Solid wastes: Beverage containers and resource recovery facilities; management guidelines— Federal regulatory reform,

[Federal Register: February 4, 1998 (Volume 63, Number 23)]

[Rules and Regulations]

[Page 5739-5740]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04fe98-9]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 244 and 245

[FRL-5957-2 ]

Clarification to Technical Amendments to Solid Waste Programs; Management Guidelines for Beverage Containers and Resource Recovery Facilities Guidelines

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; clarification of technical amendment.

SUMMARY: On January 7, 1998 (63 FR 683), the Environmental Protection Agency (EPA) published in the Federal Register a technical amendment correcting the effective date of a direct final rule published on December 31, 1996 (61 FR 69032) that concerned the removal of obsolete solid waste guidelines (40 CFR parts 244 and 245). The amendment corrected the effective date of the direct final rule to December 30, 1997 in order to be consistent with sections 801 and 808 of the Congressional Review Act, enacted as part of the Small Business Regulatory Enforcement Fairness Act. This document clarifies that the January 7, 1998 technical amendment established a new effective date of December 30, 1997 for the removal of 40 CFR part 245 but had no effect on the status of 40 CFR part 244 because of a prior notice that was published on May 2, 1997 (62 FR 24051) that announced the withdrawal, effective March 3, 1997, of the portion of the December 31, 1996 direct final rule which affected 40 CFR part 244.

EFFECTIVE DATE: January 22, 1998.

FOR FURTHER INFORMATION CONTACT: Deborah Gallman, 703-308-8600. U.S. EPA, Office of Solid Waste, 401 M Street, SW (5306W), Washington, DC 20460.

SUPPLEMENTARY INFORMATION: The December 31, 1996 action was a direct final rule that concerned the removal of obsolete solid waste management guidelines for beverage containers (40 CFR part 244) and guidelines for resource recovery facilities (40 CFR part 245). In the final rule, EPA stated that the rule would become effective March 3, 1997 unless adverse public comments were received on the accompanying proposal that was published the same day (61 FR 69059). The rule also stated that if adverse public comments were received then the final rule would be withdrawn.

Adverse public comments were received with regard to the removal of part 244 only. Therefore, on May 2, 1997, EPA published a partial withdrawal notice announcing that part 244 was not removed from the Code of Federal Regulations. The withdrawal notice also stated that the removal of 40 CFR part 245 was not affected and that part 245 was removed effective March 3, 1997.

Section 801 of the Congressional Review Act (CRA) precludes a rule from taking effect until the agency promulgating the rule submits a rule report, which includes a copy of the rule, to each House of Congress and to the Comptroller General of the General Accounting Office (GAO). As stated in the January 7, 1998 technical amendment, EPA inadvertently failed to submit the December 31, 1996 direct final rule to Congress and to GAO as required by the CRA. After EPA discovered the error, the rule was submitted to both Houses of Congress and GAO on December 11, 1997. Subsequently, EPA issued the technical amendment to correct the March 3, 1997 effective date to December 30, 1997. However, the technical amendment did not clarify that the new effective date applied to the removal of 40 CFR part 245 only and had no effect on 40 CFR part 244 because of the prior partial withdrawal notice that was published on May 2, 1997. The proposal to remove part 244 from the CFR is pending further evaluation by EPA.

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, an agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA merely is clarifying the effect of the January 7, 1998 technical amendment in light of the May 2, 1997 partial withdrawal notice. Thus, notice and public procedure are unnecessary. The Agency finds that this constitutes good cause under 5 U.S.C. 553(b)(B). Moreover, since today's action does not create any new regulatory requirements or change the legal status of the May 2, 1997, and January 7, 1998 actions, EPA finds that good cause exists to provide for an immediate effective date pursuant to 5 U.S.C. 553(d)(3) and 808(2).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with State officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and- comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the December 31, 1996 Federal Register notice.

Pursuant to 5 U.S.C. 801(a)(1)(A), as added by the Small Business Regulatory

[[Page 5740]]

Enforcement Fairness Act of 1996, 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 General Accounting Office; however, in accordance with 5 U.S.C. 808(2), this rule is effective on January 22, 1998. This rule is not a ``major rule'' as defined in 5 U.S.C. 804(2).

Dated: January 22, 1998. Matthew Hale, Acting Director, Office of Solid Waste.

[FR Doc. 98-2721Filed2-3-98; 8:45 am]

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