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

IV. Statutory and Executive Order

Reviews

Under the Clean Air Act, the

Administrator is required to approve a

SIP submission that complies with the

provisions of the 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 that they meet

the criteria of the Clean Air 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 "significant regulatory

action" subject to review by the Office

of Management and Budget under

Executive Order 12866 (58 FR 51735,

October 4, 1993);

* Does not impose an information

collection burden under the provisions

of the Paperwork Reduction Act (44

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

* Is certified as not having a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.);

* Does not contain any unfunded

mandate or significantly or uniquely

affect small governments, as described

in the Unfunded Mandates Reform Act

of 1995 (Pub. L. 104-4);

* Does not have Federalism

implications as specified in Executive

Order 13132 (64 FR 43255, August 10,

1999);

* Is not an economically significant

regulatory action based on health or

safety risks subject to Executive Order

13045 (62 FR 19885, April 23, 1997);

* Is not a significant regulatory action

subject to Executive Order 13211 (66 FR

28355, May 22, 2001);

* Is not subject to requirements of

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) because

application of those requirements would

be inconsistent with the Clean Air Act;

and

* Does not provide 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 on Tribal governments or preempt

Tribal law.

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. 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).

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 15, 2010.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this action for

the purposes of judicial review nor does

it extend the time within which a

petition for judicial review may be filed,

and shall not postpone the effectiveness

of such rule or action. This action may

not be challenged later in proceedings to

enforce its requirements (see section

30 7(b)(2)).

List of Subjects in 40 CFR Part 52

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,

Acting Regional Administrator, Region IX.

* Part 52, Chapter I, Title 40 of the Code

of Federal 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) to read as follows:

§52.220 Identification of 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 5.0 MMbtu/hr," adopted

on October 16, 2008. • * * * *

[FR Doe. 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]

Revisions to the California State

Implementation Plan, San Joaquin

Valley Unified Air Pollution Control

District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing a limited

approval and limited disapproval of

revisions to the San Joaquin Valley

Unified Air Pollution Control District

(SJVUAPCD) portion of the 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 of volatile organic

compound and nitrogen oxide

emissions in the San Joaquin Valley

ozone nonattainment area. Under

authority of the 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: Effective Date: This rule is

effective on February 12, 2010.

ADDRESSES: EPA has established docket

number EPA-R09-OAR-2009-0024 for

this action. The index to the docket is

available electronically at http://

www.regulations.gov and in 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 may be

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 normal business

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 of Contents

I. Proposed Action

II. Public Comments and EPA Responses

A. Commenting Parties

B. Summary of Comments and EPA

Responses

1. EPA Response to the Clean Air Act

Advisory Committee Letter

2. Consideration of Rule 3170 as an

Alternative Program

3. Exemption for Units That Begin

Operation After the Attainment Year

4. Exemption for "Clean Emission 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 of Rule 3170

10. Incorrect Statement of Baseline

Emissions

11. Ambiguity on Fees for Both 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 of the 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 that this 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 that begin

operation after the attainment year.

2. An exemption for any "clean

emission unit."

3. The definition of the baseline

period as two consecutive years.

4. The allowance of averaging

baseline emissions over a period of

2-5 years "if those years are determined

by the APCO as more representative of

normal source operation."

5. An inappropriate definition of the

term "Major Source." Our proposed

action contains more information on the

basis for this rulemaking and on our

evaluation of the submittal.

II. Public Comments and EPA

Responses

A. Commenting Parties

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 of Irritated 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. La Marr, dated

August 11, 2009.

5. The Clean Energy Group, letter

from Michael Bradley, dated September

18, 2009.

6. County Sanitation Districts of Los

Angeles County, letter from Stephen R.

Maguin and Gregory M. Adams, dated

August 11, 2009.

7. County Sanitation Districts of Los

Angeles County, letter from Stephen R.

Maguin and Gregory M. Adams, dated

September 18, 2009.

8. EarthJustice, letter from Paul Cort,

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 David R.

Farabee, Pillsbury Winthrop Shaw

Pittman LLP, dated September 18, 2009.

B. Summary of Comments and EPA

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 to the implementation of

CAA section 185. The CAAAC asked

EPA to review and address whether it is

"legally permissible under either section

185 or 172(e) of the Clean Air Act for

a State to exercise discretion" to develop

fee program SIPs employing one or more

of a list of CAAAC-identified program

options (see http://www.epa.gov/airl

caaac/185wg).

Comments: Several commenters

specifically requested that EPA 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 of SJVUAPCD 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 3170 by December

11, 2009. This obligation is imposed by

a consent decree between EPA and the

Center for Race, Poverty and the

Environment (CRPE) to settle CRPE's

litigation alleging that EPA had failed to

act on Rule 3170 in a timely 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-hour ozone standard because that

provision applies only where the

revised standard is less stringent than

the standard it replaces. However,

because the CAA does not directly

address anti-backsliding where there is

a new more stringent standard, EPA

determined to apply the principles 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 that the State has not requested

that EPA review Rule 3170 pursuant to

the principles in CAA section 172(e)

and thus, for purposes of taking action

on Rule 3170, it is not necessary for EPA

to take a final position regarding

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whether it could approve a substitute

program for the program specified under

CAA section 185.

2. Consideration of Rule 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 a basis for not being able

to fully approve the rule as meeting

section 185 of the Act. We further noted

that the State has not requested that

EPA review the SIP to determine

whether it would be equivalent to CAA

section 185 under the principles of

section 172(e) and has not made a

demonstration that the program it has

submitted would ensure controls that

are "not less stringent" than those

required under section 185. Thus, we

stated that we were not addressing

whether it is legally permissible for a

State to adopt an alternative program at

least as stringent as a section 185 fee

program, or if so, whether such

alternative program could contain a

clean unit exemption.

Comments: One commenter

encouraged EPA to work with

SJVUAPCD to consider Rule 3170 as an

alternative program under the

provisions of CAA section 172(e). The

commenter felt that this rule as written

would encourage area-wide emission

reductions and meet the goals of CAA

section 185 without sacrificing

stringency.

One commenter stated that even if the

District had submitted Rule 3170

pursuant to 172(e), or attempts to make

a 172(e) demonstration to justify the

clean unit exemption 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

stated that section 172(e) only applies

where EPA has relaxed 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 EPA has

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 it was 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 of the 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 it would approve such

programs for purposes of the antibacksliding requirements of the 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 not required to

take a position in this rulemaking on

whether it would approve such

alternatives or whether the submitted

program is consistent with those

principles. We will continue to work

with the State to ensure that they adopt

a program that is fully consistent with

the requirements of the CAA.

3. Exemption for Units That Begin

Operation After the Attainment Year

Section 4.2 of SJVUAPCD Rule 3170

exempts units that begin operation after

the attainment year. In its proposed

action, EPA stated that CAA section 185

does not provide for an exemption for

emission units that begin 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 (see CAA section 185(a)).

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.

They also felt that imposing fees on

these units would be 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 of new,

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 unit exemption in Rule

3170.

Two commenters agreed with EPA's

proposed action on this particular

provision. They felt that this exemption

violates the requirements of CAA

section 185 and is a rule deficiency that

is a basis for disapproval of the rule.

One commenter stated that the CAA

section 185 language is plain and

unambiguous, and clearly does not

allow such an exemption. The other

commenter added that there is no

statutory authority for splitting a

stationary source into separate emission

units for the purpose of determining

fees.

Response: CAA section 185 does not

provide for an exemption for units

beginning operation after the attainment

year. Rather, it requires that "each major

stationary source" must pay the fee and

that the baseline emissions are those

from the major source in the attainment

year. The word "each" does not lend

itself to 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 "Clean Emission Units"

Section 4.3 of SJVUAPCD Rule 3170

exempts any "clean emission unit" from

the requirements of the rule. Section 3.6

defines a clean emission unit as a unit

that is equipped 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 5 years immediately

prior to the end of the attainment year.

The District's staff report for Rule 3170

states that the exemption is intended to

address "the difficulty of reducing

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 of fees 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 that is a basis

for disapproval of the rule. These

commenters stated that the CAA section

185 language is plain and unambiguous,

clearly does not allow such an

exemption, that there is no suggestion in

the CAA that the best 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 of control among sources might

vary because CAA section 185(b)(2)

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specifies that the baseline comes from

the lower of actuals or allowables, and

that the allowables baseline is to be

based on the emissions allowed "under

the permit" unless the source has no

permit and is only subject to limits

provided under the SIP. The commenter

stated that it would defeat this express

language to exempt sources from paying

a fee based on some arbitrary notion of

being "clean enough."

Response: As explained above, CAA

section 185 mandates that the fee is paid

by "each" major source based on the

emissions from that source in the

baseline year. There is nothing in the

language of CAA 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 as the

Attainment Year and the Immediately

Preceding Year

Section 3.2.1 of Rule 3170 defines the

baseline period as two consecutive years

consisting of the 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 of more 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 stated that

section 3.2.1 of SJVUAPCD Rule 3170 is

inconsistent with the CAA because it

provides a different baseline than that

required by the CAA (two years instead

of one) regardless of whether the

emissions are irregular, cyclical or vary

significantly from year to year.

Comments: Six commenters disagreed

with EPA's proposed action on this

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 of the Air Quality

Policy Division, to the Regional Air

Division Directors, entitled, "Guidance

on Establishing Emissions Baselines

under Section 185 of the Clean Air Act

(CAA) for Severe and Extreme Ozone

Nonattainment Areas that Fail to Attain

the 1-hour Ozone NAAQS by their

Attainment Date," ("Section 185

Baseline Guidance") and therefore

should not be considered a deficiency.1

'EPA's Section 185 Baseline Guidance provides

that an acceptable alternative baseline for sources

whose emissions are irregular, cyclical, or

otherwise vary significantly from year to year is the

10-year lookback period found in EPA's regulations

Commenters objected to EPA's view that

the five-year lookback option in

SJVUAPCD Rule 3170 be available only

upon a site-specific consideration of

representativeness or cyclicality. One

commenter stated that NSR reform was

enacted precisely to replace 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 felt that 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 that this exemption

violates the CAA section 185

requirements and is a rule deficiency

that is a basis for disapproval of the

rule. One commenter stated that CAA

section 185 language is plain and

unambiguous, and clearly does not

allow the baseline to be 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 for most sources will

be the emissions in the attainment year

of 2010, and provide clear criteria for

allowing sources to use an alternative

baseline period.

Response: The language of CAA

section 185 provides EPA with

discretion to issue guidance that would

allow for the baseline period to be 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 that the U.S. Environmental

Protection Agency (EPA) may issue

guidance providing an alternative

method to calculate the baseline

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 of Rule

3170 does not conform to CAA section

185 because it allows all sources to

calculate their baseline over a two-year

period, regardless of whether emissions

are irregular, cyclical, or otherwise vary

significantly.

6. Allowing Averaging Over 2-5 Years

To Establish Baseline Emissions

Section 3.2.2 of Rule 3170 allows

averaging over 2-5 years to establish

for Prevention of Significant Deterioration of Air

Quality (PSD) (40 CFR 52.21(b)(48)).

baseline emissions. CAA section

185(b)(2) states that EPA may issue

guidance authorizing such an

alternative method of calculating

baseline emissions. EPA's Section 185

Baseline Guidance addresses the issue

of alternative methods for calculating

baseline emissions. The use of these

alternative methods is associated with

sources whose emissions are irregular,

cyclical, or otherwise vary significantly

from year to year. The averaging period

allowed in section 3.2.2 of Rule 3170

appears consistent with EPA's Section

185 Baseline Guidance. The language in

section 3.2.2, however, allows such

averaging "if those years are determined

by the APCO as more representative of

normal source operation." In its

proposed action, EPA stated that it

considers this language as less stringent

than the criteria in the CAA, and

therefore the rule should be amended to

specify use of the expanded averaging

period only if a 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, and therefore

should not be considered a deficiency.

The SJVUAPCD stated that its intention

in implementing this provision is that

the criteria of being "more

representative of normal source

operation" would require a source to

demonstrate to the satisfaction of the

APCO that the emissions are irregular,

cyclical, or otherwise vary significantly

from year to year. 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 of the

rule. One commenter stated that the

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 certain baseline is

"more representative of normal source

operation" than the baseline specified

by CAA section 185 (i.e., the attainment

year). It is not clear that the APCO's

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discretion would involve an assessment

of whether a source's emissions are

irregular, cyclical, or otherwise variable.

Therefore, EPA continues to view the

language in section 3.2.2 of Rule 3170

as a deficiency that needs to be

corrected.

7. Stationary Versus Mobile Sources

Comment: Several commenters stated

that most ozone nonattainment areas

classified as severe or extreme are now

dominated by mobile source emissions,

and that stationary sources are not the

major contributor of emissions.

Commenters stated that CAA section

185 is functionally obsolete and will

result in substantial adverse financial

impacts to facility operators with little

or no air quality benefit. One

commenter stated that individual

sources do not have the ability to assure

attainment of the standard;

consequently, the fee is an

unconstitutional bill of attainder.

Response: The approach outlined in

the CAA to reduce emissions in defined

air basins acknowledges that no single

source is responsible for an area's

nonattainment, but that the total

collective contribution of many

individual sources affects an area's

pollution problem. As such, the CAA

extensively regulates both mobile

sources and stationary sources. Whether

or not CAA section 185 is functionally

obsolete is an issue for Congress. As

long as CAA section 185 remains the

law, EPA's obligation is to ensure

compliance with it. We disagree with

the commenter that claims that since

individual sources cannot ensure

attainment of the ozone NAAQS, section

185 is an unconstitutional bill of

attainder. Section 185 does not result in

any party being declared guilty of a

crime. Rather, it is a means of

encouraging certain sources to reduce

emissions of pollutants that contribute

to unhealthy ambient ozone levels. The

Courts have long held that the

Commerce clause gives Congress the

authority to regulate sources of air

pollution. The fee provision of CAA

section 185 acts as an incentive for

major sources of air pollution to reduce

emissions. Thus, it is a proper exercise

of Congressional authority under the

Commerce clause.

8. Impacts of Rule 3170 on Small

Businesses

Comment: Commenters stated that

hundreds of small businesses will be

affected by CAA section 185

requirements, as well as hospitals,

medical centers, schools and other

essential public services. Commenters

stated that applying CAA section 185

fees to small businesses that are in

compliance with all applicable

regulations will demonstrate that the

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 that the

fees should not be 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 small businesses

from the requirements of the program.

The Regulatory Flexibility Act applies

where EPA is promulgating regulations

that may have a significant impact on a

substantial number of small businesses.

Here, it is 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 that result

from direct application of the statute or

through applications of the State

program. Moreover, even if EPA were

promulgating a regulation that was

determined to have a significant impact

on a substantial number of small

entities, we note that the RFA does not

prohibit any specific regulatory result,

as suggested by the commenters. Rather

it only requires that the Agency take

certain actions in order to fully consider

the potential impacts of the regulation.

9. Unintended Consequences of Rule

3170

Comment: One commenter stated that

renewable energy facilities may need to

reduce throughput as a result of CAA

section 185 requirements and this

would be contrary to efforts to reduce

greenhouse gases and increase the

penetration of renewable energy.

Response: Sources have several ways

to comply with the requirements of

CAA section 185, and this could include

reducing throughput to eliminate or

reduce the fee amount. Regardless of the

consequence of the manner in which 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 of Baseline

Emissions

Comment: One commenter stated that

section 5.1 of Rule 3170 needs to be

revised to accurately define the baseline

emissions to be used in the calculation

of the fee amount. In addition, the

definition of baseline emissions fails to

include the possibility that a source will

not have a permit 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 may be rare, the District

should include language that mirrors

the statute to avoid any potential

conflict.

Response: While we think it is

unlikely that any sources would not 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 that if no permit has been

issued for the attainment year, then "B"

should be the lower of the actual VOC

or emissions during the baseline period,

or the amount of VOC or NOx emissions

allowed under the applicable

implementation plan during the

baseline period.

11. Ambiguity on Fees for Both VOCs

and NOx

Comment: One commenter expressed

that the fee calculation in section 5.0 of

Rule 3170 is ambiguous regarding

whether the fee is due for VOCs and

NOx, or just one or the other. Sources

must pay a fee for both VOC emissions

in excess of 80% of the VOC baseline

emissions and NOx emissions in excess

of 80% of the NOx baseline emissions.

Section 5.0 of Rule 3170 should be

revised to clarify this point.

Response: EPA agrees that the fee is

required for both VOC and NOx

emissions. We believe that the District

and sources understand the fee program

applies to both VOC and NOx

emissions, and that the language in

section 5.1 of SJVUAPCD Rule 3170 is

sufficiently clear in that respect. For

example, the District staff report 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 of Rule 3170 defines the

term "Major Source" by referring to the

definition in SJVUAPCD Rule 2201

(New and Modified Stationary Source

Review Rule). The current SIP-approved

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

version of Rule 2201 was adopted by the

SJVUAPCD on December 19, 2002, and

approved by EPA on May 17, 2004 (69

FR 27837). This version of Rule 2201

defines "Major Source" as a stationary

source with VOC or NOx emissions of

over 50,000 pounds per year (25 tons

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 not been approved into the SIP.

Therefore, in its proposed action, EPA

stated that Rule 3170's reliance on Rule

2201 to define major sources is not

approvable at this time. If a version 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

on this 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 that the 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 of the

rule.

Two commenters agreed with EPA's

proposed action on this particular

provision. One commenter felt that this

definition is currently inconsistent with

CAA requirements, noting that EPA has

allowed Rule 2201 to remain out of date

for 5 years. However, in the current

situation, the commenter agreed that

this definition is a rule deficiency that

is a basis for disapproval of the rule.

One commenter added that the

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 that may or may

not reflect actual emissions. As a result,

the commenter felt that EPA is incorrect

in suggesting that this deficiency will be

resolved once the revised version of

Rule 2201 is approved into the SIP. The

commenter felt that section 3.4 of Rule

3170 should be revised to mirror the

definition of "major source" in CAA

section 182(e), which includes all

emissions of VOC or NOx, and looks at

the larger of actual or potential

emissions.

Response: EPA disagrees with the

statement that the December 18, 2008,

version of Rule 2201 is currently

binding under State law. That version of

the rule specifically states that it does

not go into effect until EPA issues final

approval of the rule into the SIP. The

"Major Source" definition in Rule 3170

continues to be a deficiency until it is

revised to be consistent with the CAA.

Further, we agree that since we have not

yet fully reviewed and acted on Rule

2201, we cannot say for a certainty that

approval of that rule would eliminate

any deficiency with respect to the

definition of major sources under Rule

3170. We will continue to work with the

State to ensure that it develops a section

185 program that fully 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 of establishing

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 not be able to make the

findings necessary to redesignate an

area as attainment for the 1-hour

standard. This situation would require

the imposition of fees indefinitely. The

commenter feels that this issue must be

resolved if EPA finalizes action on Rule

3170.

Response: EPA is aware of the issue

raised by the commenter and intends to

address in future guidance or

rulemaking the issue of when section

185 fees would no longer apply.

III. EPA Action

No comments were submitted that

change our assessment of the rule as

described in our proposed action.

Therefore, as authorized in sections

110(k)(3) and 301(a) of the Act, EPA is

finalizing a limited approval of the

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 of the rule. As a result,

sanctions will be imposed unless EPA

approves subsequent SIP revisions that

correct the rule deficiencies within 18

months of the effective date of this

action. These sanctions will be imposed

under section 179 of the 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 the rule deficiencies within

24 months. Note that the submitted rule

has been adopted by the SJVUAPCD,

and EPA's final limited disapproval

does not prevent the local agency from

enforcing it.

IV. Statutory and Executive Order

Reviews

A. Executive Order 12866, Regulatory

Planning and Review

The Office of Management and Budget

(OMB) has exempted this regulatory

action from Executive Order 12866,

entitled "Regulatory Planning and

Review."

B. Paperwork Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. Burden is

defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to conduct

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements unless the

agency certifies that the rule will not

have a significant economic impact on

a substantial number of small entities.

Small entities include small businesses,

small not-for-profit enterprises, and

small governmental jurisdictions.

This 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 of the 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, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities.

Moreover, due to the nature of the

Federal-State relationship under the

Clean Air Act, preparation of flexibility

analysis would constitute Federal

inquiry into the economic

reasonableness of State action. The

Clean Air Act forbids EPA to base its

actions concerning SIPs on such

grounds. Union Electric Co., v. U.S.

EPA, 427 U.S. 246, 255-66 (1976); 42

U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded

Mandates Reform Act of 1995

("Unfunded Mandates 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 a Federal 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 least burdensome

alternative that achieves the objectives

of the rule and is consistent with

statutory requirements. Section 203

requires EPA to establish a plan for

informing and advising any small

governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the 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 the private sector,

result from this action.

E. Executive Order 13132, 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 of regulatory

policies that have federalism

implications." "Policies that have

federalism implications" is defined in

the Executive Order to include

regulations that 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." Under

Executive Order 13132, EPA may not

issue a regulation that has federalism

implications, that imposes substantial

direct compliance costs, and that is not

required by statute, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by State and local

governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule 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, because it

merely approves a State rule

implementing a Federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule.

F. Executive Order 13175, Coordination

With Indian Tribal Governments

Executive Order 13175, entitled

"Consultation and Coordination with

Indian Tribal Governments" (65 FR

67249, November 9, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

Tribal officials in the development of

regulatory policies that have Tribal

implications." This final rule does not

have Tribal implications, as specified in

Executive Order 13175. It will not have

substantial direct effects on Tribal

governments, on the relationship

between the Federal government and

Indian Tribes, or on the distribution of

power and responsibilities between the

Federal government and Indian Tribes.

Thus, Executive Order 13175 does not

apply to this rule.

G. Executive Order 13045, Protection of

Children From Environmental Health

Risks and Safety Risks

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 that the analysis required

under section 5-501 of the 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 Order 13211, Actions That

Significantly Affect Energy Supply,

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 National Technology Transfer and

Advancement Act

Section 12 of the National Technology

Transfer and Advancement Act

(NTTAA) of 1995 requires Federal

agencies to evaluate existing technical

standards when developing a new

regulation. To comply with NTTAA,

EPA must consider and use "voluntary

consensus standards" (VCS) if available

and applicable when developing

programs and policies unless doing so

would be inconsistent with applicable

law or otherwise impractical.

The EPA believes that VCS are

inapplicable to this action. Today's

action does not require the public to

perform activities conducive to the use

of VCS.

J. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. 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 rule

will be effective February 12, 2010.

K. Petitions for Judicial Review

Under section 307(b)(1) of the Clean

Air Act, petitions for judicial review of

this action must be filed in the United

States Court of Appeals for the

appropriate circuit by March 15, 2010.

Filing a petition for reconsideration by

the Administrator of this final rule does

not affect the finality of this rule for the

purposes of judicial review nor does it

extend the time within which a petition

for judicial review may be filed, and

shall not postpone the effectiveness of

such rule or action. This action may not

be challenged later in proceedings to

enforce its requirements (see section

307(b)(2)).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and

recordkeeping requirements, Volatile

organic compounds.

1722
Federal Register/Vol. 75, No. 8/Wednesday, January 13, 2010 /Rules and Regulations

Dated: December 11, 2009.

Laura Yoshii,

Acting Regional Administrator, Region IX.

* Part 52, Chapter I, Title 40 of the Code

of Federal 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 paragraph (c)(303)(i)(C)(4) to

read as follows:

§52.220 Identification of 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 of the 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 is rescinding 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 of Alaska (GOA) exclusive

economic zone according to the Fishery

Management Plan for Groundfish of the

Gulf of Alaska (FMP) prepared by the

North Pacific Fishery Management

Council under authority of the

Magnuson-Stevens Fishery

Conservation and Management Act.

Regulations governing fishing by U.S.

vessels in accordance with the FMP

appear at subpart H of 50 CFR part 600

and 50 CFR part 679.

The Chiniak Gully Research Area is

closed to vessels using trawl gear from

August 1 to a date no later than

September 20 under regulations at

§ 679.22(b)(6)(ii)(A). This closure is in

support of a research project to evaluate

the effects of commercial fishing on

pollock distribution and abundance, as

part of a comprehensive investigation of

Stellar sea lion and commercial fishery

interactions.

The regulations at § 679.22(b)(6)(ii)(B)

provide that the Regional Administrator,

Alaska Region, NMFS, (Regional

Administrator) shall rescind the trawl

closure if relevant 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 of the Chiniak Gully Research

Area. All other closures remain in full

force and effect.

Classification

Pursuant to 5 U.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 of the 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 it is

determined that research activities will

not be conducted in the area.

Pursuant to 5 U.S.C. 553(d)(1), this

rule is not subject to the 30-day delay

in effective date requirement of 5 U.S.C.

553(d) since the rule relieves a

restriction.

This action has been determined to be

not significant for purposes of Executive

Order 12866.

Authority: 16 U.S.C. 1801 et seq.

Dated: January 7, 2010.

Emily H. Menashes,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doe. 2010-495 Filed 1-12-10; 8:45 am]

BILLING CODE 3510-22-S

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