Approval and Promulgation of Implementation Plans; State of California; Revised Format for Materials Incorporated by Reference

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; notice of administrative change.

SUMMARY:

The Environmental Protection Agency (EPA) is revising the format for materials submitted by the State of California that are incorporated by reference (IBR) into the California State Implementation Plan (SIP). The regulations affected by this format change have all been previously submitted by the State of California and approved by the EPA. This format revision will primarily affect the “Identification of plan” section, as well as the format of the SIP materials that will be available for public inspection at the National Archives and Records Administration (NARA) and the EPA Regional Office. This action, which only relates to state statutes and state regulations and does not include local and regional California air district rules, local ordinances, source-specific requirements, or nonregulatory and quasi-regulatory provisions, is the first of a series of actions intended to change the format for the entire California SIP.

DATES:

Effective Date: This rule is effective on May 26, 2016.

ADDRESSES:

SIP materials which are incorporated by reference into 40 CFR part 52 are available for inspection at the following locations:

Air Division, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901; and

National Archives and Records Administration.

For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT:

Kevin Gong, EPA Region IX, (415) 972-3073, gong.kevin@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, wherever “we”, “us” or “our” are used, we mean the EPA. Information is organized as follows:

Table of Contents

I. Background

A. What a SIP Is

B. How the EPA Enforces SIPs

C. How the State and the EPA Update the SIP

D. How the EPA Compiles the SIPs

E. How the EPA Organizes the SIP Compilation

F. Where You Can Find a Copy of the SIP Compilation

G. The Format of the New Identification of Plan Section

H. When a SIP Revision Becomes Federally Enforceable

II. What the EPA Is Doing in This Action

III. Incorporation by Reference

IV. Statutory and Executive Order Reviews

I. Background

A. What a SIP Is

Each State has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network, attainment demonstrations, and enforcement mechanisms.

B. How the EPA Enforces SIPs

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them. They are then submitted to the EPA as SIP revisions upon which the EPA must formally act. Once these control measures and strategies are approved by the EPA, after notice and comment, they are incorporated into the federally approved SIP and are identified in part 52 (Approval and Promulgation of Implementation Plans), title 40 of the Code of Federal Regulations (40 CFR part 52). The actual state regulations approved by the EPA are not reproduced in their entirety in 40 CFR part 52, but are “incorporated by reference” (IBR'd) which means that the EPA has approved a given state regulation with a specific effective date. This format allows both the EPA and the public to know which measures are contained in a given SIP and ensures that the state is enforcing the regulations. It also allows the EPA and the public to take enforcement action, should a state not enforce its SIP-approved regulations.

C. How the State and the EPA Update the SIP

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, the EPA must, from time to time, take action on SIP revisions containing new or revised regulations in order to make them part of the SIP. On May 22, 1997 (62 FR 27968), the EPA revised the procedures for IBR'ing federally-approved SIPs, as a result of consultations between the EPA and the Office of the Federal Register (OFR).

The EPA began the process of developing: (1) A revised SIP document for each state that would be IBR'd under the provisions of title 1 CFR part 51; (2) a revised mechanism for announcing the EPA's approval of revisions to an applicable SIP and updating both the IBR document and the CFR; and (3) a revised format of the “Identification of Plan” sections for each applicable subpart to reflect these revised IBR procedures. The description of the revised SIP document, IBR procedures, and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document. We have taken action to revise the format for many state SIPs, see, e.g., 40 CFR 52.1470 and 52.1490 (“Identification of plan” and “Original identification of plan” sections for the State of Nevada SIP), and take the first step today towards revising the format of the California SIP.

D. How the EPA Compiles the SIPs

Under the revised SIP format, the federally-approved regulations, source-specific requirements, and nonregulatory provisions (entirely or portions of) submitted by each state agency have been compiled by the EPA into a “SIP compilation.” The SIP compilation contains the updated regulations, source-specific requirements, and nonregulatory and quasi-regulatory provisions approved by the EPA through previous rulemaking actions in the Federal Register.

E. How the EPA Organizes the SIP Compilation

Each compilation contains three parts. Part one contains the regulations, part two contains the source-specific requirements that have been approved as part of the SIP, and part three contains nonregulatory and quasi-regulatory provisions that have been EPA-approved. Each part consists of a table or tables of identifying information for each SIP-approved regulation, each SIP-approved source-specific requirement, and each nonregulatory or quasi-regulatory SIP provision. The EPA Regional Offices have the primary responsibility for updating the compilations and ensuring their accuracy.

In this action, the EPA is publishing the tables summarizing the state statutes and state regulations approved into the applicable California SIP. Given the size of the California SIP, the EPA is revising the format of the California SIP in a phased manner. This first action relates only to state statutes and state regulations. Future actions in the series of rulemakings will revise the format of the local and regional California air district rules, local ordinances, source-specific requirements, nonregulatory provisions and quasi-regulatory measures approved by the EPA as part of the California SIP.

F. Where You Can Find a Copy of the SIP Compilation

EPA Region IX developed and will maintain the compilation for California. A copy of the full text of California's regulatory SIP compilation will also be maintained at NARA.

G. The Format of the New Identification of Plan Section

In order to better serve the public, the EPA revised the organization of the “Identification of plan” section and included additional information to clarify the enforceable elements of the SIP. The revised Identification of plan section contains five subsections:

1. Purpose and scope.

2. Incorporation by reference.

3. EPA-approved regulations.

4. EPA-approved source-specific requirements.

5. EPA-approved nonregulatory and quasi-regulatory provisions such as air quality attainment plans, rate of progress plans, maintenance plans, monitoring networks, and small business assistance programs.

The California SIP is found in 40 CFR part 52 (“Approval and promulgation of implementation plans”), subpart F (“California”), section 52.220 (“Identification of plan”). In this action, we are revising the heading of section 52.220 to read, “Identification of plan—in part,” and adding an introductory paragraph to convey our division of the California “Identification of plan” section into two sections:

• Amended section 52.220, which will for the time being continue to function as it has in the past to list past and newly-approved air district rules, local ordinances, source-specific requirements, and nonregulatory and quasi-regulatory provisions and which will list state statutes and state regulations approved on or prior to April 1, 2016 but will not list new or amended state statutes or state regulations approved after April 1, 2016, and
• New section 52.220a (“Identification of plan—in part”), which will list the state statutes and state regulations approved as part of the California SIP after April 1, 2016.

This means that subsequent EPA approvals of air district rules, local ordinances, source-specific requirements, and nonregulatory and quasi-regulatory provisions will continue to be promulgated in 40 CFR 52.220 using the paragraph format whereas EPA approvals of state statutes and state regulations will now be promulgated in 40 CFR 52.220a using the table format.

Over time, as the EPA completes further rulemaking actions to convert the format of the California SIP, section 52.220a will include a growing number of air district rules, local ordinances, source-specific requirements, and nonregulatory and quasi-regulatory provisions. Once the conversion process is completed, the EPA will redesignate section 52.220a as 52.220 and rename it simply “Identification of plan.” At that point, all subsequent actions by the EPA to approve California SIP revisions will be promulgated using the new table format. The EPA does not intend to retain in subpart F the historical record of SIP approvals that have been promulgated in paragraph format once the conversion process is completed.

H. When a SIP Revision Becomes Federally Enforceable

All revisions to the relevant portion of the applicable SIP (in this first instance, state statutes and state regulations) become federally enforceable as of the effective date of the revisions to paragraphs (c), (d), or (e) of the applicable “Identification of plan—in part” section found in subpart F of 40 CFR part 52.

II. What the EPA Is Doing in This Action

Today's rule constitutes a “housekeeping” exercise to ensure that all revisions to the state programs that have occurred are accurately reflected in 40 CFR part 52. State SIP revisions are controlled by the EPA's regulations at 40 CFR part 51. When the EPA receives a formal SIP revision request, the Agency must publish the proposed revision in the Federal Register and provide for public comment before approval.

The 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 removing outdated citations.

III. Incorporation by Reference

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is reformatting the materials incorporated by reference in previous rulemakings on submittal of the California SIP and SIP revisions. The EPA has made, and will continue to make, these documents generally available at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

IV. Statutory and Executive Order Reviews

A. General Requirements

This action does not impose additional requirements beyond those previously approved into the SIP and already 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 the 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, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

In issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). The EPA has complied with Executive Order 12630 (63 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. The EPA's compliance with these statutes and Executive Orders for the underlying rules are 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 codifies provisions which are already in effect as a matter of law in federal and approved state programs. 5 U.S.C. 802(2). As stated previously, the EPA has made such a good cause finding, including the reasons therefore, and established an effective of May 26, 2016. The 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. The change in format to the “Identification of plan” section for the State of California are not a `major rule' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

The 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 California 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, the EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for these “Identification of plan” reorganization actions for California.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur dioxide
• Volatile organic compounds

Part 52, chapter I, title 40 of the Code of Federal Regulations are amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart F—California

2. Remove § 52.219 from subpart F.

3. Revise the heading of § 52.220 and add introductory text to the section to read as follows:

4. Add new § 52.220a to read as follows: