Federal Register / Vol. 63, No. 228 / Friday, November 27, 1998 /Rules and Regulations 65557

(C) During a 60-day period prescribed

by the Librarian in a proceeding to set

reasonable terms and rates for a new

type of eligible nonsubscription service

or new subscription service, or

(D) As otherwise agreed to by the

parties.

(4) Phonorecords: During 1997 and

each subsequent tenth calendar year.

(5) Digital Phonorecord Deliveries:

During 1997 and each subsequent fifth

calendar year, or as otherwise agreed to

by the parties.

(6) Coin-operated phonorecord

players (jukeboxes): Within one year of

the expiration or termination of a

negotiated license authorized by 17

U.S.C. 116.

* * * * *

§ 251.62 [Amended]

6. In § 251.62, paragraph (a) is

amended by removing the word

‘‘subscription’’ and adding in its place

the phrase ‘‘ephemeral recordings,

certain’’ after the word ‘‘cable,’’.

Dated: November 18, 1998.

Marybeth Peters,

Register of Copyrights.

Approved by:

James H. Billington,

The Librarian of Congress.

[FR Doc. 98–31657 Filed 11–25–98; 8:45 am]

BILLING CODE 1410–33–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Region II Docket No. NY29–1–187a; FRL–

6193–5]

Approval and Promulgation of

Implementation Plans; New York

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is promulgating a

correction to the State Implementation

Plan (SIP) for the State of New York

regarding the State’s general prohibition

on air pollution. EPA has determined

that this rule was erroneously

incorporated into the SIP. EPA is

removing this rule from the approved

New York SIP because the rule does not

have a reasonable connection to the

national ambient air quality standards

(NAAQS) and related air quality goals of

the Clean Air Act. The intended effect

of this correction to the SIP is to make

the SIP consistent with the requirements

of the Clean Air Act, as amended in

1990 (‘‘the Act’’), regarding EPA action

on SIP submittals and SIPs for national

primary and secondary ambient air

quality standards.

EFFECTIVE DATE: This direct final rule is

effective on January 26, 1999 without

further notice, unless EPA receives

adverse comment by December 28,

1998. If adverse comment is received,

EPA will publish a timely withdrawal of

the direct final rule in the Federal

Register and inform the public that the

rule will not take effect.

ADDRESSES: All comments should be

addressed to: Ronald Borsellino, Chief,

Air Programs Branch, Environmental

Protection Agency, Region II Office, 290

Broadway, New York, New York 10007–

1866.

Copies of the documents relevant to

this action are available for inspection

during normal business hours at the

following address:

Environmental Protection Agency,

Region II Office, Air Programs Branch,

290 Broadway, 25th Floor, New York,

New York 10007–1866.

FOR FURTHER INFORMATION CONTACT:

Henry Feingersh, Air Programs Branch,

Environmental Protection Agency, 290

Broadway, 25th floor, New York, New

York 10007–1866, (212) 637–4249.

SUPPLEMENTARY INFORMATION:

I. Correction to SIP

EPA has determined that Part 211.2 of

Title 6 of the New York Code of Rules

and Regulations (NYCRR), which was

approved in 1984 as part of the SIP,

does not have a reasonable connection

to the NAAQS and related air quality

goals of the Clean Air Act and is not

properly part of the SIP.

Part 211.2 is a general prohibition

against air pollution. Such a general

provision is not designed to control

NAAQS pollutants such that EPA could

rely on it as a NAAQS attainment and

maintenance strategy. After it came to

the attention of EPA that Part 211.2 was

not properly part of the SIP, EPA in turn

brought the matter to the attention of the

New York State Department of

Environmental Conservation (NYSDEC).

NYSDEC shared EPA’s understanding

that Part 211.2 was improperly

approved into the SIP.

EPA, pursuant to section 110(k)(6) of

the Act, is correcting the SIP since Part

211.2 is not reasonably related to the

NAAQS-related air quality goals of the

Act. Section 110(k)(6) of the amended

Act 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 any

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.’’ It should be noted

that section 110(k)(6) has also been used

by EPA to delete an improperly

approved odor provision from the

Wyoming SIP. 61 FR 47058 (1996).

Since the State of New York’s Part

211.2 has no reasonable connection to

the NAAQS-related air quality goals of

the Act, EPA has found that the

approval of this State rule was in error.

The State has reached the same

conclusion and concurs with EPA’s

decision that Part 211.2 was submitted

and approved in error and should be

removed from the approved SIP.

Consequently, EPA is removing 6

NYCRR Part 211.2 from the approved

New York SIP, pursuant to section

110(k)(6) of the Act.

II. EPA Final Rulemaking Action

EPA is removing 6 NYCRR Part 211.2

of the New York air quality

Administrative Rules from the approved

New York SIP pursuant to section

110(k)(6) of the Act.

EPA is publishing this rule without

prior proposal because the Agency

views this as a noncontroversial

amendment and anticipates no adverse

comments. However, in the proposed

rules section of this Federal Register

publication, EPA is publishing a

separate document that will serve as the

proposal to approve the SIP revision

should relevant adverse comments be

filed. This rule will be effective January

26, 1999 without further notice unless

the Agency receives relevant adverse

comments by December 28, 1998.

If EPA receives such comments, then

EPA will publish a timely withdrawal of

the final rule informing the public that

the rule will not take effect. All public

comments received will then be

addressed in a subsequent final rule

based on the proposed rule. EPA will

not institute a second comment period

on this rule. Any parties interested in

commenting on this rule should do so

at this time. If no such comments are

received, the public is advised that this

action will be effective on January 26,

1999 and no further action will be taken

on the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order (E.O.)
65558 Federal Register / Vol. 63, No. 228 / Friday, November 27, 1998 /Rules and Regulations

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 EPA complies by

consulting, Executive Order 12875

requires EPA to 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 any 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.

This rule is not subject to E.O. 13045

because it does not involve decisions

intended to mitigate environmental

health or safety risks.

D. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly 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, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to 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,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials 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.’’

Today’s rule does not significantly or

uniquely affect the communities of

Indian tribal governments. This action

does not involve or impose any

requirements that affect Indian Tribes.

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

(‘‘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. This rule is not a

‘‘major’’ rule as defined by 5 U.S.C.

804(2).

H. Petitions for Judicial Review

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 January 26, 1999.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and
Federal Register / Vol. 63, No. 228 / Friday, November 27, 1998 /Rules and Regulations 65559

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, Intgovernmental

relations, Reporting and recordkeeping.

Dated: November 16, 1998.

William J. Muszynski,

Acting Regional Administrator, Region 2.

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.

Subpart HH—New York

2. Section 52.1679 is amended by

revising the entry for ‘‘Part 211, General

Prohibitions’’ to read as follows:

§ 52.1679 EPA-approved New York State

regulations.

New York State regulation

State effective

date

Latest EPA approval date Comments

* * * * * * *

Part 211, General Prohibitions ................... 8/11/83 November 27, 1998 [citation of this document].Section 211.2 has been removed from the

approved plan.

* * * * * * *

[FR Doc. 98–31542 Filed 11–25–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MO 055–1055; FRL–6134–3]

Approval and Promulgation of

Implementation Plans; State of

Missouri

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is taking final action

to approve the State Implementation

Plan (SIP) revisions submitted by the

state of Missouri to broaden the current

visible emissions rule exceptions to

include smoke-generating devices. This

revision would allow smoke generators

to be used for military and other types

of training when operated under

applicable requirements.

DATES: This rule is effective on

December 28, 1998.

ADDRESSES: Comment may be addressed

to Kim Johnson, Environmental

Protection Agency, Air Planning and

Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101.

Copies of the state submittal are

available at the following address for

inspection during normal business

hours: Environmental Protection

Agency, Air Planning and Development

Branch, 726 Minnesota Avenue, Kansas

City, Kansas 66101; and the

Environmental Protection Agency, Air &

Radiation Docket and Information

Center, Air Docket (6102), 401 M Street,

SW, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Kim

Johnson at (913) 551–7975.

SUPPLEMENTARY INFORMATION:

I. Background

This amendment broadens the current

rule exceptions to include smokegenerating devices in general when a

required permit or a written

determination that a permit is not

required has been issued. The

amendment defines a smoke-generating

device as a specialized piece of

equipment which is not an integral part

of a commercial, industrial or

manufacturing process and whose sole

purpose is the creation and dispersion

of fine solid or liquid particles in a

gaseous medium. This revision would

allow smoke generators to be used for

military training at such facilities as

Fort Leonard Wood as long as such

facilities operate in accordance with

applicable permit requirements.

No comments were received in

response to the public comment period

regarding this rule action.

For more background information the

reader is referred to the proposal for this

rulemaking published on May 7, 1998,

at 63 FR 25191.

II. Final Action

The EPA is taking final action to

approve, as a revision to the SIP, the

amendment to Rule 10 CSR 10–3.080,

‘‘Restriction of Emission of Visible Air

Contaminants,’’ submitted by the state

of Missouri on July 10, 1996.

Nothing in this action should be

construed as permitting or allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to the SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866

entitled ‘‘Regulatory Planning and

Review.’’

B. Executive Order 12875

Under Executive Order 12875, the

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 or

the EPA consults with those

governments. If the EPA complies by

consulting, Executive Order 12875

requires the EPA to provide to the OMB

a description of the extent of the EPA’s

prior consultation with representatives

of affected state, local, and tribal

governments, the nature of their

concerns, copies of any written

communications from the governments,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 12875 requires the 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