
[Federal Register Volume 74, Number 111 (Thursday, June 11, 2009)]
[Rules and Regulations]
[Pages 27708-27711]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13590]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0323; FRL-8915-8]


Approval and Promulgation of Implementation Plans; Hawaii

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of administrative change.

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SUMMARY: Under the Clean Air Act, EPA is completing the process begun 
in 2005 to revise the format of the ``identification of plan'' section 
for the Hawaii State Implementation Plan (SIP). Specifically, EPA is 
adding the non-regulatory provisions and quasi-regulatory measures to 
the revised ``identification of plan'' section. The non-regulatory 
provisions and quasi-regulatory measures affected by this format 
revision have been previously

[[Page 27709]]

submitted by the State of Hawaii and approved by EPA.

DATES: Effective Date: This rule is effective on June 11, 2009.

ADDRESSES: Non-regulatory and quasi-regulatory SIP materials are 
available for inspection at Air Division, EPA Region IX, 75 Hawthorne 
Street, San Francisco, CA 94105-3901 and online at EPA Region IX's Web 
site.

FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 942-3964, 
vagendas@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and 
``our'' refer to EPA.

Table of Contents

I. Background
II. Public Comments
III. Statutory and Executive Order Reviews

I. Background

    Under the Clean Air Act (CAA or ``Act''), each state is required to 
have a state implementation plan (SIP) which contains the control 
measures and strategies which will be used to attain and maintain the 
national ambient air quality standards (NAAQS). The SIP is extensive, 
containing such elements as emission inventories, monitoring networks, 
attainment demonstrations, and enforcement mechanisms. 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.
    The SIP is a living document that can be revised by the state as 
necessary to address the unique air pollution problems in the state. 
Therefore, EPA from time to time must take action on SIP revisions 
which may contain new and/or revised regulations as being part of the 
SIP. On May 31, 1972 (37 FR 10842), EPA approved, with certain 
exceptions, the initial SIPs for 50 states, four territories and the 
District of Columbia. Since 1972, each state and territory has 
submitted numerous SIP revisions, either on their own initiative, or 
because they were required to as a result of various amendments to the 
CAA. EPA codifies its approvals and disapprovals of SIPs and SIP 
revisions in 40 CFR part 52 (``Approval and promulgation of 
implementation plans'').
    Within 40 CFR part 52, there are 58 subparts (subparts A through 
FFF). Subpart A contains general requirements applicable to all states 
and territories, while subparts B through DDD and FFF contain 
requirements that are specific to a given state or territory. Subpart 
EEE contains historical information pertaining to EPA action on SIP 
material originally submitted by states to the National Air Pollution 
Control Administration, Department of Health Education and Welfare in 
1970.
    Until 1997, the first or second section of each subpart within 40 
CFR part 52 (other than subparts A and EEE) was called ``identification 
of plan.'' On May 22, 1997 (62 FR 27968), EPA established a new format 
for the ``identification of plan'' sections assigned to each subpart in 
40 CFR part 52 (except A and EEE). With the new format, revised 
``identification of plan'' sections 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 and quasi-regulatory measures. 
``Nonregulatory provisions and quasi-regulatory measures'' refers to 
such items as transportation control measures, certain statutory 
provisions, control strategies, and monitoring networks. In our May 
1997 rule, we indicated that EPA would begin to phase-in the new format 
on a state-by-state basis. Please see our May 1997 rule for more 
information concerning the revised format for SIPs.
    The Hawaii SIP is identified in subpart M (``Hawaii'') of part 52. 
As with other State SIPs, EPA has taken a number of actions since 1972 
with respect to the Hawaii SIP. In 2005, we revised the format of the 
``identification of plan'' section in subpart M in accordance with the 
revised format described above. See 70 FR 44852 (August 4, 2005). In 
our 2005 final rule, we did not complete the process of revising the 
format for the ``identification of plan'' section in that we did not 
list the nonregulatory provisions and quasi-regulatory measures portion 
of the Hawaii SIP, but we are doing so in today's action.

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 Procedure 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 revises the codification of 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 clearly 
identifying the current nonregulatory provisions and quasi-regulatory 
measures of the Hawaii SIP.

III. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is 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 or 
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

[[Page 27710]]

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 provisions of 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 measures is discussed in previous 
actions taken on the State's measures.
    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 that 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 date of 
June 11, 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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    EPA has also determined that the provision 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 to reopen the 60-day period for filing such petitions for 
judicial review for this reformatting of portions of the 
``Identification of plan'' section of 40 CFR 52.620 for Hawaii.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Reporting and recordkeeping 
requirements.

    Dated: May 28, 2009.
Laura Yoshii,
Acting Regional Administrator, Region IX.

0
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--Hawaii

0
2. Section 52.620 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.620   Identification of plan.

* * * * *
    (e) EPA Approved Nonregulatory Provisions and Quasi-Regulatory 
Measures.

                   EPA Approved Hawaii Nonregulatory Provisions and Quasi-Regulatory Measures
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                                   Applicable
                                  geographic or      State       EPA approval
     Name of SIP provision        nonattainment    submittal         date                  Explanation
                                      area            date
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                               State of Hawaii Air Pollution Control Strategy Plan
----------------------------------------------------------------------------------------------------------------
Section I--Introduction.......  State-wide......     01/28/72  05/31/72, 37 FR   ...............................
                                                                10842.
Section III--Legal Authority:
    Section III--Legal          State-wide......     01/28/72  05/31/72, 37 FR   Excluding Air Pollution Control
     Authority.                                                 10842.            Law, Hawaii Revised Statutes,
                                                                                  Chapter 322, Part V, Sections
                                                                                  322-64(5) and 322-66 [see 39
                                                                                  FR 34533 (September 26, 1974)]
                                                                                  and Section 322-68 [see 74 FR
                                                                                  11037 (March 16, 2009)].
    Letter from the Governor    State-wide......     06/15/72  11/08/73, 38 FR   Excluding Section 7--Variances
     concerning legal                                           30876.            of Act 100. See 74 FR 11037
     authority and enclosure                                                      (March 16, 2009).
     (Act 100, Relating to
     Ecology Environment and
     Recreation, approved by
     the Governor on May 22,
     1972).
Sections V and VI:
    Section V--Air Quality      State-wide......     08/15/73  06/25/74, 39 FR   ...............................
     Data Summary.                                              22946.
    Section VI--Emission        State-wide......     08/15/73  06/25/74, 39 FR   ...............................
     Inventory Summary.                                         22946.
Section VII--Control Strategy
 Development:
    Subsection 1. Particulate   State-wide......     04/25/74  03/02/76, 41 FR   Excluding subsection entitled,
     Matter.                                                    8956.             ``Control Strategy to Meet
                                                                                  State Standards.'' See State
                                                                                  submittals dated May 8, 1972
                                                                                  and May 22, 1972, approved at
                                                                                  37 FR 15080 (July 27, 1972),
                                                                                  and 40 CFR 52.623.
    PM10 Control Measures/NSR   State-wide......     09/14/88  07/09/04, 69 FR   ...............................
     Procedures.                                                41431.

[[Page 27711]]

 
    Subsection 2. Sulfur        State-wide......     01/28/72  05/31/72, 37 FR   Excluding subsection entitled,
     Oxides.                                                    10842.            ``Control Strategy to Meet
                                                                                  State Standards.'' See State
                                                                                  submittals dated May 8, 1972
                                                                                  and May 22, 1972, approved at
                                                                                  37 FR 15080 (July 27, 1972),
                                                                                  and 40 CFR 52.623.
    Subsection 3. Carbon        State-wide......     01/28/72  05/31/72, 37 FR   Excluding subsection entitled,
     Monoxide.                                                  10842.            ``Control Strategy to Meet
                                                                                  State Standards.'' See State
                                                                                  submittals dated May 8, 1972
                                                                                  and May 22, 1972, approved at
                                                                                  37 FR 15080 (July 27, 1972),
                                                                                  and 40 CFR 52.623.
    Subsection 4. Nitrogen      State-wide......     01/28/72  05/31/72, 37 FR   Excluding subsection entitled,
     Dioxide.                                                   10842.            ``Control Strategy to Meet
                                                                                  State Standards.'' See State
                                                                                  submittals dated May 8, 1972
                                                                                  and May 22, 1972, approved at
                                                                                  37 FR 15080 (July 27, 1972),
                                                                                  and 40 CFR 52.623.
    Subsection 5.               State-wide......     01/28/72  05/31/72, 37 FR   Excluding subsection entitled,
     Photochemical Oxidants.                                    10842.            ``Control Strategy to Meet
                                                                                  State Standards.'' See State
                                                                                  submittals dated May 8, 1972
                                                                                  and May 22, 1972, approved at
                                                                                  37 FR 15080 (July 27, 1972),
                                                                                  and 40 CFR 52.623.
Sections VIII through XI:.....
    Section VIII--Prevention    State-wide......     01/28/72  05/31/72, 37 FR   Excluding subsection entitled,
     of Emergency Episodes.                                     10842.            ``State Plan.'' See State
                                                                                  submittals dated May 8, 1972
                                                                                  and May 22, 1972, approved at
                                                                                  37 FR 15080 (July 27, 1972),
                                                                                  and 40 CFR 52.623.
    Section IX--Compliance      State-wide......     01/28/72  05/31/72, 37 FR   ...............................
     Schedule.                                                  10842.
    Section X--Source           State-wide......     01/28/72  05/31/72, 37 FR   ...............................
     Surveillance System.                                       10842.
    Section XI--Permit and      State-wide......     01/28/72  05/31/72, 37 FR   ...............................
     Registration System.                                       10842.
Section XII--Air Quality
 Surveillance Network:
    Section XII--Air Quality    State-wide......     08/21/80  08/10/81, 46 FR   ...............................
     Surveillance Network.                                      40512.
    Air Quality Surveillance    State-wide......     09/14/88  07/09/04, 69 FR   ...............................
     Network, SIP Amendment--                                   41431.
     PM10.
Sections XIII and XIV:
    Section XIII--              State-wide......     01/28/72  05/31/72, 37 FR   ...............................
     Intergovernmental                                          10842.
     Cooperation.
    Section XIV--Resources....  State-wide......     01/28/72  05/31/72, 37 FR   ...............................
                                                                10842.
----------------------------------------------------------------------------------------------------------------
                       State of Hawaii Air Pollution Control Implementation Plan for Lead
----------------------------------------------------------------------------------------------------------------
State of Hawaii Air Pollution   State-wide......     10/29/82  08/18/83, 48 FR   Excluding section II (``Notice
 Control Implementation Plan                                    37402.            of Public Hearing''); Hawaii
 for Lead.                                                                        Statute on Environmental
                                                                                  Quality, Chapter 342, Hawaii
                                                                                  Revised Statutes, section 342-
                                                                                  7 [see 74 FR 11037 (March 16,
                                                                                  2009)]; and section IV
                                                                                  (``Control Regulations'').
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[FR Doc. E9-13590 Filed 6-10-09; 8:45 am]
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