[Federal Register Volume 70, Number 149 (Thursday, August 4, 2005)]
[Rules and Regulations]
[Pages 44852-44855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15436]


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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, [email protected].

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.
    (c) EPA approved regulations.

                             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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