### Federal Register/Vol. 75, No. 8/Wednesday, January 13, 2010/Rules and Regulations

IV. Statutory andExecutive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided thatthey meet the criteria ofthe CleanAir Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law.For that reason, this action:

* Is not a "significantregulatory action" subject to review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* Does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.);

* 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 etseq.);

* 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 actionbased onhealth 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 (66FR 28355, May 22, 2001);

* Is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and

* Does not provide 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,these rules do not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is
not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs onTribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 etseq., as added bythe Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rulemay take effect, the agency promulgating the rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule 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 "majorrule" as defined by 5U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions forjudicialreview of this action must be filed in the United States Court ofAppeals for the appropriate circuit by March 15, 2010. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis actionfor the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review maybe filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged laterin proceedings to enforce its requirements (see section 307(b)(2)).

List of Subjects in40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

Dated: November 23, 2009. Laura Yoshii, ActingRegionalAdministrator, RegionIX.
* Part52, ChapterI,Title 40 ofthe Code ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

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

Authority: 42 U.S.C. 7401 et seq. Subpart F-California

* 2.Section 52.220, is amended by adding paragraphs (c)(363)(i)(A)(3) and (4) toread as follows:
§52.220 Identificationof plan.

* * * * *

(c) * * * (363) * * * 

### (i)* * * (A)*** (3)Rule 4306, "Boilers, Steam Generators and Process Heaters-Phase 3, " adopted on October 16, 2008.

(4) Rule 4307, "Boilers, Steam Generators and Process Heaters-2.0 MMbtu/hr to 5.0MMbtu/hr," adopted

on October 16, 2008.

• * * * *

[FRDoe. 2010-352 Filed 1-12-10; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0024; FRL-9097-2]

Revisionsto the California State Implementation Plan, San Joaquin Valley Unified AirPollution Control District

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: EPA is finalizing alimited approval and limited disapproval of revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion ofthe California State Implementation Plan (SIP). This action was proposed in the Federal Register on August 19, 2009, and

concerns a local fee rule that applies to major sources ofvolatile organic compound and nitrogen oxide emissions in the San Joaquin Valley

ozone nonattainment area. Under authority ofthe Clean Air Act as amended in 1990 (CAA or the Act), this action simultaneously approves a local rule that regulates these emission

sources and directs California to correct rule deficiencies. DATES: EffectiveDate:This rule is effective on February 12, 2010.

ADDRESSES: EPAhas established docket number EPA-R09-OAR-2009-0024 for this action. The index to the docket is available electronically athttp:// www.regulations.govandin hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information maybe publicly available only at the hard copy location (e.g., copyrighted material), and

some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normalbusiness hours with the contact listed in the FOR
FURTHER INFORMATION CONTACT section. 

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FOR FURTHER INFORMATION CONTACT: Mae Wang, EPA Region IX, (415) 947-4124, wang.mae@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, "we," "us" and "our" refer to EPA.

Table ofContents

I.Proposed Action II.Public Comments and EPAResponses

A. Commenting Parties B.Summary ofComments and EPA

Responses 1.EPA Response to the Clean Air Act Advisory Committee Letter 2. Consideration ofRule 3170 as an

Alternative Program 3. Exemption for Units That Begin

OperationAfter the Attainment Year 4. Exemption for "CleanEmission Units" 5.Defining the Baseline Period as the

Attainment Year and the Immediately Preceding Year 6. Allowing Averaging Over 2-5 Years To

Establish Baseline Emissions 7. Stationary Versus Mobile Sources 8. Impacts of Rule 3170 on Small

Businesses 9. Unintended Consequences ofRule 3170 10. Incorrect Statement ofBaseline Emissions 11. Ambiguity on Fees forBoth VOCs and

NOx 12. Definition of"Major Source" 13. Sunset Provision for Section 185 Fees II. EPA Action IV. Statutory and Executive Order Reviews

I. Proposed Action

On August 19, 2009 (74 FR 41826), EPA proposed a limited approval and limited disapproval ofthe following rule that was submitted for incorporation into the California SIP.

Local agency Rule No. Rule title Adopted Submitted

SJVUAPCD

................................. 3170 Federally Mandated Ozone Nonattainment Fee

............................ 05/16/02 08/06/02

We proposed a limited approval because we determined thatthis rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because

some rule provisions do not fully meet the statutory CAA section 185 requirement. These provisions include the following: 1.An exemption for units thatbegin operation after the attainment year.

2.An exemption for any "clean emission unit." 3.The definition ofthe baseline period as two consecutive years.

4. The allowance ofaveraging baseline emissions over a period of 2-5 years "ifthose years are determined by the APCO as more representative of normal source operation." 5.An inappropriate definition ofthe
term "Major Source." Our proposed action contains more information onthe basis for this rulemaking and on our evaluation ofthe submittal.
II. Public Comments andEPA Responses

A. CommentingParties

EPA's proposed action provided a 30- day public comment period. During this period, we received the following 12
comment letters from 11 parties: 1.American Chemistry Council, letter from Lorraine Gershman, dated September 18, 2009.

2.American Petroleum Institute, letter from Ted Steichen, dated September 18, 2009.

3.Association ofIrritated Residents, letter from Brent Newell, Center on Race, Poverty, and the Environment, dated September 18, 2009.

4. California Small Business Alliance, letter from William R. LaMarr, dated August 11, 2009. 5.The Clean Energy Group, letter from Michael Bradley, dated September 18, 2009.

6. County Sanitation Districts ofLos Angeles County, letter from Stephen R. Maguin and Gregory M. Adams, dated August 11, 2009. 7.County Sanitation Districts ofLos Angeles County, letter from Stephen R. Maguin and Gregory M. Adams, dated September 18, 2009. 8. EarthJustice, letter from PaulCort, dated September 18, 2009.

9. San Joaquin Valley Unified APCD, letter from Seyed Sadredin, dated September 17, 2009. 10. The Section 185 Working Group, letter from Jason C. Moore, Baker Botts, dated August 13, 2009. 11. Southern California Air Quality Alliance, letter from Curtis L. Coleman, Esq., dated August 12, 2009. 12. Western States Petroleum Association, letter from DavidR. Farabee, Pillsbury Winthrop Shaw Pittman LLP, dated September 18, 2009.

B. SummaryofCommentsandEPA Responses

The comments and our responses are summarized below. The comments have been grouped into general categories.

1.EPA Response to the Clean Air Act Advisory Committee Letter

On May 15, 2009, the Clean Air Act Advisory Committee (CAAAC) sent a letter to EPA Acting Assistant Administrator Elizabeth Craig regarding issues related tothe implementation of CAA section 185. The CAAAC asked EPA toreview and address whether itis "legally permissible under either section 185 or 172(e) ofthe CleanAir Actfor

a State to exercise discretion" to develop fee program SIPs employing one or more ofa list ofCAAAC-identified program options (seehttp://www.epa.gov/airl caaac/185wg). Comments:Several commenters specifically requested thatEPA respond
to the CAAAC letter prior to taking final action on SJVUAPCD Rule 3170. Commenters also suggested that EPA provide final guidance regarding flexibility under either CAA section 185

or 172(e) before disapproving any elements ofSJVUAPCD Rule 3170.

Response:EPA intends to respond

more fully to the issues raised by the CAAAC letter.EPA, however, cannot delay action on SJVUAPCD Rule 3170 because we are under a legal obligation
to sign a Federal Register notice for our final action on Rule 3170by December 11, 2009. This obligation is imposedby
aconsent decree between EPA and the Center for Race, Poverty and the Environment (CRPE) to settle CRPE's litigation alleging thatEPA had failed to act on Rule 3170 in atimely manner. The consent decree was entered on August 18, 2009, by the U.S. District Court for the Northern District of California, case number 08-cv-05650 CW.

We note that CAA section 172(e) does
not directly apply to the transition from the 1-hour ozone standard to the 1997 8-hourozone standard because that provision applies only where the revised standard is less stringentthan the standard it replaces. However, because the CAA does not directly address anti-backsliding where there is

anew more stringent standard, EPA determined to apply theprinciples of CAA section 172(e) for purposes of addressing anti-backsliding for the transition from the 1-hour standard to the 1997 8-hour standard. EPA also
notes thatthe State has not requested that EPAreview Rule 3170 pursuant to the principles in CAA section 172(e) andthus, for purposes oftaking action

onRule 3170, itis notnecessary for EPA
to take a final position regarding 

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whether itcould approve a substitute program for the program specified under CAA section 185.

2.Consideration ofRule 3170 as an Alternative Program

CAAAC's May 15, 2009, letter identifies as a program option an exemption from fees for "wellcontrolled" sources. In our proposed action on Rule 3170, we noted this exemption as abasis for notbeing able
to fully approve therule as meeting section 185 ofthe Act. We further noted that the State has notrequested that EPA review the SIP to determine whether itwould be equivalent to CAA section 185 under the principles of section 172(e) and has not made a demonstration thatthe program ithas submitted would ensure controls that

are "not less stringent"than those required under section 185. Thus,we statedthat we were not addressing whether itis legally permissible for a State to adopt an alternative program at least as stringent as a section 185 fee program, or ifso, whether such alternative program could contain a clean unitexemption.

Comments:One commenter encouraged EPA to work with SJVUAPCD to consider Rule 3170 as an alternative program under the provisions ofCAA section 172(e). The
commenter felt that this rule as written would encourage area-wide emission reductions and meetthe goals ofCAA section 185 without sacrificing stringency.

One commenter stated thateven ifthe District had submitted Rule 3170 pursuant to 172(e), or attempts to make

a 172(e) demonstration tojustify the clean unitexemption or other deficiency, CAA section 172(e) does not apply in this situation and cannot justify Rule 3170's failure to comply with CAA section 185. The commenter statedthat section 172(e) only applies where EPA hasrelaxed a national primary ambient air quality standard (NAAQS). As a result, CAA section 172(e) does not support the exemptions in Rule 3170.

Response:We agree with the
comment that CAA section 172(e) does
not directly apply where EPAhas promulgated a more stringent NAAQS. However, as noted above, because the Act does not address the principles that apply when there is a transition to a

more stringent NAAQS, EPA determined that itwas reasonable to apply the principles in section 172(e). Thus, to the extent section 172(e) would authorize EPA to allow alternatives to statutory programs such as the fee
program in CAA section 185, EPA's application ofthe principles in section 172(e) to the anti-backsliding requirements for the 1-hour standard would provide EPA with the discretion
to authorize an alternative program. Also, as noted above, EPA has not yet stated whether itwould approve such programs for purposes ofthe antibacksliding requirements ofthe 1-hour

ozone standard.

Because the State has not submitted the program as an alternative program consistent with the principles in CAA section 172(e), EPA is notrequired to take a position in this rulemaking on whether itwould approve such alternatives or whether the submitted program is consistent with those principles. We will continue to work with the State to ensure thatthey adopt

a program that is fully consistent with the requirements ofthe CAA.

3.Exemption for UnitsThat Begin Operation After the Attainment Year
Section 4.2 ofSJVUAPCD Rule 3170 exempts units thatbegin operation after the attainment year. In itsproposed action, EPA stated thatCAA section 185 does not provide for an exemption for emission units thatbegin operation after the attainment year, so this exemption does not fully comply with the CAA. Rather, it requires "each major source"
to pay the fee (seeCAA section 185(a)). Comments:Several commenters disagreed with EPA'sproposed action

on this particular provision. They felt that this exemption is consistent with the CAArequirements and therefore should not be considered a deficiency. They also felt thatimposing fees on these units wouldbe an unfair burden, resulting in an unfair business environment. One commenter expressed that imposing fees on new units would only serve to hinder the ability ofnew, cleaner units to displace older, dirtier units. Another commenter expressed that while CAA section 185 does not provide an express exemption for new units, EPA has sufficient discretion to approve the new unitexemption in Rule 3170.

Two commenters agreed with EPA's proposed action on this particular provision. They felt thatthis exemption violates the requirements ofCAA section 185 and is a rule deficiency that is abasis for disapproval ofthe rule. One commenter stated thatthe CAA section 185 language isplain and unambiguous, and clearly does not allow such an exemption. The other
commenter added that there isno statutory authority for splitting a stationary source into separate emission units for the purpose ofdetermining fees. Response:CAA section 185 does not provide for an exemption for units beginning operation after the attainment year. Rather, itrequires that "each major stationary source" must paythe fee and that thebaseline emissions are those from the major source in the attainment year. The word "each" does not lend itselfto an interpretation that would exclude new major sources or new units
at existing major sources from the fee obligation. The equity concerns cannot override the statutory requirement.

4. Exemption for "CleanEmission Units"

Section 4.3 ofSJVUAPCD Rule 3170 exempts any "clean emission unit"from the requirements ofthe rule. Section 3.6 defines a clean emission unit as a unit that isequipped with an emissions control technology that either has a minimum 95% control efficiency (85% for lean-burn internal combustion engines), or meets the requirements for achieved-in-practice Best Achievable Control Technology as accepted by the APCO during the 5years immediately prior to the end ofthe attainment year. The District's staffreport for Rule 3170
states thatthe exemption is intended to address "the difficulty ofreducing emissions from units with recently installed BACT." In its proposed action, EPA expressed that although EPA understands the District's intention, the exemption does not comply with CAA section 185, for the same reason as noted above for new emission units. Comments:Several commenters disagreed with EPA's proposed action

on this particular provision. They felt that this exemption is consistent with the CAA requirements and therefore should not be considered a deficiency. Several commenters believe that Congress did not intend to impose fees

on units that are already as clean as possible. The imposition offees on these units may, in many cases, force a curtailment in operations to reduce emissions.

Two commenters agreed with EPA's proposed action on this particular provision. They felt that this exemption violates CAA section 185 requirements and is a rule deficiency thatis a basis for disapproval ofthe rule. These
commenters stated that the CAA section 185 language isplain and unambiguous, clearly does not allow such an exemption, that there isno suggestion in the CAA that thebest controlled sources

are entitled to any other "reward" or exemption, and that section 185 is not

a program to penalize only the lessregulated sources. One commenter expressed that Congress understood that the level ofcontrol among sources might
vary because CAA section 185(b)(2) 

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specifies thatthe baseline comes from the lower ofactuals or allowables, and that the allowables baseline is to be based onthe emissions allowed "under the permit"unless the source has no permit and is only subject to limits provided under the SIP. The commenter statedthat itwould defeat this express language to exempt sources from paying

afee based on some arbitrary notion of being "clean enough."

Response:As explained above, CAA section 185 mandates thatthe fee ispaid by "each"major source based on the emissions from that source inthe baseline year. There isnothing in the language ofCAA section 185 that contemplates that certain sources or that certain emissions from a source are not subject to the fee.

5.Defining the Baseline Period asthe Attainment Year and the Immediately Preceding Year

Section 3.2.1 ofRule 3170 defines the baseline period as two consecutive years consisting ofthe attainment year and the year immediately prior to the attainment year. In contrast, CAA section 185(b)(2) establishes the attainment year as the baseline period. While CAA section 185(b)(2) also provides discretion to calculate baseline emissions over a period ofmore than

one calendar year, that option is limited
to sources with emissions that are irregular, cyclical, or otherwise vary significantly from year to year. Thus, in its proposed action, EPA statedthat section 3.2.1 ofSJVUAPCD Rule 3170 is inconsistent with the CAA because it provides a different baseline than that required bythe CAA (twoyears instead ofone) regardless ofwhether the emissions are irregular, cyclical orvary significantly from year to year.

Comments:Six commenters disagreed with EPA's proposed action onthis particular provision. They felt that this provision is consistent with the CAA requirements as interpreted in a March 21, 2008 memorandum from William Harnett, Director ofthe Air Quality Policy Division, to the Regional Air Division Directors, entitled, "Guidance

on Establishing Emissions Baselines under Section 185 ofthe Clean Air Act (CAA) for Severe and Extreme Ozone Nonattainment Areas thatFail to Attain the 1-hour Ozone NAAQS by their Attainment Date," ("Section 185 Baseline Guidance") andtherefore should not be considered a deficiency.1

'EPA's Section 185 Baseline Guidance provides that anacceptable alternative baseline for sources whose emissions areirregular, cyclical, or otherwise vary significantly from yearto year is the 10-year lookback period foundin EPA's regulations Commenters objected to EPA's viewthat the five-year lookback option in SJVUAPCD Rule 3170be available only upon a site-specific consideration of representativeness or cyclicality. One
commenter stated that NSR reformwas enacted precisely toreplace such a caseby-case review. The commenter also stated SJVUAPCD's approach was consistent with EPA's New Source Review approach for multi-year baselines. The commenter feltthat a simple multi-year baseline would flexibly and efficiently satisfy the statutory language and intent.

Two commenters agreed with EPA's proposed action on this particular provision. They felt thatthis exemption violates the CAA section 185 requirements and is a rule deficiency that is a basis for disapproval ofthe rule. One commenter stated that CAA section 185 language isplain and unambiguous, and clearly does not allow the baseline tobe calculated over two years for all sources. The second
commenter stated that section 3.2.1 of Rule 3170 should be revised to clarify that the baseline formost sources will be the emissions in the attainment year of2010, and provide clear criteria for allowing sources to use an alternative baseline period.

Response:The language ofCAA section 185 provides EPA with discretion to issue guidance that would allow for thebaseline period tobe more than one calendar year. However, CAA section 185 allows EPA to do so only for

sources whose emissions are irregular, cyclical, or otherwise vary significantly from year to year. EPA's Section 185 Baseline Guidance referred to this connection by stating that, "where

source emissions are irregular, cyclical,

or otherwise vary significantly, the CAA provides thatthe U.S. Environmental Protection Agency (EPA) may issue guidance providing an alternative method to calculate thebaseline amount." EPA issued the Section 185 Baseline Guidance to provide guidance for an alternative method for calculating the emissions baseline in these situations. Hence, section 3.2.1 ofRule 3170 does not conform to CAA section 185 because itallows all sources to calculate theirbaseline over a two-year period, regardless ofwhether emissions

are irregular, cyclical, or otherwise vary significantly.

6. Allowing Averaging Over 2-5 Years To Establish Baseline Emissions

Section 3.2.2 ofRule 3170 allows averaging over 2-5 years to establish

for Prevention ofSignificant Deterioration ofAir Quality (PSD) (40CFR 52.21(b)(48)). baseline emissions. CAA section 185(b)(2) states that EPA may issue guidance authorizing such an alternative method ofcalculating baseline emissions. EPA's Section 185 Baseline Guidance addresses the issue ofalternative methods for calculating baseline emissions. The use ofthese alternative methods is associated with

sources whose emissions are irregular, cyclical, or otherwise vary significantly from year toyear. The averaging period allowed in section 3.2.2 ofRule 3170 appears consistent with EPA's Section 185 Baseline Guidance. The language in section 3.2.2, however, allows such averaging "ifthose years are determined by the APCO as more representative of normal source operation." In its proposed action, EPA stated thatit considers this language as less stringent than the criteria in the CAA, and therefore the rule should be amended to specify use ofthe expanded averaging period only ifa source's emissions are irregular, cyclical, or otherwise vary significantly from year to year. Comments:Several commenters disagreed with EPA's proposed action

on this particular provision. They felt that this exemption is consistent with the CAA requirements and the Section 185 Baseline Guidance, andtherefore should not be considered a deficiency. The SJVUAPCD stated that its intention in implementing this provision is that the criteria ofbeing "more representative ofnormal source operation" would require a source to demonstrate tothe satisfaction ofthe APCO that the emissions are irregular, cyclical, or otherwise vary significantly from year toyear. One commenter disagreed with EPA's assessment that the phrase, "more representative of normal source operation" was less stringent that the CAA section 185 language.

Two commenters agreed with EPA's proposed action on this particular provision. They felt that this exemption violates the CAA section 185 requirements and is a rule deficiency that is a basis for disapproval ofthe rule. One commenter stated thatthe CAA section 185 language is plain and unambiguous, and clearly does not allow such an exemption.

Response:EPA disagrees that unlimited APCO discretion in determining normal source operation is consistent with CAA section 185. Rule 3170 does not specify any criteria for how the APCO would make a determination that a certainbaseline is "more representative ofnormal source operation" than the baseline specified by CAA section 185 (i.e.,the attainment year). Itis not clear thatthe APCO's 

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discretion would involve an assessment ofwhether a source's emissions are irregular, cyclical, or otherwise variable. Therefore, EPA continues toviewthe language in section 3.2.2 ofRule 3170

as a deficiency thatneeds to be corrected.

7.Stationary Versus Mobile Sources

Comment:Several commenters stated that mostozone nonattainment areas classified as severe or extreme are now dominated by mobile source emissions, andthat stationary sources are notthe major contributor ofemissions. Commenters stated that CAA section 185 isfunctionally obsolete and will result in substantial adverse financial impacts to facility operators with little

orno air quality benefit. One
commenter statedthat individual

sources do not have the ability to assure attainment ofthe standard; consequently, the fee is an unconstitutional bill ofattainder.

Response:The approach outlined in the CAA to reduce emissions in defined air basins acknowledges thatno single

source isresponsible for an area's nonattainment, but thatthe total collective contribution ofmany individual sources affects an area's pollution problem. As such, the CAA extensively regulates both mobile

sources and stationary sources. Whether

ornot CAA section 185 is functionally obsolete is an issue for Congress. As long as CAA section 185 remains the law, EPA's obligation isto ensure compliance with it.We disagree with the commenter that claims that since individual sources cannot ensure attainment ofthe ozone NAAQS, section 185 is an unconstitutional bill of attainder. Section 185 does notresult in
any partybeing declared guilty ofa crime. Rather, itis a means of encouraging certain sources to reduce emissions ofpollutants that contribute
to unhealthy ambient ozone levels. The Courts have longheld thatthe Commerce clause gives Congress the authority toregulate sources ofair pollution. The fee provision ofCAA section 185 acts as an incentive for major sources ofair pollution to reduce emissions. Thus, it is a proper exercise ofCongressional authority under the Commerce clause.

8. Impacts of Rule 3170 on Small Businesses
Comment:Commenters stated that hundreds of smallbusinesses will be affected by CAA section 185 requirements, as well as hospitals, medical centers, schools and other essential public services. Commenters statedthat applying CAA section 185 fees to small businesses that are in compliance with all applicable regulations will demonstrate thatthe fees are unreasonable, expensive, and do nothing to reduce and assure emission reductions. One commenter stated that the fees would be inconsistent with the Small Business Regulatory Flexibility Act and thatthe fees should notbe applied to businesses meeting the definition of"small"under CAA section 507.

Response:Although CAA section 185 allows for exemptions for certain lowpopulation areas (see section 185(e)), section 185 does not grant States or EPA discretion to exempt smallbusinesses from the requirements ofthe program. The Regulatory Flexibility Act applies where EPA ispromulgating regulations that may have a significant impact on a substantial number of smallbusinesses. Here, itis the CAA, not EPA's action that imposes the fee on sources. Moreover, in this instance, EPA is not promulgating regulations, but rather reviewing a State plan. EPA does not have the authority to consider the impacts on small businesses thatresult from direct application ofthe statute or through applications ofthe State program. Moreover, even ifEPA were promulgating a regulation thatwas determined to have a significant impact

on a substantial number of small entities, we note thatthe RFA does not prohibit any specific regulatory result,

as suggested bythe commenters. Rather it only requires thatthe Agency take certain actions in order to fully consider the potential impacts ofthe regulation.

9. Unintended Consequences ofRule 3170

Comment:One commenter stated that renewable energy facilities may need to reduce throughput as a result ofCAA section 185 requirements and this would be contrary to efforts to reduce greenhouse gases and increase the penetration ofrenewable energy.

Response:Sources have several ways to comply with therequirements of CAA section 185, and this could include reducing throughput to eliminate or reduce the fee amount. Regardless ofthe consequence ofthe manner inwhich a major source chooses to comply with the requirements, section 185 does not provide States or EPA with authority to exempt major stationary sources from complying with section 185.

10. Incorrect Statement ofBaseline Emissions
Comment:One commenter stated that section 5.1 ofRule 3170 needs tobe revised to accurately define the baseline emissions to be used in the calculation ofthe fee amount. In addition, the definition ofbaseline emissions fails to include the possibility that a source will
not have apermit issued for the attainment year, in which case the allowable emissions are to be based on the emissions allowed under the applicable implementation plan (see CAA section 185(b)(2)). While such circumstances maybe rare, the District should include language that mirrors the statute to avoid any potential conflict.

Response:While we think itis unlikely that any sources wouldnot fall within the current definition, we agree with the commenter and recommend that the calculation in section 5.1 of Rule 3170 be revised to more closely conform to the language in CAA section 185. The definition of the variable "B" in the fee calculation should include the clarification thatifno permit hasbeen issued for the attainment year, then "B" shouldbe the lower ofthe actual VOC

oremissions during the baseline period,

orthe amount ofVOC or NOx emissions allowed under the applicable implementation plan during the baseline period.

11. Ambiguity on Fees for BothVOCs andNOx

Comment:One commenter expressed that the fee calculation in section 5.0 of Rule 3170 is ambiguous regarding whether the fee isdue for VOCs and NOx, orjust one or the other. Sources
must pay a fee for both VOC emissions in excess of80% ofthe VOC baseline emissions and NOx emissions in excess of80% oftheNOx baseline emissions. Section 5.0 ofRule 3170 should be revised to clarify this point.

Response:EPA agrees thatthe fee is required forboth VOC andNOx emissions. We believe thatthe District and sources understand the fee program applies to both VOC and NOx emissions, and that the language in section 5.1 ofSJVUAPCD Rule 3170 is sufficiently clear in that respect. For example, the District staffreport for Rule 3170 contained a sample fee calculation which also made it clear that

a separate fee would be assessed for VOC emissions and NOx emissions. While we do not believe any revisions
to the rule are necessary, we recommend that SJVUAPCD consider whether further clarification might be helpful.

12. Definition of"Major Source"

Section 3.4 ofRule 3170 defines the
term "Major Source" by referring to the definition in SJVUAPCD Rule 2201 (Newand Modified Stationary Source Review Rule). The current SIP-approved 

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version ofRule 2201 was adopted bythe SJVUAPCD on December 19, 2002, and approvedby EPA onMay 17, 2004 (69 FR 27837). This version ofRule 2201 defines "Major Source" as a stationary

source with VOC or NOx emissions of

over 50,000 pounds per year (25tons per year). The CAA defines the major

source threshold as 10 tons per year for

ozone nonattainment areas classified as extreme. The SJVUAPCD amended Rule 2201 on December 18, 2008, and submitted it for inclusion in the SIP on March 17, 2009. This amended version includes the 10 tons per year threshold, but has notbeen approved into the SIP. Therefore, in its proposed action, EPA statedthat Rule 3170's reliance on Rule 2201 to define major sources is not approvable at this time. Ifaversion of Rule 2201 that contains the appropriate major source threshold is approved into the SIP prior to finalizing the proposed action, then section 3.4 would no longer be cited as a deficiency in Rule 3170. Comments:Several commenters disagreed with EPA's proposed action

onthis particular provision. They felt that this discrepancy would be resolved prior to the assessment or collection of any section 185 fees when Rule 2201 is approved into the SIP. One commenter also expressed thatthe thresholds in Rule 2201 are currently binding under State law, and therefore the "Major Source" definition in Rule 3170 should
not be considered a deficiency that would result in the disapproval ofthe rule.

Two commenters agreed with EPA's proposed action on this particular provision. One commenter felt thatthis definition is currently inconsistent with CAA requirements, noting thatEPA has allowed Rule 2201 toremain out ofdate for 5years. However, in the current situation, the commenter agreed that this definition is a rule deficiency that is abasis for disapproval ofthe rule. One commenter added thatthe definition of"Major Source" in Rule 2201 does not match the definition in CAA section 182(e). For example, Rule 2201's definition excludes fugitive emissions for certain sources, only includes potential emissions from units with valid permits, and credits limits in authorities to construct thatmay or may not reflect actual emissions. As aresult, the commenter felt thatEPA is incorrect in suggesting thatthis deficiency willbe resolved once the revised version of Rule 2201 is approved into the SIP. The
commenter felt that section 3.4 ofRule 3170 shouldbe revised to mirrorthe definition of"major source" in CAA section 182(e), which includes all emissions ofVOC or NOx, and looks at the larger ofactual orpotential emissions.

Response:EPA disagrees with the
statement thatthe December 18, 2008, version ofRule 2201 is currently binding under State law. That version of the rule specifically states thatit does
not go into effect until EPA issues final approval ofthe rule into the SIP. The "Major Source" definition in Rule 3170 continues to be a deficiency until it is revised tobe consistent with the CAA. Further, we agree that since we havenot yet fully reviewed and acted on Rule 2201, we cannot say for a certainty that approval ofthatrule would eliminate any deficiency with respect to the definition ofmajor sources under Rule 3170. We will continue to work with the State to ensure thatit develops a section 185 program thatfully complies with the Act.

13. Sunset Provision for Section 185 Fees
Comment:One commenter highlighted the need for EPA to address the legality and process ofestablishing

a sunset provision for section 185 fees,

an issue identified in the CAAAC letter. Because the 1-hour ozone standard has been replaced with the 8-hour standard, EPA may notbe able to make the findings necessary to redesignate an

area as attainment for the 1-hour standard. This situation would require the imposition offees indefinitely. The
commenter feels thatthis issue mustbe resolved ifEPA finalizes action on Rule 3170.

Response:EPA is aware ofthe issue raised by the commenter and intends to address in future guidance or rulemaking the issue ofwhen section 185 fees would no longer apply.

III. EPAAction

No comments were submitted that change our assessment ofthe rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) ofthe Act,EPA is finalizing a limited approval ofthe submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval ofthe rule. As a result, sanctions willbe imposed unlessEPA approves subsequent SIP revisionsthat
correct the rule deficiencies within 18 months ofthe effective date ofthis action. These sanctions will be imposed under section 179 ofthe Act according
to 40 CFR 52.31. In addition,EPA must promulgate a Federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct therule deficiencies within 24 months. Note thatthe submittedrule has been adopted by the SJVUAPCD, andEPA's final limited disapproval does not prevent the local agency from enforcing it.

IV. Statutory andExecutive Order Reviews

A. Executive Order12866,Regulatory PlanningandReview

The Office ofManagement and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled "Regulatory Planning and Review."

B. Paperwork ReductionAct
This action does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act, 44 U.S.C. 3501 etseq.Burden is defined at 5CFR 1320.3(b).

C.RegulatoryFlexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements unlessthe agency certifies thatthe rule will not have a significant economic impact on

a substantial number of small entities. Small entities include smallbusinesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals and limited approvals/limited disapprovals under section 110 and subchapter I, part D ofthe Clean Air Act do not create any
new requirements but simply approve requirements that the State is already imposing. Therefore, because this limited approval/limited disapproval action does not create any new requirements, Icertify thatthis action will not have a significant economic impact on a substantial number of small entities.

Moreover, due tothe nature ofthe Federal-State relationship under the Clean Air Act, preparation offlexibility analysis would constitute Federal inquiry into the economic reasonableness ofState action. The Clean Air Act forbids EPA tobase its actions concerning SIPs on such grounds. UnionElectricCo., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. UnfundedMandatesReformAct

Under sections 202 ofthe Unfunded Mandates Reform Act of 1995 ("UnfundedMandates Act"), signed into law on March 22, 1995, EPA must 

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### Federal Register/Vol. 75, No. 8/Wednesday, January 13, 2010/Rules and Regulations

prepare a budgetary impact statement to accompany any proposed or final rule that includes aFederal mandate that may result in estimated costs to State, local, or Tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most costeffective and leastburdensome alternative that achieves the objectives ofthe rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments thatmay be significantly

oruniquely impacted by the rule.

EPA has determined that the limited approval/limited disapproval action promulgated does not include a Federal mandate that may result in estimated
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 preexisting requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or Tribal governments, or to theprivate sector, result from this action.

E.Executive Order13132,Federalism

Federalism(64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism)and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development ofregulatory policies that have federalism implications." "Policiesthat have federalism implications" is defined in the Executive Order to include regulations thathave "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 ofgovernment." Under Executive Order 13132, EPA may not issue a regulation thathas federalism implications, that imposes substantial direct compliance costs, and thatis not required by statute, unlessthe Federal government provides the funds necessary topay the direct compliance
costs incurred by State and local governments, or EPA consults with State and local officials early in the process ofdeveloping theproposed regulation. EPA also may not issue a regulation thathas federalism implications and thatpreempts State law unless the Agency consults with State and local officials early in the process ofdeveloping theproposed regulation. This rule will not have substantial direct effects on the States, onthe relationship between the national government and the States, or onthe distribution ofpower and responsibilities among the various levels ofgovernment, as specified in Executive Order 13132, because it merely approves aState rule implementing a Federal standard, and does not alter therelationship or the distribution ofpower and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 ofthe Executive Order do not apply to this rule.

F.Executive Order13175, Coordination With IndianTribalGovernments

Executive Order 13175, entitled "Consultation andCoordination with Indian Tribal Governments" (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to

ensure "meaningful andtimely input by Tribal officials in the development of regulatory policies thathave Tribal implications." This final rule does not have Tribal implications, as specified in Executive Order 13175. Itwill not have substantial direct effects on Tribal governments, onthe relationship between the Federal government and Indian Tribes, or onthe distribution of power and responsibilities between the Federal government and Indian Tribes. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order13045, Protectionof ChildrenFromEnvironmentalHealth Risks andSafetyRisks

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such thatthe analysis required under section 5-501 ofthe Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a State rule implementing a Federal standard.

H. Executive Order13211,Actions That Significantly Affect EnergySupply, Distribution,or Use

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.

L NationalTechnologyTransferand AdvancementAct
Section 12 oftheNational Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing anew regulation. To comply with NTTAA, EPA must consider anduse "voluntary

consensus standards" (VCS) ifavailable and applicable when developing
programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPAbelieves that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use ofVCS.

J. Congressional ReviewAct

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the
agency promulgating the rulemust submita rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United Statesprior to publication ofthe rule in the FederalRegister. A majorrule
cannot take effect until 60 days after it is published in the Federal Register. This action is not a "major rule" as defined by 5U.S.C. 804(2). This rule will be effective February 12, 2010.

K.Petitions forJudicial Review

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed inthe United States Court ofAppeals for the appropriate circuit by March 15, 2010. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis rule for the
purposes ofjudicial review nor does it extend the time within which apetition forjudicial review maybe filed, and shall not postpone the effectiveness of suchrule 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 CFRPart 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 1722Federal Register/Vol. 75, No. 8/Wednesday, January 13, 2010 /Rules and Regulations

Dated: December 11, 2009. Laura Yoshii, ActingRegionalAdministrator, RegionIX. * Part52, Chapter I,Title 40 oftheCode ofFederal Regulations is amended as follows:

PART 52-[AMENDED]

m 1. The authority citationfor part52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq. Subpart F-California

* 2.Section 52.220 is amended by adding paragraph (c)(303)(i)(C)(4) to read as follows:

§52.220 Identificationof plan.

(c) * * * (303) * * * 

### (i)* * *
(C) * * * (4) Rule 3170, "Federally Mandated Ozone Nonattainment Fee," adopted on May 16, 2002.

* * * * *
[FR Doe. 2010-353 Filed 1-12-10; 8:45 am]

BILLING CODE 6560-50-P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 679
[Docket No.0910091344-9056-02]

RIN 0648-XT71

Fisheries ofthe Exclusive Economic Zone Off Alaska; Chiniak Gully Research Area for Vessels Using Trawl Gear

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule.

SUMMARY: NMFS isrescinding the trawl closure in the Chiniak Gully Research Area. This action is necessary to allow vessels using trawl gear to participate in directed fishing for groundfish in the Chiniak Gully Research Area. DATES: Effective 1200 hrs, Alaska local time (A.l.t.), August 1, 2010, through 1200 hrs, Alt., September 20, 2010.
FOR FURTHER INFORMATION CONTACT: Obren Davis, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the Gulf ofAlaska (GOA) exclusive economic zone according tothe Fishery Management Plan for Groundfish ofthe Gulf ofAlaska (FMP) prepared bythe North Pacific Fishery Management Council under authority ofthe Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishingby U.S. vessels in accordance with the FMP
appear at subpart H of50 CFRpart 600 and 50 CFR part 679.

The Chiniak Gully Research Area is closed to vessels using trawl gear from August 1to a date no later than September 20 under regulations at §679.22(b)(6)(ii)(A). This closure is in support ofa research project to evaluate the effects ofcommercial fishing on pollock distribution and abundance, as part ofa comprehensive investigation of Stellar sea lion and commercial fishery interactions.

The regulations at §679.22(b)(6)(ii)(B) provide thatthe Regional Administrator, Alaska Region, NMFS, (Regional Administrator) shall rescind the trawl closure ifrelevant research activities will not be conducted. The Regional Administrator has determined that research activities will not be conducted in 2010 in the Chiniak Gully Research Area. Therefore, the Regional Administrator is rescinding the trawl closure ofthe ChiniakGully Research Area. All other closures remain in full force and effect.

Classification

Pursuant to 5U.S.C. 553 (b)(B), the Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary. Notice and comment is unnecessary because the rescission ofthe trawl closure is non-discretionary; pursuant to §679.22(b)(6)(ii)(B), the Regional Administrator has no choice but to rescind the trawl closure once itis determined that research activities will
not be conducted in the area.

Pursuant to 5U.S.C. 553(d)(1), this rule is not subject to the 30-day delay in effective date requirement of5U.S.C. 553(d) since the rulerelieves a restriction.

This action has been determined to be
not significant for purposes ofExecutive Order 12866.

Authority: 16 U.S.C. 1801 etseq.
Dated: January 7, 2010. EmilyH. Menashes, ActingDirector, Office ofSustainable Fisheries, National MarineFisheries Service.
[FRDoe. 2010-495 Filed 1-12-10; 8:45 am]

BILLING CODE 3510-22-S 

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