[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Rules and Regulations]
[Pages 36118-36120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-17261]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[HI-126-NBK; FRL-8916-9]


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.

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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 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: (202) 566-1742; 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, (415) 947-4120 or by 
e-mail at [email protected].

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

[[Page 36119]]

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.

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 amended by revising paragraphs (b) and (c) to read 
as follows:


Sec.  52.620  Identification of plan.

* * * * *
    (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
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                                                      Effective
         State citation             Title/subject        date     EPA approval date          Explanation
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Department of Health, Public
 Health Regulations, Chapter
 43, Air Pollution Control
 Regulations:
    Section 22.................  Hearings and         12/26/1972  05/14/1973, 38 FR  See also 74 FR 11037
                                  Appeals.                         12711.            (March 16, 2009).
    Section 23.................  Application.......   03/28/1972  05/31/1972, 37 FR  See also 74 FR 11037
                                                                   10842.            (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.

[[Page 36120]]

 
    11-60-2....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  applicability.                   37403.
    11-60-3....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  applications.                    37403.
    11-60-4....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  conditions for                   37403.
                                  considering
                                  applications.
    11-60-5....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  action on                        37403.
                                  applications.
    11-60-6....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  performance                      37403.
                                  testing.
    11-60-7....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  cancellation of                  37403.
                                  authority to
                                  construct.
    11-60-8....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  suspension or                    37403.
                                  revocation of
                                  permit to operate.
    11-60-9....................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  transfer of                      37403.
                                  permit to operate.
    11-60-10...................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  reporting                        37403.
                                  discontinuance or
                                  dismantlement.
    11-60-11...................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  posting of permit                37403.
                                  to operate.
    11-60-12...................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  fees.                            37403.
    11-60-13...................  Permit system, fee   11/29/1982  08/18/1983, 48 FR
                                  schedule for a                   37403.
                                  permit to operate.
    11-60-14...................  Permit system,       11/29/1982  08/18/1983, 48 FR
                                  period of permit.                37403.
    11-60-15...................  Sampling, testing,   11/29/1982  08/18/1983, 48 FR
                                  and reporting                    37403.
                                  methods.
    11-60-16...................  Malfunction of       11/29/1982  08/18/1983, 48 FR
                                  equipment                        37403.
                                  reporting.
    11-60-17...................  Prohibition of air   11/29/1982  08/18/1983, 48 FR
                                  pollution.                       37403.
    11-60-18...................  Control of open      11/29/1982  08/18/1983, 48 FR
                                  burning.                         37403.
    11-60-19...................  Agricultural         11/29/1982  08/18/1983, 48 FR
                                  burning, permit                  37403.
                                  requirement.
    11-60-20...................  Agricultural         11/29/1982  08/18/1983, 48 FR
                                  burning,                         37403.
                                  applications.
    11-60-21...................  Agricultural         11/29/1982  08/18/1983, 48 FR
                                  burning, ``no                    37403.
                                  burn'' days.
    11-60-22...................  Agricultural         11/29/1982  08/18/1983, 48 FR
                                  burning, record                  37403.
                                  keeping and
                                  monitoring.
    11-60-23...................  Agricultural         11/29/1982  08/18/1983, 48 FR
                                  burning, action                  37403.
                                  on applications.
    11-60-24...................  Visible emissions.   11/29/1982  08/18/1983, 48 FR
                                                                   37403.
    11-60-25...................  Control of motor     11/29/1982  08/18/1983, 48 FR
                                  vehicles.                        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      11/29/1982  08/18/1983, 48 FR
                                  boilers.                         37403.
    11-60-29...................  Process industries   11/29/1982  08/18/1983, 48 FR
                                                                   37403.
    11-60-35...................  Prevention of air    11/29/1982  08/18/1983, 48 FR
                                  pollution                        37403.
                                  emergency
                                  episodes.
    11-60-37...................  Penalties and        11/29/1982  08/18/1983, 48 FR
                                  remedies.                        37403.
    11-60-38...................  Severability......   11/29/1982  08/18/1983, 48 FR
                                                                   37403.
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[FR Doc. E9-17261 Filed 7-21-09; 8:45 am]
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