[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Rules and Regulations]
[Pages 35007-35009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16538]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MS9921: FRL-6348-4]


Approval and Promulgation of Air Quality Implementation Plans; 
Mississippi 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 Mississippi 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 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), the Air and Radiation Docket and 
Information Center located in Waterside Mall, Washington, D.C., and the 
Regional Office.

EFFECTIVE DATE: This action is effective June 30, 1999.

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 (Air Docket), EPA, 401 M Street, SW, Room M1500, Washington, DC 
20460; and
Office of the Federal Register, 800 North Capitol Street, NW, Suite 
700, Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Notarianni at the above 
Region 4 address or at (404) 562-9031.

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

[[Page 35008]]

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 July 1, 1997, EPA published a document in the Federal Register 
(62 FR 35441) beginning the new IBR procedure for Mississippi. In this 
document EPA is doing the first update to the material being IBRed. On 
July 15, 1997, (62 FR 37724) EPA published a direct final approval 
document approving revisions to the Mississippi SIP for open burning 
and prevention of signficant deterioration. In that document EPA also 
updated the Identification of plan section for the Code of Federal 
Regulations.
    In this document EPA is updating the SIP compilation that is 
incorporated by reference. EPA took notice and public comment on this 
rulemaking in July 1997. No comments were received and the rule became 
effective September 15, 1997.
    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.

I. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 12875

    Under E.O. 12875, 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. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, E.O. 12875 requires 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 section 1(a) of E.O. 12875 do 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 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. EPA interprets E.O. 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation.
    This action is not subject to E.O. 13045 because it approves a 
state rule implementing a previously promulgated health or safety-based 
Federal standard, and preserves the existing level of pollution control 
for the affected areas.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects 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. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of 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, E.O. 13084 requires EPA to develop an 
effective process permitting elected 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.'' This rule does not significantly 
or uniquely affect the communities of Indian tribal governments. 
Accordingly, the requirements of section 3(b) of E.O. 13084 do not 
apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 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 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids 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

[[Page 35009]]

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under Section 205, 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 EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual 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 
pre-existing 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. 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 rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. 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 Mississippi SIP compilations 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.

List of Subjects in 40 CFR Part 52

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

    Dated: April 29, 1999.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Part 52 of 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 Z--Mississippi

    2. Section 52.1270 paragraph (b) is revised to read as follows:


Sec. 52.1270  Identification of plan.

* * * * *
    (b) Incorporation by reference.
    (1) Material listed in paragraphs (c) and (d) of this section with 
an EPA approval date prior to July 1, 1999, 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 July 1, 1999, 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) are an 
exact duplicate of the officially promulgated State rules/regulations 
which have been approved as part of the State implementation plan as of 
July 1, 1999.
    (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 Federal Register, 800 North Capitol 
Street, NW., Suite 700, Washington, DC.; or at the EPA, Air and 
Radiation Docket and Information Center, Air Docket (6102), 401 M 
Street, SW., Washington, DC. 20460.
* * * * *
[FR Doc. 99-16538 Filed 6-29-99; 8:45 am]
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