Approval and Promulgation of Implementation Plans; Hawaii; Correction, 11037-11040 [E9-4802]
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11037
Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Rules and Regulations
Authority: 29 U.S.C. 1301(a), 1302(b)(3),
1341, 1344, 1362.
PART 4044—ALLOCATION OF
ASSETS IN SINGLE-EMPLOYER
PLANS
Appendix B to Part 4044—Interest
Rates Used to Value Benefits
5. In appendix B to part 4044, a new
entry for April–June 2009, as set forth
below, is added to the table.
*
■
4. The authority citation for part 4044
continues to read as follows:
■
*
*
*
*
The values of it are:
For valuation dates occurring in the months—
it
*
*
*
April–June 2009 ................................................................
Issued in Washington, DC, on this 11th day
of March 2009.
Vincent K. Snowbarger,
Acting Director, Pension Benefit Guaranty
Corporation.
[FR Doc. E9–5656 Filed 3–13–09; 8:45 am]
BILLING CODE 7709–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 20
RIN 2900–AM62
Accreditation of Agents and Attorneys;
Agents and Attorney Fees; Correction
Department of Veterans Affairs.
Correcting amendments.
AGENCY:
ACTION:
This document corrects a
Department of Veterans Affairs (VA)
final rule that governs the
representation of claimants for VA
benefits. This correction removes
obsolete regulations without making any
substantive change to the content of the
final rule.
DATES: Effective Date: This correction is
effective March 16, 2009.
FOR FURTHER INFORMATION CONTACT:
Christa A. Childers, Staff Attorney
(022N), Office of the General Counsel,
Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC
20420, (202) 461–7699.
SUPPLEMENTARY INFORMATION: VA
published a final rule in the Federal
Register on May 22, 2008 (73 FR 29852)
that, among other things, transferred
jurisdiction over agents’ and attorneys’
fees from the Board of Veterans’
Appeals (Board) to the Office of the
General Counsel consistent with
amendments to 38 U.S.C. chapter 59. In
that document, VA also prescribed that,
with the exceptions of 38 CFR 20.600
regarding right to representation before
the Board and 38 CFR 20.608 regarding
withdrawal from representation before
SUMMARY:
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the Board, representation before VA is
governed exclusively by 38 CFR 14.626
through 14.637. Except as noted above
regarding §§ 20.600 and 20.608, the final
rule superseded all of the Board’s Rules
of Practice in 38 CFR part 20, subpart
G. However, in the final rule, VA
inadvertently failed to remove obsolete
§§ 20.601 through 20.607. This
document corrects that error by
removing and reserving §§ 20.601
through 20.607 and adding a note to
advise that former §§ 20.601 through
20.607 have been superseded by the
representation provisions in 38 CFR part
14.
20.607 concerning representation before the
Board of Veterans’ Appeals.
List of Subjects in 38 CFR Part 20
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
Administrative practices and
procedure, Claims, Veterans.
Approved: March 10, 2009.
William F. Russo,
Director of Regulations Management.
For the reasons set out in the
preamble, VA corrects 38 CFR part 20,
subpart G, as follows.
■
PART 20—BOARD OF VETERANS’
APPEALS: RULES OF PRACTICE
1. The authority citation for part 20
continues to read as follows:
■
Authority: 38 U.S.C. 501(a) and as noted in
specific sections.
Subpart G—Representation
2. Remove the cross-reference
immediately following the subpart
heading.
■
§§ 20.601 through 20.607
Reserved]
[Removed and
3. Remove and reserve §§ 20.601
through 20.607.
■ 4. Immediately following §§ 20.612–
20.699 [Reserved], add a Note at the end
of subpart G to read as follows:
■
Note to subpart G: The representation
provisions in §§ 14.626 through 14.637 of
this title replace former §§ 20.601 through
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[FR Doc. E9–5547 Filed 3–13–09; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R09–OAR–2008–0884; FRL–8771–1]
Approval and Promulgation of
Implementation Plans; Hawaii;
Correction
SUMMARY: Under the Clean Air Act, EPA
is correcting errors in certain final rules
approving or compiling the Hawaii state
implementation plan. These errors
relate to the title of the plan, removal of
variance provisions, and compilations
of federally-enforceable regulations. The
intended effect is to ensure that the
Hawaii state implementation plan is
correctly identified in the applicable
part of the Code of Federal Regulations.
DATES: This rule is effective on May 15,
2009 without further notice, unless EPA
receives adverse comments by April 15,
2009. If we receive such comments, we
will publish a timely withdrawal in the
Federal Register to notify the public
that this direct final rule will not take
effect.
ADDRESSES: Submit comments,
identified by docket number EPA–R09–
OAR–2008–088F, by one of the
following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
on-line instructions.
2. E-mail:vagenas.ginger@epa.gov.
3. Mail or deliver: Ginger Vagenas
(AIR–2), U.S. Environmental Protection
Agency Region IX, 75 Hawthorne Street,
San Francisco, CA 94105–3901.
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Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Rules and Regulations
Instructions: All comments will be
included in the public docket without
change and may be made available
online at https://www.regulations.gov,
including any personal information
provided, unless the comment includes
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Information that
you consider CBI or otherwise protected
should be clearly identified as such and
should not be submitted through
https://www.regulations.gov or e-mail.
The https://www.regulations.gov portal is
an ‘‘anonymous access’’ system, and
EPA will not know your identity or
contact information unless you provide
it in the body of your comment. If you
send e-mail directly to EPA, your e-mail
address will be automatically captured
and included as part of the public
comment. If EPA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
EPA may not be able to consider your
comment.
Docket: The index to the docket for
this action is available electronically at
https://www.regulations.gov and in hard
copy at EPA Region IX, 75 Hawthorne
Street, San Francisco, California. While
all documents in the docket are listed in
the index, some information may be
publicly available only at the hard copy
location (e.g., copyrighted material), and
some may not be publicly available in
either location (e.g., CBI). To inspect the
hard copy materials, please schedule an
appointment during normal business
hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT:
Ginger Vagenas, Plannning Office (AIR–
2), U.S. Environmental Protection
Agency, Region IX, (415) 972–3964,
vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ‘‘we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Background
II. Error Correction
III. Public Comment and Final Action
IV. 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
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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 which
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’’).
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 1997,
under CAA section 110(k)(6), we
deleted certain variance-related
provisions from the Hawaii SIP that we
determined had been erroneously
approved by us in the past. See 62 FR
34641 (June 27, 1997). In so doing, we
mistakenly identified the variancerelated provision erroneously approved
on May 31, 1972 as ‘‘Chapter 43, Section
7.’’ See 62 FR 34641, at 34648. The
variance-related provision is found in
section 20 of chapter 43 (Air Pollution
Control Regulations) rather than section
7. In addition, we inadvertently
neglected to remove various other
variance-related rules and statutory
provisions from the Hawaii SIP,
including Air Pollution Control Law,
Hawaii Revised Statutes, chapter 322,
part V, section 322–68, approved on
May 31, 1972 (37 FR 10842); S.B. No.
1382–72, Act 100, section 7, approved
on November 8, 1973 (38 FR 30876);
chapter 43, section 20, approved on May
14, 1973 (38 FR 12711); and Hawaii
Statute on Environmental Quality,
Hawaii Revised Statutes, chapter 342,
section 342–7 (48 FR 37402), approved
on August 18, 1983 (48 FR 37402).
In 2005, we revised the format of
subpart M (‘‘Hawaii’’) in 40 CFR part 52
for materials submitted by the State of
Hawaii that are incorporated by
reference into the Hawaii SIP. See 70 FR
44852 (August 4, 2005). In so doing, we
mistakenly identified the original plan
as ‘‘Implementation Plan for
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Compliance With the Ambient Air
Quality Standards for the State of
Hawaii.’’ Actually, the title of the
original plan is ‘‘State of Hawaii Air
Pollution Control Implementation
Plan.’’ Also, in our 2005 final rule, we
listed all of the rules that we believed
to be federally enforceable but neglected
to list certain rules that had been
approved in the early 1970s and that
have never been withdrawn or replaced.
These include the following sections of
chapter 43, Air Pollution Control
Regulations: section 22 (‘‘Hearings and
Appeals’’) and section 23
(‘‘Application’’). These rules were
submitted by the State of Hawaii on
November 21, 1972 and January 28,
1972, respectively, and were approved
by EPA on May 14, 1973 (38 FR 12711)
and May 31, 1972 (37 FR 10842),
respectively.
II. Error Correction
Section 110(k)(6) of the Clean Air Act,
as amended in 1990, provides,
‘‘Whenever the Administrator
determines that the Administrator’s
action approving, disapproving, or
promulgating any plan or plan revision
(or part thereof), area designation,
redesignation, classification or
reclassification was in error, the
Administrator may in the same manner
as the approval, disapproval, or
promulgation revise such action as
appropriate without requiring any
further submission from the State. Such
determination and the basis thereof
shall be provided to the State and the
public.’’
We interpret this provision to
authorize the Agency to make
corrections to a promulgated regulation
when it is shown to our satisfaction that
(1) we clearly erred in failing to
consider or in inappropriately
considering information made available
to EPA at the time of the promulgation,
or the information made available at the
time of promulgation is subsequently
demonstrated to have been clearly
inadequate, and (2) other information
persuasively supports a change in the
regulation. See 57 FR 56762, at 56763
(November 30, 1992).
In this instance, we find clear errors
in our 1997 final rule removing certain
variance-related provisions from the
Hawaii SIP. The first error involved
identification of the wrong section
number, and the second error involved
the failure to list the other variancerelated provisions in the Hawaii SIP. As
discussed in our June 27, 1997 final rule
(see at 62 FR 34641, at 34642), variance
provisions were rendered without legal
effect by amendments to the CAA
enacted by Congress in 1977 and the
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Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Rules and Regulations
presence of these provisions in the SIPs
is potentially confusing, and thus,
harmful to the regulated community, the
states and EPA. For a more detailed
discussion of our rationale for removing
variance provisions from SIPs, see 61 FR
38664, at 38665 (July 25, 1996). To
correct these errors, we are correcting
the section number (for the variance
provision in chapter 43 as approved in
May 1972) and deleting the additional
variance-related provisions approved on
May 31, 1972, May 14, 1973, November
8, 1973, and August 18, 1983.
Second, we find clear errors in our
2005 final rule re-formatting our
approvals of submittals of the Hawaii
SIP and SIP revisions. We erred first by
incorrectly identifying the title of the
original Hawaii plan and then by failing
to list two additional rules approved by
EPA as part of the Hawaii SIP that were
never withdrawn or replaced. To correct
these errors, we are correcting the title
of the original Hawaii SIP in 40 CFR
52.622(a) and adding the entries for the
two additional rules into the table of
EPA-approved regulations in 40 CFR
52.620(c).
III. Public Comment and Final Action
As authorized in section 110(k)(6) of
the Act, and for the reasons set forth
above, EPA is correcting errors in
certain final rules approving or
compiling the Hawaii state
implementation plan. Specifically, we
are correcting the section number (for
the variance provision in chapter 43 as
approved in May 1972) and deleting the
additional variance-related provisions
approved on May 31, 1972, May 14,
1973, November 8, 1973, and August 18,
1983. We are also revising the title of
the original Hawaii SIP in 40 CFR
52.622(a) and adding the entries for the
two additional rules (chapter 43,
sections 22 and 23) as approved on May
14, 1973 and May 31, 1972,
respectively, into the table of EPAapproved regulations in 40 CFR
52.620(c).
We do not think anyone will object to
this approval, so we are finalizing it
without proposing it in advance.
However, in the Proposed Rules section
of this Federal Register, we are
simultaneously proposing approval of
the same action. If we receive adverse
comments by April 15, 2009, we will
publish a timely withdrawal in the
Federal Register to notify the public
that the direct final approval will not
take effect and we will address the
comments in a subsequent final action
based on the proposal. If we do not
receive timely adverse comments, the
direct final approval will be effective
without further notice on May 15, 2009.
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IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely corrects
previous actions approving state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
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11039
costs on tribal governments or preempt
tribal law.
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 action 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).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by May 15, 2009.
Parties with objections to this direct
final rule are encouraged to file a
comment in response to the parallel
notice of proposed rulemaking for this
action published in the proposed rules
section of today’s Federal Register,
rather than file an immediate petition
for judicial review of this direct final
rule, so that EPA can withdraw this
direct final rule and address the
comment in the proposed rulemaking.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action 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, Intergovernmental
relations, Reporting and recordkeeping
requirements.
Dated: February 25, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.
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.
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Federal Register / Vol. 74, No. 49 / Monday, March 16, 2009 / Rules and Regulations
beginning of the table for ‘‘Department
of Health, Public Health Regulations,
chapter 43, Air Pollution Control
Regulations,’’ sections 22 and 23 to read
as follows:
Subpart M—Hawaii
2. In § 52.620, the table in paragraph
(c) is amended by revising the table
heading and adding the entries to the
■
§ 52.620
*
Identification of plan.
*
*
(c) * * *
*
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EPA APPROVED STATE OF HAWAII REGULATIONS
Effective date
State citation
Title/subject
Department of Health, Public Health Regulations, chapter 43,
Air Pollution Control Regulations:
Section 22 .........................................................................
Section 23 .........................................................................
Hearings and Appeals ............
Application ..............................
*
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*
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3. Section 52.622 is amended as
follows:
■ a. By revising paragraph (a).
■ b. By revising paragraph (b)(1).
■ c. By adding paragraph (c)(4)(i) and
adding and reserving paragraph
(c)(4)(ii).
■ d. By adding paragraph (c)(5)(i), and
adding and reserving paragraph
(c)(5)(ii).
■ e. By adding paragraph (c)(15)(i) and
adding and reserving paragraph
(c)(15)(ii). The amendments are as
follows:
■
[FR Doc. E9–4802 Filed 3–13–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
Original identification of plan.
(a) This section identified the original
‘‘State of Hawaii Air Pollution Control
Implementation Plan’’ and all revisions
submitted by the State of Hawaii that
were federally approved prior to June 1,
2005.
(b) * * *
(1) Previously approved on May 31,
1972 in paragraph (b) of this section and
now deleted from the SIP without
replacement Air Pollution Control Law,
Hawaii Revised Statutes, chapter 322,
part V, section 322–68 and Public
Health Regulations, chapter 43, section
20.
(c) * * *
(4) * * *
(i) Previously approved on November
8, 1973 in paragraph (c)(4) of this
section and now deleted from the SIP
without replacement S.B. No. 1382–72,
Act 100, section 7.
(ii) [Reserved]
(5) * * *
(i) Previously approved on May 14,
1973 in paragraph (c)(5) of this section
and now deleted from the SIP without
replacement chapter 43, section 20.
(ii) [Reserved]
*
*
*
*
*
(15) * * *
(i) Previously approved on August 18,
1983 in paragraph (c)(15) of this section
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[Docket No. 09100091344–9056–02]
RIN 0648–XN84
Fisheries of the Exclusive Economic
Zone Off Alaska; Pollock in Statistical
Area 630 in the Gulf of Alaska
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
SUMMARY: NMFS is prohibiting directed
fishing for pollock in Statistical Area
630 in the Gulf of Alaska (GOA). This
action is necessary to prevent exceeding
the B season allowance of the 2009 total
allowable catch (TAC) of pollock for
Statistical Area 630 in the GOA.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), March 11, 2009, through
1200 hrs, A.l.t., August 25, 2009.
FOR FURTHER INFORMATION CONTACT: Josh
Keaton, 907–586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
under authority of the Magnuson–
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Explanation
12/26/1972
03/28/1972
05/14/1973
05/31/1972
38 FR 12711
37 FR 10842
*
and now deleted from the SIP without
replacement Hawaii Statute on
Environmental Quality, Hawaii Revised
Statutes, chapter 342, section 342–7.
(ii) [Reserved]
*
*
*
*
*
*
§ 52.622
*
EPA approval
date
Sfmt 4700
*
*
Stevens Fishery Conservation and
Management Act. Regulations governing
fishing by U.S. vessels in accordance
with the FMP appear at subpart H of 50
CFR part 600 and 50 CFR part 679.
The B season allowance of the 2009
TAC of pollock in Statistical Area 630
of the GOA is 1,455 metric tons (mt) as
established by the final 2009 and 2010
harvest specifications for groundfish of
the GOA (74 FR 7333, February 17,
2009).
In accordance with § 679.20(d)(1)(i),
the Regional Administrator has
determined that the B season allowance
of the 2009 TAC of pollock in Statistical
Area 630 of the GOA will soon be
reached. Therefore, the Regional
Administrator is establishing a directed
fishing allowance of 1,400 mt, and is
setting aside the remaining 55 mt as
bycatch to support other anticipated
groundfish fisheries. In accordance with
§ 679.20(d)(1)(iii), the Regional
Administrator finds that this directed
fishing allowance has been reached.
Consequently, NMFS is prohibiting
directed fishing for pollock in Statistical
Area 630 of the GOA.
After the effective date of this closure
the maximum retainable amounts at
§ 679.20(e) and (f) apply at any time
during a trip.
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
delay the closure of pollock in
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]]>Agencies
[Federal Register Volume 74, Number 49 (Monday, March 16, 2009)]
[Rules and Regulations]
[Pages 11037-11040]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4802]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2008-0884; FRL-8771-1]
Approval and Promulgation of Implementation Plans; Hawaii;
Correction
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: Under the Clean Air Act, EPA is correcting errors in certain
final rules approving or compiling the Hawaii state implementation
plan. These errors relate to the title of the plan, removal of variance
provisions, and compilations of federally-enforceable regulations. The
intended effect is to ensure that the Hawaii state implementation plan
is correctly identified in the applicable part of the Code of Federal
Regulations.
DATES: This rule is effective on May 15, 2009 without further notice,
unless EPA receives adverse comments by April 15, 2009. If we receive
such comments, we will publish a timely withdrawal in the Federal
Register to notify the public that this direct final rule will not take
effect.
ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2008-088F, by one of the following methods:
1. Federal eRulemaking Portal: https://www.regulations.gov. Follow
the on-line instructions.
2. E-mail:vagenas.ginger@epa.gov.
3. Mail or deliver: Ginger Vagenas (AIR-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
[[Page 11038]]
Instructions: All comments will be included in the public docket
without change and may be made available online at https://
www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through https://
www.regulations.gov or e-mail. The https://www.regulations.gov portal is
an ``anonymous access'' system, and EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send e-mail directly to EPA, your e-mail address will be
automatically captured and included as part of the public comment. If
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment.
Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available in either location
(e.g., CBI). To inspect the hard copy materials, please schedule an
appointment during normal business hours with the contact listed in the
FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Ginger Vagenas, Plannning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3964,
vagenas.ginger@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.
Table of Contents
I. Background
II. Error Correction
III. Public Comment and Final Action
IV. 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 which 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'').
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 1997, under CAA section 110(k)(6),
we deleted certain variance-related provisions from the Hawaii SIP that
we determined had been erroneously approved by us in the past. See 62
FR 34641 (June 27, 1997). In so doing, we mistakenly identified the
variance-related provision erroneously approved on May 31, 1972 as
``Chapter 43, Section 7.'' See 62 FR 34641, at 34648. The variance-
related provision is found in section 20 of chapter 43 (Air Pollution
Control Regulations) rather than section 7. In addition, we
inadvertently neglected to remove various other variance-related rules
and statutory provisions from the Hawaii SIP, including Air Pollution
Control Law, Hawaii Revised Statutes, chapter 322, part V, section 322-
68, approved on May 31, 1972 (37 FR 10842); S.B. No. 1382-72, Act 100,
section 7, approved on November 8, 1973 (38 FR 30876); chapter 43,
section 20, approved on May 14, 1973 (38 FR 12711); and Hawaii Statute
on Environmental Quality, Hawaii Revised Statutes, chapter 342, section
342-7 (48 FR 37402), approved on August 18, 1983 (48 FR 37402).
In 2005, we revised the format of subpart M (``Hawaii'') in 40 CFR
part 52 for materials submitted by the State of Hawaii that are
incorporated by reference into the Hawaii SIP. See 70 FR 44852 (August
4, 2005). In so doing, we mistakenly identified the original plan as
``Implementation Plan for Compliance With the Ambient Air Quality
Standards for the State of Hawaii.'' Actually, the title of the
original plan is ``State of Hawaii Air Pollution Control Implementation
Plan.'' Also, in our 2005 final rule, we listed all of the rules that
we believed to be federally enforceable but neglected to list certain
rules that had been approved in the early 1970s and that have never
been withdrawn or replaced. These include the following sections of
chapter 43, Air Pollution Control Regulations: section 22 (``Hearings
and Appeals'') and section 23 (``Application''). These rules were
submitted by the State of Hawaii on November 21, 1972 and January 28,
1972, respectively, and were approved by EPA on May 14, 1973 (38 FR
12711) and May 31, 1972 (37 FR 10842), respectively.
II. Error Correction
Section 110(k)(6) of the Clean Air Act, as amended in 1990,
provides, ``Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or part thereof), area designation,
redesignation, classification or reclassification was in error, the
Administrator may in the same manner as the approval, disapproval, or
promulgation revise such action as appropriate without requiring any
further submission from the State. Such determination and the basis
thereof shall be provided to the State and the public.''
We interpret this provision to authorize the Agency to make
corrections to a promulgated regulation when it is shown to our
satisfaction that (1) we clearly erred in failing to consider or in
inappropriately considering information made available to EPA at the
time of the promulgation, or the information made available at the time
of promulgation is subsequently demonstrated to have been clearly
inadequate, and (2) other information persuasively supports a change in
the regulation. See 57 FR 56762, at 56763 (November 30, 1992).
In this instance, we find clear errors in our 1997 final rule
removing certain variance-related provisions from the Hawaii SIP. The
first error involved identification of the wrong section number, and
the second error involved the failure to list the other variance-
related provisions in the Hawaii SIP. As discussed in our June 27, 1997
final rule (see at 62 FR 34641, at 34642), variance provisions were
rendered without legal effect by amendments to the CAA enacted by
Congress in 1977 and the
[[Page 11039]]
presence of these provisions in the SIPs is potentially confusing, and
thus, harmful to the regulated community, the states and EPA. For a
more detailed discussion of our rationale for removing variance
provisions from SIPs, see 61 FR 38664, at 38665 (July 25, 1996). To
correct these errors, we are correcting the section number (for the
variance provision in chapter 43 as approved in May 1972) and deleting
the additional variance-related provisions approved on May 31, 1972,
May 14, 1973, November 8, 1973, and August 18, 1983.
Second, we find clear errors in our 2005 final rule re-formatting
our approvals of submittals of the Hawaii SIP and SIP revisions. We
erred first by incorrectly identifying the title of the original Hawaii
plan and then by failing to list two additional rules approved by EPA
as part of the Hawaii SIP that were never withdrawn or replaced. To
correct these errors, we are correcting the title of the original
Hawaii SIP in 40 CFR 52.622(a) and adding the entries for the two
additional rules into the table of EPA-approved regulations in 40 CFR
52.620(c).
III. Public Comment and Final Action
As authorized in section 110(k)(6) of the Act, and for the reasons
set forth above, EPA is correcting errors in certain final rules
approving or compiling the Hawaii state implementation plan.
Specifically, we are correcting the section number (for the variance
provision in chapter 43 as approved in May 1972) and deleting the
additional variance-related provisions approved on May 31, 1972, May
14, 1973, November 8, 1973, and August 18, 1983. We are also revising
the title of the original Hawaii SIP in 40 CFR 52.622(a) and adding the
entries for the two additional rules (chapter 43, sections 22 and 23)
as approved on May 14, 1973 and May 31, 1972, respectively, into the
table of EPA-approved regulations in 40 CFR 52.620(c).
We do not think anyone will object to this approval, so we are
finalizing it without proposing it in advance. However, in the Proposed
Rules section of this Federal Register, we are simultaneously proposing
approval of the same action. If we receive adverse comments by April
15, 2009, we will publish a timely withdrawal in the Federal Register
to notify the public that the direct final approval will not take
effect and we will address the comments in a subsequent final action
based on the proposal. If we do not receive timely adverse comments,
the direct final approval will be effective without further notice on
May 15, 2009.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely corrects previous actions approving
state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
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 action 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).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 15, 2009. Parties with
objections to this direct final rule are encouraged to file a comment
in response to the parallel notice of proposed rulemaking for this
action published in the proposed rules section of today's Federal
Register, rather than file an immediate petition for judicial review of
this direct final rule, so that EPA can withdraw this direct final rule
and address the comment in the proposed rulemaking. Filing a petition
for reconsideration by the Administrator of this final rule does not
affect the finality of this action 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, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: February 25, 2009.
Jane Diamond,
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.
[[Page 11040]]
Subpart M--Hawaii
0
2. In Sec. 52.620, the table in paragraph (c) is amended by revising
the table heading and adding the entries to the beginning of the table
for ``Department of Health, Public Health Regulations, chapter 43, Air
Pollution Control Regulations,'' sections 22 and 23 to read as follows:
Sec. 52.620 Identification of plan.
* * * * *
(c) * * *
EPA Approved State of Hawaii Regulations
----------------------------------------------------------------------------------------------------------------
EPA approval
State citation Title/subject Effective date date Explanation
----------------------------------------------------------------------------------------------------------------
Department of Health, Public
Health Regulations, chapter 43,
Air Pollution Control
Regulations:
Section 22.................... Hearings and Appeals 12/26/1972 05/14/1973 38 FR 12711
Section 23.................... Application......... 03/28/1972 05/31/1972 37 FR 10842
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
0
3. Section 52.622 is amended as follows:
0
a. By revising paragraph (a).
0
b. By revising paragraph (b)(1).
0
c. By adding paragraph (c)(4)(i) and adding and reserving paragraph
(c)(4)(ii).
0
d. By adding paragraph (c)(5)(i), and adding and reserving paragraph
(c)(5)(ii).
0
e. By adding paragraph (c)(15)(i) and adding and reserving paragraph
(c)(15)(ii). The amendments are as follows:
Sec. 52.622 Original identification of plan.
(a) This section identified the original ``State of Hawaii Air
Pollution Control Implementation Plan'' and all revisions submitted by
the State of Hawaii that were federally approved prior to June 1, 2005.
(b) * * *
(1) Previously approved on May 31, 1972 in paragraph (b) of this
section and now deleted from the SIP without replacement Air Pollution
Control Law, Hawaii Revised Statutes, chapter 322, part V, section 322-
68 and Public Health Regulations, chapter 43, section 20.
(c) * * *
(4) * * *
(i) Previously approved on November 8, 1973 in paragraph (c)(4) of
this section and now deleted from the SIP without replacement S.B. No.
1382-72, Act 100, section 7.
(ii) [Reserved]
(5) * * *
(i) Previously approved on May 14, 1973 in paragraph (c)(5) of this
section and now deleted from the SIP without replacement chapter 43,
section 20.
(ii) [Reserved]
* * * * *
(15) * * *
(i) Previously approved on August 18, 1983 in paragraph (c)(15) of
this section and now deleted from the SIP without replacement Hawaii
Statute on Environmental Quality, Hawaii Revised Statutes, chapter 342,
section 342-7.
(ii) [Reserved]
* * * * *
[FR Doc. E9-4802 Filed 3-13-09; 8:45 am]
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