Federal Register / Vol. 73, No. 220 / Thursday, November 13, 2008 / Rules and Regulations 67107 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded under the Instruction 

that there are no factors in this case that 

would limit the use of a categorical 

exclusion under section 2.B.2 of the 

Instruction. Therefore, this rule is 

categorically excluded, under figure 2– 

1, paragraph (34)(g), of the Instruction, 

from further environmental 

documentation. An environmental 

analysis checklist and a categorical 

exclusion supporting this determination 

are available in the docket where 

indicated under ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

701; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04– 

1, 6.04–6, and 160.5; Pub. L. 107–295, 116 

Stat. 2064; Department of Homeland Security 

Delegation No. 0170.1. 

■ 2. Add § 165.836 to read as follows: 

§ 165.836 Security Zone; Escorted 

Vessels, Mobile, Alabama, Captain of the 

Port. 

(a) Definitions. The following 

definitions apply to this section: 

COTP means Captain of the Port 

Mobile, AL. 

Designated representatives means 

Coast Guard Patrol Commanders 

including Coast Guard coxswains, petty 

officers and other officers operating 

Coast Guard vessels, and Federal, State, 

and local officers designated by or 

assisting the COTP, in the enforcement 

of the security zone. 

Escorted vessel means a vessel, other 

than a large U.S. naval vessel as defined 

in 33 CFR 165.2015, that is 

accompanied by one or more Coast 

Guard assets or other Federal, State or 

local law enforcement agency assets 

clearly identifiable by flashing lights, 

vessel markings, or with agency insignia 

as follows: Coast Guard surface or air 

asset displaying the Coast Guard 

insignia. State and/or local law 

enforcement asset displaying the 

applicable agency markings and/or 

equipment associated with the agency. 

Escorted vessel also means a moored or 

anchored vessel that was escorted by 

Coast Guard assets or other Federal, 

State or local law enforcement agency 

assets to its present location and is 

identifiable by the use of day boards or 

other visual indications such as lights or 

buoys when law enforcement assets are 

no longer on-scene. 

Minimum safe speed for navigation 

means the speed at which a vessel 

proceeds when it is fully off plane, 

completely settled in the water and not 

creating excessive wake or surge. Due to 

the different speeds at which vessels of 

different sizes and configurations may 

travel while in compliance with this 

definition, no specific speed is assigned 

to minimum safe speed for navigation. 

In no instance should minimum safe 

speed be interpreted as a speed less than 

that required for a particular vessel to 

maintain steerageway. A vessel is not 

proceeding at minimum safe speed if it 

is: 

(1) On a plane; 

(2) In the process of coming up onto 

or coming off a plane; or 

(3) Creating an excessive wake or 

surge. 

(b) Regulated Area. All navigable 

waters, as defined in 33 CFR 2.36, 

within the Captain of the Port Zone, 

Mobile, Alabama, as described in 33 

CFR 3.40–10. 

(c) Security Zone. A 500-yard security 

zone is established around each 

escorted vessel within the regulated area 

described in paragraph (b) of this 

section. This is a moving security zone 

when the escorted vessel is in transit 

and becomes a fixed zone when the 

escorted vessel is anchored or moored. 

A security zone will not extend beyond 

the boundary of the regulated area in 

this section. 

(d) Regulations. (1) The general 

regulations for security zones contained 

in § 165.33 applies to this section. 

(2) A vessel may request the 

permission of the COTP Mobile or a 

designated representative to enter the 

security zone described in paragraph (c) 

of this section. If permitted to enter the 

security zone, a vessel must proceed at 

the minimum safe speed and must 

comply with the orders of the COTP or 

a designated representative. 

(e) Notice of Security Zone. The COTP 

will inform the public of the existence 

or status of the security zones around 

escorted vessels in the regulated area by 

broadcast notices to mariners, normally 

issued at approximately 30-minute 

intervals while the security zones 

remains in effect. Escorted vessels will 

be identified by the presence of Coast 

Guard assets or other Federal, State or 

local law enforcement agency assets, or 

the use of day boards or other visual 

indications such as lights or buoys 

when the vessels are moored or 

anchored and law enforcement assets 

are no longer on-scene, as specified in 

the definition of escorted vessel in 

paragraph (a) of this section. 

(f) Contact Information. The COTP 

Mobile may be reached via phone at 

(251) 441–6211. Any on scene Coast 

Guard or designated representative 

assets may be reached via VHF–FM 

channel 16. 

Dated: October 7, 2008. 

E.M. Stanton, 

Captain, U.S. Coast Guard, Captain of the 

Port Mobile. 

[FR Doc. E8–26900 Filed 11–12–08; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 49 

[EPA–RO9–OAR–2006–0184; FRL–8739–7] 

Stay of Effectiveness of Control 

Measure Regulating Dust Emissions at 

the Four Corners Power Plant; Navajo 

Nation 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

stay the effectiveness of a control 

measure regulating dust emissions from 

certain operations that we promulgated 

in our Federal Implementation Plan for 

the Four Corners Power Plant located on 

the Navajo Nation. The control measure 

would take effect on November 5, 2008. 

On October 1, 2007, Arizona Public 

Service Company filed a Petition for 

Review claiming, inter alia, that EPA 

had not provided an adequate 

explanation for promulgating the 

control measure. In the litigation, EPA 

has agreed that the control measure 

should be remanded and vacated. EPA 

needs to complete this action staying 

the effectiveness of the control measure 

until the Court rules on the Petition, 

including the Petitioner’s and EPA’s 

requests to remand and vacate the 

control measure. 

DATES: The stay to 40 CFR 49.23(d)(3) is 

effective on November 13, 2008 until 

further notice. The EPA will publish a 

document in the Federal Register 

announcing that the stay is lifted. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–RO9–OAR–2006–0184. All 

documents in the docket are listed in 

the Federal Docket Management System 

index at www.regulations.gov. Although 

listed in the index, some information is 


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67108 Federal Register / Vol. 73, No. 220 / Thursday, November 13, 2008 / Rules and Regulations 

not publicly available, e.g., Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically though 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC 20460. The 

Public Reading Room is open from 8:30 

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

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744 and 

the telephone number for the Air and 

Radiation Docket is (202) 566–1742. 

You can inspect a copy of the docket at 

our Region IX office during normal 

business hours by appointment. The 

address is: Planning Office (AIR–2), Air 

Division, U.S. Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street, San Francisco, CA 94105. 

FOR FURTHER INFORMATION CONTACT: 

Steve Frey, EPA Region IX, (415) 972– 

3990 or frey.steve@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ refer to EPA. 

I. Overview 

On May 7, 2007 (72 FR 25698), we 

published a Source-Specific Federal 

Implementation Plan for Four Corners 

Power Plant; Navajo Nation (hereinafter 

‘‘FIP’’). The operator and partial owner 

of the Four Corners Power Plant is the 

Arizona Public Service Company 

(‘‘APS’’). One provision of the FIP 

regulated dust emissions at the power 

plant’s coal handling and storage 

operations, flyash handling and storage 

and road sweeping activities, as follows: 

‘‘Within 548 days of promulgation of 

this section each owner or operator shall 

not emit dust with an opacity greater 

than 20 percent from any crusher, 

grinding mill, screening operation, belt 

conveyor, or truck loading or unloading 

operation.’’ 72 FR 25705, codified at 40 

CFR 49.23(d)(3)(hereinafter ‘‘dust 

control measure’’). 

APS filed a timely Petition for Review 

of the FIP challenging, inter alia, EPA’s 

basis for requiring compliance with the 

dust control measure. Arizona Public 

Service Company v. EPA et al., Case No. 

07–9546, (10th Cir., Oct. 1, 2007). Sierra 

Club requested and was granted leave to 

intervene in the case. All parties have 

filed their briefs regarding the Petition 

and the Court has heard oral argument 

from the parties. The Court has not 

issued any decision in the matter. 

EPA, however, has taken the position 

in the litigation by APS that it would be 

appropriate for the Court to remand and 

vacate the dust control measure. In its 

brief, EPA has advised the Court that the 

FIP did not contain an adequate 

explanation of its rationale for imposing 

the dust control measure. The Court has 

not ruled on the case. EPA, therefore, 

considers it appropriate to stay the 

effectiveness of the dust control 

measure pending the outcome of the 

litigation. 

EPA believes that this rulemaking 

qualifies for the ‘‘good cause’’ 

exemption under the Administrative 

Procedures Act (‘‘APA’’). 5 U.S.C. 

553(b)(3). EPA has determined that prior 

proposal and opportunity for comment 

are impracticable and unnecessary 

because the public is not likely to be 

particularly interested, and notice and 

opportunity for comment were 

previously provided when EPA 

promulgated the dust control measure. 

(See 72 FR at 25705 (May 7, 2007).) EPA 

also believes that this rulemaking 

qualifies for the ‘‘good cause’’ 

exemption to make the rule effective 

immediately under Section 553(d) 

because it is a relaxation of a restriction 

by staying the implementation of the 

dust control measure. 5 U.S.C. 553(d). 

EPA has also found that consistent with 

5 U.S.C. 705, it is in the interest of 

justice to postpone the effective date of 

the dust control measure pending the 

Court’s decision in Arizona Public 

Service v. EPA. All of the remaining 

provisions of the FIP remain in place 

and effective. 

II. Statutory and Executive Order 

Reviews 

This action stays a federal control 

measure and imposes no additional 

requirements. 

This rule is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993), and therefore is 

not subject to review under the EO. 

This action 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. 

This final rule is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

(APA) or any other statute. This rule is 

not subject to notice and comment 

requirements under the APA or any 

other statute because although the rule 

is subject to the APA, the Agency has 

invoked the ‘‘good cause’’ exemption 

under 5 U.S.C 553(b), therefore it is not 

subject to the notice and comment 

requirement. 

This rule contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local, or tribal governments or 

the private sector. Therefore, this action 

is not subject to the requirements of 

sections 202 or 205 of the UMRA. This 

action is also not subject to the 

requirements of section 203 of the 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

This rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It will not have a substantial 

direct effect on one or more Indian 

tribes, 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 action. 

This action does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). 

This rule is not subject to Executive 

Order 13045, ‘‘Protection of Children 

from Environmental Health Risks and 

Safety Risks’’ (62 FR 1985, April 23, 

1997), because it has not been 

determined to be economically 

significant as defined under Executive 

Order 12866 and because it does not 

establish an environmental standard 

intended to mitigate health or safety 

risks. 

The requirements of section 12(d) of 

the National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply to this rule 

because this action does not involve 

technical standards. 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 


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Federal Register / Vol. 73, No. 220 / Thursday, November 13, 2008 / Rules and Regulations 67109 

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

defined at 5 CFR 1320.3(b). 

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 to Congress and the 

Comptroller General. However, section 

808 provides that any rule for which the 

issuing agency for good cause finds that 

notice and public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest, shall take effect at 

such time as the agency promulgating 

the rule determines. 5 U.S.C. 808(2). 

EPA has made such a good cause 

finding, including the reasons therefore, 

and established an effective date of 

November 13, 2008. 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 rule is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purpose of judicial 

review nor does it extend the time 

within which petitions 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 49 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Indians, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: November 5, 2008. 

Stephen L. Johnson, 

Administrator. 

■ 40 CFR Part 49 is amended as follows: 

PART 49—[AMENDED] 

■ 1. The authority citation for part 49 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

§ 49.23 [Amended] 

■ 2. In § 49.23, paragraph (d)(3) is stayed 

until further notice. 

[FR Doc. E8–26842 Filed 11–12–08; 8:45 am] 

BILLING CODE 6560–50–P 


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