on May 30, 1996.

[FR Doc. 98-31541 Filed 11-25-98; 8:45 am]
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