A. Executive Order 12866, “Regulatory Planning and Review”

This final rule has been determined to be not significant for purposes of Executive Order 12866. Therefore it was not reviewed by the Office of Management and Budget (OMB).

This final rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The administrator of the Food and Nutrition Service certified that this action will not have a significant impact on a substantial number of small entities. While ITOs and State agencies that administer FDPIR will be affected by this rulemaking, the economic effect will not be significant.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the Food and Nutrition Service (FNS) generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and Tribal governments or the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of Sections 202 and 205 of the UMRA.

The program addressed in this action is listed in the Catalog of Federal Domestic Assistance under No. 10.567. For the reasons set forth in the final rule in 7 CFR part 3015, Subpart V and related Notice published at 48 FR 29115 on June 24, 1983, the donation of foods in such programs is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13132.

This rulemaking makes regulatory changes regarding the allocation of FDPIR administrative funds to the FNS Regional Offices for further allocation to the ITOs and State agencies that administer FDPIR. The programs that receive FDPIR administrative funding from FNS' Regional Offices are all Tribal or State-administered, federally-funded programs. On an ongoing basis, the FNS National and Regional Offices have formal and informal discussions related to FDPIR with Tribal and State officials. FNS meets regularly with the Board and the membership of the National Association of Food Distribution Programs on Indian Reservations (NAFDPIR), an association of Tribal and State-appointed FDPIR Program Directors, to discuss issues relating to the program. Section F, Tribal Impact Statement, below, provides additional information on FNS' efforts to work directly with ITOs and State agencies in the development of the funding methodology specified in this rule.

For many years, the FNS National Office used fixed percentages to allocate FDPIR administrative funds to each of the FNS Regional Offices, which in turn allocated the available funding to FDPIR ITOs and State agencies. However, this funding methodology did not account for any administrative cost drivers, such as the number of ITOs and State agencies within each Region or the number of individuals served by each ITO/State agency. ITOs and State agencies expressed concern that the methodology did not allocate funds equitably to the FNS Regional Offices, which negatively impacted the capacity of certain agencies to adequately administer the program.

FNS has considered the impact of the final rule on FDPIR ITOs and State agencies. FNS does not expect the provisions of this rule to conflict with any State or local laws, regulations, or policies. The intent of this rule is to respond to the concerns of ITOs and State agencies by ensuring that funds are allocated to the FNS Regional Offices as fairly as possible; and to ensure that related program requirements with regard to the allocation of administrative funds to ITOs and State agencies, as well as ITO and State agency matching requirements, are clear and easy to understand.

This rulemaking makes regulatory changes regarding the allocation of FDPIR administrative funds to the FNS Regional Offices, which further allocate the funds to the ITOs and State agencies that administer FDPIR. The changes are intended to ensure that FDPIR administrative funding is allocated to the FNS Regional Offices in a fair and equitable manner. The final rule also revises FDPIR regulations to clarify current program requirements relative to the allocation of administrative funds to ITOs and State agencies.

During the course of developing the proposed and final rules, FNS took numerous actions to ensure meaningful and timely input by elected Tribal leaders. In 2005, FNS convened a work group comprised of FNS staff and Tribal and State-appointed FDPIR Program Directors representing NAFDPIR and its membership. The work group was asked to develop a proposal(s) for a new funding methodology for the allocation of FDPIR federal administrative funds. The work group conducted its deliberations via 33 conference calls and six face-to-face meetings from May 2005 through October 2007. Discussions were also held at the annual meetings of the membership of NAFDPIR, in which some elected Tribal leaders took part. The work group and FNS solicited written comments from elected Tribal leaders and State officials at various stages of the development of the funding methodology. In addition to the requests for written comments, FNS hosted public meetings that were held in January 2007 at four locations throughout the country. Elected Tribal leaders and State officials were invited to discuss the proposal to develop a funding methodology at those public meetings. Discussion from the public meetings and written comments submitted to the work group were considered in presenting recommendations for a funding methodology to the FNS Administrator.

In fiscal year 2008, FNS implemented the funding methodology on a trial basis. FNS solicited comments from elected Tribal leaders and State officials on the impact of the funding methodology in fiscal year 2008 for consideration in determining the funding methodology to be used in fiscal year 2009, pending the development of proposed rulemaking.

A rule which proposed to formalize the funding methodology and clarify other related program requirements was published in the Federal Register (75 FR 54530) on September 8, 2010. The proposed rule referenced the written comments received on the pilot after implementation, and solicited further comments from elected Tribal leaders, State officials, and other interested members of the public. A summary of public comments received on the September 8, 2010 proposed rule and the agency's responses to comments received are discussed in section II of the preamble.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Although the provisions of this rule are not expected to conflict with any State or local laws, regulations, or policies, the rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with its provisions or that would otherwise impede its full implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.

FNS has reviewed this rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that this rule will not in any way limit or reduce the ability of participants to receive the benefits of donated foods on the basis of an individual's or group's race, color, national origin, sex, age, political beliefs, religious creed, or disability. FNS found no factors that would negatively and disproportionately affect any group of individuals.

The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; see 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This final rule does not contain any new information collection requirements subject to review and approval by OMB under the Paperwork Reduction Act of 1995. However, previous burdens for 7 CFR part 253 information collections associated with this rule have been approved under OMB control number 0584-0293.

FNS is committed to complying with the E-Government Act of 2002 to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Prior to this final rulemaking, FDPIR regulations at 7 CFR part 253 did not specify a methodology for the allocation of administrative funds. Under the traditional practice, the FNS National Office allocated funds to the FNS Regional Offices using fixed percentages. These funding percentages varied from one Region to the next, did not change for many years prior to fiscal year 2008, and did not reflect cost drivers such as each Region's share of national program participation and current number of ITOs and State agencies. Regional Offices then allocated to each ITO or State agency its share of administrative funds based on negotiations with such entity. Because FNS Regional Offices received funding without regard to the effect of cost drivers, similar ITOs and State agencies in different Regions could have received significantly different funding levels. Consequently, this method of allocating funds had the potential to negatively impact program operations and result in inconsistent or uneven service to participants.

To address concerns raised by FDPIR ITOs and State agencies over potential FDPIR administrative funding inequities, a funding methodology work group was convened by FNS in 2005. The work group, which was comprised of FDPIR program representatives, including NAFDPIR officers, and FNS staff, was charged with developing a new methodology for the distribution of FDPIR administrative funds that would be fair, objective, and easy to understand.

Based on the work group's proposals, FNS developed an administrative funding allocation methodology which was initially implemented on a pilot basis in fiscal year 2008, and has continued as a pilot up to the present time. This funding methodology allocates funds to the Regional Offices based on two weighted components: Each Region's share of the total number of participants nationally, and each Region's share of the total current number of ITOs and State agencies administering the program nationally. Proportionally more weight was given to the first element, program participation, since FNS believes this to be the major cost driver in the administration of FDPIR. By using these two factors, FNS intended to design a funding methodology that would provide each FNS Regional Office with adequate funding to support the operational costs of all of its programs, including both larger programs with high participation and smaller programs with certain basic administrative costs.

FNS sought comments regarding the impact of the piloted methodology on the program. The comments received were considered in the development of the proposed rule. Further details on the proceedings of the work group in developing proposals for a funding methodology and the implementation of the pilot may be found in the preamble of the proposed rule.

In a proposed rule published in the Federal Register on September 8, 2010 (75 FR 54530), FNS proposed to include in 7 CFR part 253 the administrative funding methodology that was implemented on a pilot basis, and that was based on the work group proposal. In accordance with that methodology, sixty-five percent of all administrative funds available nationally are allocated to FNS Regional Offices in proportion to their share of the number of participants nationally, averaged over the three previous fiscal years. FNS believes program participation to be the major cost driver. However, in order to recognize the fixed costs common to programs of all participation levels, the remaining 35 percent of all administrative funds available nationally are allocated to each FNS Regional Office in proportion to its share of the total current number of ITOs and State agencies administering the program nationally. By using these two factors, FNS intended to design a funding methodology that would provide each FNS Regional Office with the funding to support the operational costs of all of its programs, both large and small.

Comments were solicited through December 7, 2010, on the provisions of the proposed rulemaking. These comments are discussed below and are available for review at www.regulations.gov. To view the comments received, select “Public Submissions” from the dropdown menu entitled “Select Document Type,” and enter “FNS-2010-0020” in the box under “Enter Keyword or ID.” Then click on “Search.”

FNS received written comments from two elected Tribal leaders, five FDPIR program administrators, one Tribal nutrition services administrator, and one private citizen regarding the proposed funding methodology. Six commenters supported the funding allocation methodology, while three commenters opposed it. Of the six commenters supporting the methodology, five specifically cited support for the funding allocation factors proposed, i.e., each Region's proportionate share of national program participation and number of programs. Four of the six commenters cited equity or fairness as another factor in their support of the methodology. Four of the six commenters also specified that the funding methodology is simple, straightforward, and easy to understand. Three supporting commenters cited the fact that the piloted and proposed provisions, in conjunction with increased funding from Congress, provided the resources needed for their programs. Finally three commenters expressed support for the consultation process prior to pilot implementation.

One commenter stated three key objections to the proposed funding methodology: (1) FNS did not consult with the Tribes and State agencies; (2) the funding methodology represents a “one-size fits all” approach that does not recognize each Tribe as a government with unique needs; and (3) the funding methodology is more beneficial to Tribes with greater participation rates, and minimizes services to Tribes with lower participation rates. Regarding the third objection, the commenter further stated that small Tribes should be considered for supplemental funding.

FNS consulted with elected Tribal leaders and State officials on multiple occasions prior to piloting the funding allocation methodology, as outlined in the proposed rule. The decision to pilot the methodology was made in response to the Congressional expectation that FNS address funding inequities with the additional funds provided in fiscal year 2008. In addition to meeting the intent of Congress, the pilot permitted FNS to continue consultations with elected Tribal leaders and State officials. While we acknowledge that there are varying perspectives regarding what constitutes consultation, we believe that there was adequate consultation.

Regarding the commenter's objections in reference to the funding methodology's “one-size-fits-all” approach, and its failure to meet the needs of smaller programs, each FNS Regional Office continues to negotiate budgets directly with each FDPIR ITO and State agency, once the funds are allocated to the Regions. This permits each FNS Regional Office the flexibility to meet the special needs of each ITO and State agency within its share of the total administrative funds available, including smaller ITOs.

In reference to the commenter's objection that the funding methodology is more beneficial to Tribes with greater participation rates, FNS believes that program participation is the major cost driver. However, FNS also recognizes that there are fixed costs common to programs of all participation levels. For that reason, the funding methodology provides 35 percent of all administrative funds available nationally to each FNS Regional Office in proportion to its share of the total current number of State agencies administering the program nationally. The establishment of this second factor in allocation offers a proper balance by providing each FNS Regional Office with funding to support the operational costs of all programs, regardless of participation levels.

Another commenter objected to the use of program participation as a factor in the funding methodology, stating that the factor is flawed because increased Supplemental Nutrition Assistance Program (SNAP) benefits led to a decline in FDPIR participation. However, while FDPIR did experience a decline in participation, the decline did not have a disproportionate negative impact in a specific Region, nor did it affect the total administrative funding available to the program. On the contrary, such funding increased after fiscal year 2008.

One commenter stated that the proposed funding methodology will not work without: (1) Increasing the FDPIR income limit and changing the standard earned income deduction, (2) increasing the resource limits for the program, (3) providing more food, including fresh produce, in FDPIR, and (4) making all Social Security recipients categorically eligible for FDPIR. However, these changes would, for the most part, impact program eligibility and benefits, and would not affect the methodology of allocating administrative funds, which is the subject of this rule. In a proposed rule published in the Federal Register on January 11, 2012 (77 FR 1642), FNS proposed to eliminate the requirement that household resources be considered in determining program eligibility, and proposed to include additional income deductions. These changes, if implemented, would simplify program administration, and make it easier for applicants to qualify for program benefits.

Another commenter stated that the higher incidence of Native American health conditions (e.g., diabetes, obesity, heart conditions) should be the impetus that drives funding in FDPIR. FNS recognizes the need to contribute positively to the health of participants in all of its nutrition assistance programs, including FDPIR. Since 2008, FNS has made $1 million available on an annual basis for FDPIR nutrition education, with the goal of enhancing the nutrition knowledge of FDPIR participants and fostering positive lifestyle changes. These funds are allocated separately from program administrative funds.

For the purposes of this rule, FDPIR State agencies include both ITOs and agencies of state government. In 7 CFR 253.11 of the proposed rule, we proposed to remove paragraph (a) and redesignate paragraphs (b) through (h), and to include, in new paragraphs (a), (b), and (c):

(1) The methodology for allocating administrative funds to FNS Regional Offices, as described above, which has been implemented on a pilot basis;

(2) Clarification of the requirement for State agencies to submit budgets to FNS Regional Offices, and subsequent allocation to State agencies of funds required to meet 75 percent of approved administrative costs; and

(3) Clarification of the requirement for State agencies to match administrative funds allocated to them by covering 25 percent of approved administrative costs, unless a waiver is submitted and approved to reduce the matching requirement.

In 7 CFR 253.11(a) of the proposed rule, we proposed to allocate administrative funds to the FNS Regional Offices, to the extent practicable, in the following manner: Sixty-five percent of all administrative funds available nationally would be allocated to each FNS Regional Office in proportion to its share of the total number of participants nationally, averaged over the three previous fiscal years; and thirty-five percent of all administrative funds available nationally would be allocated to each FNS Regional Office in proportion to its share of the total current number of State agencies administering the program nationally.

As an outcome of the pilot implementation, FNS identified the need to include regulatory language to ensure that funding is available to support participation of new State agencies for which prior participation data is not available, and that would permit FNS some limited flexibility to meet individual State agency administrative funding needs not reflected under the two weighted factors. Consequently, we proposed to allocate funds to FNS Regional Offices, in accordance with the funding methodology described above, “to the extent practicable * * *.” Based on the comments discussed above, most of which were in support of the proposals, the proposed funding methodology is included without change in 7 CFR 253.11(a) of this final rule.

In 7 CFR 253.11(b) of the proposed rule, we proposed to include the requirement, in current 7 CFR 253.11(b), that State agencies submit annual budgets to FNS for approval, and that only administrative costs that are allowable under 7 CFR part 277 may be included. We proposed to clarify that the budget request must be sent to the FNS Regional Office for approval, which is consistent with directives in FNS Instruction 700-1, Rev. 2. Finally, we proposed to include the provision in current 7 CFR 253.11(a) which specifies that, within funding limitations, FNS provides State agencies with administrative funds necessary to meet 75 percent of approved administrative costs, with the clarification that FNS Regional Offices provide the administrative funds to State agencies. No comments were received on these proposed provisions. Thus, the proposed changes are retained in 7 CFR 253.11(b) of this final rule.

In 7 CFR 253.11(c) of the proposed rule, we proposed to set forth the State agency matching requirements. In 7 CFR 253.11(c)(1), we proposed to indicate that the State agency must contribute 25 percent of approved administrative costs, and that both cash and non-cash contributions may be used to meet the matching requirement. This is currently required via FNS Instruction 716-4, Rev. 1. For the sake of clarity, we proposed to include in paragraph (c)(1) the criteria for allowable cash and non-cash contributions, similar to what is currently provided in 7 CFR part 277. No comments were received on these proposed provisions. Thus, the proposed changes are retained in 7 CFR 253.11(c)(1) of this final rule. We have also added the provision, in current 7 CFR 253.11(b), that the value of services rendered by volunteers may be used to meet the matching requirement.

In 7 CFR 253.11(c)(2), we proposed to permit the State agency to request a waiver to reduce the matching requirement to less than 25 percent of approved administrative costs. In essence, this clarifies the provision, in current 7 CFR 253.11(a), regarding requests for payment of Federal funds in excess of 75 percent of administrative costs. We proposed to retain the requirement that the State agency provide compelling justification for meeting less than the 25 percent match and receiving additional administrative funds. Furthermore, we proposed to add a provision which gives the FNS Regional Office the discretion to provide additional administrative funds beyond 75 percent. This is consistent with current program practice. No comments were received on these proposed provisions. Thus, the proposed changes are retained in 7 CFR 253.11(c) of this final rule.

In this final rule, we are redesignating current 7 CFR 253.11(c) through (h) as 7 CFR 253.11(e) through (j), in order to include a new paragraph (d) to clarify requirements in current 7 CFR 253.11(b) regarding allowable costs in the use of administrative funds. Such costs must be used only for costs that are allowable under 7 CFR part 277, and that are incurred in operating FDPIR, and may not be used to pay costs that are, or may be, paid with funds provided from other Federal sources.

We also proposed to revise the heading of 7 CFR 253.11 to “Administrative funds” to more clearly describe the provisions in the section, as proposed. As we did not receive any comments relating to this proposal, this final rule revises the section heading as proposed.

Accordingly, 7 CFR part 253 is amended as follows:

History

FAA Order 7400.9V, Airspace Designations and Reporting Points, effective September 15, 2011, listed Class A, B, C, D and E airspace areas; air traffic service routes; and reporting points. Due to the length of these descriptions, the FAA requested approval from the Office of the Federal Register to incorporate the material by reference in the Federal Aviation Regulations section 71.1, effective September 15, 2011, through September 15, 2012. During the incorporation by reference period, the FAA processed all proposed changes of the airspace listings in FAA Order 7400.9V in full text as proposed rule documents in the Federal Register. Likewise, all amendments of these listings were published in full text as final rules in the Federal Register . This rule reflects the periodic integration of these final rule amendments into a revised edition of Order 7400.9W, Airspace Designations and Reporting Points. The Director of the Federal Register has approved the incorporation by reference of FAA Order 7400.9W in section 71.1, as of September 15, 2012, through September 15, 2013. This rule also explains the procedures the FAA will use to amend the airspace designations incorporated by reference in part 71. Sections 71.5, 71.15, 71.31, 71.33, 71.41, 71.51, 71.61, 71.71, and 71.901 are also updated to reflect the incorporation by reference of FAA Order 7400.9W.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to reflect the approval by the Director of the Federal Register of the incorporation by reference of FAA Order 7400.9W, effective September 15, 2012, through September 15, 2013. During the incorporation by reference period, the FAA will continue to process all proposed changes of the airspace listings in FAA Order 7400.9W in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings will be published in full text as final rules in the Federal Register . The FAA will periodically integrate all final rule amendments into a revised edition of the Order, and submit the revised edition to the Director of the Federal Register for approval for incorporation by reference in section 71.1.

The FAA has determined that this action: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. This action neither places any new restrictions or requirements on the public, nor changes the dimensions or operation requirements of the airspace listings incorporated by reference in part 71.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, July 26, 2012.

On June 13, 2011, the Coast Guard published an NPRM proposing to increase the size of the Cottonwood Island Anchorage on the Columbia River (76 FR 34197). On May 23, 2012, the Coast Guard published a Supplemental NPRM revising that proposal in response to public comments (77 FR 30440). During the 30-day comment period on the Supplemental NPRM, the Coast Guard received eight comments on the proposed action. Seven of the comments were from various maritime stakeholders in the Lower Columbia River Basin and one of the comments was from the Mayor of the City of Prescott.

The Secretary of Homeland Security has delegated to the Coast Guard the authority to establish and regulate anchorage grounds in accordance with 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1. As currently established, the Coast Guard Captain of the Port Columbia River believes the size of the Cottonwood Island Anchorage is insufficient based on both the current demand for anchorage grounds and the forecasted growth of vessel traffic on the Columbia River. Sufficient anchorage area, both in number and size, is especially important in this area because of the unpredictable hazardous conditions of the Columbia River Bar, which at times prevents vessels from safely navigating downriver. This rule increases the size of the current Cottonwood Island Anchorage and creates a new anchorage on the Columbia River.

The Coast Guard received eight comments during the 30-day comment period on the Supplemental NPRM. Seven of the comments received were from maritime industry stakeholders in support of the action. The eighth comment, submitted on behalf of the City of Prescott, stated that the city was satisfied with the regulatory action. That comment also referenced emergency anchoring situations in areas outside the anchorages established by this rule. This rule does not affect waters not designated as anchorages and, consequently, the ability of vessels to anchor in these areas outside the channel remains as it was before this rulemaking. Likewise, the Captain of the Port continues to possess the same authority to direct vessels to anchor under 33 CFR 160.111(c). However, the Coast Guard believes that the City's concerns over noise, vessel exhaust, and visual impact in emergency anchoring situations will be addressed by anchoring standards of care being developed in the Lower Columbia River Region Harbor Safety Plan and applied by the Columbia River Pilots under 33 CFR 110.228(b)(3).

After considering all comments submitted, the Coast Guard made no changes to the rule proposed in the Supplemental NPRM.

The Coast Guard developed this rule after considering numerous statutes and executive orders related to rulemaking. Below, we summarize our analyses based on these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order. Modifying the existing anchorage and establishing a new anchorage area will not have any significant costs or impacts on maritime activities.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612, as amended) requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels operating in and around the anchorage areas established by this rule and the City of Prescott. This rule will not have a significant economic impact on vessel owners and operators because the anchorage area is outside the channel and will not, therefore, affect vessel traffic patterns. This rule will not have a significant economic impact on the City of Prescott because the anchorages established by the rule are upriver and downriver of the city limits and because vessels anchoring at the anchorage will have little or no economic activity with the City of Prescott or its residents.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, because it does 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction. This rule involves the extension of one anchorage and the establishment of another. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because critical information regarding the scope of the event was not received from the U.S. Army Corps of Engineers until July 15, 2012, providing insufficient time for the Coast Guard to solicit public comments before the start date of the project. The U.S. Army Corps of Engineers also discussed the rock removal project at the Boston's Port Operators Group monthly meeting on July 15, 2012. The Coast Guard hosted a meeting on August 2, 2012 inviting stakeholders from the maritime industry in Boston Harbor to discuss and mitigate any impacts this project will have on maritime community. The feedback from the meeting was that this safety zone will have minimum impact on local mariners based on the location and the fact that the majority of boating traffic will be able to transit around the safety zone and that the vessels involved in the rock removal operations will move as needed for deep draft vessels. A delay or cancellation of the project in order to accommodate a notice and comment period would be contrary to the public interest because immediate action is necessary to ensure the safety of the personnel involved in the rock removal project and any public vessels in the vicinity of the drilling, dredging and blasting operations being conducted. For the safety concerns noted, it is in the public interest to have these regulations in effect during the rock removal project.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay in the effective date of this rule would expose personnel involved in the rock removal project and any public vessels in the vicinity to hazards associated with the drilling, dredging and blasting operations.

The legal basis for the temporary rule is 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define safety zones.

The safety zone is being issued to provide for the safety of life on the navigable waters during the drilling, blasting and dredging operations in support of the U.S. Army Corps of Engineers rock removal project.

Starting August 13, 2012, daily from 5 a.m. to 8 p.m. until September 30, 2012, the contractor Burnham Associates Inc. will be conducting drilling, blasting and dredging operations in support of the U.S. Army Corps of Engineers Boston Harbors main ship channel rock removal project.

The COTP Boston has determined that hazards associated with the drilling, dredging and blasting operations pose a significant risk to safety of life on navigable waters. Establishing a safety zone around the vessel conducting the drilling, blasting, and dredging will help ensure the safety of the personnel involved in the rock removal project and any public vessels in the vicinity, and help minimize the associated risks with this project. This safety zone will establish a 100-yard radius around the vessel conducting the drilling, blasting and dredging operations in various locations in Boston Harbor's main ship channel near Castle Island. To ensure public safety, the safety zone will be enforced only while the vessel is on scene conducting operations involved in the rock removal project in Boston Harbor's main ship near Castle Island.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.

The Coast Guard has determined that this rule is not a significant regulatory action for the following reasons: The Coast Guard expects minimal adverse impact to mariners from the activation of the zone; vessels have sufficient room to transit around the safety zone; the vessel conducting the operations will move out of the channel for deep draft vessels that need to pass through that area and vessels may enter or pass through the affected waterway with the permission of the Captain of the Port (COTP) or the COTP's designated on-scene representative; and notification of the safety zone will be made to mariners through the local Notice to Mariners, Broadcast Notice to Mariners in advance of the event.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended requires federal agencies to consider the potential impact of regulations on small entitles during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities for the following reasons: vessels have sufficient room to transit around the safety zone; the vessel conducting the operations will move out of the channel for deep draft vessels that need to pass through that area and vessels may enter or pass through the affected waterway with the permission of the Captain of the Port (COTP) or the COTP's designated on-scene representative; notification of the safety zone will be made to mariners through the Local Notice to Mariners, Broadcast Notice to Mariners well in advance of the event.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

This action is not a “Significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone. This rule is categorically excluded from further review under, paragraph 34(g) of figure 2-1 of the Commandant Instruction. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable. The Coast Guard received notification of the event on June 29, 2012 and the event would occur before an NPRM and response to public comment could be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the reasons stated above, delaying the effective date would be impracticable.

The legal basis for the temporary rule is the Ports and Waterways Safety Act which authorizes the Coast Guard to establish safety zones (33 U.S.C sections 1221 et seq. ).

Stanlee R. Gatti Designs will sponsor the Wedding Reception Fireworks at Pier 24 on August 24, 2012, in the navigable waters of the San Francisco Bay midway between Pier 14 and the Bay Bridge in San Francisco, CA. From 9 a.m. until 2 p.m. on August 24, 2012 the fireworks barge will be loaded off of Pier 50 in San Francisco, CA at position 37°46′28″ N, 122°23′06″ W (NAD 83). From 8 p.m. to 8:20 p.m. on August 24, 2012 the loaded barge will transit from Pier 50 to the launch site midway between Pier 14 and the Bay Bridge at position 37°47′35″ N, 122°23′13″ W (NAD 83). The Coast Guard has granted the event sponsor a marine event permit for the fireworks display. The fireworks display is meant for entertainment purposes and a safety zone is necessary to establish a temporary restricted area on the waters surrounding the fireworks display. A restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics.

The Coast Guard will enforce a safety zone in navigable waters around and under the fireworks barge within a radius of 100 feet during the loading, transit, and arrival of the fireworks barge to the display location and until the start of the fireworks display. Upon the commencement of the 8 minute fireworks display, scheduled to take place from 9:15 p.m. to 9:23 p.m. on August 24, 2012, the safety zone will encompass the navigable waters around and under the fireworks launch site within a radius 560 feet at position 37°47′35″ N, 122°23′13″ W (NAD 83) for the Wedding Reception Fireworks at Pier 24 in San Francisco, CA. At the conclusion of the fireworks display the safety zone shall terminate.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks launch site during the fireworks display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We expect the economic impact of this rule does not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: Owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time, and (ii) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) and 35(b) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable and contrary to the public interest. The Coast Guard received notification of the load transfer operations on July 17, 2012 and it would be impracticable to publish an NPRM and receive public comment before the commencement of the event. Because of the dangers posed by transferring the load of the Bay Bridge from the temporary suspension arrangement to the permanent suspension arrangement, the safety zone is necessary to provide for the safety of mariners transiting the area.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the reasons stated above, delaying the effective date would be impracticable and contrary to the public interest.

The legal basis for the proposed temporary rule is the Ports and Waterways Safety Act which authorizes the Coast Guard to establish safety zones (33 U.S.C. 1221 et seq. ).

CALTRANS will sponsor the Bay Bridge Load Transfer Safety Zone on August 1, 2012 through October 31, 2012, in the navigable waters of the San Francisco Bay near Yerba Buena Island, CA. Load Transfer operations are scheduled to take place from 12 a.m. on August 1, 2012 until 11:59 p.m. on October 31, 2012. The load transfer is necessary to facilitate the completion of the Bay Bride construction project. The Bay Bridge is constructed using a temporary suspension system that must be transitioned to a permanent load-bearing system. The safety zone is needed to establish a temporary limited access area on the waters surrounding the load transfer operation. The safety zone is necessary to protect mariners transiting the area from the dangers associated with the load transfer of the Bay Bridge.

The Coast Guard is establishing a safety zone in navigable waters around and under the Bay Bridge within a box connected by the following points: 37°49′06″ N, 122°21′17″ W; 37°49′01″ N, 122°21′12″ W; 37°48′48″ N, 122°21′35″ W; 37°48′53″ N, 122°21′40″ W (NAD 83) during the load transfer. Load transfer operations are scheduled to take place from 12 a.m. on August 1, 2012 until 11:59 p.m. on October 31, 2012.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the load transfer operation. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We expect the economic impact of this rule does not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) this rule will encompass only a small portion of the waterway for a limited period of time, and (ii) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

On April 26, 2012, we published a notice of proposed rulemaking (NPRM) entitled Safety Zones: Jet Express Triathlon, Sandusky Bay, Lake Erie, Lakeside, OH in the Federal Register (77 FR 24880). We did not receive any comments in response to the proposed rule. No public meeting was requested and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard is issuing this temporary final rule less than 30 days after its publication in the Federal Register . Under 5 U.S.C. 553(d)(3), an agency may issue a rule less than 30 days before its effective date when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Accordingly, the Coast Guard finds that good cause exists for publishing this temporary final rule less than 30 days before its effective date because delaying the effective date of this temporary final rule would prevent its enforcement on the scheduled night of the event and thus, would preclude the Coast Guard from protecting spectators and vessels from the hazards associated with a maritime fireworks display.

The organization Endurance Sports Productions is sponsoring a triathlon: A bike, swim and run event. The swim portion of the event will take place in Lake Erie. The participants will begin by jumping off the ferry boat JET EXPRESS II at the designated position, then swim to the dedicated position on shore. This swim portion will take place on September 9, 2012 at approximately 8:00 a.m. and will last about an hour. The Captain of the Port Detroit has determined that the swim portion of the event will pose certain public hazards. Such hazards include obstructions to the waterway that may cause marine casualties and vessels colliding with swimmers that may cause death or serious bodily harm. With aforementioned hazards in mind, the Captain of the Port Detroit has determined that a temporary safety zone is necessary to ensure the safety of participants and vessels during the practice, the half triathlon, and the triathlon events.

As mentioned above, no comments were received during the public comment period, and as such, no changes to the text of the rule were made.

The temporary safety zone established herein will be effective and enforced from 8:00 a.m. until 10:00 a.m. on September 9, 2012. The safety zone will encompass all waters of Lake Erie within a direct line from 41°33′49″ N, 082°47′8″ W to 41°33′25″ N, 82°48′8″ W and 15 yards on either side of direct line. All geographic coordinates are North American Datum of 1983 (NAD 83).

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the above portion of the Sandusky Bay of Lake Erie near Lakeside, OH between 8:00 a.m. and 10 a.m. on September 9, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only approximately two hours. Also, in the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. Additionally, the Coast Guard will give advanced notice to the public via a local Broadcast Notice to Mariners that the regulation is in effect. Moreover, the COTP will suspend enforcement of the safety zone if the event for which the zone is established ends earlier than the expected time.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact ENS Benjamin Nessia, Response Department, Marine Safety Unit Toledo, Coast Guard; telephone (419) 418-6040, email Benjamin.B.Nessia@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A final environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES . This rule involves the establishment of a safety zone and thus, paragraph (34)(g) of the Instruction applies. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Table of Acronyms DHS Department of Homeland Security CDC Certain Dangerous Cargo FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive notice of the need for these security zones until July 19, 2012. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to implementation of the security zones. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the convention delegates, official parties, dignitaries, the public, and surrounding waterways.

For the same reason discussed above, under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of this rule is to provide for the safety and security of convention delegates, official parties, dignitaries, and the public during the 2012 Republican National Convention.

The security zones will be effective and enforced from August 25, 2012 through August 31, 2012, during the 2012 Republican National Convention held in Tampa, Florida.

The Secretary of the Department of Homeland Security has designated the 2012 Republican National Convention as a National Special Security Event. National Special Security Events are significant events, which, due to their political, economic, social, or religious significance, may render them particularly attractive targets of terrorism or other criminal activity. The Federal government provides support, assistance, and resources to State and local governments to ensure public safety and security during National Special Security Events.

Numerous Federal, State, and local agencies, including the U.S. Secret Service, Federal Bureau of Investigation, Customs and Border Protection, U.S. Coast Guard, and the Joint Terrorism Task Force, have developed comprehensive security plans to protect participants and the public during the Republican National Convention. As part of the comprehensive effort, the maritime security objective is to protect Convention participants, the maritime transportation system, and maritime stakeholders, including recreational boaters, from threats and security vulnerabilities. The Coast Guard and other Federal, State, and local agencies involved in security for the 2012 Republican National Convention have conducted threat, vulnerability, and risk analyses relating to the event.

The convention is expected to draw widespread protests by persons dissatisfied with national policy, foreign policy, and the Republican Party agenda. This politically-oriented event has the potential to attract anarchists and others persons intent on expressing their opposition through violence and criminal activity. The convention also presents an attractive target for terrorist and extremist organizations. Current analysis indicates that some activist groups are planning maritime activities to make their political views known.

Maritime security vulnerabilities during the 2012 Republican National Convention extend beyond the Convention site and include secondary venues throughout the Tampa Bay area. Considerable law enforcement presence on land may render maritime approaches a viable alternative for activist groups. The City of Tampa has critical infrastructure in its port area, which is proximate to the downtown area and the Convention's main venues. The Port of Tampa is an industrial-based port, with significant storage and shipment of hazardous materials.

The security zones and accompanying security measures have been specifically developed to mitigate the threats and vulnerabilities identified in the analysis discussed above. Security measures have been limited to the minimum necessary to mitigate risks associated with the identified threats.

The rule will establish moving security zones around Certain Dangerous Cargo (CDC) vessels in the Captain of the Port St. Petersburg Zone during the 2012 Republican National Convention in Tampa, Florida. A CDC vessel is one carrying anhydrous ammonia, liquefied propane gas, and ammonium nitrate. The security zones prohibit any vessel from entering within 500 yards of a CDC vessel. The security zones will start at buoys 3 and 4 in Tampa Bay “F” cut following the vessel to the pier, from pier to pier for berth shifts, and from the pier out to buoys 3 and 4 in Tampa Bay “F” cut.

All persons and vessels desiring to enter or remain within the regulated areas may contact the Captain of the Port St. Petersburg by telephone at (727) 824-7524, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter or remain within the regulated areas is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. Recreational vessels authorized to enter or remain within the regulated areas may be subject to boarding and inspection of the vessel and persons onboard.

The security zones would be enforced from 12:01 p.m. on August 25, 2012, through 11:59 a.m. on August 31, 2012.

A Port Community Information Bulletin (PCIB) will be distributed by Coast Guard Sector St. Petersburg. The PCIB will be available on the Coast Guard Internet Web portal at http://homeport.uscg.mil. PCIBs are located under the Port Directory tab in the Safety and Security Alert links. The Coast Guard would provide notice of the security zones by Local Notice to Mariners, Broadcast Notice to Mariners, public outreach, and on-scene designated representatives.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.

The economic impact of this rule is not significant for the following reasons: (1) The security zones will be enforced for a total of 144 hours, and only while CDC vessels are transiting within Tampa Bay; (2) vessels will be authorized to transit the security zones with the permission of the Captain of the Port or a designated representative; (3) vessels may operate in the surrounding area during the enforcement period; and (4) the Coast Guard would provide advance notification of the security zones to the local community by Local Notice to Mariners, Broadcast Notice to Mariners, and public outreach.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter or remain within those portions of the security zones encompassing Certain Dangerous Cargo vessels while transiting through Tampa Bay from 12:01 p.m. on August 25, 2012 through 11:59 a.m. on August 31, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a moving security zone around vessels containing certain dangerous cargo. This rule is categorically excluded from further review under paragraph (34)(g) of figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive notice of the need to establish these security zones until July 18, 2012. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to implementation of the security zones. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the convention delegates, official parties, dignitaries, the public, and surrounding waterways.

For the same reason discussed above, under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of this rule is to protect convention delegates, official parties, dignitaries, the public, and surrounding waterways from terrorist acts, sabotage or other subversive acts, accidents, or other causes of a similar nature, intended to harm people, damage property, or disrupt the proceedings of the 2012 Republican National Convention.

The Secretary of the Department of Homeland Security has designated the 2012 Republican National Convention as a National Special Security Event. National Special Security Events are significant events, which, due to their political, economic, social, or religious significance, may render them particularly attractive targets of terrorism or other criminal activity. The Federal government provides support, assistance, and resources to state and local governments to ensure public safety and security during National Special Security Events.

Numerous Federal, State, and local agencies, including the U.S. Secret Service, Federal Bureau of Investigation, Customs and Border Protection, U.S. Coast Guard, and the Joint Terrorism Task Force, have developed comprehensive security plans to protect participants and the public during the Republican National Convention. As part of the comprehensive effort, the maritime security objective is to protect Convention participants, the maritime transportation system, and maritime stakeholders, including recreational boaters, from threats and security vulnerabilities. The Coast Guard and other Federal, State, and local agencies involved in security for the 2012 Republican National Convention have conducted threat, vulnerability, and risk analyses relating to the event.

The convention is expected to draw widespread protests by persons dissatisfied with national policy, foreign policy, and the Republican Party agenda. This politically-oriented event has the potential to attract anarchists and others persons intent on expressing their opposition through violence and criminal activity. The convention also may present an attractive target for terrorist and extremist organizations. Current analysis indicates that some activist groups are planning maritime activities to make their political views known.

Maritime security vulnerabilities during the 2012 Republican National Convention extend beyond the Convention site and include secondary venues throughout the Tampa Bay area. The geography of the Tampa Bay region makes these fifteen bridges a vital component of the regional transportation network. Dignitaries, delegates, and participants at the Convention will be required to travel across these bridges to reach secondary venue locations. Further, dignitaries, delegates, and participants in the Republican National Convention will be staying at numerous hotels in Clearwater, St. Petersburg, and other areas. This will require those persons to make daily transits across the bridges spanning Tampa Bay and the Inter-Coastal Waterway to attend the Convention and associated events.

These fifteen security zones, developed in conjunction with comprehensive security planning and actions by other agencies, will assist in the safe and secure transportation of dignitaries and delegates to the Convention. In addition, the security zones will prevent disruption of these vital components of the region's transportation network that may be caused by violent protesters and other groups drawn to this event. In addition, the security zones will prevent persons from using the bridges and surrounding waters to stop or impede maritime traffic during the event.

The security zones and accompanying security measures have been specifically developed to mitigate the threats and vulnerabilities identified in the analysis discussed above. Security measures have been limited to the minimum necessary to mitigate risks associated with the identified threats.

This rule will establish temporary security zones around fifteen bridges in the Captain of the Port St. Petersburg area during the 2012 Republican National Convention in Tampa, Florida. This rule is effective from 12:01 p.m. on Saturday, August 25, 2012, through 1:00 a.m. on Friday, August 31, 2012.

All persons and vessels are prohibited from loitering, anchoring, stopping, or mooring under or within 50 yards of either side of the designated bridges. Expeditious transiting through the security zones is authorized. The security zones will be enforced 24-hours a day for the Gandy Bridge, Howard Franklin Bridge, and Courtney Campbell Causeway Bridge.

The remaining security zones will be established around: The Clearwater Memorial Causeway (60); Sand Key Bridge (699); Belleair Causeway Bridge; Walsingham Rd Bridge (688); Park Blvd.(co Rd 694); Welch Causeway (Tom Stuart Causeway/150th Ave); Seminole Bridge (Bay Pines Blvd./19/595); Johns Pass Bridge (Gulf Blvd./699); Treasure Island Causeway (Central Ave); Corey Causeway (Pasadena Ave); Blind Pass Bridge (699); and Pinellas Bayway Structures A, B, and C. These security zones will be enforced for other bridges as follows:

A Port Community Information Bulletin (PCIB) will be distributed by Coast Guard Sector St. Petersburg. The PCIB will be available on the Coast Guard Internet web portal at http://homeport.uscg.mil . PCIBs are located under the Port Directory tab in the Safety and Security Alert links. The Coast Guard will provide notice of the security zones by Local Notice to Mariners, Broadcast Notice to Mariners, public outreach, and on-scene designated representatives.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order.

The economic impact of this rule is not significant for the following reasons: (1) The security zone will be effective for only six days; (2) although persons and vessels are prohibited from remaining or anchoring within the security zones during the effective dates, normal navigational transits will be authorized; and (3) vessels may operate in the area outside the security zones during the effective period.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to anchor or remain in any of the fifteen security zones during the effective periods described in the rule. These security zones would not have a significant economic impact on a substantial number of small entities for the reasons discussed in the Regulatory Planning and Review section above.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of fifteen temporary security zones. This rule is categorically excluded from further review under paragraph (34)(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

In the final rule published on December 5, 2011 (76 FR 75786-75794), the Postal Service announced that, effective January 22, 2012, mailers paying the retail price would no longer be permitted to enter Express Mail International® or Priority Mail International® items bearing a permit imprint at a business mail entry unit (BMEU) since the information contained on the customs declaration was not electronically transmitted. That final rule supported policy changes to require the electronic transmission of customs data prior to mailing in a greater range of circumstances. Electronic transmission of customs data enables the Postal Service and other federal agencies to ensure mailers' compliance with federal export requirements. Effective November 5, 2012, the same requirements will also apply to the following classes of mail when the item bears a PS Form 2976, Customs Declaration CN 22—Sender's Declaration:

First-Class Mail International®.

Airmail M-bags TM .

International Priority Airmail TM (IPA®), including IPA M-bags.

International Surface Air Lift® (ISAL®), including ISAL M-bags.

With this change, customs data must be electronically transmitted before a mailer can enter any mailpiece bearing a customs declaration at a BMEU. This update will assist the Postal Service and other federal agencies to monitor mailers' compliance with federal export regulations that, among other things, prohibit certain goods from being sent to persons, entities, or countries determined to be adverse to U.S. interests. Data required to be transmitted includes the sender's name and address, the addressee's name and address, details about the item's contents, and the date of mailing. In addition, for IPA and ISAL mailings prepared in direct country sacks, we will require mailers to generate a receptacle barcode that includes the shipment date and permit number. To comply with these standards, mailers must electronically transmit customs data by using USPS-produced Global Shipping Software (GSS) or other USPS-approved software. To request information about either of these software solutions, send an email to globalbusinesssales@usps.gov.

Finally, with this change, the Postal Service is reducing the current 5-pound minimum to 3 pounds for mailers preparing IPA and ISAL direct country sacks. This change will make it easier for mailers to qualify for the lower direct country sack price—currently, when there is less than 5 pounds of mail sent to an individual country, these sacks can only qualify for the mixed country sack price, or the worldwide nonpresort price. In addition, for mailers who currently commingle items bearing customs forms with items that do not have customs forms (in direct country sacks), this lower limit will assist mailers in preparing separate sacks for items bearing a customs form, effective November 5, 2012.

The Postal Service hereby adopts the following changes to Mailing Standards of the United States Postal Service, International Mail Manual (IMM), which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 20.1.

Accordingly, 39 CFR part 20 is amended as follows:

Throughout this document, wherever “we,” “us,” or “our,” is used, we mean the United States Environmental Protection Agency (EPA).

A detailed explanation of the requirements for regional haze SIPs and EPA's analysis of the Nevada Division of Environmental Protection's (NDEP) BART determination for NO X at RGGS is provided in our Notice of Proposed Rule Making and is not restated here. See 77 FR 21896 (April 12, 2012).

RGGS consists of four coal-fired boilers, three of which are BART-eligible units with generating capacity of 100 megawatts (MW) each. A fourth unit (250 MW) is not BART-eligible. Nevada Energy, the owner of RGGS, performed a NO X BART analysis for the three BART-eligible units at RGGS and submitted the results of its analysis to NDEP. 1 In its BART analysis, Nevada Energy considered several NO X control technologies and evaluated the cost of compliance and visibility improvement associated with each technology. In preparing the SIP, NDEP relied on certain aspects of Nevada Energy's analysis while performing updated analyses for other aspects.

EPA proposed to fully approve Nevada's SIP on June 22, 2011 ( see 76 FR 36450), but received numerous comments on our proposed approval of the BART determination for NO X at RGGS. A detailed description of those comments is in our final rule, which approved all of the Nevada regional haze SIP, except for the BART determination for NO X at RGGS. See 77 FR 17334 (March 26, 2012). After reviewing the public comments, EPA performed additional analyses of the cost-effectiveness and visibility improvement associated with the various NO X control technologies considered by NDEP in determining BART for NO X at RGGS. Based upon these additional analyses, EPA did not take final action on the chapters of the SIP containing the NO X BART determination for RGGS, including the corresponding emission limits and schedules of compliance for NO X at RGGS. Specifically, EPA did not take final action on sections 5.5.3, 5.6.3 and 7.2 of NDEP's SIP, addressing the NO X BART control analyses, visibility improvement, and implementation at RGGS.

EPA published a new proposal to partially approve and partially disapprove NDEP's BART determination for NO X at RGGS on April 12, 2012. See 77 FR 21896. Based on its additional analyses described above, EPA proposed revised control cost calculations for installation and operation of low NO X burners (“LNB”) and overfire air (“OFA”) combined with either selective non-catalytic reduction (SNCR) or selective catalytic reduction (SCR) technology. 2 EPA also performed new CALPUFF visibility modeling to evaluate the visibility improvement from installing and operating LNB with OFA and either SNCR or SCR.

As discussed in detail in our responses to comments, EPA's independent modeling results showed a very small visibility improvement at the Grand Canyon National Park (GCNP) as a result of installing and operating SCR with an 85 percent reduction in NO X on all three units. The modeled visibility improvement for this scenario was 0.38 dv at the GCNP. The incremental visibility improvement for installing LNB with OFA and SCR rather than LNB with OFA and SNCR was only 0.10 dv at GCNP.

EPA has considered the comments we received on our proposed approval and proposed disapproval. In this final action, EPA is approving NDEP's determination that NO X BART for RGGS for Units 1 and 2 is an emissions limit of 0.20 lb/MMBtu that can be achieved by installing and operating LNB with OFA and SNCR. EPA is disapproving NDEP's NO X BART emissions limit of 0.28 lb/MMBtu for Unit 3. EPA is also disapproving the 12-month rolling average that NDEP adopted for all three units. Concurrently, EPA is finalizing a FIP for RGGS setting a NO X emissions limit of 0.20 lb/MMBtu for Unit 3 and a 30 successive boiler operating day (BOD) rolling NO X emissions limit on a heat input-weighted average across all three units. 3 This represents a change to the averaging period included in our proposed action on April 12, 2012, which was based on a straight 30 calendar day average. EPA concludes that the change is a logical outgrowth of the proposal and the comments received.

EPA takes very seriously a decision to disapprove these provisions in Nevada's plan, as we believe that it is preferable that all emission control requirements needed to protect visibility be implemented through the Nevada SIP. A revised state plan need not contain exactly the same provisions that EPA has included in the FIP, but EPA must be able to find that the state plan is consistent with the requirements of the CAA. Further, EPA's oversight role requires that we assure fair implementation of CAA requirements by states across the country, even while acknowledging that individual decisions from source to source or state to state may not have identical outcomes. In this instance, we believe that NDEP's NO X BART determination for RGGS generally meets those requirements except for the specific emissions limit for Unit 3 and the compliance averaging time. As a result, EPA believes this combined approval, disapproval, and FIP is consistent with the CAA at this time, while full approval of the SIP would be inconsistent with the CAA. We look forward to working with NDEP to replace the FIP provisions with a revised SIP.

EPA received written and oral comments before the close of the public comment period on June 4, 2012. We received major comments in writing from a consortium of environmental and conservation organizations  4 (“Consortium”), the National Park Service, the Nevada Division of Environmental Protection, Nevada Energy, the Moapa Band of Paiutes, Clark County Rural Democratic Caucus, and about ten individuals. We received comments from the two public hearings held near RGGS on May 3, 2012, that were attended by about 150 people, many of whom testified. We also received over 13,000 comments from mass mailings initiated by Sierra Club, National Parks Conservation Association, and CREDO Action (Rural Nevada Democratic Caucus). The comment letters, transcripts of the public testimony, and samples of the mass mailers are available for review online in Docket EPA-R09-OAR-2011-0130 at http://www.regulations.gov. While the written comments focus largely on the cost of compliance and degree of visibility improvement associated with SCR and SNCR, other topics are included. The oral comments provided as testimony at the public hearings focus largely on SCR and SNCR, but with an emphasis on sustaining jobs in the local community and the health issues experienced by the Moapa Band of Paiutes who live adjacent to Reid Gardner. We respond below to the full range of comments received from all sources.

Comment 1: EPA's proposed BART determination for NO X at RGGS is inconsistent with EPA's decision to require SCR on other similar facilities including the San Juan Generating Station in New Mexico.

Response 1: It is important to note that EPA is approving Nevada's determination that the NO X BART for RGGS is the emissions rate achievable using modern LNB with OFA and SNCR. We are approving NDEP's decision to reject requiring SCR as NO X BART because we believe that NDEP's conclusion, that the small improvement in visibility at GCNP did not justify the cost of LNB with OFA and SCR technology, is adequately supported by the facts in this situation. 5 Congress crafted the CAA to provide for states to take the lead in developing implementation plans, but balanced that decision by requiring EPA to ensure the plans meet the requirements of the CAA. EPA's review of a SIP is not limited to a ministerial approval of a state's decisions. EPA must evaluate whether a state considered the appropriate factors and acted reasonably in doing so. In undertaking such a review, EPA does not usurp a state's authority but ensures that such authority is reasonably exercised.

The CAA and EPA's regional haze regulations set forth five factors that a state should evaluate to reach a BART determination. However, the CAA and our regulations provide flexibility to the state in deciding how the factors in the analysis are weighed. Moreover, for power plants that are smaller than 750 MW, our regulations allow the state to conduct a five-factor analysis that does not conform in all respects to our BART Guidelines for larger sources. See 70 FR 39131 (July 6, 2005).

For San Juan Generating Station and other examples cited in the comments, EPA disapproved BART determinations submitted by the states because they did not meet the CAA requirements. Under CAA section 110(c), EPA is required to promulgate a Federal Implementation Plan following disapproval of a state implementation plan submission in whole or in part. EPA's role of making the initial BART determination in a FIP is not directly comparable to EPA's role in deciding whether the state's SIP is approvable. EPA and the states generally consider the same factors in the initial BART determination but may weigh those factors differently provided the determination in each case is reasonable. BART determinations are case by case analyses. For example, in the case of San Juan Generating Station, EPA modeled very significant visibility improvement in numerous surrounding Class I areas resulting from emissions reductions associated with SCR, and thus concluded based on its five factor analysis that SCR was BART. 6 However, at RGGS, the visibility improvement from SCR compared to SNCR is very small. The units at San Juan Generating Station are also significantly larger than the units at RGGS, and the application of the BART Guidelines is mandatory when performing the five-factor analysis. This is not the case for RGGS.

NDEP on the other hand indicated that it had determined SNCR rather than SCR was NO X BART for RGGS based on weighing the small incremental visibility improvement of SCR against its incremental cost effectiveness. When EPA reviewed NDEP's NO X BART determination, we found problems in the method NDEP used to calculate cost-effectiveness and in the assumptions on which the modeling was based. Accordingly, EPA independently calculated cost-effectiveness and performed new modeling. In our review, EPA considered both average and incremental cost-effectiveness and visibility improvement. The results of our own analysis of the incremental visibility improvement and cost for SCR differ from NDEP's analysis in certain respects, but support NDEP's decision to establish an emissions limit that can be achieved by installing SNCR technology.

NDEP reasonably determined that NO X emissions reductions achievable with SNCR would provide some visibility improvement at GCNP at a reasonable cost. Our decision to approve NDEP's determination that the emissions rate achievable with LNB with OFA and SNCR is NO X BART for RGGS is consistent with other national BART SIP approvals as well as proposed FIPs and final FIPs. See, e.g., 77 FR 24385 (April 24, 2012) (Final Maine SIP approval); 77 FR 24027 and 24034 (April 20, 2012) (Proposed Montana FIP); and 77 FR 20894 (April 6, 2012) (Final North Dakota FIP). Other SIPs have rejected more effective controls such as SCR if those controls were found to provide little visibility improvement relative to significant cost. See, e.g., 76 FR 80754, 80758 (Dec. 27, 2011) (Final Kansas SIP approval  7 ); 76 FR 16168 (March 22, 2011) (Proposed Oklahoma SIP approval  8 ). Therefore, our approval of NDEP's BART determination is consistent with EPA's action on other regional haze SIPs as well as proposed and final EPA FIPs.

In summary, EPA thoroughly and independently reviewed NDEP's basis for selecting a NO X emissions rate achievable with SNCR as BART for RGGS rather than selecting SCR. In reaching this determination, NDEP weighed the small visibility improvement against the costs of the more effective control option. EPA calculated a lower average and incremental cost-effectiveness value than NDEP. EPA's modeling relied on the regulatory version of the CALPUFF modeling system and improved meteorological inputs, and predicted much less visibility improvement at GCNP from selecting SCR as NO X BART (average: 0.38 dv, incremental: 0.10 dv). We also evaluated the visibility improvement that would result at four other Class I areas within 300 km of RGGS. Our modeling indicated that SCR would result in only minimal improvement at these four areas. Although we found shortcomings in NDEP's cost-effectiveness and visibility improvement values, we are taking final action to approve NDEP's conclusion that the small visibility improvement does not justify the cost of requiring SCR as NO X BART. The comment before us does not change our decision that NDEP reasonably applied the statutory and regulatory factors to determine that the NO X BART emission rate achievable from SNCR (0.20 lb/MMBtu) is BART for RGGS.

EPA acknowledges that NDEP has greater discretion in applying the BART factors because RGGS is an electric generating unit smaller than 750 MW. In evaluating SIPs, EPA exercises judgment about SIP adequacy, not just to meet and maintain the National Ambient Air Quality Standards (NAAQS), but also to meet other requirements that do not have a specific ambient standard, such as visibility at Class I areas. In this case, Congress established a requirement for BART, and EPA is charged to assure that states meet the requirement. Here, contrary to the commenter's assertion, we are exercising judgment within the parameters laid out in the CAA and consistent with other actions nationally applying our regional haze regulations. Our interpretation of our regulations and the CAA, and our technical judgments, are entitled to deference. See, e.g., Michigan Dep't. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000); Connecticut Fund for the Env't., Inc. v. EPA, 696 F.2d 169 (2nd Cir. 1982); Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759 (8th Cir. 2004); Mont. Sulphur & Chem. Co. v. United States EPA, 2012 U.S. App. LEXIS 1056 (9th Cir. January 19, 2012).

Therefore, we are finalizing our approval of NDEP's NO X BART emissions rate of 0.20 lb/MMBtu, achievable using modern LNB with OFA and SNCR, for RGGS with two exceptions. For Unit 3, EPA is taking final action disapproving the SIP and promulgating a FIP setting the NO X emissions limit at 0.20 lb/MMBtu. In addition, EPA is finalizing a 30 successive boiler operating day rolling NO X emissions FIP limit on a heat input-weighted average across all three units rather than the 12-month rolling average NDEP included in its SIP, which EPA is disapproving.

Comment 2: EPA did not correctly follow the BART process for evaluating the five factors, which should have resulted in selecting SCR and an emission limit corresponding to 90 percent control of NO X.

Response 2: EPA was not conducting a BART analysis, but was reviewing the adequacy and reasonableness of NDEP's BART analysis. NDEP noted that RGGS is not the size of a facility for which application of the BART guidelines is mandatory when performing its five-factor analysis. In evaluating the five factors, NDEP evaluated visibility impacts by relying on visibility modeling included in the BART analysis submitted to NDEP by Nevada Energy. NDEP concluded that the small improvement in visibility that could be achieved with SCR did not justify the cost of SCR. We are generally approving the State's BART determination because we find NDEP's conclusions as to the appropriate level of BART controls to be reasonable..

NDEP did not consider a SCR system that would achieve 90 percent reduction. For SCR, NDEP assumed the technology would achieve control efficiencies of 78 to 82 percent. See Table 1 in 77 FR 21900 (April 12, 2012). The significance of the control efficiency assumption is that it affects the cost-effectiveness of the control technology. Cost-effectiveness ($/ton) is calculated by dividing the total annual cost ($) by the total annual tons of the pollutant reduced (tons). Assuming that two different levels of control ( e.g., 82 percent versus 90 percent) bear the same cost, higher control efficiency assumptions ( e.g., 90 percent) will result in lower cost per ton values because the denominator in the equation is larger.

In reviewing the reasonableness of NDEP's NO X BART determination, EPA assumed a higher efficiency than NDEP. EPA determined that SCR could reduce 85 percent of the NO X emissions from the stack exhaust. EPA continues to find that the correct assumption for the removal efficiency in this case is 85 percent rather than 90 percent. One of the factors EPA considered is that RGGS is not limited in its coal purchase by a contract. RGGS may purchase coal on the spot market, meaning that the rank  9 and nitrogen content of the coal combusted may vary. Bituminous coals from Utah have a very high btu per pound, which leads to higher NO X produced during combustion. Coals with high nitrogen content also produce more NO X when combusted. 10 Since RGGS has access by rail line to a number of different ranks of coal with varying nitrogen, these factors can affect the emission level that can be achieved with the SCR.

Assuming arguendo that EPA agreed with the comment that SCR should achieve 90 percent reduction continuously, we would not necessarily change our decision to approve NDEP's BART determination. As noted above, 90 percent control efficiency assumption would lead to a lower average and incremental cost-effectiveness. Even with that, NDEP's BART determination may have been reasonable based on weighing the small incremental visibility improvement of SCR against its incremental cost effectiveness. However, that issue was not before EPA in this action since EPA determined that only 85% reduction could be assumed in this case.

Comment 3: The commenter states that EPA did not follow the two-step process described in 40 CFR 51.301, which involves first identifying the best control technology for reducing NO X and then applying the five factors to determine the best emissions limit achievable by that technology. A different emission limit should be chosen only if the technology fails to meet one of the five factors. Instead, EPA provided a list of all feasible methods to remove NO X, ranked from least effective (worst) to most effective (best) based on their NO X control efficiency. In sorting through the ranked list of control options to pick the BART control technology, the EPA started at the bottom, with the worst control, and moved up to the best control, thus corrupting the entire process.

Response 3: We reiterate that EPA was not conducting a BART determination for NO X at RGGS. Rather, we were reviewing the adequacy of NDEP's BART analysis. NDEP noted, correctly, that RGGS is not the size of a facility for which application of the BART Guidelines is mandatory.

The process described in the comment is comparable to the process for determining Best Available Control Technology (BACT) established in the Prevention of Significant Deterioration regulations. The states, however, are not required to use a top-down BACT process for making a BART determination. EPA stated in its final BART rule that, “States should retain the discretion to evaluate control options in whatever order they choose, so long as the State explains its analysis of the CAA factors.” See 70 FR 39130 (July 6, 2005). NDEP's determination to eliminate SCR from consideration as BART was based on weighing the small incremental visibility improvement from SCR against its incremental cost-effectiveness. This decision is within the discretion that a state can exercise in evaluating BART because it considered the appropriate factors and came to a reasonable determination, especially in this case which was not required to meet all aspects of EPA's BART guidelines.

Comment 4: The proposal does not demonstrate that a NO X limit of 0.05 lb/MMBtu on a 30-day rolling average basis using SCR has any adverse impacts when subjected to a site-specific, case-by-case, five-factor analysis.

Response 4: The comment does not set forth the appropriate standard for a BART analysis. The process described by the commenter is analogous to a top-down control technology review conducted when determining the BACT for new major stationary sources or major modifications at existing stationary sources. As stated in Response 3, states are not required to use a top-down BACT process for making a BART determination, and states retain discretion to evaluate control options in whatever order they choose, as long as the state explains its analysis of the CAA factors.

NDEP applied the five-factor BART analysis for NO X at RGGS. NDEP weighed the five factors and concluded that the small visibility improvement expected from installation of SCR did not justify the incremental cost of SCR. EPA independently and thoroughly evaluated NDEP's determination. EPA also considered both average and incremental cost effectiveness as well as visibility improvement. Although we disagree with NDEP's calculation of the cost effectiveness of SCR compared to SNCR, our modeling analysis has demonstrated that the visibility improvement from SCR is very small at GCNP. The visibility improvement from SCR is only 0.38 dv, and the incremental visibility improvement between SCR and SNCR is only 0.10 dv. The annualized cost of SNCR is approximately $1.02 million per unit, and the annualized cost of SCR is approximately $3.8 million per unit, making it four times as expensive as SNCR. 11 NDEP's determination that NO X BART is an emissions rate that is achievable with SNCR is reasonable based on its weighing of the small visibility improvement against the cost of SCR.

Comment 5: The statute and regulations do not require EPA to compare the best technology to the next best technology, and then reject the best technology based on incremental differences.

Response 5: EPA was not conducting its own BART analysis but was reviewing the adequacy of NDEP's BART analysis. We agree with the commenter that the CAA and regional haze regulations do not require the state to reject the best technology based on incremental differences. However, we note that the state has the discretion to compare the incremental cost-effectiveness and incremental visibility improvement that will result from various technologies. See 70 FR 39129 (July 6, 2005). The state must evaluate the differences between control technologies reasonably and provide a justification for rejecting a technology. For the RGGS NO X BART determination, we are finalizing our approval of NDEP's elimination of SCR as BART based on the small visibility improvement that would result at the GCNP weighed against its cost-effectiveness. In addition, NDEP noted that RGGS is the size of a facility for which application of the BART Guidelines is not mandatory. Thus, EPA concluded that NDEP's NO X BART determination was reasonable.

Comment 6: EPA's consideration of the incremental visibility improvement between SCR and SNCR is contrary to law because there is no incremental visibility factor.

Response 6: We disagree with the comment that considering incremental visibility improvement is prohibited by the CAA or our regulations. The CAA and our regional haze regulations specify that the states or EPA must consider cost and visibility in the five-factor analysis. With respect to the cost factor, in promulgating the BART Guidelines, EPA responded to a comment stating: “In addition, the guidelines continue to include both average and incremental costs. We continue to believe that both average and incremental costs provide information useful for making control determinations.” See 70 FR 39127 (July 6, 2005). The commenter did not cite any regulatory language that would preclude incremental cost effectiveness in considering the cost of compliance. With respect to using incremental visibility improvement, EPA's response to comments on promulgating the BART guidelines stated:

EPA's regulations allow states to compare incremental cost-effectiveness and visibility improvements between different technologies. The incremental visibility benefit is one way to compare the visibility improvements from various controls. For this BART determination, NDEP weighed the small incremental visibility improvement against the incremental cost effectiveness. Based on weighing these factors, NDEP provided a reasoned justification for choosing SNCR technology as NO X BART for RGGS. EPA's independent analysis indicates that NDEP properly exercised its discretion in its process for weighing the small visibility improvement against the cost-effectiveness to reject SCR.

Comment 7: EPA did not provide the public with the criteria for making its BART determination, which appears inconsistent with the BART Guidelines and the intent of the Regional Haze Rule.

Response 7: As noted previously, EPA was not conducting its own BART analysis. We were reviewing the adequacy of NDEP's BART analysis. NDEP correctly noted that RGGS is not the size of a facility for which application of the BART Guidelines is mandatory.

After receiving significant comments on our initial proposed rule (76 FR 36450), EPA independently and thoroughly reviewed NDEP's NO X BART determination and concluded that NDEP provided the public with information regarding the criteria it was applying in making its BART determination. See “Revised NDEP BART Determination Review of NV Energy's Reid Gardner Generating Station Units 1, 2 and 3” revised October 22, 2009. NDEP adequately informed the public about the basis for its NO X BART determination for RGGS, stating: “NDEP concluded, based on a review of the economic analysis, that the $/ton of NO X removed increased significantly for the LNB with OFA and SNCR, and ROFA with SCR technologies without correspondingly significant improvements in visibility.” Id. page 6. We are approving NDEP's determination that NO X BART for RGGS is an emissions rate that is achievable by installing and operating LNB with OFA and SNCR because NDEP reasonably weighed the small incremental visibility improvement that would result from installation of SCR against its higher cost. NDEP adequately disclosed the factors it considered in its BART determination.

Comment 8: EPA fails to explain what level of incremental cost or visibility improvement would justify SCR. EPA should disclose the dollar limit and rationale for what constitutes “cost effectiveness,” and how its method is consistently applied across other facilities and states.

Response 8: EPA's approval of NDEP's BART determination is based on finding that the State adequately considered the appropriate factors for BART and provided a reasonable explanation for selecting a NO X emissions rate that can be achieved with SNCR. NDEP explained that requiring SCR technology would result in a small incremental visibility improvement over SNCR when weighed against the incremental cost-effectiveness of SCR. As stated in our proposed approval, our modeling analysis was performed “in a manner that more closely adheres with current EPA regulatory guidance on CALPUFF modeling.” See 77 FR 21903 (April 12, 2012). Our analysis found that the average and incremental visibility improvement would be significantly lower than the visibility improvement relied upon by NDEP. In addition, EPA's revised cost analysis also indicated lower cost per ton of pollutant removed for SCR. In our analysis, we evaluated the cost-effectiveness of both technologies (SCR and SNCR with LNB and OFA) based on using the Control Cost Manual (CCM) for including appropriate costs.

Our modeling shows that there would be a very small improvement in visibility at the GCNP from using SCR at RGGS. Based on this analysis we have determined that we can approve NDEP's determination that RGGS is required to comply with a NO X emissions rate that can be achieved with SNCR as BART. Although the values that EPA considered for cost-effectiveness and visibility improvement differ from NDEP's analysis, we conclude NDEP's analysis reasonably weighed the small visibility improvement against the cost to eliminate SCR.

One comment faults EPA, stating: “EPA further fails to explain what level of incremental cost or visibility improvement would justify the incremental cost.” See Consortium Letter at page 6. EPA's BART guidelines did not establish bright-line thresholds for cost-effectiveness or visibility improvement, choosing to allow the states to exercise discretion to choose such values when appropriate. EPA stated:

The same rationale should apply to cost-effectiveness. A bright line for cost-effectiveness may not be appropriate for every case and is dependent on case specific factors relating to economics and technology. In this case-by-case determination, the small amount of visibility improvement did not justify the cost of SCR.

Comment 9: EPA should explain the amount of incremental visibility improvement from SNCR to SCR that would justify the incremental cost increase of SCR, since no threshold is established in rulemaking or guidance.

Response 9: EPA is not setting generally applicable thresholds for incremental cost-effectiveness or visibility improvement for the reasons discussed above. EPA's BART Guidelines established presumptive emissions limits for SO 2 and NO X at electric generating units at facilities generating more than 750 MW. But EPA did not extend those presumptive emissions limits to electric generating units at smaller facilities, such as RGGS.

EPA did not establish presumptive cost-effectiveness or visibility improvement values. EPA left weighing the factors to the state providing the state considered the five factors and exercised its discretion reasonably. Here, EPA proposed to find that NDEP reasonably eliminated SCR when it weighed the cost-effectiveness against the small incremental visibility improvement associated with requiring SCR rather than SNCR.

BART is a case-by-case analysis that is initially evaluated by the states. Provided the state exercises its discretion reasonably and meets the requirements of the CAA and regulations, EPA may approve it. EPA's approval is not a ministerial act. In this rulemaking, EPA has carefully reviewed the basis for NDEP's determination. There is no reason, and none is provided in the comment, to support the assertion that EPA should establish thresholds for cost-effectiveness or visibility improvement, or challenge EPA's authority to approve a BART determination without them.

Comment 10: EPA's use of incremental visibility improvement to find that the cost of SCR is unjustified contradicts its finding that SCR is cost-effective (77 FR 21901).

Response 10: The commenter mischaracterizes EPA's proposed approval. The commenter is correct that we did not find the average and incremental cost-effectiveness of SCR to be cost prohibitive. Nevertheless, our evaluation supported NDEP's determination that the small amount of visibility improvement at GCNP did not justify the cost of SCR.

The comment states that EPA has invented a “sixth factor” by “concatenating incremental visibility and incremental cost.” See Consortium Letter, page 7. EPA has not invented an additional factor in the BART analysis but has approved a reasonable conclusion reached by NDEP when it weighed these two factors. NDEP's weighing two factors in the analysis does not create a sixth factor. The comment does not explain how weighing two factors in the five-factor analysis constitutes stringing together and joining those factors into a sixth factor.

National Parks Conservation Association and Sierra Club wrote to EPA on June 29, 2012, concerning several regional haze actions. We are treating this letter as a late comment on our proposed action and including it in our docket as such. This letter indicates that NPCA and Sierra Club understand that our approval is based on finding that NDEP reasonably weighed visibility improvement and cost-effectiveness rather than inventing an additional BART factor. The letter provides:

EPA's analyses are also based on weighing the five BART factors. The relative weight of the cost-effectiveness and visibility improvement varies depending on the facility at issue. For the three 100 megawatt units at RGGS, EPA concludes that notwithstanding differing conclusions about both cost and visibility improvement, NDEP reasonably determined that a small visibility improvement at GCNP does not justify the cost of SCR. Our approval of NDEP's NO X BART determination on this basis is consistent with our actions on other regional haze SIPs. See, e.g., 77 FR 24385 (Apr. 24, 2012) (Final Approval of Maine SIP).

Comment 11: The incremental cost difference between SCR and SNCR is less than EPA estimated because the cost of SCR is overestimated and the cost of SNCR is underestimated, making SCR look relatively more expensive than is the case.

Response 11: The comment does not provide any basis for EPA to revise its proposed approval of NDEP's NO X BART determination. Our proposal stated:

Even if the average and incremental cost-effectiveness between SCR and SNCR were somewhat different, NDEP's BART determination would still be approvable based on its reasonable weighing of the cost and visibility improvement factors.

Comment 12: EPA incorrectly estimated the cost-effectiveness of SCR (i.e., dollars per ton of emissions removed on an annual basis) by assuming that SCR can achieve an annual average emission no lower than 0.083 to 0.098 lb/MMBtu, despite substantial evidence that SCR can achieve 0.05 lb/MMBtu or lower on an annual basis.

Response 12: EPA disagrees with this comment. Regarding the accuracy of the cost effectiveness calculations of SCR, the commenter is correct that we estimated cost-effectiveness of SCR based on annual average emission rates ranging from 0.083 to 0.098 lb/MMBtu. However, we indicated in our proposal that we did not find SCR to be cost prohibitive at these emission rates. As a result, although we did consider more stringent SCR emission rates, such as 0.06 lb/MMBtu, when evaluating visibility improvement, we did not also revise our cost estimates to reflect the more stringent SCR emission rates, since we had already indicated that did not find SCR to be cost prohibitive at the less stringent SCR emission rates. It would not have been in any way determinative to our decision to find that SCR was “even more” cost-effective or that the incremental cost-effectiveness value between SCR and SNCR was “even more” incrementally cost-effective.

Regarding the emission rate achievable by SCR, the BART Guidelines state that: “[i]n assessing the capability of the control alternative, latitude exists to consider special circumstances pertinent to the specific source under review, or regarding the prior application of the control alternative” (70 FR 39166, July 6, 2005). 12 In other words, the BART emission limits are not required to represent the maximum level of control ever achieved by a given technology. Limits set as BACT under the PSD program, or emission rates achieved from the operation of individual facilities under an emission trading program (e.g., Clean Air Interstate Rule), may provide important information, but should not be construed to automatically represent the most appropriate BART limit for all facilities.

The coal composition is also an important component of estimating the NO X emissions rate that a facility can achieve. RGGS is capable of purchasing coal on the spot market so there is likely to be variability in the NO X emissions rate that would be achievable with SCR or SNCR. As previously discussed in the response to Comment 2, RGGS receives its coal by rail line and has access to different ranked coals with varying nitrogen content, which influence the NO X concentration in the exhaust going to either SNCR or SCR controls. EPA's policy is to set an emission limit that would reasonably accommodate the various coal sources under these circumstances.

EPA disagrees with this comment, but even if we accepted the premise that RGGS is capable of continuously meeting an emission limit of 0.05 lb/MMBtu, the comment does not provide any basis for EPA to change our approval of NDEP's SIP or our FIP. Assuming the cost of achieving 0.05 lb/MMBtu was equal to the cost of achieving 0.083 to 0.098 lb/MMBtu, using a NO X emissions rate of 0.05 lb/MMBtu for SCR would likely result in lower average and incremental cost per ton values. Thus, we would calculate SCR to be more cost-effective (i.e., lower dollars per ton) on an average and incremental basis. As stated above, EPA did not determine the average or incremental cost of SCR to be prohibitive. Rather, EPA's approval of NDEP's determination that NO X BART for RGGS for Units 1 and 2 is an emissions limit of 0.20 lb/MMBtu that can be achieved by installing and operating LNB with OFA and SNCR is based on our determination that NDEP reasonably weighed the visibility improvement against the other factors in rejecting SCR. EPA does not believe this analysis would be significantly altered by slightly lower incremental cost numbers.

Comment 13: EPA did not correct all the errors in the State's cost calculations for SCR (e.g., lack of multiple unit discounts, high reagent costs, incorrect capital recovery factor), which would have further reduced the cost and improved the cost effectiveness of SCR, thereby reducing the incremental cost difference with SNCR.

Response 13: EPA partially agrees with this comment. EPA's revised cost-effectiveness values are consistent with EPA's regulations and the parameters set forth in the CCM. EPA explained in promulgating the BART Guidelines that “[s]tates have flexibility in how they calculate costs.” See 70 FR at 39127 (July 6, 2005). A state may deviate from the Control Cost Manual provided its analysis is reasonable. EPA independently evaluated NDEP's cost-effectiveness calculation, stating in our proposal:

Our proposal noted that we did not revise the cost-effectiveness calculation to adjust for all of the discrepancies with the CCM because based on our initial adjustments we found that SCR was not cost-prohibitive. It would not have been in any way determinative to our decision to find that SCR was “even more” cost-effective or that the incremental cost-effectiveness value between SCR and SNCR was “even more” incrementally cost-effective.

As discussed above, EPA is approving NDEP's determination that NO X BART is an emissions limit achievable with SNCR rather than SCR. The basis for our approval is that when NDEP weighed the small visibility improvement of moving from an emissions limit achievable with SNCR to one based on SCR against the incremental cost-effectiveness of SCR, NDEP determined that NO X BART for RGGS for Units 1 and 2 is an emissions limit of 0.20 lb/MMBtu that can be achieved by installing and operating LNB with OFA and SNCR. NDEP has discretion in determining how to weigh the factors in reaching a BART decision under the CAA and regional haze regulations. NDEP's rationale for its decision, although based on different values than EPA calculated and modeled, was reasonable. Therefore, EPA is approving NDEP's determination.

The comment implies that correcting each of the costs listed as incorrect and substituting a SCR emissions limit of 0.05 lb/MMBtu rather than 0.06 lb/MMBtu for SCR would yield a very low incremental cost difference between SCR and SNCR. However, that implication is not supported by the comment. The comment does not calculate an alternative average or incremental cost-effectiveness differential between SCR and SNCR. Therefore, EPA is approving NDEP's conclusion that the incremental cost-effectiveness is not justified when weighed against the small visibility improvement.

Comment 14: EPA did not consider the adverse non-air quality impacts of SNCR due to ammonia injection, which would increase the cost of SNCR and reduce the incremental cost difference with SCR.

Response 14: As noted previously, EPA was reviewing the State's BART determination to evaluate whether NDEP reasonably applied the requirements of the CAA and the regional haze regulations. EPA anticipates that ammonia emissions will be quite low because these units are equipped with baghouses and wet scrubbers that each can be expected to remove most ammonia slip associated with SNCR or SCR. To the extent the commenter is concerned that considering costs due to ammonia injection would lower the incremental cost-effectiveness value between SCR and SNCR, EPA reiterates that our proposed approval of NDEP's RGGS NO X BART determination is not based on agreeing with NDEP that SCR is not cost-effective. EPA's proposed approval states that SCR is cost-effective. Nonetheless, the BART determination is a multiple-factor analysis. NDEP has discretion to determine how to weigh the factors. Our independent analysis of the two critical factors demonstrated that the NDEP reasonably weighed the cost of SCR controls against the small visibility improvement to determine that SNCR is NO X BART for RGGS.

Comment 15: In determining the average and incremental cost-effectiveness, EPA should have used actual emissions for the baseline value of each unit rather than each unit's annualized maximum permitted heat input multiplied by each unit's maximum permitted NO X limit, which is closer to the potential to emit (PTE).

Response 15: EPA disagrees with this comment. Again, we note that EPA was not performing its own BART analysis, but was reviewing the adequacy of NDEP's BART analysis. The commenter is correct in noting that, in our review of NDEP's evaluation of the cost of compliance, we did not modify the estimate of baseline annual emissions that NDEP used in its cost calculations. We agree that NDEP's baseline more closely represents the sources' PTE, and results in higher baseline annual emissions than the methodology proposed by the commenter, which would rely almost entirely on past actual annual emissions. Because the regional haze regulations and BART Guidelines are not prescriptive regarding the calculation of baseline emissions, stating that “the baseline emissions rate should represent a realistic depiction of anticipated annual emissions for the source”  13 , the commenter's proposed methodology is a potentially acceptable way to calculate baseline annual emissions. NDEP used a methodology that resulted in a higher estimate of baseline annual emissions, and we consider the methodology used by NDEP to be within the discretion afforded to states.

Comment 16: Use of EPA's Air Pollution Control Cost Manual (“CCM”) is not required since RGGS is less than a 750 megawatt facility.

Response 16: EPA agrees that the states are not required to use the CCM for electric generating units smaller than 750 MW but that it is generally a good guide concerning costs to include and exclude. EPA performed an independent average and incremental cost-effectiveness calculation using the CCM to evaluate whether NDEP had reasonably weighed small visibility improvements against the incremental cost-effectiveness of requiring SCR rather than SNCR. EPA's analysis resulted in different cost-effectiveness and visibility improvement values. Although the values for these factors differed from NDEP's values, our analysis supported approving NDEP's NO X BART determination to establish an emissions limit of 0.20 lb/MMBtu achievable from installing and operating SNCR.

Comment 17: EPA's Air Pollution Control Cost Manual is out of date, and thus substantially underestimates current market costs of control technologies including SCR, which misrepresents the cost-effectiveness of chosen technologies.

Response 17: EPA disagrees with the comment. The CCM is a valuable resource to guide the states in evaluating costs that should be included or excluded. The states have discretion to rely on specific capital and annual cost information that is updated or specific to the facility under consideration.

Comment 18: EPA underestimated the visibility improvement that would result from SCR by assuming an emissions limit of 0.06 lb/MMBtu (about 84 percent efficiency) instead of 0.05 lbs/MMBtu (about 90 percent efficiency) or lower, which was achieved at 21 coal-fired EGUs in 2011, 11 of which are dry-bottom, wall-fired units like RGGS.

Response 18: EPA disagrees with this comment. As noted previously, the purpose of EPA's independent analyses assessing anticipated visibility improvements and cost-effectiveness of SCR were to evaluate the reasonableness of NDEP's determination based on weighing small incremental visibility improvement against the incremental cost-effectiveness of SCR. The modeling that NDEP relied on assumed that SCR would reduce NO X between 78 percent and 82 percent. Although NDEP's assumptions for SCR performance were within the range of emission rates achieved nationwide, EPA determined that for the purposes of visibility modeling and calculating cost-effectiveness of SCR, assuming an 85 percent reduction efficiency to meet an emissions limit of 0.06 lb/MMBtu was reasonable for RGGS. As noted by the commenter, other coal-fired facilities do achieve emission rates of 0.05 lb/MMBtu or lower, and some BART determinations have established a NO X emission limit of 0.05 lb/MMBtu for SCR. However, as noted in Response 12, emissions information reported to EPA's Clean Air Markets program show that among coal-fired boilers operating with SCR nationwide, there is significant variability in actual NO X emission rates achieved, ranging from below 0.05 to greater than 0.10 lb/MMBtu.

EPA's assumption that RGGS could meet an emission limit of 0.06 lb/MMBtu is reasonable and within the expected performance range of SCR. The commenter does not provide a basis, e.g., modeling that compares visibility benefits expected from a NO X limit of 0.05 versus 0.06 lb/MMBtu, to change our approval of NDEP's determination that NO X BART for RGGS is an emissions limit of 0.20 lb/MMBtu that can be achieved by installing and operating LNB with OFA and SNCR for the three units at RGGS. EPA anticipates that even if we modeled SCR to achieve 0.05 lb/MMBtu instead of 0.06 lb/MMBtu, the visibility benefits of SCR would still be smaller than the benefits modeled by NDEP. For example, if the post-SCR impact at GCNP is scaled by 0.05/0.06, it decreases from 0.20 dv to 0.17 dv. Relative to the 0.59 dv base case impact, the benefit of SCR would correspondingly increase from 0.38 dv to 0.42 dv, roughly 10 percent higher. However, as discussed in the Technical Support Document (“TSD”) for our proposed rule, EPA's estimates of visibility impacts are more than 50 percent lower than those relied on by NDEP due to differences in modeling procedures. The net effect of using 0.05 lb/MMBtu as the NO X emissions factor would not change the fact that EPA's estimate of SCR's benefit would remain substantially smaller than that estimated by NDEP. As noted in previous responses, NDEP determined that the visibility benefits of SCR based on its modeling do not justify the cost. Thus, additional modeling of SCR at a lower emission rate is not likely to change NDEP's consideration of the visibility factor, or our determination that NDEP's process for weighing the factors is reasonable.

Comment 19: The small visibility improvement from SCR is the result of underestimating the base case emissions and the amount of NO X that could be removed by SCR. The commenter provided an alternative, larger estimate of SCR benefits by scaling the EPA modeling results.

Response 19: EPA disagrees with this comment. EPA performed an independent modeling analysis to ensure NDEP's NO X BART determination was reasonable. Although estimates of the visibility improvement would be larger if EPA had used higher base case emissions, the scaling method used by the commenter does not accurately reflect the effect of a different base case, which would require new modeling. Even if the commenter's scaling method results were accurate, the estimated visibility improvement remains small. The scaled benefits of SCR provided by the commenter are 0.7 dv at GCNP, and 1.9 dv cumulatively over the five Class I areas; the comparable scaled figures for SNCR would be 0.4 dv and 1.1 dv cumulatively. Thus, using the commenter's method, the incremental visibility improvement of SCR over SNCR would be 0.3 and 0.8 cumulatively. This is only slightly larger than the EPA-estimated benefit increase of 0.2 dv at GCNP, and is the same as the EPA-estimated benefit increase of 0.8 dv cumulatively. EPA's decision to approve NDEP's BART determination would be unchanged. See also the response to comment 20.

Comment 20: A commenter states that EPA used NDEP's NO X baseline emission rates and control scenario emission rates to determine modeled visibility impacts. Because NDEP's emission rates are based on an annual average instead of a maximum 24-hr average, the commenter alleges that EPA underestimated visibility impacts, and provides its own estimate of 24-hr average baseline and control scenario emission rates.

Response 20: We acknowledge that we used NDEP's baseline and control scenario emission rates, based on annual average emission factors, in the visibility modeling supporting our proposed approval. As noted in our proposal, NDEP modified the baseline emission rates and control scenario emission rates that Nevada Energy included in the BART analysis. 14 NDEP did not, however, perform updated modeling to determine the visibility improvement associated with the revised baseline emission rates and revised control scenario emission rates. The absence of modeling results complicated our ability to evaluate the adequacy of NDEP's analysis. To evaluate the adequacy of NDEP's analysis, we performed our visibility modeling using NDEP's revised baseline and revised control scenario emission rates. Again, the purpose of our modeling was to evaluate the adequacy of NDEP's analysis which is not directly comparable to any modeling decisions we might make in our own BART determination as part of a FIP, such as at San Juan Generating Station.

Regarding the use of control scenario emission rates based upon annual average emission factors (in lb/MMBtu) instead of 24-hour average emission factors (lb/MMBtu), we disagree with the commenter that these emission rates do not provide acceptable estimates of visibility benefits. The methodology for calculating control scenario model emission rates described by the commenter involves applying the estimated control efficiencies of a particular technology to the baseline (pre-control) model emission rate. While this methodology has been used by EPA, it does not preclude the use of other methodologies for calculating control scenario emissions. In the case of control technology performance, engineering estimates of a particular technology's post-control level of performance will often be expressed in terms of lb/MMBtu, either on a 30-day or annual average basis. To the extent that the engineering estimate represents a more accurate depiction of future anticipated emissions at a particular facility, it may be appropriate to rely on the specified post-control level of performance rather than on a control efficiency applied to a pre-control emission rate. In fact, using model emission rates based on an annual average, instead of a 24-hour average, results in more stringent emission rates. As an example, the RGGS Unit 1 model emission rate calculated by the commenter for SCR and LNB with OFA is 99 lb/hr. 15 By comparison, the RGGS Unit 1 model emission rate used by EPA for this same technology is 73 lb/hr. 16

Regarding the use of baseline emission rates based upon the annual average maximum instead of the 24-hour average maximum, we agree with the commenter that the BART guidelines state: “Use the 24-hour average actual emission rate from the highest emitting day of the meteorological period modeled (for the pre-control scenario).” See 70 FR 39170 (July 6, 2005). We note, however, that because the capacity of RGGS is less than 750 MW, NDEP is not required to adhere to the BART guidelines, and is therefore afforded some flexibility when evaluating the five statutory factors in its analysis of RGGS. We disagree that the maximum 24-hour average baseline emissions the commenter provided are representative of RGGS' historical performance. 17 The baseline emissions provided by the commenter include a period of malfunction extending from January 8, 2003 to March 27, 2003. The result is maximum 24-hour average values that overstate RGGS' emission rate, and would therefore also overstate its visibility impact. If examining baseline emissions on a 24-hour average basis, we consider the WRAP NO X emission rates indicated by the commenter to be more representative of maximum 24-hr average emissions, 18 and note that these emission rates were included in our modeling analysis as Scenario c02.

The commenter also provides scaled estimates of visibility benefit based upon its estimates of 24-hour average baseline and control scenario emission rates. Notwithstanding our disagreements with the commenter noted above, if we use the WRAP's maximum 24-hour average emission rate as the baseline instead of the NDEP baseline, and scale our control scenario visibility benefits accordingly, we estimate the following visibility improvement at Grand Canyon National Park:  19

As seen above, the scaled incremental visibility benefit of SCR (at 0.06 lb/MMBtu) compared to the next most stringent technology, ROFA w/Rotamix, is 0.13 deciviews, whereas the original EPA-estimated incremental visibility benefit is 0.10. This magnitude of incremental visibility benefit is still sufficiently small to justify approval of NDEP's analysis.

We are providing a consolidated response to the following comments.

Comment 21: EPA based its BART determination on the visibility benefits of SCR at a single Class I area that has the maximum visibility impact, but should have considered cumulative impacts.

Comment 22: EPA did not consider the cumulative visibility benefits of SCR at all five Class I areas within 300 kilometers that are impacted by NO X emissions from RGGS, in contrast to performing a cumulative visibility benefit analysis for Four Corners Power Plant and Navajo Generating Station.

Comment 23: EPA modeled the cumulative benefits of various BART controls across all five Class I areas as indicated in Appendix E, but did not include its cumulative modeling results in its proposed rule or TSD.

Comment 24: EPA's modeling results for SCR at all five parks in Appendix E showed a cumulative visibility benefit of 1.07 dv to 1.15 dv, which is significantly greater than the 0.38 dv benefits at GCNP alone.

Comment 25: NPS calculates that the cumulative visibility benefits at five class I areas is about 2.0 dv for SCR on all three units.

Response 21-25: Although EPA did not provide the cumulative sum of visibility impacts over the five nearby Class I areas in the Notice of Proposed Rulemaking, EPA did in fact take into account the impacts at all those areas, considering both the number of areas affected and the impacts and benefits occurring there. EPA provided the modeled visibility impacts and benefits at all five Class I areas in Appendix E of the Technical Support Document. We did not rely on the specific metric advocated by the commenters, i.e. the sum of benefits over the areas, but we did consider the estimated visibility impacts across all five Class I areas in evaluating the reasonableness of Nevada's BART determination. Given the magnitude of the impacts at these areas, however, we focused largely on the benefits at GCNP in our proposed action and placed little weight on the benefits at the remaining four Class I areas. The commenters note that the sum of the visibility benefits across all five impacted Class I areas from requiring SCR is just over 1 dv of improvement. However, as that improvement is spread out over five Class I areas, we do not consider this sufficient reason to reject the State's BART determination, especially in light of the incremental benefits of SCR. On a Class I by Class I basis, there would be little improvement in visibility from requiring SCR.

The comment is correct that EPA provided information about the cumulative visibility improvement modeled for different BART scenarios in our Advanced Notice of Proposed Rulemaking for the Four Corners Power Plant and the Navajo Generating Station. EPA also provided information about the cumulative visibility improvement in our proposed and supplemental BART actions for Four Corners Power Plant. As we stated in those notices, EPA primarily relied on the benefits at the area with the greatest visibility improvement from controls, but we also considered impacts and benefits at nearby areas, including cumulative visibility benefits. EPA agrees that cumulative visibility benefits summed over multiple Class I areas may be a useful metric that can further inform a BART determination. Such an approach can be useful, for example, in simplifying a complex array of visibility impacts, especially where a source has significant impacts on multiple Class I areas. This approach, however, is not the only means of assessing visibility benefits over multiple Class I areas.

In this action we are evaluating whether NDEP's BART determination for RGGS resulted in the appropriate level of control for that facility. EPA's independent analysis of the modeled visibility improvements at GCNP and all other impacted areas corroborated the results of the NDEP analysis.

Comment 26: Using the WRAP baseline (scenario 00) and EPA's emissions limit of 0.06 lb/MMBtu (scenario 16) for SCR produces a cumulative visibility benefit of 1.82 dv.

Response 26: We disagree with the commenter's use of the WRAP scenario 00 as the baseline against which to measure visibility improvement. Although Scenario 00 models the WRAP NO X emission rate, it also models the WRAP PM 10 and SO 2 emission rates, which correspond to emission rates prior to installation of fabric filters (NDEP's PM 10 BART determination) and wet flue gas desulfurization upgrades (NDEP's SO 2 BART determination). Scenario 16 models PM 10 and SO 2 emission rates that account for the emission reductions associated with these control technologies. As a result, a comparison of Scenario 00 and 16 overestimates the benefit from SCR, because it also includes the visibility improvement associated with PM 10 and SO 2 emission reductions.

Comment 27: EPA's accepted version of the CALPUFF model, introduced in 2007, is out of date given that new versions were updated in 2008, 2010, and 2011.

Response 27: EPA disagrees with the commenters that any new CALPUFF version should be used for the BART determination. EPA relied on version 5.8 of CALPUFF because it is the EPA-approved version in accordance with the Guideline on Air Quality Models (“GAQM”, 40 CFR 51, Appendix W, section 6.2.1.e); EPA updated the specific version to be used for regulatory purposes on June 29, 2007, including minor revisions as of that date; the approved CALPUFF modeling system includes CALPUFF version 5.8, level 070623, and CALMET version 5.8 level 070623. CALPUFF version 5.8 has been thoroughly tested and evaluated, and has been shown to perform consistently with the initial 2003 version in the analytical situations for which CALPUFF has been approved. Any other version would be considered an “alternative model”, subject to the provisions of GAQM section 3.2.2(b), requiring full model documentation, peer-review, and performance evaluation. No such information for the later CALPUFF versions that meet the requirements of section 3.2.2(b) has been submitted to or approved by EPA. Experience has shown that when the full evaluation procedure is not followed, errors that are not immediately apparent can be introduced along with new model features. For example, changes introduced to CALMET to improve simulation of over-water convective mixing heights caused their periodic collapse to zero, even over land, so that CALPUFF concentration estimates were no longer reliable. 20

In addition, the latest version of CALPUFF, 6.4, incorporates a detailed treatment of chemistry. EPA's promulgation of CALPUFF (68 FR 18440, April 15, 2003) as a “preferred” model approved it for use in analyses of Prevention of Significant Deterioration increment consumption and for complex wind situations, neither of which involve chemical transformations. For visibility impact analyses, which do involve chemical transformations, CALPUFF is considered a “screening” model, rather than a “preferred” model; this “screening” status is also described in the preamble to the BART Guidelines (70 FR 39123, July 6, 2005). The change to CALPUFF 6.4 is not a simple model update to address bug fixes, but a significant change in the model science that requires its own rulemaking with public notice and comment.

Furthermore, it should be noted that the U.S. Forest Service and EPA review  21 of CALPUFF version 6.4 results for a limited set of BART applications showed that differences in its results from those of version 5.8 are driven by two input assumptions and not associated with the chemistry changes in 6.4. Use of the so-called “full” ammonia limiting method and finer horizontal grid resolution are the primary drivers in the predicted differences in modeled visibility impacts between the model versions. These input assumptions have been previously reviewed by EPA and the FLMs and have been rejected based on lack of documentation, inadequate peer review, and lack of technical justification and validation.

EPA intends to conduct a comprehensive evaluation of the latest CALPUFF version along with other “chemistry” air quality models in consultation with the Federal Land Managers, including a full statistical performance evaluation, verification of its scientific basis, determination of whether the underlying science has been incorporated into the modeling system correctly, and evaluation of the effect on the regulatory framework for its use, including in New Source Review permitting. CALPUFF version 5.8 has already gone through this comprehensive evaluation process and remains the EPA-approved version, and is thus the appropriate version for EPA's corroboration of NDEP's BART determination.

We are providing a consolidated response to the following comments.

Comment 28: The WRAP's modeling supports the fact that NO X is only a small contributor to visibility impairment at GCNP.

Comment 29: NO X is mostly from cars and is not a major contributor to haze compared to other pollutants.

Comment 30: The contribution of nitrates from RGGS to haze at GCNP is so insignificant (0.01 percent) that any additional visibility benefit associated with SCR controls would yield an imperceptible improvement at GCNP for a significantly greater cost.

Comment 31: EPA's modeling did not take into account the fact that nearly 25,000 tons per year of NO X has been eliminated from the emissions inventory due to closure or cancellation of three generating stations (Mohave, White Pine, and Toquop).

Response 28-31: Section 169A of the Clean Air Act requires BART determinations on BART-eligible EGUs regardless of trends or ambient visibility conditions. Application of BART is one means by which we can ensure that downward emission and visibility impairment trends continue. EPA modeling of NO X from RGGS showed visibility impacts of up to 0.6 deciviews. This is not a negligible contribution to visibility impairment. EPA concluded in this case only that the incremental cost of SCR was not justified in relation to the visibility impact, not that the visibility impact was deminimis. Even if an individual pollutant or source category appears small to some commenters, the many segments of the emissions inventory together do cause visibility impairment, and each must be addressed in order to make progress towards the national goal of remedying visibility impairment from manmade pollution. EPA identifies stationary sources as an important category to evaluate in any BART analysis. In this case EPA approved the state's conclusion that SNCR was the appropriate BART control.

Comment 32: The proposed BART NO X emissions limit (0.20 lb/MMBtu) appears to result in a very small reduction in actual emissions when compared to the performance of the three units over the past two years.

Response 32: EPA evaluated the potential NO X emissions reduction based on RGGS's permitted emission limits. Actual emissions in tons per year can vary substantially for external reasons such as a downturn in economic conditions generally or unusual weather conditions. Until the permitted emissions limits for RGGS are lowered, RGGS may emit pollutants in those amounts at any time. Therefore, for RGGS the permitted emissions limit is the only enforceable and certain amount to use in calculating potential emission reductions. RGGS is no longer subject to a long-term coal contract and may purchase coal on the spot market. Different coals may also lead to a change in NO X emissions. RGGS historically burned a very high BTU Utah bituminous coal that when combusted is expected to result in substantially higher NO X emissions than sub-bituminous coals or lower BTU bituminous coals from Colorado. RGGS has recently added these two coals to the fuel mix at RGGS and the NO X levels have decreased. EPA determined that the BART emission limit should be achieved when burning any of these coals. Setting a more stringent limit for BART achievable with LNB with OFA and SNCR could prevent RGGS from using only their historical Utah bituminous coal.

Comment 33: Given the sensitivity of boiler operation, size, and configuration, SNCR may not be able to achieve the prescribed level of performance (0.20 lb/MMBtu) on a consistent basis.

Response 33: NDEP will revise the enforceable permit limits to incorporate the NO X BART emissions limit of 0.20 lb/MMBtu when SNCR is installed and operating at RGGS. EPA expects that Nevada Energy, as the operator of RGGS, will ensure the LNB with OFA and SNCR system is designed to achieve a lower emissions rate than 0.20 lb/MMBtu to insure the BART limit is achieved in practice. RGGS will also be required to continue to operate its continuous emissions monitoring system for NO X and report any excess emissions. If RGGS exceeds its emissions limit for NO X , NDEP, EPA or a citizen may bring an enforcement action that can result in penalties and injunctive relief. EPA has determined based on the record provided by the state that NDEP should be able to consistently operate at an emissions limit below 0.20 lb/MMBtu and the comment does not provide a basis for us to revise the final SIP approval or FIP.

Comment 34: Allowing five years from promulgation to install SNCR is excessive since SNCR can be installed in less than one year.

Response 34: We have reconsidered the compliance date in our proposal in response to this comment. The Nevada BART regulation requires that BART control measures at RGGS must be installed and operating “[o]n or before January 1, 2015; or (2) [n]ot later than 5 years after approval of Nevada's state implementation plan for regional haze by the United States Environmental Protection Agency Region 9, whichever occurs first. ” NAC 445B.22096(2)(a) (emphasis added). We approved this requirement into the SIP on March 26, 2012 (effective April 25, 2012). 77 FR 17340. Therefore, the SIP-approved BART implementation deadline at RGGS for all pollutants, including NO X , is January 1, 2015. Consistent with this requirement, we are revising the compliance date in our FIP to January 1, 2015.

Comment 35: Commenters state that the proposed method of demonstrating compliance with the NO X emissions rate is more stringent than the rule requires; does not allow the facility to take credit for the times a unit is not in operation; does not provide a way for a unit that is out of compliance for a period of time to get back into compliance without a continued period of non-compliance; and is in contrast to the BART modeling protocol that directs the use of a pounds per hour limit as opposed to an emissions rate limit for all BART eligible units over a 24-hour basis. Commenters propose an alternate compliance demonstration methodology that consists of a unit-wide 30-calendar day rolling cap (in total lbs of NO X ). The cap is calculated based upon each unit operating continuously (24 hours/day for 30 days) at its permitted maximum hourly heat rate (MMBtu/hr), and at its BART NO X emission limit (0.20 lb/MMBtu, which was determined based upon the operation of an ammonia injection system in conjunction with LNB). Compliance would then be demonstrated by calculating the unit-wide NO X emission rate (in total lbs of NO X ) for the current calendar day, and adding it to the previous 29 calendar days' unit-wide NO X emission rate (in total lbs of NO X ), and comparing this 30-calendar day total to the value of the unit-wide 30-calendar day rolling cap.

Response 35: We disagree with the commenters, and further do not consider the commenters' proposed compliance demonstration methodology to meet BART requirements. The Regional Haze Rule defines BART as “the best system of continuous emission reduction for each pollutant”, and requires that “each source subject to BART maintain the control equipment required by the subpart and establish procedures to ensure such equipment is properly operated [* * *].”  22 EPA's BART determinations for coal fired EGUs have set concentration limits, expressed as lb/MMBtu for the various visibility impairing pollutants averaged over a 30-day period. The proposed and finalized limit is more flexible than typical EPA BART determinations in that it allows the 3 units subject to BART to be averaged together to determine compliance (as requested by NDEP). BART limits are designed to be met at all times, not to provide for a facility to easily come back into compliance from a violation. We disagree that the facility requires additional flexibility to come back into compliance following an exceedance event, and consider a 30-day rolling average to provide a sufficient length of time to allow a facility to address and correct for perturbations that are reasonably expected to occur over the course of normal operations, and that cause short-term extra emissions.

Allowing a facility to take credit for times it is not operating, or for when it is not operating at maximum capacity, would allow RGGS to operate without the BART-required SNCR. SNCR can be expected to remove approximately 30 percent of the potential NO X emissions. If the overall capacity (as evaluated against the maximum potential MW output) fell below 70 percent in any 30-day period, under the commenter's proposal RGGS would not have to operate the SNCR ammonia injection at all to meet its limit. Therefore, this would not meet the BART definition application of the best system of continuous emission reduction.

EPA recognizes that there are differences between BART emission limits and the emissions modeled to determine visibility improvements. This is the result of the models requiring short-term emission projections and the need for BART limits to have practical averaging times. Short averaging periods such as 1-hour averages would better correlate to the modeled emissions, but EPA has determined that such a short averaging period is not practical for facilities subject to BART. EPA has, therefore, directed that averaging times should be no longer than 30-day rolling averages and should include all periods of startup, shutdown, and malfunction. As discussed above, an emission limit that allows a facility to take credit for non-operation could lead to substantially higher 24-hour emissions of visibility impairing pollutants because the facility could turn off its SNCR.

Specifically, the proposed emission cap, in the form as described by the commenters, does not by itself ensure that the control equipment determined as BART is continuously operated. We acknowledge that the regional haze regulations provide flexibility in establishing requirements and procedures to ensure that control equipment is properly and continuously maintained, and that a mass emission cap could be an acceptable BART emission limitation. In its current form, however, the emission cap proposed by the commenters allows a potential scenario in which, for a given unit-wide 30-calendar day period, one unit could operate at a NO X emission level of 0.40 lb/MMBtu in exchange for non-operation of another unit (essentially, operating that unit at 0.00 lb/MMBtu). An emission level of 0.40 lb/MMBtu corresponds to operation of LNB only, and does not reflect the operation of SNCR.

In order to allow for better management of the elevated levels of emissions associated with startup events, we have revised our proposed determination method to be based on a boiler operating day average, rather than on a calendar day average. If based on a calendar day basis, the unit-wide 30-day rolling average could include as little as one hour of operation if the units were all offline for an outage that lasted longer than thirty days, because the first hour of operation would be the only data recorded in the last thirty calendar days. If based on a boiler operating day basis, the startup emissions “spike” would be averaged with emission data from before outage, which would reflect nonzero emissions values, rather than with data from during the outage, which would reflect zero emissions.

Comment 36: Environmental controls, monitoring and practices have improved over recent years at the plant, which meets or exceeds all emissions limits, has reduced emissions, and has some of the lowest emissions of any plant in the country.

Response 36: EPA agrees in part with the comment. Nevada Energy has installed controls that substantially reduced the PM emissions from RGGS and installed ROFA on unit 4 to reduce NO X emissions. Since monitoring began under the Acid Rain rules, RGGS has been among the coal fired electric generating units that emits the least SO 2. The same is not true for NO X emissions from units 1, 2, and 3. By finalizing this action, EPA will ensure that there are also significant reductions in NO X emissions from RGGS, as required by the Regional Haze rule and Section 169A of the CAA. Each of the 3 units at RGGS will reduce NO X emissions from 0.46 lb/MMBtu to 0.20 lb/MMBtu.

Comment 37: Pollution from RGGS is causing a variety of health problems (e.g., allergies, respiratory illnesses, heart ailments, skin lesions, thyroid disorders, sinus infections) for the Moapa Band of Paiutes who reside directly adjacent to RGGS.

Response 37: In addition to regional haze, EPA assesses air quality regularly under the CAA with respect to setting and ensuring that areas in the country attain the NAAQS. The NAAQS are the health based standards that are set by EPA for the entire country. RGGS is located in an area that is designated as attainment for most of the NAAQS. 23 This means that the air quality in the area surrounding RGGS is meeting most of the national health-based standards set by EPA.

Breathing air containing ozone can reduce lung function and increase respiratory symptoms, thereby aggravating asthma or other respiratory conditions. The area surrounding RGGS was designated nonattainment for the 1997 8-hour ozone NAAQS. The Clark County APCD and NDEP together are responsible for adopting and implementing programs for both stationary and mobile sources to bring the area into attainment for the 8-hour ozone NAAQS. On March 29, 2011, EPA published a direct final rule determining that the Clark County nonattainment area has attained the 1997 8-hour ozone NAAQS (76 FR 17343). Although the area has not been redesignated to attainment, the Clark County area continues to meet the 1997 8-hour ozone NAAQS. On April 30, 2012, EPA issued final designations for the 2008 8-hour ozone NAAQS. Clark County was designated attainment for this more stringent ozone standard. 24

The Moapa Band of Paiutes resides on land adjacent to RGGS. The stacks at RGGS release the exhaust at a high elevation for the purpose of preventing excessive concentration of pollutants in the immediate vicinity of the plant. 25 Because the area surrounding RGGS is meeting the health-based 1997 and 2008 ozone NAAQS, EPA expects that air quality in the area is protective of human health. Because today's actions require additional reductions in NO X emissions, air quality will continue to improve. However, regardless of the attainment status of the surrounding area, EPA has been and will remain involved in efforts to ensure that the operation of RGGS meets all environmental requirements. Consequently, EPA believes it has implemented the executive order with respect to the Moapa Tribe in these actions implementing BART at RGGS.

Comment 38: EPA should implement Executive Order 13175 since pollution from RGGS is having a substantial direct effect on the tribe.

Response 38: Ground-level ozone has the ability to impact human health, and is a secondary pollutant formed from precursor gases, primarily volatile organic compounds (VOCs) and NO X . However, monitored ozone concentrations throughout Clark County, including monitors nearest RGGS, meet the 2008 ozone standard. EPA considers the air quality in the vicinity of the plant to be protective of public health. However, regardless of the attainment status of the surrounding area, EPA has been and will remain involved in efforts to ensure that the operation of RGGS meets all environmental requirements.

Comment 39: The high cost of SCR could cause RGGS to close, which would harm the local economy through the loss of jobs, the loss of contracts, and the loss of customers for local businesses.

Response 39: EPA has determined that it is cost effective for RGGS to install and operate SNCR at Units 1, 2 and 3. Because EPA is not disapproving NDEP's determination to require SNCR rather than SCR, EPA does not expect the facility to close and thus the comment does not require additional response.

EPA is approving in part and disapproving in part the remaining portion of the Nevada Regional Haze SIP that implements the Regional Haze Rule that requires states to prevent any future and remedy any existing man-made impairment of visibility in mandatory Class I areas. EPA is approving Nevada's selection of a NO X emissions limit of 0.20 lb/MMBtu as BART for Units 1 and 2 at RGGS. EPA is disapproving two provisions of Nevada's BART determination for NO X at RGGS: the emissions limit for Unit 3 and the compliance method for all three units. EPA is promulgating a FIP to replace the disapproved provisions by establishing a BART emissions limit for NO X of 0.20 lb/MMBtu at Unit 3, and a 30-day averaging period for compliance based on a heat input-weighted basis across all three units.

EPA estimates the total, facility-wide capital costs of complying with this final BART determination for NO X to be $26.5 million, and total annual costs (annualized capital costs plus additional operating costs) to be $4.3 million per year. The FIP requirements on Unit 3, which will require that unit to operate at 0.20 lb/MMBtu instead of 0.28 lb/MMBtu, will result in an additional operating cost of approximately $75,000 per year and will achieve a NO X reduction of 393 tons per year. This final BART determination is expected to reduce emissions of NO X by 58 percent, from 6,980 tons per year to 2,968 tons per year, resulting in a facility-wide average cost-effectiveness of about $1,078 per ton of NO X removed. EPA anticipates that this investment will reduce visibility impairment caused by RGGS by an average of 48 percent at 5 Class I areas within 300 km of the facility. A detailed summary of the cost and visibility benefits were provided in the Technical Support Document for the proposed rulemaking.

This action finalizes a SIP approval and a source-specific FIP for a single stationary source, the Reid Gardner Generating Station in Nevada. This type of action is exempt from review under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Order 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Under the Paperwork Reduction Act, a “collection of information” is defined as a requirement for “answers to * * * identical reporting or recordkeeping requirements imposed on ten or more persons * * *.” 44 U.S.C. 3502(3)(A). Because the FIP portion of this rulemaking applies to a single facility, Reid Gardner Generating Station, the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this action on small entities, I certify that this final action will not have a significant economic impact on a substantial number of small entities. As the Reid Gardner Generating Station is not a small entity, the FIP for Reid Gardner Generating Station being finalized today does not impose any new requirements on small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985).

This rule will impose an enforceable duty on the private sector owners of Reid Gardner Generating Station. However, this rule does not contain a Federal mandate that may result in expenditures of $100 million (in 1996 dollars) or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. EPA's estimate for the total annual cost for Reid Gardner Generating Station to lower its NO X emissions limit at Unit 3 to 0.20 lb/MMBtu and for Units 1-3 to meet that NO X emissions limit on a 30 successive boiler operating day rolling average does not exceed $100 million (in 1996 dollars) in any one year. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule will not impose direct compliance costs on Nevada, and will not preempt Nevada law. This final action will reduce the emissions of one pollutant from a single source, Reid Gardner Generating Station.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or in the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final action requires emission reductions of NO X at a specific private stationary source located in Nevada. Thus, Executive Order 13132 does not apply to this action.

Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not issue a regulation that has tribal 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 tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.

EPA has concluded that this action may have tribal implications because the Reid Gardner Generating Station is located adjacent to the Moapa Band of Paiutes reservation and the Tribe has expressed its concerns directly to EPA on several occasions. However, this final action will neither impose substantial direct compliance costs on tribal governments, nor preempt Tribal law. This final rule requires Reid Gardner Generating Station, a major stationary source located in Nevada, to reduce emissions of NO X under the BART requirement of the Regional Haze Rule. This will benefit air quality and the Moapa Band of Paiutes.

EPA consulted with tribal officials early in the process of developing this regulation to permit them to have meaningful and timely input into its development. EPA met with President Anderson on August 11, 2011, and again on April 17, 2012, to hear the Tribe's concerns directly. In addition, EPA held one public hearing on the Moapa Reservation on May 3, 2011, to ensure that tribal members had the opportunity to provide oral testimony.

The Moapa Band of Paiutes joined a consortium of environmental groups to submit comments on our proposed rule. The main concern expressed by the consortium was that EPA was not requiring Reid Gardner Generating Station to install and operate the top NO X control option, selective catalytic reduction, as BART. The comments also raised potential health impacts and environmental justice concerns relative to the Moapa Band of Paiutes from not requiring the most stringent NO X control option.

EPA summarized and responded to comments from the environmental consortium and Moapa Band of Paiutes. Our responsibilities under the Executive Order must be exercised in the context of our role under the CAA, which is to review NDEP's plan and determine if it meets the CAA requirements. We have done a thorough review and have determined that NDEP has adopted an emission limit that meets BART for RGGS. That emission limit can be met with SNCR instead of SCR, but RGGS will still have to install additional pollution control equipment that will reduce NO X emissions. These emission reductions will not only improve visibility but will provide additional health benefits for the Moapa Band of Paiutes and other residents of Clark County. EPA has been and will remain involved in efforts to ensure that the operation of RGGS meets all environmental requirements.

Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it requires emissions reductions of NO X from a single stationary source. Because this action only applies to a single source and is not a rule of general applicability, it is not economically significant as defined under Executive Order 12866, and the rule also does not have a disproportionate effect on children. However, to the extent that the rule will reduce emissions of NO X , which contributes to ozone formation, the rule will have a beneficial effect on children's health by reducing air pollution that causes or exacerbates childhood asthma and other respiratory issues.

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12 (10) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by the VCS bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when the Agency decides not to use available and applicable VCS.

Consistent with the NTTAA, the Agency conducted a search to identify potentially applicable VCS. For the measurements listed below, there are a number of VCS that appear to have possible use in lieu of the EPA test methods and performance specifications (40 CFR part 60, Appendices A and B) noted next to the measurement requirements. It would not be practical to specify these standards in the current rulemaking due to a lack of sufficient data on equivalency and validation and because some are still under development. However, EPA's Office of Air Quality Planning and Standards is in the process of reviewing all available VCS for incorporation by reference into the test methods and performance specifications of 40 CFR Part 60, Appendices A and B. Any VCS so incorporated in a specified test method or performance specification would then be available for use in determining the emissions from this facility. This will be an ongoing process designed to incorporate suitable VCS as they become available.

Executive Order 12898 (59 FR 7629, February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This rule requires emissions reductions of one pollutant from a single stationary source, Reid Gardner Generating Station.

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. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability and only applies to one facility, the Reid Gardner Generating Station.

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 October 22, 2012. 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 CAA section 307(b)(2)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

This document announces that based on the best available information recently obtained from the fishery and information on past effort, the directed fishing harvest allocation for the second allocation period (July 1-September 14) will be reached and therefore directed fishing for Pacific sardine is being closed until September 15, 2012. Fishing vessels must be at shore and in the process of offloading at the time of closure. From 12:01 a.m., August 23, through September 14, 2012, Pacific sardine may be harvested only as part of the live bait fishery or incidental to other fisheries, with the incidental harvest of Pacific sardine limited to 30-percent by weight of all fish caught during a trip.

NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone (EEZ) off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). Annual specifications published in the Federal Register establish the harvest guideline (HG) and allowable harvest levels for each Pacific sardine fishing season (January 1-December 31). If during any of the seasonal allocation periods the applicable adjusted directed harvest allocation is projected to be taken only incidental harvest is allowed, and for the remainder of the period, any incidental Pacific sardine landings will be counted against that period's incidental set aside. In the event that an incidental set-aside is projected to be attained, all fisheries will be closed to the retention of Pacific sardine for the remainder of the period via appropriate rulemaking.

Under 50 CFR 660.509, if the total HG or these apportionment levels for Pacific sardine are reached at any time, NMFS is required to close the Pacific sardine fishery via appropriate rulemaking and it is to remain closed until it re-opens either per the allocation scheme or the beginning of the next fishing season. In accordance with § 660.509 the Regional Administrator shall publish a notice in the Federal Register announcing the date of the closure of the directed fishery for Pacific sardine.

The above in-season harvest restrictions are not intended to affect the prosecution of the live bait portion of the Pacific sardine fishery.

This action is required by 50 CFR 660.509 and is exempt from Office of Management and Budget review under Executive Order 12866.

NMFS finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) for the closure of the directed harvest of Pacific sardine. For the reasons set forth below, notice and comment procedures are impracticable and contrary to the public interest. For the same reasons, NMFS also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for this action. This measure responds to the best available information and is necessary for the conservation and management of the Pacific sardine resource. A delay in effectiveness would cause the fishery to exceed the in-season harvest level. These seasonal harvest levels are important mechanisms in preventing overfishing and managing the fishery at optimum yield. The established directed and incidental harvest allocations are designed to allow fair and equitable opportunity to the resource by all sectors of the Pacific sardine fishery and to allow access to other profitable CPS fisheries, such as squid and Pacific mackerel.

Many of the same fishermen who harvest Pacific sardine rely on these other fisheries for a significant portion of their income.