1716 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 

307(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] 

■ 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 Doc. 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. 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 75, No. 8 / Wednesday, January 13, 2010 / Rules and Regulations 1717 

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 

III. 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/air/ 

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 


erowe on DSK5CLS3C1PROD with RULES
1718 Federal Register / Vol. 75, No. 8 / Wednesday, January 13, 2010 / Rules and Regulations 

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) 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 75, No. 8 / Wednesday, January 13, 2010 / Rules and Regulations 1719 

1EPA’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 

for Prevention of Significant Deterioration of Air 

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

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

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 

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 


erowe on DSK5CLS3C1PROD with RULES
1720 Federal Register / Vol. 75, No. 8 / Wednesday, January 13, 2010 / Rules and Regulations 

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 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 75, No. 8 / Wednesday, January 13, 2010 / Rules and Regulations 1721 

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 


erowe on DSK5CLS3C1PROD with RULES
1722 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. 

I. 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. 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 75, No. 8 / Wednesday, January 13, 2010 / Rules and Regulations 1723 

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] 

■ 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 Doc. 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, A.l.t., 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 Doc. 2010–495 Filed 1–12–10; 8:45 am] 

BILLING CODE 3510–22–S 


erowe on DSK5CLS3C1PROD with RULES