46910 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 

For the OCS off the . . . Apply to . . . 

(c) States of California, Oregon, Washington, 

Hawaii, or U.S. territories in the Pacific 

Ocean.

Regional Supervisor for Resource Evaluation, Minerals Management Service, Pacific OCS Region, 770 Paseo Camarillo, Camarillo, CA 93010. 

§ 280.80 [Amended] 

■ 33. In § 280.80(e), remove the words 

‘‘Mail Stop 4230,’’ and add, in their 

place, ‘‘Mail Stop 5438,’’. 

PART 291—OPEN AND NONDISCRIMINATORY ACCESS TO OIL 

AND GAS PIPELINES UNDER THE 

OUTER CONTINENTAL SHELF LANDS 

ACT 

■ 34. The authority citation for part 291 

is revised to read as follows: 

Authority: 31 U.S.C. 9701, 43 U.S.C. 1334. 

§ 291.1 [Amended] 

■ 35. In § 291.1(e), remove the words 

‘‘Mail Stop 4230,’’ and add, in their 

place, ‘‘Mail Stop 5438,’’. 

§ 291.103 [Amended] 

■ 36. In § 291.103 introductory text, 

remove the words ‘‘Mail Stop 4230,’’ 

and add, in their place, ‘‘Mail Stop 

5438,’’. 

§ 291.106 [Amended] 

■ 37. In § 291.106(a), remove the words 

‘‘Mail Stop 4230,’’ and add, in their 

place, ‘‘Mail Stop 5438,’’. 

§ 291.107 [Amended] 

■ 38. In § 291.107(a), remove the words 

‘‘Mail Stop 4230,’’ and add, in their 

place, ‘‘Mail Stop 5438,’’. 

[FR Doc. E9–22027 Filed 9–11–09; 8:45 am] 

BILLING CODE 4310–MR–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2009–0684] 

Drawbridge Operation Regulation; 

Three Mile Slough, Rio Vista, CA 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, Eleventh 

Coast Guard District, has issued a 

temporary deviation from the regulation 

governing the operation of the California 

Route 160 Drawbridge across Three Mile 

Slough, mile 0.1, near Rio Vista, CA. 

The deviation is necessary to allow 

Caltrans to conduct drawbridge 

maintenance. This deviation allows the 

bridge to remain in the closed-tonavigation position during the 

maintenance period. 

DATES: This deviation is effective from 

7 a.m. on September 14, 2009 through 

4:30 p.m. on September 14, 2009. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2009– 

0684 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2009–0684 in the ‘‘Keyword’’ 

box and then clicking ‘‘Search.’’ This 

material is also available for inspection 

or copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail David H. Sulouff, Chief, Bridge 

Section, Eleventh Coast Guard District; 

telephone 510–437–3516, e-mail 

David.H.Sulouff@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: Caltrans 

requested a temporary change to the 

operation of the California Route 160 

Drawbridge, mile 0.1, Three Mile 

Slough, near Rio Vista, CA. The 

drawbridge navigation span provides a 

vertical clearance of 12 feet above Mean 

High Water in the closed-to-navigation 

position. The draw opens on signal as 

required by 33 CFR 117.5. Navigation on 

the waterway is commercial and 

recreational. 

The drawspan will be secured in the 

closed-to-navigation position from 7 

a.m. through 4:30 p.m. Monday through 

Friday, from August 31, 2009 through 

September 14, 2009, to allow Caltrans to 

replace the industrial staircase leading 

to the control house. At all other times 

during this period, and on September 7, 

2009, Labor Day, the drawspan will 

open on signal as required by 33 CFR 

117.5. This temporary deviation has 

been coordinated with commercial and 

recreational waterway users. There is no 

anticipated levee maintenance during 

this deviation period. No objections to 

the proposed temporary deviation were 

raised. 

Vessels that can transit the bridge, 

while in the closed-to-navigation 

position, may continue to do so at any 

time. 

In the event of an emergency the 

drawspan can be opened with 4 hours 

advance notice. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: August 28, 2009. 

J.R. Castillo, 

Rear Admiral, U.S. Coast Guard Commander, 

Eleventh Coast Guard District. 

[FR Doc. E9–21979 Filed 9–11–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2008–0815; FRL–8954–7] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Excess Emissions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The EPA is approving 

revisions to the New Mexico State 

Implementation Plan (SIP) submitted by 

the Governor of New Mexico on behalf 

of the New Mexico Environment 

Department (NMED) in a letter dated 

October 7, 2008 (the October 7, 2008 SIP 

submittal). The October 7, 2008 SIP 

submittal concerns revisions to New 

Mexico Administrative Code Title 20, 

Chapter 2, Part 7 Excess Emissions 

(20.2.7 NMAC—Excess Emissions) 

occurring during startup, shutdown, and 

malfunction related activities. We are 

approving the October 7, 2008 SIP 

submittal because the revisions to 20.2.7 

NMAC are consistent with the Clean Air 

Act (the Act). This action is in 

accordance with section 110 of the Act. 

DATES: This direct final rule will be 

effective November 13, 2009 without 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 46911 

further notice unless EPA receives 

relevant adverse comments by October 

14, 2009. If adverse comments are 

received, EPA will publish a timely 

withdrawal of the direct final rule in the 

Federal Register informing the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2008–0815, by one of the 

following methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. 

• Follow the online instructions for 

submitting comments. 

• EPA Region 6 ‘‘Contact Us’’ Web 

site: http://epa.gov/region6/ 

r6comment.htm. Please click on ‘‘6PD 

(Multimedia)’’ and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7242. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8 a.m. and 4 p.m. weekdays, 

and not on legal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket No. EPA–R06–OAR–2008–0815. 

The EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or e-mail. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through www.regulations.gov your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittal is also available 

for public inspection during official 

business hours, by appointment, at the 

State Air Agency listed below during 

official business hours by appointment: 

NMED, Air Quality Bureau, 1301 Siler 

Road, Building B, Santa Fe, NM 87507. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Alan Shar, Air Planning Section (6PD– 

L), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

(214) 665–6691, fax (214) 665–7263, email address shar.alan @epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to EPA. 

Outline 

I. Background 

A. What action are we taking in this 

document? 

B. What documents did we use in our 

evaluation of the October 7, 2008 SIP 

submittal? 

C. Why are we approving the October 7, 

2008 SIP submittal? 

II. Final Action 

III. Statutory and Executive Order Reviews 

I. Background 

A. What action are we taking in this 

document? 

We are approving revisions to 20.2.7 

NMAC—Excess Emissions occurring 

during startup, shutdown, and 

malfunction related activities as 

revisions to the New Mexico SIP. We 

received this submittal with an October 

7, 2008 letter from the Governor of New 

Mexico on behalf of the NMED. 

We are approving the repeal of the 

existing EPA-approved 20.2.7—Excess 

Emissions, and replacing it with the 

revised version of 20.2.7 NMAC as 

contained in the October 7, 2008 SIP 

submittal. The existing 20.2.7 NMAC— 

Excess Emissions rule was approved by 

EPA on September 26, 1997 (62 FR 

50518) at 40 CFR 52.1620(c)(66). See 

Chapter A of our Technical Support 

Document (TSD) prepared in 

conjunction with this rulemaking action 

for more information. The TSD is a part 

of the docket and available for public 

review. 

The October 7, 2008 submittal also 

included proposed revisions to NMAC 

20.2.70—Operating Permits. We are not 

taking action on those revisions as part 

of today’s rulemaking action. The 

revisions to NMAC 20.2.70 are part of 

the Title V program approval, and will 

be handled in a separate rulemaking 

action. 

B. What documents did we use in our 

evaluation of the October 7, 2008 SIP 

submittal? 

The EPA’s interpretation of the Act on 

excess emissions occurring during 

periods of startup, shutdown, and 

malfunction is set forth in the following 

documents: A memorandum dated 

September 28, 1982, from Kathleen M. 

Bennett, Assistant Administrator for 

Air, Noise, and Radiation, entitled 

‘‘Policy on Excess Emissions During 

Startup, Shutdown, Maintenance, and 

Malfunctions’’ (1982 Policy); EPA’s 

clarification to the above policy 

memorandum dated February 15, 1983, 

from Kathleen M. Bennett, Assistant 

Administrator for Air, Noise, and 

Radiation (1983 Policy); EPA’s policy 

memorandum reaffirming and 

supplementing the above policy, dated 

September 20, 1999, from Steven A. 

Herman, Assistant Administrator for 

Enforcement and Compliance Assurance 

and Robert Perciasepe, Assistant 


cprice-sewell on DSK2BSOYB1PROD with RULES
46912 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 

Administrator for Air and Radiation, 

entitled ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (1999 Policy); EPA’s final 

rule for Utah’s sulfur dioxide control 

strategy (Kennecott Copper), April 27, 

1977 (42 FR 21472); EPA’s final rule for 

Idaho’s sulfur dioxide control strategy, 

November 8, 1977 (42 FR 58171); and 

the latest clarification of EPA’s policy 

issued on December 5, 2001 (2001 

Policy). You can find the 2001 Policy at: 

http://www.epa.gov/ttn/oarpg/ 

t1pgm.html (URL dating July 22, 2008). 

The EPA’s interpretation of the Act 

related to exclusions from emission 

limitations for sources in certain 

startup, shutdown, or malfunction 

situations was upheld by the United 

States Court of Appeals for the Sixth 

Circuit in Michigan Mfrs. Ass’n v. 

Browner, 230 F.3d 181 (6th Cir. 2000). 

C. Why are we approving the October 7, 

2008 SIP submittal? 

Under section 110(a) of the Act, EPA 

views all excess emissions as violations 

of the applicable emission limitation 

because excess emissions have the 

potential to interfere with attainment 

and maintenance of the National 

Ambient Air Quality Standards, or with 

the protection of Prevention of 

Significant Deterioration increments. 

However, EPA recognizes that 

imposition of a penalty for sudden and 

unavoidable malfunctions, startups or 

shutdowns caused by circumstances 

entirely beyond the control of the owner 

or operator may not be appropriate. The 

EPA has provided guidance on two 

approaches for addressing excess 

emissions, the use of enforcement 

discretion and providing an affirmative 

defense to actions for civil penalties. 

Neither approach waives liability or 

reporting requirements for the violation. 

Excess emissions occurring during 

periods of startup, shutdown, 

maintenance, and malfunction must be 

included in determining compliance 

with SIP emission limitations. States are 

not required to provide an affirmative 

defense approach, but if they choose to 

do so, EPA will evaluate the State’s SIP 

rules for consistency with our policy 

and guidance documents listed in 

section B of this document. Our reasons 

for approval of the October 7, 2008 SIP 

submittal are as follows: 

The NMED’s October 7, 2008 SIP 

submittal adopts an affirmative defense 

approach to address excess emissions. 

This approach is permissible under the 

1999 Policy. 

The NMED’s October 7, 2008 SIP 

submittal clearly states that operation 

resulting in an excess emission is a 

violation of the air quality regulation or 

permit, and may be subject to potential 

enforcement action. This statement is 

consistent with the 1999 Policy. 

The NMED’s October 7, 2008 SIP 

submittal adequately sets forth 

notification and reporting requirements 

for the owner or operator of a source 

having an excess emission. We believe 

that notification and reporting, 

including implementation of corrective 

action(s) when needed, of excess 

emissions will assist with the 

management of excess emissions and 

will enhance the New Mexico SIP by 

reducing the amount or frequency of 

future potential excess emissions. 

The NMED’s October 7, 2008 SIP 

submittal contains criteria to be 

considered when asserting an 

affirmative defense for an excess 

emission during startup or shutdown to 

claims for a civil penalty (not injunctive 

relief) that are similar, if not identical, 

to those in the 1999 Policy. We believe 

the criteria for asserting an affirmative 

defense are consistent with our 

guidance documents and should be 

approved. 

The NMED’s October 7, 2008 SIP 

submittal contains criteria to be 

considered when asserting affirmative 

defense for an excess emission during a 

malfunction to claims for a civil penalty 

(but not the injunctive relief) that are 

similar, if not identical, to those in the 

1999 Policy. We believe the criteria for 

asserting an affirmative defense are 

consistent with our guidance documents 

and should be approved. 

The NMED’s October 7, 2008 SIP 

submittal clearly states that NMED’s 

determinations concerning an owner or 

operator’s assertion of the affirmative 

defense shall not preclude EPA or 

citizens’ enforcement authority under 

the Act. This statement is consistent 

with 42 U.S.C. 7413 and 7604. 

Neither section 20.2.7.111 NMAC nor 

section 20.2.7.112 NMAC of the October 

7, 2008 SIP submittal makes an 

affirmative defense available to an 

owner or operator of a source having an 

excess emission due to maintenance 

related activities. We believe that 

maintenance activities are predictable 

events that are subject to planning to 

minimize releases, unlike malfunctions 

or upsets, which are sudden, 

unavoidable or beyond the control of 

owner or operator. The owner or 

operator of a source should be able to 

plan maintenance that might otherwise 

lead to excess emissions to coincide 

with maintenance of production 

equipment or other facility shutdowns. 

This position is consistent with EPA’s 

interpretation of section 110 of the Act, 

and with our guidance documents. 

The NMED’s October 7, 2008 SIP 

submittal narrowly defines an 

emergency situation. An owner and 

operator may assert an affirmative 

defense for an emergency if certain 

criteria are met. See 20.2.7.113(B)(1) 

through (4) NMAC for these criteria. In 

any enforcement proceeding, the owner 

or operator seeking to establish the 

occurrence of an emergency has the 

burden of proof. In addition, NMED may 

require additional information reported 

within the time period specified by the 

department. See 20.2.7.113(C) and (D) 

NMAC. We believe this approach is 

consistent with our guidance 

documents. 

For a section-by-section evaluation of 

the October 7, 2008 SIP submittal see 

Chapter B of our TSD. The TSD is a part 

of the docket and available for public 

review. For these reasons we are 

approving 20.2.7 NMAC into New 

Mexico SIP. 

In addition, we are approving the 

repeal and replacement of the existing 

EPA-approved 20.2.7 NMAC Excess 

Emissions rule with the revised 20.2.7 

NMAC contained in the October 7, 2008 

SIP submittal. The existing EPAapproved 20.2.7 NMAC Excess 

Emissions rule provided for frequent 

startup and shutdowns, and exempted 

certain facilities from notification 

requirements. See Chapter A of the TSD. 

The existing EPA-approved 20.2.7 

NMAC Excess Emissions rule did not 

conform with the 1999 Policy. The 

revised 20.2.7 NMAC contained in the 

October 7, 2008 SIP submittal conforms 

with the 1999 Policy, and its approval 

will enhance the New Mexico SIP. See 

Chapter B of the TSD. 

II. Final Action 

Today, we are approving revisions to 

New Mexico Administrative Code Title 

20, Chapter 2, Part 7 Excess Emissions 

(20.2.7 NMAC—Excess Emissions) 

occurring during startup, shutdown, and 

malfunction related activities into New 

Mexico SIP. We are approving the 

repeal of the existing 20.2.7 NMAC, and 

replacing it with the revised 20.2.7 

NMAC contained in the October 7, 2008 

SIP submittal. 

III. 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 


cprice-sewell on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 46913 

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; 

• 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); 

• Does 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; and 

• Is not a ‘‘major rule’’ as defined by 

5 U.S.C. 804(2) under the Congressional 

Review Act, 5 U.S.C. 801 et seq., added 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996. A 

major rule cannot take effect until 60 

days after it is published in the Federal 

Register. This action is not a ‘‘major 

rule.’’ 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 November 13, 

2009. 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) of the Act.) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Hydrocarbons, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

oxide, Reporting and recordkeeping 

requirements, Ozone, Volatile organic 

compounds. 

Dated: August 28, 2009. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

■ 40 CFR part 52 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 GG—New Mexico 

■ 2. The table in § 52.1620(c) entitled 

‘‘EPA Approved New Mexico 

Regulations’’ is amended by revising the 

entry for ‘‘Part 7’’ to read as follows: 

§ 52.1620 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED NEW MEXICO REGULATIONS

State citation Title/subject 

State 

approval/ 

submittal date 

EPA approval date Comments 

New Mexico Administrative Code (NMAC) Title 20—Environmental Protection 

Chapter 2—Air Quality 

* * * * * * * 

Part 7 ............................. Excess Emissions ........ 7/10/2008 9/14/2009 [Insert FR page number where document begins].

* * * * * * * 


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46914 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Rules and Regulations 

* * * * * 

[FR Doc. E9–21827 Filed 9–11–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R8–IA–2007–0021; 96100–1671– 

0000–B6] 

RIN 1018–AV21 

Endangered and Threatened Wildlife 

and Plants; Listing the Chatham Petrel, 

Fiji Petrel, and Magenta Petrel as 

Endangered Throughout Their Ranges 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

endangered status for three petrel 

species (order Procellariiformes)— 

Chatham petrel (Pterodroma axillaris) 

previously referred to as (Pterodroma 

hypoleuca axillaris); Fiji petrel 

(Pseudobulweria macgillivrayi) 

previously referred to as (Pterodroma 

macgillivrayi); and the magenta petrel 

(Pterodroma magentae)—under the 

Endangered Species Act of 1973, as 

amended (Act). This rule implements 

the Federal protections provided by the 

Act for these three species. 

DATES: This rule becomes effective 

October 14, 2009. 

ADDRESSES: Comments and materials we 

receive, as well as supporting 

information used in the preparation of 

this rule, are available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, Division of 

Scientific Authority, 4401 N. Fairfax 

Drive, Suite 110, Arlington, VA 22203. 

FOR FURTHER INFORMATION CONTACT: 

Monica A. Horton, Biologist, Division of 

Scientific Authority (see ADDRESSES); 

telephone 703–358–1708; facsimile 

703–358–2276; e-mail 

ScientificAuthority@fws.gov. If you use 

a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(A) of the Act (16 

U.S.C. 1531 et seq.) requires us to make 

a finding (known as a ‘‘90-day finding’’) 

on whether a petition to add a species 

to, remove a species from, or reclassify 

a species on the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants has presented substantial 

information indicating that the 

requested action may be warranted. To 

the maximum extent practicable, the 

finding must be made within 90 days 

following receipt of the petition and 

must be published promptly in the 

Federal Register. If we find that the 

petition has presented substantial 

information indicating that the 

requested action may be warranted (a 

positive finding), section 4(b)(3)(A) of 

the Act requires us to commence a 

status review of the species if one has 

not already been initiated under our 

internal candidate assessment process. 

In addition, section 4(b)(3)(B) of the Act 

requires us to make a finding within 12 

months following receipt of the petition 

(‘‘12-month finding’’) on whether the 

requested action is warranted, not 

warranted, or warranted but precluded 

by higher priority listing. Section 

4(b)(3)(C) of the Act requires that a 

finding of warranted but precluded for 

petitioned species should be treated as 

having been resubmitted on the date of 

the warranted but precluded finding, 

and is, therefore, subject to a new 

finding within 1 year and subsequently 

thereafter until we publish a proposal to 

list or a finding that the petitioned 

action is not warranted. The Service 

publishes an annual notice of 

resubmitted petition findings (annual 

notice) for all foreign species for which 

listings were previously found to be 

warranted but precluded. 

Previous Federal Actions 

On November 28, 1980, we received 

a petition (1980 petition) from Dr. 

Warren B. King, Chairman of the 

International Council for Bird 

Preservation (ICBP), to add 60 foreign 

bird species to the List of Endangered 

and Threatened Wildlife (50 CFR 

17.11(h)), including two species (the 

Chatham petrel and magenta petrel) that 

are the subject of this final rule. Two of 

the foreign species identified in the 

petition were already listed under the 

Act; therefore, in response to the 1980 

petition, we published a substantial 90- 

day finding on May 12, 1981 (46 FR 

26464), for 58 foreign species and 

initiated a status review. On January 20, 

1984 (49 FR 2485), we published a 12- 

month finding within an annual review 

on pending petitions and description of 

progress on all pending petition 

findings. In that notice, we found that 

all 58 foreign bird species from the 1980 

petition were warranted but precluded 

by higher priority listing actions. On 

May 10, 1985, we published the first 

annual notice (50 FR 19761) in which 

we continued to find that listing all 58 

foreign bird species from the 1980 

petition was warranted but precluded. 

We published additional annual notices 

on the 58 species included in the 1980 

petition on January 9, 1986 (51 FR 996), 

July 7, 1988 (53 FR 25511), December 

29, 1988 (53 FR 52746), April 25, 1990 

(55 FR 17475), November 21, 1991 (56 

FR 58664), and May 21, 2004 (69 FR 

29354). These notices indicated that the 

Chatham petrel and the magenta petrel, 

along with the remaining species in the 

1980 petition, continued to be 

warranted but precluded. 

On May 6, 1991, we received a 

petition (1991 petition) from ICBP to 

add an additional 53 species of foreign 

birds to the List of Endangered and 

Threatened Wildlife, including the Fiji 

petrel. In response to the 1991 petition, 

we published a substantial 90-day 

finding on December 16, 1991 (56 FR 

65207), for all 53 species, and initiated 

a status review. On March 28, 1994 (59 

FR 14496), we published a 12-month 

finding on the 1991 petition, along with 

a proposed rule to list 30 African birds 

under the Act (15 each from the 1980 

petition and 1991 petition). In that 

document, we announced our finding 

that listing the remaining 38 species 

from the 1991 petition, including the 

Fiji petrel, was warranted but precluded 

by higher priority listing actions. We 

made a subsequent warranted-butprecluded finding for all outstanding 

foreign species from the 1980 and 1991 

petitions, including the three species 

that are the subject of this final rule, as 

published in our annual notice of 

review (ANOR) on May 21, 2004 (69 FR 

29354). 

Per the Service’s listing priority 

guidelines (September 21, 1983; 48 FR 

43098), in our April 23, 2007, Annual 

Notice on Resubmitted Petition 

Findings for Foreign Species (72 FR 

20184), we determined that listing six 

seabird species of the family 

Procellariidae, including the three 

species that are the subject of this final 

rule, was warranted. In selecting these 

six species from the list of warrantedbut-precluded species, we took into 

consideration the magnitude and 

immediacy of the threats to the species, 

consistent with the Service’s listing 

priority guidelines. 

On December 17, 2007 (72 FR 71298), 

we published in the Federal Register a 

proposal to list the Chatham petrel, Fiji 

petrel, and the magenta petrel as 

endangered under the Act, and the 

Cook’s petrel, Galapagos petrel, and the 

Heinroth’s shearwater as threatened 

under the Act. We implemented the 

Service’s peer review process and 

opened a 60-day comment period to 

solicit scientific and commercial 


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