8540 Federal Register / Vol. 89, No. 27 / Thursday, February 8, 2024 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 271 and 272 

[EPA–R08–RCRA–2023–0424; FRL 11356– 

01–R8] 

South Dakota: Final Authorization of 

State Hazardous Waste Management 

Program Revisions and Incorporation 

by Reference 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The State of South Dakota 

Department of Agriculture and Natural 

Resources has applied to the 

Environmental Protection Agency (EPA) 

for final authorization of the changes to 

its hazardous waste program under the 

Resource Conservation and Recovery 

Act (RCRA). The EPA has determined 

that these changes satisfy all 

requirements needed to qualify for final 

authorization, and is authorizing the 

State’s changes through this direct final 

action. The EPA uses the regulations 

entitled, ‘‘Approved State Hazardous 

Waste Management Programs’’ to 

provide notice of the authorization 

status of State programs and to 

incorporate by reference those 

provisions of State statutes and 

regulations that will be subject to the 

EPA’s inspection and enforcement. This 

rule also codifies in the regulations the 

approval of South Dakota’s hazardous 

waste management program and 

incorporates by reference authorized 

provisions of the State’s regulations. 

DATES: This direct final rule is effective 

on April 8, 2024, unless EPA receives 

adverse written comment by March 11, 

2024. If the EPA receives any such 

comment, we will publish a timely 

withdrawal of this direct final rule in 

the Federal Register informing the 

public that the rule will not take effect. 

The Director of the Federal Register 

approves the incorporation by reference 

as of April 8, 2024, in accordance with 

5 U.S.C. 552(a) and 1 CFR part 51. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

RCRA–2023–0424; FRL 11356–01–R8 by 

one of the following methods: 

1. Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

2. Email: lin.moye@epa.gov. 

3. Fax: (303) 312–6341 (prior to 

faxing, please notify the EPA contact 

listed below). 

4. Mail, Hand Delivery or Courier: 

Moye Lin, Resource Conservation and 

Recovery Act Branch, EPA Region 8, 

Mail Code 8LCR–RC, 1595 Wynkoop 

Street, Denver, Colorado 80202–1129. 

Courier or hand deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The public is 

advised to call in advance to verify 

business hours. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: EPA must receive your 

comments by March 11, 2024. Direct 

your comments to EPA–R08–RCRA– 

2023–0424; FRL 11356–01–R8. The 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

available online at https://

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through https://

regulations.gov or email. The Federal 

https://www.regulations.gov website is 

an ‘‘anonymous access’’ system, which 

means the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to the EPA without 

going through https://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment with any CD 

you submit. 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. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the https://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available electronically 

through https://www.regulations.gov. 

For alternative access to docket 

materials, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Moye Lin, Resource Conservation and 

Recovery Act Branch, EPA Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129; phone number (303) 312– 

6667; Email address: lin.moye@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Authorization of Revisions to South 

Dakota’s Hazardous Waste Program 

A. Why are revisions to State programs 

necessary? 

States which have received final 

authorization from EPA under RCRA 

section 3006(b), 42 U.S.C. 6926(b), must 

maintain a hazardous waste program 

that is equivalent to, consistent with, 

and no less stringent than the Federal 

program. As the Federal program 

changes, States must change their 

programs and ask EPA to authorize the 

changes. Changes to State programs may 

be necessary when Federal or State 

statutory or regulatory authority is 

modified or when certain other changes 

occur. Most commonly, States must 

change their programs because of 

changes to EPA’s regulations in title 40 

of the Code of Federal Regulations 

(CFR), parts 124, 260 through 268, 270, 

273, and 279. 

B. What authorization decisions has the 

EPA made in this rule? 

On January 6, 2023, South Dakota 

submitted a final complete program 

revision application seeking 

authorization of changes to its 

hazardous waste program. The EPA 

concludes that South Dakota’s 

application to revise its authorized 

program meets all the statutory and 

regulatory requirements established by 

RCRA. Therefore, we grant South 

Dakota final authorization to operate its 

hazardous waste program with the 

changes described in the authorization 

application. South Dakota has 

responsibility for permitting Treatment, 

Storage, and Disposal Facilities (TSDFs), 

and for carrying out the aspects of the 

RCRA program described in its revised 

program application, subject to the 

limitations of the Hazardous and Solid 

Waste Amendments of 1984 (HSWA), 

for all areas within the State, except for 

(1) lands located within formal Indian 

Reservations within or abutting the 

State of South Dakota, including the 

Cheyenne River Indian Reservation, 

Crow Creek Indian Reservation, 

Flandreau Indian Reservation, Lower 

Brule Indian Reservation, Pine Ridge 

Indian Reservation, Rosebud Indian 

Reservation, Sisseton-Wahpeton Indian 

Reservation, Standing Rock Indian 

Reservation, and Yankton Indian 

Reservation, (2) any land held in trust 


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by the United States for an Indian tribe, 

(3) and any other land, whether on or 

off a reservation that qualifies as 

‘‘Indian country’’ within the meaning of 

18 U.S.C. 1151. New Federal 

requirements and prohibitions imposed 

by Federal regulations that EPA 

promulgates under the authority of 

HSWA take effect in authorized States 

before they are authorized for the 

requirements. Thus, EPA will 

implement those requirements and 

prohibitions in South Dakota, including 

issuing permits, until South Dakota is 

authorized to do so. 

C. What is the effect of this 

authorization decision? 

The effect of this decision is that a 

facility in South Dakota subject to RCRA 

will have to comply with the authorized 

State requirements instead of the 

equivalent Federal requirements in 

order to comply with RCRA. The State 

of South Dakota will continue to have 

enforcement responsibilities under its 

State hazardous waste program for 

violations of such program, but the EPA 

retains its authority under RCRA 

sections 3007, 3008, 3013, and 7003, 

which include, among others, authority 

to: 

• Conduct inspections and require 

monitoring, tests, analyses, or reports; 

• Enforce RCRA requirements; 

suspend or revoke permits; and 

• Take enforcement actions after 

notice to and consultation with the 

State. 

This action to approve these 

provisions would not impose additional 

requirements on the regulated 

community because the regulations for 

which the State of South Dakota is 

requesting authorization are already 

effective under State law and are not 

changed by the act of authorization. 

D. Why is the EPA using a direct final 

rule? 

The EPA is publishing this rule 

without a prior proposal because we 

view this as a noncontroversial action 

and anticipate no adverse comment. 

However, in the ‘‘Proposed Rules’’ 

section of this Federal Register, we are 

publishing a separate document that 

will serve as the proposed rule allowing 

the public an opportunity to comment. 

We will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. For further information about 

commenting on this rule, see the 

ADDRESSES section of this document. 

E. What happens if EPA receives 

comments opposing this action? 

If EPA receives comments that oppose 

this authorization, we will publish a 

timely withdrawal in the Federal 

Register informing the public that this 

direct final rule will not take effect. We 

will address all public comments in a 

later Federal Register. You will not 

have another opportunity to comment; 

therefore, if you want to comment on 

this action, you must do so at this time. 

F. For what has South Dakota 

previously been authorized? 

South Dakota initially received final 

authorization on October 19, 1984, 

effective November 2, 1984 (49 FR 

41038), to implement the RCRA 

hazardous waste management program. 

We granted authorization for changes to 

their program on: April 17, 1991, 

effective June 17, 1991 (56 FR 15503); 

September 8, 1993, effective November 

8, 1993 (FR 47216); January 10, 1994, 

effective March 11, 1994 (59 FR 1275); 

July 24, 1996, effective September 23, 

1996 (61 FR 38392); May 9, 2000, 

effective June 8, 2000 (65 FR 26755); 

April 23, 2004, effective May 24, 2004 

(69 FR 21962); March 8, 2006, effective 

March 8, 2006 (71 FR 11533); August 8, 

2012, effective August 8, 2012 (77 FR 

47302); and June 24, 2016, effective 

August 23, 2016 (81 FR 41222). 

G. What changes is EPA authorizing 

with this action? 

On January 6, 2023, the State of South 

Dakota submitted a final complete 

program revision application, seeking 

authorization of their changes in 

accordance with 40 CFR 271.21. We 

now make a final decision, subject to 

receipt of written comments that oppose 

this action, that South Dakota’s 

hazardous waste program satisfies all of 

the requirements necessary to qualify 

for final authorization. Therefore, we 

grant South Dakota final authorization 

for the following changes: 

1. Program Revision Changes for Federal 

Rules 

The State of South Dakota revisions 

consist of regulations which specifically 

govern Federal hazardous waste 

revisions promulgated June 29, 1995 (60 

FR 33912; Checklist 144), October 30, 

2008 (73 FR 64668; Checklist 219), June 

15, 2010 (75 FR 33712; Checklist 224), 

and from July 1, 2013, through June 30, 

2019 (RCRA Clusters XXIII–XXVII), 

except for the final rules published on 

January 3, 2018 (83 FR 420; Checklist 

239), and on February 22, 2019 (84 FR 

5816; Checklist 241). The State 

requirements from its Hazardous Waste 

Rules, Administrative Rules of South 

Dakota (ARSD), Article 74:28, effective 

April 19, 2021, are included in the chart 

below. 

Description of Federal requirement Federal Register date and page Analogous State authority 

Removal of Legally Obsolete Rules (Checklist 144) .............................. 60 FR 33912; 6/8/95 ..................... ARSD 74:28:22:01, 74:28:26:01, 

and 74:28:27:01. 

Revisions to the Definition of Solid Waste (Checklist 219) .................... 73 FR 64668; 10/30/08 ................. ARSD 74:28:21:02, 74:28:22:01, 

and 74:28:26:01. 

Withdrawal of the Emission Comparable Fuel Exclusion (Checklist 

224).

75 FR 33712; 6/15/10 ................... ARSD 74:28:22:01. 

Conditional Exclusions for Solvent Contaminated Wipes (Checklist 

229).

78 FR 46448; 7/31/13 ................... ARSD 74:28:21:02 and 

74:28:22:01. 

Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic 

Sequestration Activities (Checklist 230).

79 FR 350; 1/3/14 ......................... ARSD 74:28:21:02 and 

74:28:22:01. 

Hazardous Waste Electronic Manifest Rule (Checklist 231) .................. 79 FR 7518; 2/7/14 ....................... ARSD 74:28:21:01(3)(b)(i) and 

(xii), 74:28:21:01(20), 

74:28:21:02, 74:28:23:01, 

74:28:24:01, 74:28:25:01, and 

74:28:28:01. 

Revisions to the Export Provisions of the Cathode Ray Tube (CRT) 

Rule (Checklist 232).

79 FR 36220; 6/26/14 ................... 74:28:21:01(3)(b)(xi), 

74:28:21:01(20), 74:28:21:02, 

and 74:28:22:01. 

Changes affecting all non-waste determinations and variances (Checklist 233A).80 FR 1694; 1/13/15; 83 FR 

24664; 5/30/18.

ARSD 74:28:21:02. 


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Description of Federal requirement Federal Register date and page Analogous State authority 

Legitimacy-related provisions, including prohibition of sham recycling, 

definition of legitimacy, definition of Contained (Checklist 233B).

80 FR 1694; 1/13/15; 83 FR 

24664; 5/30/18.

ARSD 74:28:21:02 and 

74:28:22:01. 

Speculative Accumulation (Checklist 233C) ........................................... 80 FR 1694; 1/13/15 ..................... ARSD 74:28:22:01. 

2008 DSW exclusions and non-waste determinations, including revisions from 2015 DSW final rule and 2018 DSW final rule (Checklist 

233D2).

80 FR 1694; 1/13/15; 83 FR 

24664; 5/30/18.

ARSD 74:28:21:02, 74:28:22:01, 

and 74:28:26:01. 

Remanufacturing exclusion (Checklist 233E) ......................................... 80 FR 1694; 1/13/15 ..................... ARSD 74:28:21:02 and 

74:28:22:01. 

Response to Vacaturs of the Comparable Fuels Rule and the Gasification Rule (Checklist 234).80 FR 18777; 4/8/15 ..................... ARSD 74:28:21:02 and 

74:28:22:01. 

Disposal of Coal Combustion Residuals from Electric Utilities (Checklist 235).80 FR 21302; 4/17/15 ................... ARSD 74:28:22:01. 

Imports and Exports of Hazardous Waste (Checklist 236) .................... 81 FR 85696; 11/28/16; 82 FR 

41015; 8/29/17; 83 FR 38263; 8/ 

6/18.

ARSD 74:28:21:01, 74:28:21:02, 

74:28:22:01, 74:28:23:01, 

74:28:24:01, 74:28:25:01, 

74:28:27:01, 74:28:28:01, and 

74:28:33:01. 

Hazardous Waste Generator Improvements Rule (Checklist 237) ........ 81 FR 85732; 11/28/16 ................. ARSD 74:28:21:02, 74:28:22:01, 

74:28:23:01, 74:28:24:01, 

74:28:25:01, 74:28:26:01, 

74:28:27:01, 74:28:28:01, 

74:28:30:01, and 74:28:33:01. 

Confidentiality Determinations for Hazardous Waste Export and Import 

Documents (Checklist 238).

83 FR 60894; 12/26/17 ................. ARSD 74:28:21:01(20), 

74:28:21:02, 74:28:22:01, and 

74:28:23:01. 

Safe Management of Recalled Airbags (Checklist 240) ......................... 83 FR 61552; 11/30/18 ................. ARSD 74:28:21:02, 74:28:22:01, 

and 74:28:23:01. 

2. State-Initiated Changes 

South Dakota has made amendments 

to its regulations that are not directly 

related to any of the Federal rules 

addressed in Item G.1 above. These 

State-initiated changes are either 

conforming changes made to existing 

authorized provisions, or the adoption 

of provisions that clarify and make the 

State’s regulations internally consistent. 

The State’s regulations, as amended by 

these provisions, provide authority 

which remains equivalent to and no less 

stringent than the Federal laws and 

regulations. These State-initiated 

changes are submitted under the 

requirements of 40 CFR 271.21(a) and 

include the following provisions from 

the Administrative Rules of South 

Dakota (ARSD), as amended, effective 

April 19, 2021: ARSD 74:28:21:01 

introductory paragraph, 74:28:21:01(1) 

‘‘Administrator’’, 74:28:21:01(8) 

‘‘Federal Register’’, 74:28:21:01(11) 

‘‘New tank system’’ or ‘‘new tank 

component’’, 74:28:21:01(13) ‘‘Region’’, 

74:28:21:01(14) ‘‘Resource Conservation 

and Recovery Act’’, ‘‘RCRA’’, 

74:28:21:01(17) ‘‘State’’, 74:28:25:04, 

74:28:25:05, 74:28:28:03, 74:28:28:04, 

74:28:28:05, and 74:36:11:01. 

H. Where are the revised State rules 

different from the Federal rules? 

The South Dakota revisions being 

authorized in this rule include 

provisions that contain purely Federal 

functions which are not delegable to 

States. The non-delegable Federal 

program areas include import/export 

requirements reserved as part of the 

Federal foreign relations function, and 

manifest registry and electronic 

manifest functions administered solely 

by the EPA. South Dakota has 

appropriately adopted these provisions 

by leaving the authority with the EPA 

for implementation and enforcement. 

The State did not make any changes that 

are more stringent or broader-in-scope 

than the Federal rules in this 

rulemaking. In addition, South Dakota 

did not change any previously more 

stringent or broader-in-scope provisions 

to be equivalent to the Federal rules. 

I. Who handles permits after the 

authorization takes effect? 

The State of South Dakota will 

continue to issue permits for all the 

provisions for which it is authorized 

and will administer the permits it 

issues. The EPA will continue to 

administer any RCRA hazardous waste 

permits or portions of permits which we 

issued prior to the effective date of this 

authorization, until South Dakota has 

equivalent instruments in place. EPA 

will continue to implement and issue 

permits for HSWA requirements for 

which South Dakota is not yet 

authorized. 

J. How does this action affect Indian 

Country (18 U.S.C. 1151) in South 

Dakota? 

South Dakota is not authorized to 

carry out its hazardous waste program 

in Indian country, as defined in 18 

U.S.C. 1151. This includes, but is not 

limited to: 

1. Lands within the exterior 

boundaries of the following Indian 

Reservations located within or abutting 

the State of South Dakota: 

a. Cheyenne River Indian Reservation 

b. Crow Creek Indian Reservation 

c. Flandreau Indian Reservation 

d. Lower Brule Indian Reservation 

e. Pine Ridge Indian Reservation 

f. Rosebud Indian Reservation 

g. Sisseton-Wahpeton Indian 

Reservation 

h. Standing Rock Indian Reservation 

i. Yankton Indian Reservation 

2. Any land held in trust by the U.S. 

for an Indian tribe; and 

3. Any other land, whether on or off 

a reservation that qualifies as Indian 

country within the meaning of 18 U.S.C. 

1151. 

Under principles of Federal Indian 

law, States generally do not have 

authority to regulate in Indian country. 

Ala. v. Native Vill. of Venetie Tribal 

Gov’t., 522 U.S. 520 n.1 (1998). 

Accordingly, in the absence of an 

express grant of authority to a State from 

Congress, EPA typically excludes Indian 

country from program delegations and 

authorizations to States. See RCRA 

Authorization regulations at 40 CFR 

271.1(h) (‘‘[I]n many cases States will 

lack authority to regulate activities on 

Indian lands.’’). 

Indian country is defined by Federal 

statute, 18 U.S.C. 1151, as: 

a. all land within the limits of any 

Indian reservation under the 


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jurisdiction of the United States 

Government, notwithstanding the 

issuance of any patent, and, including 

rights-of-way running through the 

reservation; 

b. all dependent Indian communities 

within the borders of the United States 

whether within the original or 

subsequently acquired territory thereof, 

and whether within or without the 

limits of a State; and 

c. all Indian allotments, the Indian 

titles to which have not been 

extinguished, including rights-of-way 

running through the same. 

It is important to note that the phrase 

‘‘notwithstanding the issuance of any 

patent’’ in 18 U.S.C. 1151(a) has been 

interpreted by the U.S. Supreme Court 

to include fee patents (also known as 

land titles or land deeds) issued to 

Indians and non-Indians alike. See, 

Seymour v. Superintendent, 368 U.S. 

351, 358 (1962). Accordingly, fee-owned 

lands, whether owned by Indians or 

nonmembers of the relevant Indian 

tribe, which are within the exterior 

boundaries of Indian reservations, are 

Indian country. While 18 U.S.C. 1151 on 

its face relates to criminal jurisdiction, 

the U.S. Supreme Court has held that it 

is also relevant for civil regulatory 

jurisdiction. See, DeCoteau v. Dist. 

County Court, 420 U.S. 425, 427 n.2 

(1975). 

In addition, Tribal trust lands located 

outside of formal reservations are also 

Indian country as defined in 18 U.S.C. 

1151. For a detailed legal discussion 

and explanation of this interpretation of 

Indian country, see Letter from Jack W. 

McGraw, Acting Regional 

Administrator, United States 

Environmental Agency, to Steven M. 

Pirner, Secretary, South Dakota 

Department of Environment and Natural 

Resources (April 2, 2002), printed in 67 

FR 45684 through 45687 (July 10, 2002). 

II. Incorporation by Reference 

A. What is codification? 

Codification is the process of 

including the statutes and regulations 

that comprise the State’s authorized 

hazardous waste management program 

into the CFR. Section 3006(b) of RCRA, 

as amended, allows the Environmental 

Protection Agency (EPA) to authorize 

State hazardous waste management 

programs. The State regulations 

authorized by EPA supplant the Federal 

regulations concerning the same matter 

with the result that after authorization 

EPA enforces the authorized 

regulations. Infrequently, State statutory 

language which acts to regulate a matter 

is also authorized by EPA with the 

consequence that EPA enforces the 

authorized statutory provision. EPA 

does not authorize State enforcement 

authorities and does not authorize State 

procedural requirements. EPA codifies 

the authorized State program in 40 CFR 

part 272 and incorporates by reference 

State statutes and regulations that make 

up the approved program which is 

federally enforceable in accordance with 

Sections 3007, 3008, 3013, and 7003 of 

RCRA, 42 U.S.C. 6927, 6928, 6934 and 

6973, and any other applicable statutory 

and regulatory provisions. 

B. What is the history of the codification 

of South Dakota’s hazardous waste 

management program? 

The EPA incorporated by reference 

South Dakota’s authorized hazardous 

waste program effective March 8, 2006 

(71 FR 11533), and program revisions 

effective August 23, 2016 (81 FR 41222). 

In this action, EPA is revising subpart 

QQ of 40 CFR part 272 to include the 

authorization revision actions described 

in this document. 

C. What codification decisions have we 

made in this rule? 

In this rule, the EPA is finalizing 

regulatory text that includes 

incorporation by reference of the 

authorized hazardous waste 

management program of the State of 

South Dakota. In accordance with 

requirements of 1 CFR 51.5, EPA is 

finalizing the incorporation by reference 

of the South Dakota rules described in 

the amendments to 40 CFR part 272 set 

forth in § 272.2101. EPA has made, and 

will continue to make, these documents 

available electronically through https:// 

www.regulations.gov. For alternative 

access to docket materials, please 

contact the person identified in the 

ADDRESSES section of this preamble. 

This action codifies EPA’s 

authorization of South Dakota’s base 

hazardous waste management program 

and its revisions to that program. The 

codification reflects the State program 

that would be in effect at the time EPA’s 

authorized revisions to the South 

Dakota hazardous waste management 

program addressed in this direct final 

rule become final. This action does not 

reopen any decision EPA previously 

made concerning the authorization of 

the State’s hazardous waste 

management program. EPA is not 

requesting comments on its decisions 

published in the Federal Register 

documents referenced in section I.F of 

this document concerning revisions to 

the authorized program in South 

Dakota. 

The EPA is incorporating by reference 

EPA’s approval of South Dakota’s 

hazardous waste management program 

by amending subpart QQ of 40 CFR part 

272. The action amends § 272.2101 and 

incorporates by reference South 

Dakota’s authorized hazardous waste 

regulations, as amended effective April 

19, 2021. Section 272.2101 also 

references the demonstration of 

adequate enforcement authority, 

including procedural and enforcement 

provisions, which provide the legal 

basis for the State’s implementation of 

the hazardous waste management 

program. In addition, § 272.2101 

references the Memorandum of 

Agreement, the Attorney General’s 

Statements and the Program 

Description, which are evaluated as part 

of the approval process of the hazardous 

waste management program in 

accordance with subtitle C of RCRA. 

D. What is the effect of South Dakota’s 

codification on enforcement? 

EPA retains the authority under 

statutory provisions, including but not 

limited to, RCRA sections 3007, 3008, 

3013 and 7003, and other applicable 

statutory and regulatory provisions to 

undertake inspections and enforcement 

actions and to issue orders in all 

authorized States. With respect to 

enforcement actions, EPA will rely on 

Federal sanctions, Federal inspection 

authorities, and Federal procedures 

rather than the State analogs to these 

provisions. Therefore, the EPA is not 

incorporating by reference South 

Dakota’s inspection and enforcement 

authorities, nor are those authorities 

part of South Dakota’s approved State 

program which operates in lieu of the 

Federal program. The regulation at 40 

CFR 272.2101(c)(2) lists these 

authorities for informational purposes, 

and because EPA also considered them 

in determining the adequacy of South 

Dakota’s procedural and enforcement 

authorities. South Dakota’s authority to 

inspect and enforce the State’s 

hazardous waste management program 

requirements continues to operate 

independently under State law. 

E. What State provisions are not part of 

the codification? 

The public is reminded that some 

provisions of South Dakota’s hazardous 

waste management program are not part 

of the federally authorized State 

program. These non-authorized 

provisions include: 

(1) Provisions that are not part of the 

RCRA subtitle C program because they 

are ‘‘broader in scope’’ than RCRA 

subtitle C (see 40 CFR 271.1(i)); 

(2) Federal rules for which South 

Dakota is not authorized, but which 

have been incorporated into the State 

regulations because of the way the State 


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adopted Federal regulations by 

reference. 

(3) State procedural and enforcement 

authorities which are necessary to 

establish the ability of the State’s 

program to enforce compliance but 

which do not supplant the Federal 

statutory enforcement and procedural 

authorities. 

State provisions that are ‘‘broader in 

scope’’ than the Federal program are not 

incorporated by reference in 40 CFR 

part 272. For reference and clarity, EPA 

lists in 40 CFR 272.2101(c)(3) the South 

Dakota statutory provisions which are 

‘‘broader in scope’’ than the Federal 

program and which are not part of the 

authorized program being incorporated 

by reference. While ‘‘broader in scope’’ 

provisions are not part of the authorized 

program and cannot be enforced by 

EPA, the State may enforce such 

provisions under State law. 

South Dakota has adopted but is not 

authorized for the Federal Hazardous 

Waste Electronic Manifest User Fee Rule 

published January 3, 2018 (83 FR 420). 

Therefore, the Federal amendments to 

40 CFR parts 260, 262, 263, 264, and 

265 addressed by this Federal rule and 

included in South Dakota’s adoption by 

reference at ARSD, sections 74:28:21:01, 

74:28:21:02, 74:28:23:01, 74:28:24:01, 

74:28:25:01, and 74:28:28:01, are not 

part of the State’s authorized program 

included in this codification. 

Additionally, South Dakota, adopted the 

Federal Management Standards for 

Hazardous Waste Pharmaceuticals and 

Amendment to the P075 Listing for 

Nicotine Rule published February 22, 

2019 (84 FR 5816). Therefore, the 

Federal amendments to 40 CFR parts 

261, 262, 264, 265, 266, 268, 270, and 

273 addressed by this Federal rule and 

included in South Dakota’s adoption by 

reference at ARSD sections 74:28:22:01, 

74:28:23:01, 74:28:25:01, 74:28:26:01, 

74:28:27:01, 74:28:28:01, 74:28:30:01, 

and 74:28:33:01 are not part of the 

State’s authorized program included in 

this codification. EPA has identified in 

40 CFR 272.2101(c)(4) those Federal 

regulations which, while adopted by 

South Dakota, are not authorized by 

EPA. 

F. What will be the effect of codification 

on Federal HSWA requirements? 

With respect to any requirement(s) 

pursuant to HSWA for which the State 

has not yet been authorized, and which 

EPA has identified as taking effect 

immediately in States with authorized 

hazardous waste management programs, 

EPA will enforce those Federal HSWA 

standards until the State is authorized 

for those provisions. 

The codification does not affect 

Federal HSWA requirements for which 

the State is not authorized. EPA has 

authority to implement HSWA 

requirements in all States, including 

States with authorized hazardous waste 

management programs, until the States 

become authorized for such 

requirements or prohibitions, unless 

EPA has identified the HSWA 

requirement(s) as an optional or as a less 

stringent requirement of the Federal 

program. A HSWA requirement or 

prohibition, unless identified by EPA as 

optional or as less stringent, supersedes 

any less stringent or inconsistent State 

provision which may have been 

previously authorized by EPA (50 FR 

28702, July 15, 1985). 

Some existing State requirements may 

be similar to the HSWA requirements 

implemented by EPA. However, until 

EPA authorizes those State 

requirements, EPA enforces the HSWA 

requirements and not the State analogs. 

III. Administrative Requirements 

The Office of Management and Budget 

(OMB) has exempted this action from 

the requirements of Executive Orders 

12866 (58 FR 51735, October 4, 1993) 

and 13563 (76 FR 3821, January 21, 

2011). Therefore, this action is not 

subject to review by OMB. This action 

authorizes and codifies State 

requirements for the purpose of RCRA 

section 3006 and imposes no additional 

requirements beyond those imposed by 

State law. Accordingly, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). Because this action authorizes 

and codifies pre-existing requirements 

under State law and does not impose 

any additional enforceable duty beyond 

that required by State law, it 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). For the same reason, 

this action also does not significantly or 

uniquely affect the communities of 

Tribal governments, as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). This action will not 

have substantial direct effects on the 

States, on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because it merely 

authorizes and codifies State 

requirements as part of the State RCRA 

hazardous waste program without 

altering the relationship or the 

distribution of power and 

responsibilities established by RCRA. 

This action also is not subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997), because it is not 

economically significant and it does not 

make decisions based on environmental 

health or safety risks. This rule is not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001), because it is not a significant 

regulatory action under Executive Order 

12866. 

Under RCRA section 3006(b), EPA 

grants a State’s application for 

authorization as long as the State meets 

the criteria required by RCRA. It would 

thus be inconsistent with applicable law 

for EPA, when it reviews a State 

authorization application, to require the 

use of any particular voluntary 

consensus standard in place of another 

standard that otherwise satisfies the 

requirements of RCRA. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this rule, EPA has taken the necessary 

steps to eliminate drafting errors and 

ambiguity, minimize potential litigation, 

and provide a clear legal standard for 

affected conduct. EPA has complied 

with Executive Order 12630 (53 FR 

8859, March 15, 1988) 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. This rule does not 

impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

Because this rule authorizes pre-existing 

State rules which are at least equivalent 

to, and no less stringent than existing 

Federal requirements, and imposes no 

additional requirements beyond those 


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Federal Register / Vol. 89, No. 27 / Thursday, February 8, 2024 / Rules and Regulations 8545 

imposed by State law, and there are no 

anticipated significant adverse human 

health or environmental effects, the rule 

is not subject to Executive Order 12898. 

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. The EPA will 

submit a report containing this 

document 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 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). This action will be 

effective April 8, 2024. 

Authority: This rule is issued under the 

authority of Sections 2002(a), 3006 and 

7004(b) of the Solid Waste Disposal Act as 

amended, 42 U.S.C. 6912(a), 6926, 6974(b). 

List of Subjects 

40 CFR Part 271 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous waste, Hazardous waste 

transportation, Indian lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements. 

40 CFR Part 272 

Hazardous materials transportation, 

Hazardous waste, Incorporation by 

reference, Intergovernmental relations, 

Water pollution control, Water supply. 

Dated: January 30, 2024. 

KC Becker, 

Regional Administrator, Region 8. 

For the reasons set forth in the 

preamble, under the authority at 42 

U.S.C. 6912(a), 6926, and 6974(b), EPA 

is granting final authorization under 40 

CFR part 271 to the State of South 

Dakota for revisions to its hazardous 

waste program under the Resource 

Conservation and Recovery Act and is 

amending 40 CFR part 272 as follows: 

PART 272—APPROVED STATE 

HAZARDOUS WASTE MANAGEMENT 

PROGRAMS 

■ 1. The authority citation for part 272 

continues to read as follows: 

Authority: Secs. 2002(a), 3006, and 7004(b) 

of the Solid Waste Disposal Act, as amended 

by the Resource Conservation and Recovery 

Act, as amended, 42 U.S.C. 6912(a), 6926, 

and 6974(b). 

■ 2. Revise § 272.2101 to read as 

follows: 

§ 272.2101 South Dakota Stateadministered program: Final authorization. 

(a) History of the State of South 

Dakota authorization. Pursuant to 

section 3006(b) of RCRA, 42 U.S.C. 

6926(b), South Dakota has final 

authorization for the following elements 

as submitted to EPA in South Dakota’s 

base program application for final 

authorization which was approved by 

EPA effective on November 2, 1984. 

Subsequent program revision 

applications were approved effective on 

June 17, 1991, November 8, 1993, March 

11, 1994, September 23, 1996, June 8, 

2000, May 24, 2004, March 8, 2006, 

August 8, 2012, August 23, 2016, and 

April 8, 2024. 

(b) Enforcement authority. The State 

of South Dakota has primary 

responsibility for enforcing its 

hazardous waste management program. 

However, EPA retains the authority to 

exercise its inspection and enforcement 

authorities in accordance with sections 

3007, 3008, 3013, and 7003 of RCRA, 42 

U.S.C. 6927, 6928, 6934, and 6973, and 

any other applicable statutory and 

regulatory provisions, regardless of 

whether the State has taken its own 

actions, as well as in accordance with 

other statutory and regulatory 

provisions. 

(c) State statutes and regulations—(1) 

Incorporation by reference. The South 

Dakota regulations cited in paragraph 

(c)(1)(i) of this section are incorporated 

by reference as part of the hazardous 

waste management program under 

Subtitle C of RCRA, 42 U.S.C. 6921 et 

seq. The Director of the Federal Register 

in accordance with 5 U.S.C. 552(a) and 

1 CFR part 51. This material is available 

for inspection at the EPA and at the 

National Archives and Records 

Administration (NARA). You may 

inspect a copy at EPA Region 8, 1595 

Wynkoop Street, Denver, Colorado, 

phone number (303) 312–6667. For 

information on the availability of this 

material at NARA, email: fr.inspection@

nara.gov, or go to: https://

www.archives.gov/federal-register/cfr/ 

ibr-locations.html. You may obtain 

copies of the South Dakota regulations 

that are incorporated by reference in 

this paragraph from South Dakota 

Legislative Research Council, 3rd Floor, 

State Capitol, 500 East Capitol Avenue, 

Pierre, SD 57501, phone number 605– 

773–3251. 

(i) EPA-Approved South Dakota 

Regulatory Requirements Applicable to 

the Hazardous Waste Management 

Program, dated June 2022. 

(ii) [Reserved] 

(2) Legal basis. The following 

provisions provide the legal basis for the 

State’s implementation of the hazardous 

waste program, but they are not being 

incorporated by reference and do not 

replace Federal authorities: 

(i) South Dakota Codified Laws 

(SDCL), as amended, 2021 Revision, 

Title 1, State Affairs and Government: 

Chapter 1–26, Administrative 

Procedures and Rules, sections 1–26– 

1(1), 1–26–1(4), 1–26–1(8) introductory 

paragraph, 1–26–1(8)(a), 1–26–2, 1–26– 

6.6, 1–26–16 through 1–26–19, 1–26– 

19.1, 1–26–19.2, 1–26–21, 1–26–27, 1– 

26–29, 1–26–30, 1–26–30.1, 1–26–30.2, 

1–26–30.4, 1–26–31, 1–26–31.1, 1–26– 

31.2, 1–26–31.4, 1–26–35 and 1–26–36; 

Chapter 1–27, Public Records and Files, 

sections 1–27–1, 1–27–3, 1–27–9(2) and 

1–27–28, 1–27–31; Chapter 1–32, 

Executive Reorganization, section 1–32– 

1(1); Chapter 1–41, Department of 

Agriculture and Natural Resources, 

sections 1–41–3.4, 1–41–18, 1–41–24 

and 1–41–25.1. 

(ii) SDCL, as amended, 2021 Revision, 

Title 15, Civil Procedure: Chapter 15–6, 

Rules of Procedure in Circuit Courts, 

section 15–6–24(a)–(c). 

(iii) SDCL, as amended, 2021 

Revision, Title 19, Evidence: Chapter 

19–13, Privileges, sections 19–19– 

502(1), 19–19–502(5), 19–19–502(b), 19– 

19–507 and 19–19–509. 

(iv) SDCL, as amended, 2021 

Revision, Title 21, Judicial Remedies: 

Chapter 21–8, Injunction, section 21–8– 

1. 

(v) SDCL, as amended, 2021 Revision, 

Title 22, Crimes: Chapter 22–6, 

Authorized Punishments, sections 22– 

6–1 introductory paragraph and 22–6– 

1(7). 

(vi) SDCL, as amended, 2021 

Revision, Title 23, Law Enforcement: 

Chapter 23–5, Criminal Identification, 

sections 23–5–1, 23–5–10(1), 23–5– 

10(3), 23–5–10(4) and 23–5–11 first 

sentence; Chapter 23–6, Criminal 

Statistics, section 23–6–4. 

(vii) SDCL, as amended, 2021 

Revision, Title 34, Public Health and 

Safety: Chapter 34–21, Radiation and 

Uranium Resources Exposure Control, 

section 34–21–2(7). 

(viii) SDCL, as amended, 2021 

Revision, Title 34A, Environmental 

Protection: Chapter 34A–6, Solid Waste 

Disposal, section 34A–6–1.3(17); 

Chapter 34A–10, Remedies for 

Protection of Environment, sections 

34A–10–1, 34A–10–2, 34A–10–2.5, 

34A–10–5, 34A–10–11, 34A–10–14 and 

34A–10–16, Chapter 34A–11, Hazardous 

Waste Management, sections 34A–11–1, 


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34A–11–2 through 34A–11–4, 34A–11– 

5, 34A–11–8 through 34A–11–12, 34A– 

11–13 through 34A–11–16, 34A–11–17 

through 34A–11–19, 34A–11–21 and 

34A–11–22; Chapter 34A–12, Regulated 

Substance Discharges, sections 34A–12– 

1(8), 34A–12–4, 34A–12–6, 34A–12–8 

through 34A–12–13, 34A–12–13.1 and 

34A–12–14. 

(ix) SDCL, as amended, 2021 

Revision, Title 37, Trade Regulation, 

Chapter 37–29, Uniform Trade Secrets 

Act, section 37–29–1(4). 

(x) Administrative Rules of South 

Dakota (ARSD), Article 74:08, 

Administrative Fees, effective April 19, 

2021: Chapter 74:08:01, Fees for Records 

Reproduction, sections 74:08:01:01, 

74:08:01:03, 74:08:01:04, 74:08:01:05. 

(3) Related legal provisions. The 

following statutory provisions are 

broader in scope than the Federal 

program, are not part of the authorized 

program, are not incorporated by 

reference, and are not federally 

enforceable: 

(i) SDCL, as amended, 2021 Revision, 

Title 34A, Environmental Protection, 

Chapter 34A–11, Hazardous Waste 

Management, sections 34A–11–12.1, 

34A–11–16.1, 34A–11–25 and 34A–11– 

26. 

(ii) [Reserved] 

(4) Unauthorized State amendments. 

South Dakota has adopted but is not 

authorized for the following Federal 

final rules: 

(i) Hazardous Waste Management 

System; User Fees for the Electronic 

Waste Manifest System and 

Amendments to Manifest Regulations 

(Non-HSWA), published in the Federal 

Register of 1/3/18. 

(ii) Management Standards for 

Hazardous Waste Pharmaceuticals and 

Amendment to the P075 Listing for 

Nicotine (HSWA/Non-HSWA), 

published in the Federal Register of 2/ 

22/19. 

(iii) Those Federal rules written under 

RCRA provisions that predate HSWA 

(non-HSWA) which the State has 

adopted, but for which it is not 

authorized, are not federally 

enforceable. In contrast, EPA will 

continue to enforce the Federal HSWA 

standards for which South Dakota is not 

authorized until the State receives 

specific authorization from EPA. 

(5) Memorandum of Agreement. The 

Memorandum of Agreement between 

EPA Region 8 and the State of South 

Dakota, signed by the Secretary of the 

South Dakota Department of Agriculture 

and Natural Resources Secretary on 

March 20, 2023, and by the EPA Region 

8 Regional Administrator on March 10, 

2023, although not incorporated by 

reference, is referenced as part of the 

authorized hazardous waste 

management program under subtitle C 

of RCRA, 42 U.S.C. 6921 et seq. 

(6) Statement of legal authority. 

‘‘Attorney General’s Statement for Final 

Authorization’’, signed by the Attorney 

General of South Dakota on May 24, 

1984, and revisions, supplements and 

addenda to that Statement dated January 

14, 1991, September 11, 1992, 

September 25, 1992, April 1, 1993, 

September 24, 1993, December 29, 1994, 

September 5, 1995, October 23, 1997, 

October 27, 1997, October 28, 1997, 

November 5, 1999, June 26, 2000, June 

18, 2002, October 19, 2004, May 11, 

2009, May 5, 2015, and November 29, 

2021, although not incorporated by 

reference, are referenced as part of the 

authorized hazardous waste 

management program under subtitle C 

of RCRA, 42 U.S.C. 6921 et seq. 

(7) Program Description. The Program 

Description and any other materials 

submitted as supplements thereto, 

although not incorporated by reference, 

are referenced as part of the authorized 

hazardous waste management program 

under subtitle C of RCRA, 42 U.S.C. 

6921 et seq. 

■ 3. Amend appendix A to part 272 by 

revising the listing for ‘‘South Dakota’’ 

to read as follows: 

Appendix A to Part 272—State 

Requirements 

* * * * * 

South Dakota 

The regulatory provisions include: 

Administrative Rules of South Dakota 

(ARSD), Article 74:28, Hazardous Waste, as 

amended effective April 19, 2021, adopting 

by reference the Federal regulations as of July 

1, 2018, and 83 FR 61552 (November 30, 

2018). 

Sections 74:28:21:01 (except the reference 

to ‘‘260.4 and 260.5’’ at 74:28:21:01(3)(b)(xii), 

and (14)(f)), 74:28:21:02, 74:28:21:03, 

74:28:22:01 (except the phrase ‘‘; and 84 FR 

36, 5938–5950 (February 22, 2019)’’), 

74:28:23:01, 74:28:24:01, 74:28:25:01 (except 

the phrase ‘‘; and 84 FR 36, 5938–5950 

(February 22, 2019)’’), 74:28:25:02 through 

74:28:25:05, 74:28:26:01 (except the phrase ‘‘; 

and 84 FR 36, 5938–5950 (February 22, 

2019)’’ in the introductory paragraph), 

74:28:27:01 (except the phrase ‘‘; 84 FR 36, 

5938–5950 (February 22, 2019)’’ in the 

introductory paragraph), 74:28:28:01 (except 

the phrase ‘‘; and 84 FR 36, 5938–5950 

(February 22, 2019)’’), 74:28:28:02 through 

74:28:28:05, 74:28:29:01, 74:28:30:01 (except 

the phrase ‘‘; and 84 FR 36, 5938–5950 

(February 22, 2019)’’) and 74:28:33:01 (except 

the phrase ‘‘; and 84 FR 36, 5938–5950 

(February 22, 2019)’’); Article 74:36, Air 

Pollution Control Program, section 

74:36:11:01. 

Copies of the South Dakota regulations that 

are incorporated by reference are available 

from South Dakota Legislative Research 

Council, 3rd Floor, State Capitol, 500 East 

Capitol Avenue, Pierre, SD 57501, (Phone: 

605–773–3251). 

* * * * * 

[FR Doc. 2024–02310 Filed 2–7–24; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the Secretary 

45 CFR Parts 170 and 171 

RIN 0955–AA03 

Health Data, Technology, and 

Interoperability: Certification Program 

Updates, Algorithm Transparency, and 

Information Sharing; Correction 

AGENCY: Office of the National 

Coordinator for Health Information 

Technology (ONC), Department of 

Health and Human Services (HHS). 

ACTION: Final rule; correction. 

SUMMARY: This document corrects 

technical and typographical errors in 

the final rule entitled, ‘‘Health Data, 

Technology, and Interoperability: 

Certification Program Updates, 

Algorithm Transparency, and 

Information Sharing’’ that was 

published in the Federal Register on 

January 9, 2024, and has a stated 

effective of February 8, 2024. 

DATES: As of February 8, 2024 the 

effective date of the final rule published 

on January 9, 2024 (89 FR 1192, FR 

2023–28857), is corrected to March 11, 

2024. The corrections in this document 

are effective on March 11, 2024. 

FOR FURTHER INFORMATION CONTACT: Kate 

Tipping, Office of Policy, National 

Coordinator for Health Information 

Technology, 202–690–7151. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In Federal Register document 2023– 

28857 (89 FR 1192) final rule entitled 

‘‘Health Data, Technology, and 

Interoperability: Certification Program 

Updates, Algorithm Transparency, and 

Information Sharing’’ (HTI–1) 

(hereinafter referred to as the HTI–1 

Final Rule), we identified certain 

technical and typographical errors 

following publication in the Federal 

Register on January 9, 2024. We 

summarize and correct these errors in 

the ‘‘Summary of Errors’’ and 

‘‘Corrections of Errors’’ sections below. 


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