Approval and Promulgation of Air Quality Implementation Plans; Mississippi Update to Materials Incorporated by Reference

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MS9921: FRL-6348-4]

Approval and Promulgation of Air Quality Implementation Plans;

Mississippi Update to Materials Incorporated by Reference

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of administrative change.

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SUMMARY: EPA is updating the materials submitted by Mississippi that

are incorporated by reference (IBR) into the State implementation plan

(SIP). The regulations affected by this update have been previously

submitted by the State agency and approved by EPA. This update affects

the SIP materials that are available for public inspection at the

Office of the Federal Register (OFR), the Air and Radiation Docket and

Information Center located in Waterside Mall, Washington, D.C., and the

Regional Office.

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

ADDRESSES: SIP materials which are incorporated by reference into 40

CFR part 52 are available for inspection at the following locations:

Environmental Protection Agency, Region 4, 61 Forsyth Street, SW,

Atlanta, GA 30303; Office of Air and Radiation, Docket and Information

Center (Air Docket), EPA, 401 M Street, SW, Room M1500, Washington, DC

20460; and

Office of the Federal Register, 800 North Capitol Street, NW, Suite

700, Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Ms. Michele Notarianni at the above

Region 4 address or at (404) 562-9031.

SUPPLEMENTARY INFORMATION: The SIP is a living document which the state

can revise as necessary to address the unique air pollution problems in

the state. Therefore, EPA from time to time must take action on SIP

revisions

[[Page 35008]]

containing new and/or revised regulations as being part of the SIP. On

May 22, 1997, (62 FR 27968) EPA revised the procedures for

incorporating by reference Federally-approved SIPs, as a result of

consultations between EPA and OFR. The description of the revised SIP

document, IBR procedures and ``Identification of plan'' format are

discussed in further detail in the May 22, 1997, Federal Register

document.

On July 1, 1997, EPA published a document in the Federal Register

(62 FR 35441) beginning the new IBR procedure for Mississippi. In this

document EPA is doing the first update to the material being IBRed. On

July 15, 1997, (62 FR 37724) EPA published a direct final approval

document approving revisions to the Mississippi SIP for open burning

and prevention of signficant deterioration. In that document EPA also

updated the Identification of plan section for the Code of Federal

Regulations.

In this document EPA is updating the SIP compilation that is

incorporated by reference. EPA took notice and public comment on this

rulemaking in July 1997. No comments were received and the rule became

effective September 15, 1997.

EPA has determined that today's rule falls under the ``good cause''

exemption in section 553(b)(3)(B) of the Administrative Procedures Act

(APA) which, upon finding ``good cause,'' authorizes agencies to

dispense with public participation and section 553(d)(3) which allows

an agency to make a rule effective immediately (thereby avoiding the

30-day delayed effective date otherwise provided for in the APA).

Today's rule simply codifies provisions which are already in effect as

a matter of law in Federal and approved State programs.

Under section 553 of the APA, an agency may find good cause where

procedures are ``impractical, unnecessary, or contrary to the public

interest.'' Public comment is ``unnecessary'' and ``contrary to the

public interest'' since the codification only reflects existing law.

Immediate notice in the CFR benefits the public by updating citations.

I. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The rule does

not impose any enforceable duties on these entities. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency. EPA interprets E.O. 13045 as applying only to those

regulatory actions that are based on health or safety risks, such that

the analysis required under section 5-501 of the Order has the

potential to influence the regulation.

This action is not subject to E.O. 13045 because it approves a

state rule implementing a previously promulgated health or safety-based

Federal standard, and preserves the existing level of pollution control

for the affected areas.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, E.O. 13084 requires EPA to develop an

effective process permitting elected and other representatives of

Indian tribal governments ``to provide meaningful and timely input in

the development of regulatory policies on matters that significantly or

uniquely affect their communities.'' This rule does not significantly

or uniquely affect the communities of Indian tribal governments.

Accordingly, the requirements of section 3(b) of E.O. 13084 do not

apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions. This final rule will not have a significant impact on a

substantial number of small entities because SIP approvals under

section 110 and subchapter I, part D of the Clean Air Act do not create

any new requirements but simply approve requirements that the State is

already imposing. Therefore, because the Federal SIP approval does not

create any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the

Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

[[Page 35009]]

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under Section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A major rule cannot

take effect until 60 days after it is published in the Federal

Register. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. Petitions for Judicial Review

EPA has also determined that the provisions of section 307(b)(1) of

the Clean Air Act pertaining to petitions for judicial review are not

applicable to this action. Prior EPA rulemaking actions for each

individual component of the Mississippi SIP compilations had previously

afforded interested parties the opportunity to file a petition for

judicial review in the United States Court of Appeals for the

appropriate circuit within 60 days of such rulemaking action. Thus, EPA

sees no need in this action to reopen the 60-day period for filing such

petitions for judicial review.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: April 29, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

1. The authority for citation for part 52 continues to read as

follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart Z--Mississippi

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

Sec. 52.1270 Identification of plan.

* * * * *

(b) Incorporation by reference.

(1) Material listed in paragraphs (c) and (d) of this section with

an EPA approval date prior to July 1, 1999, was approved for

incorporation by reference by the Director of the Federal Register in

accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is

incorporated as it exists on the date of the approval, and notice of

any change in the material will be published in the Federal Register.

Entries in paragraphs (c) and (d) of this section with EPA approval

dates after July 1, 1999, will be incorporated by reference in the next

update to the SIP compilation.

(2) EPA Region 4 certifies that the rules/regulations provided by

EPA in the SIP compilation at the addresses in paragraph (b)(3) are an

exact duplicate of the officially promulgated State rules/regulations

which have been approved as part of the State implementation plan as of

July 1, 1999.

(3) Copies of the materials incorporated by reference may be

inspected at the Region 4 EPA Office at 61 Forsyth Street, SW.,

Atlanta, GA 30303; the Office of Federal Register, 800 North Capitol

Street, NW., Suite 700, Washington, DC.; or at the EPA, Air and

Radiation Docket and Information Center, Air Docket (6102), 401 M

Street, SW., Washington, DC. 20460.

* * * * *

[FR Doc. 99-16538 Filed 6-29-99; 8:45 am]

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