I. Background A. The Visa Waiver Program

Pursuant to section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the Secretary), in consultation with the Secretary of State, may designate certain countries as Visa Waiver Program (VWP) countries if certain requirements are met. Those requirements include, without limitation: (1) Meeting the statutory rate of nonimmigrant visitor visa refusals for nationals of the country; (2) a government certification that it issues machine-readable passports that comply with internationally accepted standards; (3) a U.S. government determination that the country's designation would not negatively affect U.S. law enforcement and security interests; (4) an agreement to report, or make available through other designated means, to the U.S. government information about the theft or loss of passports; (5) the government acceptance for repatriation any citizen, former citizen, or national not later than three weeks after the issuance of a final order of removal; and (6) an agreement with the United States to share information regarding whether citizens or nationals of the country represent a threat to the security or welfare of the United States or its citizens.

The INA also sets forth requirements for continued eligibility and, where appropriate, probation and/or termination of program countries.

The current designated countries in the VWP include Andorra, Australia, Austria, Belgium, 2 Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. 3   See 8 CFR 217.2(a).

Citizens and eligible nationals of VWP countries may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of ninety days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. To travel to the United States under the VWP, an alien must be from a participating country and must satisfy the following:

(1) Be seeking entry as a tourist for ninety days or less;

(2) Be a national of a program country;

(3) Present an electronic passport or a machine-readable passport issued by a designated VWP participant country to the air or vessel carrier before departure;  4

(4) Execute the required immigration forms;

(5) If arriving by air or sea, arrive on an authorized carrier;

(6) Not represent a threat to the welfare, health, safety or security of the United States;

(7) Have not violated U.S. immigration law during a previous admission under the VWP;

(8) Possess a round-trip ticket;

(9) Waive the right to review or appeal a decision regarding admissibility or to contest, other than on the basis of an application for asylum, any action for removal; and

(10) Obtain an approved travel authorization via the Electronic System for Travel Authorization (ESTA). ESTA is an automated system that determines the eligibility of visitors to travel to the U.S. under the Visa Waiver Program. For more information about the ESTA, please see the interim final rule at 73 FR 32440 (June 9, 2008), and implementing notice at 73 FR 67354 (November 13, 2008). See sections 217(a) and 217(b) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)-(b). See also 8 CFR part 217.

The Department of Homeland Security (DHS), in consultation with the Department of State, has evaluated Taiwan for VWP designation to ensure that it meets the requirements set forth in section 217 of the INA, as amended by section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53 (9/11 Act). The Secretary has determined that Taiwan has satisfied the statutory requirements for initial VWP designation; therefore, the Secretary, in consultation with the Secretary of State and with reference to the Taiwan Relations Act of 1979 (Pub. L. 96-8), has designated Taiwan for participation in the VWP. 5

This final rule adds Taiwan to the list of countries authorized to participate in the VWP. Accordingly, beginning November 1, 2012, eligible travelers possessing Taiwan electronic passports with valid personal identification numbers (household registration numbers) may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of ninety days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. The final rule lists a country that the Secretary of Homeland Security, in consultation with the Secretary of State, has designated as a VWP eligible country in accordance with 8 U.S.C. 1187(c). This amendment is a conforming change to update the list of VWP countries. Notice and comment for this rule is unnecessary and contrary to the public interest, because the rule merely conforms the regulatory text to reflect the Secretary's designation of Taiwan as a VWP participant; it is technical in nature; and it relates only to management, organization, procedure, and practice. For the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.

DHS is of the opinion that this final rule is also excluded from the rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function of the United States, because it advances the President's foreign policy goals and directly involves relationships between the United States and its alien visitors. Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing the requirements under this final rule.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 603(b)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required “to publish a general notice of proposed rulemaking for any proposed rule.” Because this rule is being issued as a final rule, on the grounds set forth above, a regulatory flexibility analysis is not required under the RFA.

DHS has considered the impact of this rule on small entities and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The individual aliens to whom this rule applies are not small entities as that term is defined in 5 U.S.C. 601(6). Accordingly, there is no change expected in any process as a result of this rule that would have a direct effect, either positive or negative, on a small entity.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

As discussed above, DHS is of the opinion that the subject of this rulemaking constitutes a foreign affairs function of the United States, and thus is exempt from the provisions of Executive Order 12866. The Department has nevertheless reviewed this rulemaking to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 12866 and 13563. DHS does not consider this final rule to be a “significant regulatory action” under Executive Order 12866, Sec. 3(f), Regulatory Planning and Review, and Executive Order 13563.

DHS plans to issue a final rule on the Electronic System for Travel Authorization (ESTA) and that final rule will respond to public comments received on the interim final rules related to ESTA. The final rule's economic analysis will address the costs and benefits associated with the ESTA program, including the addition of Taiwan to the VWP. The VWP offers numerous security and economic benefits to the United States by promoting legitimate travel while enhancing security standards and information sharing with international partners.

The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The Department of Homeland Security is modifying OMB Control Number 1651-0111, Arrival and Departure Record, to allow eligible Taiwan passport holders to use the Electronic System for Travel Authorization (ESTA) to apply for authorization to travel under the VWP prior to departing for the United States. CBP uses the information to assist in determining if an applicant is eligible for travel under the VWP. The Department is requesting emergency processing of this change to 1651-0111 as the information is essential to the mission of the agency and is needed prior to the expiration of time periods established under the PRA. Because of the designation of Taiwan for participation in the VWP, the Department is requesting OMB approval of this information collection in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507).

The addition of Taiwan to the Visa Waiver Program will result in an estimated annual increase to information collection 1651-0111 of 240,000 responses and 60,000 burden hours. The total burden hours for ESTA, including Taiwan, is as follows:

Estimated annual reporting burden: 4,785,000 hours.

Estimated number of respondents: 19,140,000 respondents.

Estimated average annual burden per respondent: 15 minutes.

For the reasons stated in the preamble, DHS amends part 217 of title 8 of the Code of Federal Regulations (8 CFR part 217), as set forth below.

The North Carolina Department of Transportation, who owns and operates this bascule lift bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.821 (a)(4), to facilitate the structural repair of the bridge.

In the closed position to vessels, the S.R. 74 Bridge, at Atlantic Intracoastal Waterway (AIWW) mile 283.1, at Wrightsville Beach, NC has a vertical clearance of 20 feet, above mean high water.

Under this temporary deviation, from October 22, 2012, through March 15, 2013, the S.R. 74 Bridge will be closed to navigation each day, from 7 p.m. to 7 a.m., except vessel openings will be provided with a 2-hour advance notice to the bridge tender.

Vessel traffic along this part of the AIWW consists of commercial and pleasure craft including sail boats, fishing boats, and tug and barge traffic, that transit mainly during the daylight hours with the occasional tug and barge traffic at night. There are no alternate routes for vessels transiting this section of the AIWW. Vessels that can pass under the bridge without a drawbridge opening may do so at all times and the bridge will be able to open in an emergency.

The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users. The Coast Guard will inform all users of the waterway through our Local and Broadcast Notice to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the draw must return to its original operating schedule immediately at the end of the effective period of this deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking COTP Captain of the Port 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 there is insufficient time to publish a NPRM. The Coast Guard received an application for a Marine Event Permit on August 24, 2012 from Pyro Tecnico to conduct a fireworks display on October 22, 2012. Publishing a NPRM is impracticable because it would unnecessarily delay the required safety zone's effective date. The safety zone is needed to protect persons and vessels from safety hazards associated with a fireworks display. Additionally, delaying the safety zone for the NPRM process would unnecessarily interfere with the event and its possible commercial and contractual obligations.

For the same reasons, 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 . Delaying the effective date to provide a full 30 day notice is impracticable because immediate action is needed to protect persons and vessels from safety hazards associated with a fireworks display.

Cooper T. Smith Corp. has hired Pyro Tecnico to conduct a fireworks display on the Mobile River, Mobile, AL in the vicinity of Cooper Riverside Park. The fireworks fall out zone for this event is 600 feet and covers the entire width of the Mobile River posing significant safety hazards to both vessels and mariners operating on the Mobile River. The Captain of the Port (COTP) Mobile is establishing a temporary safety zone for a portion of the Mobile River, Mobile, AL, to protect persons and vessels during the fireworks display. The legal basis and authorities for this rule are found in 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, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorizes the Coast Guard to propose, establish, and define regulatory safety zones.

The COTP anticipates minimal impact on vessel traffic due to this regulation. However, this safety zone is deemed necessary for the protection of life and property within the COTP Mobile zone.

The Coast Guard is establishing a temporary safety zone for a portion of the Mobile River, to include all waters within a 600 foot radius around position 30°41′21.7″ N, 088°02′04.7″ W. This temporary rule will protect the safety of life and property in this area. Entry into, transiting or anchoring in this zone is prohibited to all vessels, mariners, and persons unless specifically authorized by the COTP Mobile or a designated representative. The COTP may be contacted by telephone at 251-441-5976.

The COTP Mobile or a designated representative will inform the public through broadcast notice to mariners of changes in the effective period for the safety zone. This rule is effective from 9:00 p.m. to 10:00 p.m. on October 22, 2012.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number 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 that Order.

The safety zone listed in this rule will restrict vessel traffic from entering, transiting or anchoring in a small portion of the Mobile River, Mobile, AL. The effect of this regulation will not be significant for several reasons: (1) This rule will only affect vessel traffic for a short duration; (2) vessels may request permission from the COTP to transit through the safety zone; and (3) the impacts on routine navigation are expected to be minimal. Notifications to the marine community will be made through broadcast notice to mariners. These notifications will allow the public to plan operations around the affected area.

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 will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the affected portions of the Mobile River during a fireworks display. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The zone is limited in size, is of short duration and vessel traffic may request permission from the COTP Mobile or a designated representative to enter or transit through the zone.

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 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 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 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 which do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone on a waterway during a fireworks display and is not expected to result in any significant adverse environmental impact as described in NEPA. 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 will be made 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:

Throughout this document, wherever “Agency,” “we,” “us,” or “our” is used, we mean the EPA. In most cases in this document, where we use the term “state” when discussing requirements or recommendations under the Clean Air Act or Agency guidance, this includes the Territory of the Virgin Islands.

EPA is promulgating a Federal Implementation Plan (FIP) to address regional haze in the U.S. Virgin Islands under the Clean Air Act (CAA or the Act) sections 301(a) and 110(c)(1). The FIP ensures that the Virgin Islands will make reasonable progress toward the national goal of no man-made contribution to visibility impairment. The FIP also includes Best Available Retrofit Technology (BART) determinations for sources in the Virgin Islands that may be subject to BART.

For additional details on EPA's analysis and the basis for the Virgin Islands regional haze FIP, the reader is referred to the June 25, 2012 proposal (77 FR 37842). EPA's regional haze FIP for the Virgin Islands, all accompanying documents, and the full text of the public comments are included in the Docket (EPA-R02-OAR-2012-0457) and available at www.regulations.gov .

The Act requires each state to develop plans to meet various air quality requirements, including protection of visibility. (CAA sections 110(a), 169A, and 169B). The plans developed by a state or territory are referred to as State Implementation Plans or SIPs. A state must submit its SIPs and SIP revisions to EPA for approval. Once approved, a SIP is federally enforceable, that is it is enforceable by EPA and citizens under the Act. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then EPA must promulgate a FIP to fill this regulatory gap. (CAA section 110(c)(1)).

EPA made a finding of failure to submit on January 15, 2009 (74 FR 2392), determining that the U.S. Virgin Islands failed to submit a SIP that addressed any of the regional haze SIP requirements of 40 CFR 51.308. Under section 110(c) of the Act, whenever EPA finds that a state has failed to make a required submission, the Agency is required to promulgate a FIP. Specifically, section 110(c) provides:

• The Administrator shall promulgate a Federal implementation plan at any time within 2 years after the Administrator—

 ○ Finds that a state has failed to make a required submission or finds that the plan or plan revision submitted by the state does not satisfy the minimum criteria established under [section 110(k)(1)(A)], or

 ○ disapproves a state implementation plan submission in whole or in part, unless the state corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such Federal implementation plan.

Section 302(y) defines the term “Federal implementation plan” in pertinent part, as:

Thus, because EPA determined that the Virgin Islands failed to submit a regional haze SIP, the Agency is promulgating a regional haze FIP at 40 CFR 52.2781(d). The Virgin Islands Department of Planning and Natural Resources has indicated that the Government of the Virgin Islands agrees with EPA's moving forward to prepare this FIP.

If the Virgin Islands at any time decide to submit a SIP revision to incorporate provisions that would be approvable as a SIP revision for a regional haze plan, EPA would welcome that submittal. If EPA were to approve such a SIP revision, after public notice and comment, the SIP provisions would replace EPA's FIP.

EPA received comments from the National Park Service (NPS), which serves as the Federal Land Manager (FLM) for the Virgin Islands National Park, and from HOVENSA, L.L.C. (HOVENSA). EPA also received one comment from a private citizen in support of EPA's proposal. A summary of the comments and EPA's responses are provided below.

Comment: A private citizen supported EPA's actions to reduce regional haze in the area, including the restriction of sulfur in ferry and cruise-ship fuel, the federal motor vehicle control program, and emissions reductions from HOVENSA, including the use of Best Available Retrofit Technology (BART).

The NPS also supported EPA's determination that expected emissions reductions from marine vessels under the North American Emissions Control Area and the HOVENSA Consent Decree are appropriate to include in the long term strategy for regional haze.

Response: EPA acknowledges the support and is including these emissions reductions as part of the FIP.

Comment: NPS supported EPA's determination that sources outside the island of St. John are major contributors to visibility impairment at the Virgin Islands National Park.

Response: EPA acknowledges the support for the visibility analysis.

Comment: NPS commented that it expected EPA's proposal to include a more rigorous technical analysis of local anthropogenic contributions to regional haze in the Virgin Islands.

Response: EPA disagrees with the NPS's characterization of the analysis conducted for the FIP. We identified potential contributors to visibility impairment from the IMPROVE monitoring data, as well as other suggestions from the FLM, local citizens, and the Virgin Islands government. In addition to analyzing the IMPROVE data, we investigated possible sources of coarse particles that were hard to identify due to the overwhelming impact of coarse particles from Saharan dust. EPA commissioned a thorough inventory of all source categories on St. John. EPA also used inventories from new source review applications to identify the larger point sources on St. Thomas and St. Croix that may impact the Class I area on St. John. We investigated fuel usage, electric generation and open burning information for potential sources on Tortola, the nearest island of the British Virgin Islands. Finally, we used back trajectory analyses and dispersion modeling to determine whether emissions from a major source in Puerto Rico could have an impact on visibility in St. John.

Comment: NPS commented that coarse mass could be due to transport or local sources, natural and anthropogenic, but EPA made little effort to distinguish source contributions.

Response: EPA disagrees. The FIP includes EPA's numerous efforts to address local anthropogenic sources of coarse mass. Saharan dust is mostly in the coarse mass (2.5 microns to 10 microns) range of particles. Coarse mass particles can also be produced by human sources, such as quarrying operations, wind-blown dirt from unpaved roads, and dirt on paved and unpaved roads re-entrained by vehicles. Ordinarily, coarse particles do not travel the long distances that fine particles travel because of their larger size and larger mass and because they tend to be emitted near the ground. One exception to this rule is the coarse dust from the Sahara Desert, which is lofted thousands of feet into the atmosphere by strong trade winds. This dust is carried by the trade winds for long distances, across the Atlantic Ocean, remaining aloft and mixing down into the surface air over the Caribbean islands. (Prospero, 1999. Proc. Natl. Acad. Sci. USA. 96:3396-3404.)

EPA conducted an effort to find sources of particle emissions on St. John (as well as other pollutants that contribute to reduced visibility), knowing that coarse particle emissions on St. John could be contributing to the obstruction of visibility in the Virgin Islands National Park, and because coarse particles from ground-level sources on other islands are not likely to be transported to St. John. EPA also developed an emission inventory for St. John which identified emissions from construction activities, re-entrained dirt from traffic, and a concrete mixing facility on St. John, all of which were included in the modeling to determine which human sources contribute the most to reducing visibility in the Virgin Islands National Park. EPA discussed the results of the modeling in the June 25, 2012 proposal (77 FR 37842). Air modeling ranks construction and road dust as the two anthropogenic source categories with the highest impact on visibility at the IMPROVE monitor on St. John.

Comment: NPS believes there are episodes of elevated sulfate that could be due to industry or marine traffic or due to atmospheric transport of emissions from other islands or the U.S. mainland. NPS also suggested that episodes of elevated organic carbon are due to vegetative burning.

Response: In the June 25, 2012 proposal, EPA noted that local sulfur dioxide emissions are not the only source of sulfate on St. John. Sulfates likely come from other islands outside the U.S. Virgin Islands, and EPA included sources from the British Virgin Islands and Puerto Rico in the modeling analysis. Modeling predicts that sulfate averages from five to eleven percent of the anthropogenic contribution to visibility obstruction and can be as high as twenty-five percent. However, emissions from sources in the Caribbean upwind of the Virgin Islands cannot be reduced by actions taken by EPA or the U.S. Virgin Islands government.

Based on trajectory analyses, emissions from sources in North America may be transported to the Virgin Islands on rare occasions. However, there are many Class I areas in the United States that are closer to these sources than the Virgin Islands. Mainland sources were not considered in the modeling for the Virgin Islands FIP because state regional haze SIPs (or FIPs) will inevitable mandate stronger controls based on the sources' larger impacts on mainland Class I areas.

As for organic carbon, the IMPROVE data show a few periods of time when carbon is a major component responsible for reducing visibility. Most of these events occur after major windstorms or hurricanes when fallen trees and other vegetation are burned due to the lack of space on the island to landfill the debris.

In summary, EPA did in fact include the various source categories suggested by the NPS comment in our analysis and in the modeling conducted in support of the FIP.

Comment: NPS commented that the back trajectory analysis identified possible source areas for each pollutant species, but EPA's analysis was not comprehensive. NPS believes sources on nearby islands as well as long range transport are potential contributors to haze at St. John.

Response: Back trajectory analysis for the top four days with the largest impact for each of the measured species provides the best opportunity to find if consistent locations (and the sources located there) are upwind of St. John on the days when each species has the largest impact on visibility. As we expected, most days have trajectories from the east, the predominant direction of the wind in the tropics trade wind regime, as seen in the wind roses in the FIP. Days where a source has high contributions toward reducing visibility should show up as the source region in the trajectory analysis. For example, days when coarse particulates were highest had trajectories that began in or near the Sahara Desert. Days when coarse particulates were lower and another species was large, on the other hand, mostly had trajectories from other locations. Thus, EPA determined that looking at roughly 30 days when different species dominated would reveal the sources of the various species that impact visibility on St. John.

However, there was no consistent source region or regions in the U.S. Virgin Islands for these high impact days for products of combustion, like sulfates and nitrates. While some days' trajectories passed over St. Thomas and St. Croix, showing that sources there can be responsible for emissions that interfere with visibility, most of the trajectories on days with high sulfate and nitrate concentrations did not pass over St. Thomas or St. Croix. Many trajectories passed over other islands where EPA does not have jurisdiction to require emission controls. EPA's modeling showed a similar pattern of combustion sources impacting St. John on a limited (but still significant) number of days. The impacts were frequent enough to warrant EPA to evaluate sources such as HOVENSA and other point sources in St. Thomas and St. Croix to determine if reasonable controls were available to improve visibility.

In response to the concerns of the Virgin Islands Government that sources upwind might affect St. John, EPA considered combustion emissions from Puerto Rico and fuel oil combustion and agricultural burning on Tortola in its modeling.

Also, a few trajectories show that some days with worse visibility may result from sulfates, nitrates, and carbon that originate in North America. It should be noted that significant reductions have occurred in sulfate, nitrate and carbon emissions from sources in the United States due to acid rain control programs, ozone and particulate matter state implementation plans and regional haze plans. Future emission reductions that will result from these programs are likely to further reduce visibility impacts from North America.

Comment: NPS commented that it is unclear why EPA did not include emissions from St. Thomas and St. Croix and recommends EPA develop a complete inventory for the Virgin Islands. NPS commented that EPA's proposal indicated that additional point sources were considered, but the emissions were not presented.

Response: EPA disagrees that emissions from St. Thomas and St. Croix were not included and disagrees that information on other point sources was not presented. This information was only summarized in the June 25, 2012 proposal. Complete information for point sources on St. Thomas, St. Croix, and St. John is in the modeling analysis performed for EPA. A detailed emission inventory for St. John is in the supporting documentation contained in the Docket for the proposal (See: DEVELOPMENT OF 2002 REGIONAL HAZE AREA, POINT, NONROAD MOBILE, AND ONROAD MOBILE SOURCE EMISSION INVENTORIES FOR ST. JOHN, VIRGIN ISLANDS in the Appendices.) The point source inventories were developed in order to determine compliance with EPA's ambient air quality standards for sulfur dioxide, nitrogen dioxide and particulate matter. Emissions of these pollutants are important in assessing human-made obstruction to visibility. The emissions from the significant sources in these inventories are more likely to be transported across the sea to St. John than emissions from other area or mobile emission source categories that are emitted near the ground. EPA also used modeling to evaluate the potential impact of sources in Puerto Rico on St. John. The results showed that a major source on Puerto Rico would not impact visibility on St. John, so emissions from Puerto Rico were not investigated further for inclusion in the FIP.

As stated in the June 25, 2012 proposal, rather than use a full statewide inventory to judge reasonable progress, we focused on the inventory for the island of St. John, where the Class I area is located, and other major point sources located in the Virgin Islands. Our analysis indicates that most emissions outside of St. John, other than major point sources, do not significantly impair visibility at the Virgin Islands National Park due to the prevailing winds. Prevailing winds at St. John are from the east, as shown in the wind roses contained in the FIP. St. Thomas and St. Croix are located west and south, respectively, of St. John. Therefore, these trade winds tend to transport pollution from St. Thomas and St. Croix away from the Class I area. In addition, modeling performed to estimate the visibility impact of currently operating individual sources of pollution indicates that, with the exception of HOVENSA, even very large sources in the Virgin Islands have relatively small visibility impacts on Virgin Islands National Park.

Comment: NPS commented that EPA should add marine traffic between neighboring islands to the inventory.

Response: The impact of marine traffic at St. John was included in the inventory. EPA reasonably chose not to include emissions from marine traffic between other neighboring islands, because modeling did not predict a large impact of the ship emissions on St. John.

Comment: NPS commented that EPA should have used 2009 MM5 meteorological model outputs in its modeling. HOVENSA also commented that the use of a small set of overwater buoy data, combined with upper air sounding data from San Juan, Puerto Rico and the airport station at St. Thomas, was insufficient to satisfy EPA's own recommendations to use available prognostic data in combination with observational data.

Response: EPA chose to use four years of local meteorological data because only a single year of data was available for MM5. While using a gridded, prognostic data model to simulate meteorological conditions is likely to produce a more accurate wind field in most circumstances, this would have been difficult with just a single year of MM5 data. Using four years of data from local weather sites, on the other hand, provided EPA with a robust calculation of impacts from anthropogenic emissions in the Virgin Islands. Moreover, the use of interpolated weather data from a few sites is more likely to be accurate in the Virgin Islands than it would in the continental United States because there is less terrain across the modeling domain to disrupt wind flow and wind direction and speed is more consistent in the tropics.

Comment: NPS commented that EPA should not use the 98th percentile impact averaged over four years as a threshold.

Response: EPA agrees and modified the FIP to highlight the highest of the 98th percentile impacts for each source or source category. As a result of this change, the impact EPA will use for evaluating potential control strategies and for comparing sources' impacts will be higher than when EPA used a four-year average in the proposal.

In our proposal, we evaluated the impacts of the sources based on the average of the 98th percentile visibility impacts. Our guidance recommends using the highest 98th percentile value, not the average of the 98th percentile values. Both of these values are listed in the following table. Nonetheless, using the highest of the 98th percentile impacts did not change any of our analyses for potential controls on these sources or source categories.

EPA has revised Table 8 of the June 25, 2012 proposal to include the highest of the 98th percentile impacts for EPA's BART analysis:

The changes to the impacts for VI WAPA St. Thomas and VI WAPA St. Croix are not high enough to cause or contribute to a significant impact on visibility in the Virgin Islands National Park. Thus, neither source is eligible for further analysis for BART controls.

Comment: NPS commented that EPA should use the first high results to determine impact of sources and do a comparison to the twenty percent best days.

Response: EPA used four years of modeling data and using the first high over four years' worth of days would be overly conservative. A comparison to the twenty percent best visibility days is often not helpful because many sources did not have any impact on the twenty percent best visibility days. (For more information, see the tables from the modeling report. The number of days when the source had an impact is noted in parentheses.)

Furthermore, EPA's BART Guidelines call for the use of the 98th percentile (essentially the 8th highest day) rather than the maximum modeled daily impact. The BART Guidelines further state that while “the use of the 98th percentile of modeled visibility values would appear to exclude roughly 7 days per year from consideration, in our judgment, this approach will effectively capture the sources that contribute to visibility impairment in a Class I area, while minimizing the likelihood that the highest modeled visibility impacts might be caused by unusual meteorology or conservative assumptions in the model.” See 70 FR 39104, 39121 (July 6, 2005).

Comment: NPS commented that EPA should have used the latest CALPOST processor.

Response: The processor used by EPA is the one in the Federal Land Managers' Air Quality Related Values Work Group (FLAG) guidance that was in effect when EPA began the modeling in 2010.

Comment: The NPS agrees with EPA that as long as HOVENSA retains its air quality permits, the Consent Decree should remain in place. NPS commented that if the refinery is to restart, an emissions control analysis should be conducted prior to restart.

Response: EPA appreciates the FLM's agreement that the HOVENSA Consent Decree should remain in place and that an analysis of reasonable control measures should be conducted when HOVENSA notifies EPA that they will resume refinery operations. In response to comments submitted to EPA by HOVENSA, we are modifying the HOVENSA notification requirement to clarify that upon notification to EPA that HOVENSA will restart refinery operations, HOVENSA will provide emission unit information to EPA in order for EPA to assess whether additional control measures are warranted to meet the regional haze requirements.

Comment: NPS commented that it is difficult to conclude that there will be a 0.16 deciview improvement in visibility due to the expected emissions reductions from marine sources and HOVENSA. EPA should determine the reason for the increasing trends in sulfate's contribution to visibility impairment.

Response: The emission reductions leading to a 0.16 deciview improvement over the worst twenty percent visibility days are based on emission control strategies that have been adopted and will be implemented, so EPA is confident that these emission reductions will lead to improvements in visibility, especially on the days with the largest degradation due to anthropogenic sources. On the 98th percentile days, the improvement is as large as 0.53 deciviews.

EPA disagrees that an analysis of the increasing trends in sulfate's contribution to visibility impairment is required to be part of the FIP. Concentrations vary from year to year and some of the variability may be due to imprecision in the sampling and analysis of the particles that obstruct visibility. EPA will evaluate changes in sulfate, and all other contributing factors to visibility impairment, as part of the five-year review.

Comment: The FLMs want EPA to more substantively involve them in future discussions for regional haze in the Virgin Islands.

Response: EPA understands that it is important to increase FLM involvement in technical issues related to regional haze in the Virgin Islands, especially via informal sharing of new information and improvements in the FIP.

Comment: HOVENSA stated that EPA's regional haze rules indicate that the states should consider whether it is reasonable to aim for attainment of the national goal, and that the 2064 target date and the resulting glidepath are not in any way binding.

Response: EPA acknowledges that the 2064 target date and the glidepath for meeting the goal are not directly enforceable. In our June 25, 2012 proposal, we indicated in Table 6 that while a 1.48 deciview improvement is needed to reach the uniform rate of progress goal for 2018, EPA's proposed FIP is only projecting a 2018 improvement of 0.16 deciviews (the Reasonable Progress Goal).

Comment: HOVENSA commented that EPA has no rational basis for applying the Regional Haze Rule (RHR) to the Virgin Islands because there are no U.S. possessions that can impact visibility in the Virgin Islands. EPA's RHR declares that regional haze is from sources over a wide geographic area.

Response: EPA disagrees. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. The RHR (64 FR 35714, July 1, 1999) specifically states that “Hawaii, Alaska, and the Virgin Islands would be subject to the regional haze provisions because of the potential for emissions from sources within their borders to contribute to regional haze impairment in Class I areas also located within their own jurisdiction” (64 FR 35720).

Therefore, sources in the Virgin Islands that impact the Virgin Islands National Park are not exempted from the Clean Air Act's regional haze requirements to protect visibility in Class I areas.

Comment: HOVENSA objected to EPA's proposal for the facility to provide a reasonable control measures study, consistent with the RHR, should HOVENSA resume operation of the refinery process units. HOVENSA asked EPA to remove this requirement from the final FIP.

Response: EPA proposed the requirement for HOVENSA to submit an analysis of reasonable control measures in the event that HOVENSA resumes operation of any refinery process units as an alternative to requiring such an analysis at this time. While refinery operations are currently idled, HOVENSA has retained its air permits and has not surrendered them to EPA. Therefore, EPA cannot rely on the idling of HOVENSA's refinery operations as an enforceable emission reduction for meeting the regional haze requirements. As we stated in our June 25, 2012 proposal (77 FR 37856), while there is uncertainty at this time regarding future operations at HOVENSA, the Consent Decree, which is enforceable by EPA, contains emission reductions and emission limitation requirements. These Consent Decree requirements allow us to project that, should HOVENSA resume operating as a refinery, its permitted emissions of sulfur dioxide will be lower than they were prior to entry of the Consent Decree.

Because the facility is in an idled state and HOVENSA has not provided any possible future refinery operating scenarios, EPA determined that it was not practical to require HOVENSA to perform an analysis of reasonable control measures at this time. In addition, EPA believed that should refinery operation resume, HOVENSA may decide to operate certain emission units and pollution control equipment but not others, compared to emission units that operated before the refinery operations were idled. Nevertheless, in response to HOVENSA's comments, EPA agrees that resuming operations at HOVENSA does not need to wait for HOVENSA to first provide an analysis of reasonable control measures. So, we are modifying the notification requirement to clarify that upon notification to EPA that HOVENSA will restart refinery operations, HOVENSA will provide emission unit information to EPA in order for EPA to assess if additional control measures are warranted to meet the regional haze requirements.

Comment: HOVENSA stated that EPA's FIP should reflect the determination that HOVENSA's compliance with the terms of the Consent Decree satisfies its regional haze obligations during the first planning period of the program and that any changes to the refinery's compliance obligations would be evaluated as part of the five year review.

Response: HOVENSA's comment specifically says that HOVENSA's compliance with the terms of the Consent Decree satisfies its regional haze obligations. In fact, the HOVENSA Consent Decree is not an analysis of reasonable control measures as required for regional haze. The Consent Decree was developed for entirely different reasons. A consent decree is a negotiated agreement, and was not evaluated for meeting the requirements for a reasonable control measure analysis required for regional haze. EPA decided it was not practical for HOVENSA to perform an analysis of reasonable control measures while its refining process is idled. EPA believes the information necessary to complete such an analysis will be more complete when HOVENSA's future operational plans are known. The Consent Decree is a starting point for an analysis of reasonable control measures until more information is available.

As for evaluating any changes to the refinery's compliance obligations during the five year review, EPA believes that determining what controls are reasonable when those controls would be needed, that is, when emission units are operating, would better serve the purpose of meeting the regional haze plan for the Virgin Islands.

Comment: HOVENSA states that it would be unreasonable to impose the costs of controls on its facility when there will be little or no improvement in visibility on St. John.

Response: Modeling the controls required under the Consent Decree shows an improvement of 0.13 deciviews, compared to HOVENSA's total impact of 1.60 deciviews in visibility on St. John for the twenty percent worst visibility days. If the refining process restarts, reasonable controls may add to this improvement because HOVENSA has a total impact of 3.34 deciviews on the highest 98th percentile day.

Comment: HOVENSA stated that EPA's requirement for HOVENSA to perform an analysis of reasonable controls on its emissions before restarting its refining facility would cause uncertainty and delays in any restart process because EPA is requiring installation of controls no later than five years after the effective date of the revised FIP.

Response: As stated earlier, in response to HOVENSA's comments, we are modifying the HOVENSA notification requirement to clarify that upon notification to EPA that HOVENSA will restart refinery operations, HOVENSA will provide emission unit information to EPA in order for EPA to determine if additional control measures are warranted. However, HOVENSA's comments do not accurately reflect the timing for installation of controls as a result of the notification requirement. If and when HOVENSA notifies EPA that it plans to resume operation of the refinery process units, EPA will assess whether additional control measures are warranted to meet the regional haze requirements. Should EPA determine that additional emissions controls are necessary, HOVENSA will have considerable time to prepare for their installation while EPA undertakes notice-and-comment rulemaking to revise the FIP. Once the rulemaking is complete, HOVENSA will then have up to five years from the effective date of the revised FIP, if there is one, to install controls. In other words, EPA's requirement to install controls as expeditiously as practicable but no later than five years after the effective date of the revised FIP is referring to this “second,” or revised FIP, not the FIP being promulgated in this action. While EPA agrees that the rulemaking process presents uncertainty as to what controls will ultimately be determined to be reasonable, it is likely that some of these controls may already be installed upon startup of HOVENSA's refinery operations due to other Clean Air Act requirements. If not, HOVENSA will have up to five years from the effective date of the revised FIP to install them. EPA notes that HOVENSA's comment that EPA's proposed reasonable measures analysis requirement will present uncertainty and delay to any reactivation process contradicts HOVENSA's other comment, requesting EPA to rely on the five-year review process for determining whether to change HOVENSA's compliance obligations. Relying on the five-year review would present its own uncertainties and possible delays.

Comment: HOVENSA commented that by using potential emissions, rather than actual emissions, for the modeling and BART analysis, EPA has greatly overstated HOVENSA's impacts on the Class I area in St. John.

Response: HOVENSA cites EPA guidance as recommending using the highest typical emissions from a BART-eligible source for BART modeling. EPA chose to use potential to emit rather than historical emissions, resulting in a more conservative approach than using HOVENSA's historical emissions. HOVENSA has been operating at low capacity in recent years [Letter from HOVENSA to Mr. Steve Riva, EPA Region 2, April 21, 2011], so historical emissions are not representative of the impact that HOVENSA would have on visibility at the Class I area when operating near or at full capacity. Thus, EPA is using the emissions that the facility is allowed to emit in its evaluation of impacts on visibility obscuration in the Class I area.

Comment: HOVENSA commented that EPA's back trajectory modeling for the worst days of visibility impairment on St. John shows that sources on St. Croix did not contribute to any of the worst days of visibility impairment.

Response: EPA does not agree with HOVENSA's interpretation of the trajectory analysis. One of the four days when sulfates have their highest contributions to visibility impairment on St. John, trajectories passed very near St. Croix, where the HOVENSA refinery is located. In addition, modeling predicts that HOVENSA has a significant impact on visibility in the Virgin Islands National Park on St. John, so if reasonable controls on emissions are available from HOVENSA, they will reduce this significant impact on the view in the Park.

Comment: HOVENSA commented that EPA's assertion that HOVENSA's emissions affect visibility on St. John stands in sharp contrast to EPA's own conclusion that coarse particles are the primary source of visibility impairment on St. John and that most of the coarse particles come from wind-blown sea salt and Saharan dust.

Response: Even though coarse particles from Saharan dust may be the largest contributor to visibility impairment on St. John, that does not mean that HOVENSA, or other human sources of emissions do not affect visibility on St. John as well. In the trajectory analysis, one of the four highest days of sulfate impairment does occur when the trajectory passes near St. Croix. Also, the modeling analysis shows that HOVENSA is likely to have an impact on visibility on St. John. Because winds that bring Saharan dust come from the east and winds that bring emissions from St. Croix are from the south, it is likely that these two visibility-impairing sources impact St. John at different times. Thus, emissions from HOVENSA may be noticeable on St. John as sulfate haze.

Comment: HOVENSA commented that because natural background visibility values do not include important natural sources, the natural background visibility is biased low and the relative CALPUFF modeled source impacts are thereby overestimated.

Response: EPA disagrees that not including natural sources, like Saharan dust, in the natural background values means that CALPUFF's impacts are overestimated. CALPUFF's impacts are independent of, and not affected by, the estimates of natural background. When we compare the modeled sulfates and nitrates with the observed sulfates and nitrates from the IMPROVE site data, the modeled sulfates and nitrates are less than the observed. The comparison indicated that if CALPUFF is not estimating the impacts of anthropogenic sources correctly, it is likely to be underestimating the anthropogenic source impact. Thus, HOVENSA's impact may be higher than modeled by CALPUFF.

Comment: HOVENSA commented that emission reductions from its facility are not going to have a discernible effect on visibility on St. John because EPA's proposal indicated that the effect of sulfate controls on industrial sources is overwhelmed by the impact of natural sulfate and Saharan dust.

Response: While the effect of natural emissions is very large in the Virgin Islands, the Clean Air Act requires EPA to reduce the effect of anthropogenic sources using measures that EPA determines are reasonable. Thus, even though human-caused emissions may be low compared to the impact of Saharan dust, they are still significant (up to 7.38 deciviews on the twenty percent worst days, with as much as 1.60 deciviews from HOVENSA's impact). Reducing anthropogenic emissions will still improve visibility in the Virgin Islands National Park, as sulfates and nitrates, which are mostly from combustion sources, cause significant reductions in visibility according to the IMPROVE data.

Comment: HOVENSA notes that EPA's guidance emphasizes using a blended prognostic meteorological model, like MM5, instead of observational data using CALMET. EPA should not base its recommended controls on such a simplistic meteorological data set.

Response: See EPA's response to the NPS's comment on this issue above. In addition, if using MM5 to drive the meteorology in the CALPUFF model gave better performance, remodeling would be more likely to increase impacts from anthropogenic sources, like HOVENSA.

EPA is promulgating a Federal Implementation Plan for Regional Haze for the Territory of the United States Virgin Islands. This FIP addresses progress toward reducing regional haze for the first implementation period ending in 2018. The FIP includes emission reductions to begin the reasonable progress needed to achieve the overall objective of no man-made interference with visibility by 2064. The FIP relies on emission reductions from existing emissions controls and programs currently in effect and requires HOVENSA to notify EPA in the event it resumes operation of the refinery process units and to provide emission unit information to EPA. EPA is taking this action pursuant to CAA sections 110(c)(1), 301(a), 169A and 169B. EPA solicited public comments on the issues discussed in this document and considered these comments before taking final action. EPA is promulgating 40 CFR 52.2781(d) “Regional Haze Plan for the Virgin Islands National Park.”

This action will promulgate requirements for one facility and is therefore not a rule of general applicability. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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. Burden is defined at 5 CFR 1320.3(b). Because this FIP only applies to one facility, the Paperwork Reduction Act does not apply.

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's) 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 action will not have a significant economic impact on a substantial number of small entities. The net result of this FIP action is that EPA is promulgating emission controls on selected units at only one facility. The facility in question is a large petroleum refinery that is not owned by a small entity, and therefore is not a small entity.

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. It is a rule of particular applicability that affects only one facility in the United States Virgin Islands. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.

This rule 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 only applies to one facility in the United States Virgin Islands.

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 on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action addresses the United States Virgin Islands not meeting its obligation to adopt a SIP that meets the regional haze requirements under the CAA. Thus, Executive Order 13132 does not apply to this action. Although section 6 of Executive Order 13132 does not apply to this action, EPA did consult with the Virgin Islands government in developing this action.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the action EPA is taking neither imposes substantial direct compliance costs on tribal governments, nor preempts tribal law. It will not have substantial direct effects on tribal government. Thus, Executive Order 13175 does not apply to this action.

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. However, to the extent this rule will limit emissions, the rule will have a beneficial effect on children's health by reducing air pollution.

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(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Today's action does not require the public to perform activities conducive to the use of voluntary consensus standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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.

We have determined that this 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 has the potential to limit emissions of NO X , SO 2 and PM 2.5 from one facility should that facility resume operations.

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.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2012. Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d) as it promulgates a FIP under CAA section 110(c). Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Greif operates a fiber drum container manufacturing facility. In general, fiber drums are produced by cutting fiber material to the appropriate length, forming the material into a cylinder, and attaching a top and bottom to the cylinder. Some of the fiber drums require the addition of a polyethylene drum liner to meet customer specifications, particularly for storage and transport of food-grade products. Greif conducts quality control (QC) testing of these liners by spraying a test fluid into the interior of the drums. The test fluid is a denatured alcohol product, which is a VOC.

EPA requires that existing VOC sources in certain ozone nonattainment areas meet a level of control referred to as RACT. See 42 U.S.C. 7511a(b)(2). EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” See 44 FR 53762 (September 17, 1979). For many source categories, EPA has established guidance documents, referred to as Control Technique Guideline (CTG) documents, which fairly explicitly establish the level of control that represents RACT for a specific source category. The implementation of RACT is also required at major stationary sources for which EPA has not issued CTGs. Illinois has adopted a general rule applicable to these major sources at title 35 of the Illinois Administrative Code (Ill. Adm. Code), part 218, subpart TT. Because neither a CTG document nor explicit guidance has been established for fiber drum container manufacturing facilities, the general rule at 35 Ill. Adm. Code subpart TT applies to the Greif facility. A source is subject to this rule if it has the potential to emit 22.7 Mg (25 tons) or more of VOM per year (35 Ill. Adm. Code 218.980(b)).

Greif is subject to a Federally Enforceable State Operating Permit (FESOP) which limits VOM emissions from the QC test process to 22.8 tons per year (tpy) and VOM emissions from the remainder of the plant to 1.4 tpy. This limits facility VOM emissions to an aggregate of 24.2 tpy, below the 25 tpy threshold. However, Greif reported QC test process emissions of 35.2, 46.7, 19.1, 7.7, and 8.5 tpy for 2006, 2007, 2008, 2009, and 2010, respectively. The high emissions in 2006 and 2007 put the source over the 25 tpy threshold, triggering the applicability of subpart TT. See 35 Ill. Adm. Code 218.980(b)(1).

Under 35 Ill. Adm. Code 218.980(d), subpart TT limits do not apply to emission units with emissions of VOC less than or equal to 2.5 tpy, providing that the total emissions from such emission units does not exceed 5.0 tpy. Therefore, the only emission unit at the Greif facility subject to limits under subpart TT is the QC test process. This process became subject to the requirement to reduce uncontrolled emissions by 81 percent. (35 Ill. Adm. Code 218.986(a))

Greif filed a petition for an adjusted standard from 35 Ill. Adm. Code 218.986(a) on January 24, 2011, in accordance with section 28.1 of the Illinois Environmental Protection Act. A final Opinion and Order of the Illinois Pollution Control Board granted Greif an adjusted standard on April 5, 2012.

Greif evaluated emission control options for the QC test process to satisfy RACT control requirements in 35 Ill. Adm. Code 218.986(a). Greif considered capture plus recuperative thermal oxidizers, capture plus carbon adsorbers, and capture plus biofilters and material substitution. Each of these control options could achieve compliance with the 81 percent reduction requirement, but were estimated to cost from $11,667-$17,672 per ton of VOM controlled.

Given the high cost of add on controls, Greif looked at two options for reducing VOC emissions through material substitution, mixing the QC test fluid with acetone and mixing the QC test fluid with water. Mixing the QC test fluid with acetone was found to be technically infeasible because acetone would dissolve the gasket material that seals the bottom of the drum to the side walls. Greif found that the QC test fluid could be diluted with water to reduce VOC emissions, while continuing to satisfy product quality standards. Greif determined that a dilution of 45 percent denatured alcohol and 55 percent water was the highest dilution percentage that would allow the facility to meet customer quality assurance requirements. Using this dilution would result in a 55 percent reduction in VOM emissions. In addition, Greif determined that it could reduce the amount of test fluid sprayed on each drum to an amount not to exceed 48 grams. These modifications would reduce VOC emissions from Greif's QC test process by 70 percent on a unit basis and result in annual emissions below the 22.8 tpy limit in the FESOP.

Greif concluded that achieving a capture and control rate of at least 81 percent from its QC test process was not economically reasonable, and that the water-diluted QC test process was the only technically feasible and economically reasonable alternative.

The Illinois Pollution Control Board adopted a final Opinion and Order on April 5, 2012. In summary, the order required the following:

(1) An automated, mechanical wand that is calibrated so that each spray releases approximately the same amount of QC test fluid;

(2) Test fluid composed of no more that 45 percent denatured alcohol by weight and no less than 55 percent water by weight;

(3) Calibration of the automated QC test process equipment to spray an average of no more than 48 grams of QC test fluid per drum, with compliance to be measured as least once per calendar quarter;

(4) Limits on VOM usage from the QC test process of 2.3 tons per month and 22.8 tpy; and,

(5) Limits on VOM emissions from the QC test process of 2.3 tons per month and 22.8 tpy.

In addition the order contains detailed recordkeeping requirements and compliance determination procedures. EPA finds the requirements in the Illinois Pollution Control Board's Opinion and Order dated April 5, 2012 to represent RACT for the QC test process at Greif.

In addition, EPA's approval is based on consideration of whether the adjusted standard meets the requirements of section 110(l) of the Clean Air Act (CAA), 42 U.S.C. 7410(l). To be approved, a SIP revision must not interfere with any applicable requirement concerning attainment, reasonable further progress, or any other applicable requirement of the CAA. The adjusted standard will not result in any increase in VOC emissions from the QC test process, therefore the adjusted standard will not interfere with attainment or any other applicable requirement of the CAA.

EPA is approving into the Illinois SIP an adjusted standard for the Greif facility located at 5 S 220 Frontenac Road in Naperville. This Adjusted Standard from 35 Ill. Adm. Code 218.986(a) replaces the capture and control requirements in 35 Ill. Adm. Code 218.986(a) for VOM emissions from Greif's fiber drum container manufacturing facility with the control requirements in the Illinois Pollution Control Board's April 5, 2012 Order.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective December 21, 2012 without further notice unless we receive relevant adverse written comments by November 21, 2012. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective December 21, 2012.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document wherever “we”, “us” or “our” is used, we mean EPA. Information is organized as follows:

On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA revised the ozone NAAQS to provide an 8-hour averaging period which replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). The CAA requires SIPs meeting the requirements of sections 110(a)(1) and (2) be submitted by states within 3 years after promulgation of a new or revised standard. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards, so-called “infrastructure” requirements. To help states meet this statutory requirement for the 1997 8-hour ozone NAAQS, EPA issued guidance to address infrastructure SIP elements under section 110(a)(1) and (2). 1 In the case of the 1997 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone standards. The State of Alaska submitted a SIP to EPA on March 2, 2012, which, among other things, certified that Alaska's SIP meets the infrastructure obligations for the 1997 8-hour ozone NAAQS. The certification included an analysis of Alaska's SIP as it relates to each section of the infrastructure requirements with regard to the 1997 8-hour ozone NAAQS. The State also submitted as part of the March 2, 2012, SIP submittal, existing state regulatory provisions to be approved into the Alaska SIP for purposes of meeting CAA section 128 conflict of interest disclosure requirements. The state requested parallel processing of the March 2, 2012, submittal. Under this procedure, the state submits the SIP revision to EPA before final adoption by the state. EPA reviews this proposed state action and prepares a notice of proposed rulemaking. EPA publishes its notice of proposed rulemaking in the Federal Register and solicits public comment in approximately the same time frame during which the state is completing its rulemaking action.

On March 22, 2012, EPA published a notice of proposed rulemaking (NPR) for the State of Alaska to act on the State's infrastructure SIP for the 1997 8-hour ozone NAAQS (77 FR 16785). Specifically in the NPR, EPA proposed to approve Alaska's SIP as meeting the requirements for the following 110(a)(2) infrastructure elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA also proposed to concurrently approve a number of revisions to the Alaska SIP as a necessary condition to approving the 110(a)(2) infrastructure elements for ozone. Specifically, EPA proposed to approve revisions submitted by Alaska on April 9, 2010, and November 19, 2010, to update the SIP to include the ozone standard at an 8-hour averaging period, the associated federal method for measuring and monitoring ozone in ambient air, a general definition of ozone, and federal Prevention of Significant Deterioration (PSD) program changes to regulate NO X as a precursor to ozone. EPA also proposed to concurrently approve the state regulatory provisions submitted by Alaska as part of the March 2, 2012, SIP submittal to satisfy CAA section 128 conflict of interest disclosure requirements.

EPA provided a 30-day review and comment period on the NPR published March 22, 2012 (77 FR 16785). The public comment period for EPA's NPR closed on April 23, 2012. EPA received no comments on the proposed action. While EPA was conducting its public notice and comment process, Alaska completed public review of the March 2, 2012, SIP submittal at the state level, as provided for through the parallel processing procedures described above. Alaska subsequently completed its state adoption process and submitted a final SIP package to EPA on July 9, 2012. EPA has reviewed the July 9, 2012, final SIP submittal and we have concluded that the content of the final submittal is substantively identical to the provisions that were anticipated in EPA's NPR published on March 22, 2012 (77 FR 16785). Therefore, we are taking final action on our NPR.

The SIP approval does not extend to sources or activities located in Indian Country, as defined in 18 U.S.C. 1151. EPA will continue to implement the CAA in Indian Country in Alaska because ADEC has not adequately demonstrated authority over sources and activities located within the exterior boundaries of the Annette Island Reserve and other areas of Indian Country in Alaska.

EPA is taking final action to approve the July 9, 2012, SIP provisions identified in our March 22, 2012, proposal as adequate to demonstrate that the SIP meets the requirements of section 110(a)(1) and (2) of the CAA for the NAAQS promulgated for ozone on July 18, 1997. EPA is approving the following section 110(a)(2) infrastructure elements for Alaska for the 1997 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). EPA is concurrently approving a number of revisions to the Alaska SIP as a necessary condition to approving the 110(a)(2) infrastructure elements for ozone. Specifically, EPA is approving revisions submitted by Alaska on April 9, 2010, and November 19, 2010, to update the Alaska SIP to include the ozone standard at an 8-hour averaging period, the associated federal method for measuring and monitoring ozone in ambient air, a general definition of ozone, and federal PSD program changes to regulate NO X as a precursor to ozone. EPA is also approving the Alaska state regulatory provisions submitted as part of the July 9, 2012, SIP submittal to satisfy CAA section 128 conflict of interest disclosure requirements.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L.104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On June 13, 2012 (77 FR 35329), EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received comments from the following party.

1. Adenike Adeyeye, Earthjustice; letter dated July 13, 2012 and received July 13, 2012.

The comments and our responses are summarized below.

Comment #1: Earthjustice stated that Rule 4402 continues to include limits that are less stringent than those in other California districts. Specifically, the SJVUAPCD defines clean produced water as water with a VOC concentration of 35 mg/L or less while other California districts such as South Coast Air Quality Management District (SCAQMD) limit the VOC concentration in wastewater to 5 mg/L. Earthjustice provided more detailed arguments supporting a 5 mg/L limit in Rule 4402 in comments 2-4 below.

Response #1: As explained in our technical support document (TSD) accompanying the proposed action, sources in the SCAQMD have greater options for disposal of the produced water than sources in the SJVUAPCD. Specifically, produced water in the SCAQMD can be disposed of into the sanitary sewer or reinjected into the ground without processing to meet a 5 mg/L VOC limit. Discussions with the California Department of Oil, Gas, and Geothermal Resources confirmed that in the Ventura County Air Pollution Control District (VCAPCD) there is no VOC concentration limit for reinjection  1 and the Los Angeles County Sanitation District confirmed the VOC concentration limits for wastewater discharged into a municipal sewage system are above SJVUAPCD's 35 mg/L limit. 2 See also response to comments 2-4 below.

Comment #2: Earthjustice stated that SJVUAPCD's assertion that wastewater is not treated in SCAQMD is false and that EPA did not confirm SJVUAPCD's claim. EPA's TSD states that oil production facilities in SCAQMD can dispose of their wastewater in sanitary sewage systems or existing injection wells, but did not confirm that operators use non-treatment disposal options. Earthjustice has confirmed with SCAQMD staff that operators can and do comply with the 5 mg/L limit through wastewater treatment, in addition to wastewater disposal via injection wells and municipal sewer systems.

Response #2: Most SCAQMD operators treat their wastewater to meet standards of the sanitation district or standards for reinjection, which are less stringent than the 5 mg/L VOC limit. 3   4 For example, the Los Angeles County Sanitation District allows wastewater with 60-75 mg/L of non-polar oil and grease to be discharged into the sewer system from oil field producers. 5 Staff at Ventura County APCD similarly explained that 90-95% of the oil production facilities in VCAPCD do not treat the wastewater but instead transfer it to wastewater treatment facilities or reinject the wastewater into the ground. 6 For reinjection, the fluid deposited back into the ground does not need to meet any VOC concentration limits. 7 EPA's discussion with SCAQMD staff confirmed that a few operators in SCAQMD are able to meet the 5 mg/L VOC limit in the wastewater without any treatment other than gravity separation. However, SCAQMD staff also noted that properties of wastewater (including VOC content) vary widely with the geological properties of the oil wells and the fact that a few SCAQMD operators can meet 5 mg/L with only gravity separation does not mean that all wells subject to SCAQMD Rule 1176, much less all wells subject to SJVUAPCD Rule 4402, can do the same. 8 Thus, we have no evidence that oil producers in Los Angeles routinely treat their wastewater to 5 mg/L.

Comment #3: Earthjustice stated that EPA did not confirm that wastewater treatment technologies are too expensive to be used to comply with the 5 mg/L limit. Earthjustice confirmed with SCAQMD staff that wastewater treatment can be a more cost effective option. Operators in SCAQMD use Wemco® units as well as filters and other technologies to treat wastewater. The treatment methods have been found to be cost-effective in 1989. An analysis that explains why SJVUAPCD operators cannot adopt similar treatment is absent from EPA's TSD and SJVUAPCD's staff report.

Response #3: EPA reviewed materials related to the adoption of SCAQMD Rule 1176 in 1989 and found that in fact the cost effectiveness of treating produced water to a 5 mg/L VOC limit was not analyzed. Rather, the costs evaluated in the 1989 SCAQMD staff report related to the installation of covers on secondary and tertiary sumps and ranged from an average of $8,000 to $18,900 per ton of VOC reduced respectively. 9 Since secondary and tertiary sumps generally contain liquid with much higher VOC content than a clean produced water pond, installing a cover on a clean produced water pond would have much higher cost per ton of VOC reduced. Additionally, as mentioned in our response to comment 2 above, SCAQMD staff have confirmed to EPA that many operators in SCAQMD do not treat their wastewater to the 5 mg/L limit; rather these operators typically dispose of wastewater in the sanitary sewage system and are required to meet a 60 mg/L oil and grease limit for the Los Angeles County Sanitation District or dispose of wastewater through reinjection and are not required to meet any VOC concentration limits. 10   11

In addition, we note that SJVUAPCD's staff report, which was prepared as part of the District's adoption of Rule 4402, includes a cost effectiveness analysis at Appendix B, Section II, Analysis of Clean Produced Water Compliance Options. The District's analysis describes the types of control technology needed to treat wastewater from a 35 mg/L VOC concentration down to a 5 mg/L concentration. According to the District's analysis, “a Wemco® will generally only get the VOC content down to about 20 mg/L;” therefore, additional water polishing equipment such as nut shell filters would be necessary to further reduce VOC levels down to 5 mg/L. This additional processing step adds to the overall capital and operational costs to further polish the clean produced water. 12 EPA contacted SCAQMD staff regarding this point. SCAQMD staff have indicated that Wemcos® and other treatment equipment alone are generally not able to treat the wastewater down to a 5 mg/L VOC concentration. 13 SJVUAPCD determined that the cost associated with installing the above equipment with the additional filters was approximately $54M/ton VOC reduced. This unusually high cost effectiveness value is heavily influenced by the low estimated emissions from clean produced water, 0.12 tons/year. Another more conservative cost analysis done by the District assumes an annualized cost of $4M/year and a higher tonnage of VOC reduced per pond. The resulting cost effectiveness would be about $70,000/ton VOC reduced, which exceeds reasonable costs under RACT. 14 Based on our review of the District's analysis and our discussions with SCAQMD, we found no basis to conclude that 5 mg/L is RACT. Moreover, we note that the commenter did not provide information sufficient to support such a conclusion.

Comment #4: Earthjustice states that EPA requires SJVUAPCD to compare its rules not only to federal guidance, but also to current rules in other California air districts including SCAQMD, Bay Area AQMD, Sacramento Metropolitan AQMD, and Ventura County APCD. Earthjustice stated that it is not reasonable to claim that a technology which was deemed cost-effective in 1989 to comply with a 5mg/L VOC limit is not cost-effective today. The SJVUAPCD must explain why the technologies are now prohibitively expensive.

Response #4: As discussed above, compliance with a 5 mg/L VOC limit was not shown to be cost-effective in 1989 and has been shown to exceed RACT in SJVUAPCD today. Most operators in South Coast AQMD and Ventura County APCD do not treat their wastewater to meet 5 mg/L, but instead dispose of the water through the sanitary sewer system or by reinjection. These options are not generally available in San Joaquin due to the remote locations of its oil production wells in relation to a municipal sewer system and the unavailability of reinjection wells. 15

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq .);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq .);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 21, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

A. Background

GSA reviewed the FTR for accuracy and currency and is consequently publishing this amendment to update certain sections in Chapters 300 and 301 that pertain to definitions, web addresses, meal deductions, miscellaneous expenses, and other travel-related clarifications and updates. This amendment also adds a section that permits agencies to issue blanket actual expense authorizations for any employee who performs TDY travel in an area subject to a Presidentially-Declared Disaster.

Accordingly, this final rule amends the FTR by:

1. Section 300-3.1 —Revising the term “Incidental expenses” under the definition for “Per diem allowance.” These changes permit reimbursement of fees and tips, exclude mailing costs associated with filing travel vouchers and charge card bill payments, and remove the current transportation reimbursement as this expense is reimbursable via separate provisions in FTR part 301-10.

2. Section 301-2.5 —Referencing the new blanket actual expense authorization pursuant to 301-70.201.

3. Section 301-10.421 —Updating the heading to include valet parking attendants.

4. Section 301-11.6 —Updating regulatory references and web address information in the table pertaining to maximum per diem rates and actual expense rates.

5. Section 301-11.7 —Changing the term “lodging location” to “lodging facility” in determining maximum per diem reimbursement rates.

6. Section 301-11.18 —Indicating that for Government-provided meals on travel days, the entire allocated meal amount must be deducted from the decreased 75 percent rate.

7. Section 301-11.26 —Revising to focus on how to request a review of a location's per diem rate.

8. Section 301-11.29 —Updating the web address for state tax exemption information.

9. Section 301-11.30 —Referencing the new blanket actual expense authorization pursuant to 301-70.201.

10. Section 301-11.300 —Revising “natural disasters” to read “natural or manmade disasters” and adding Presidentially-Declared Disasters to the list of special events warranting actual expense reimbursement.

11. Section 301-11.301 —Referencing the new blanket actual expense authorization pursuant to 301-70.201.

12. Section 301-11.302 —Referencing the new blanket actual expense authorization pursuant to 301-70.201.

13. Section 301-52.4 —Removing the reference to a “fixed reduced per diem allowance.”

14. Section 301-70.200 —Referencing the new blanket actual expense authorization pursuant to 301-70.201.

15. Section 301-70.201 —Adding a new section which gives agencies the authority to issue a blanket authorization for actual expense reimbursement in the event of a Presidentially-Declared Disaster.

16. Section 301-71.105 —Referencing the new blanket actual expense authorization pursuant to 301-70.201.

GSA received no comments on the interim rule published in the Federal Register on September 7, 2011 (76 FR 55273).

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553 (a)(2) because it applies to agency management. However, this final rule is being published to provide transparency in the promulgation of Federal policies.

The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

Accordingly, the interim rule amending 41 CFR Parts 300-3, 301-2, 301-10, 301-11, 301-52, 301-70, and 301-71, which was published in the Federal Register at 76 FR 55273 on September 7, 2011, is adopted as a final rule with no changes.

Background. The Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 1321, amended the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890 (codified as amended at 28 U.S.C. 2461 note), to require each federal agency to adopt regulations at least once every four years that adjust for inflation the maximum amount of civil monetary penalties under the statutes administered by the agency. 1 As defined, a civil monetary penalty is a statutorily prescribed specific amount, or maximum amount, provided by federal law that can be assessed by a federal agency and that can be enforced by the agency pursuant to an administrative proceeding or a civil action in a federal court. Congress passed this legislation on the basis of its findings that: (1) The power to impose civil monetary penalties is important to deterring violations of federal law and furthering the policy goals of federal laws and regulations; and (2) inflation has diminished the impact of these penalties.

Under the DCIA, the inflation adjustment is calculated by increasing the maximum civil monetary penalty amount per violation by the Cost-of-Living Adjustment, which is the percentage (if any) by which the Consumer Price Index for June of the year preceding the adjustment exceeds the Consumer Price Index for June of the year the civil monetary penalty amount was last set or adjusted, multiplied by the statutory maximum amount, rounded to the nearest specified amount using the formula contained in the statute. The DCIA requires agencies to round off the increase of each civil monetary penalty depending on its dollar amount: if the penalty is greater than $0 and less than or equal to $100, the increase is to be rounded to the nearest $10; if the penalty is greater than $100, but less than or equal to $1,000, the increase is rounded to the nearest $100; if the penalty is greater than $1,000 but less than or equal to $10,000, the increase is to be rounded to the nearest multiple of $1,000; if the penalty is greater than $10,000 but less than or equal to $100,000, the increase is to be rounded to the nearest multiple of $5,000; if the penalty is greater than $100,000 but less than or equal to $200,000, the increase is to be rounded to the nearest multiple of $10,000; and lastly, if the penalty is greater than $200,000, the increase is to be rounded to the nearest $25,000.

Discussion. The statutory definition of civil monetary penalty covers the civil penalty provisions under the Rail Carrier (Part A), Motor and Water Carriers (Part B), and Pipeline Carrier (Part C) provisions of the Interstate Commerce Act (ICA), as amended by ICCTA. The Board's civil (and criminal) penalty authority related to rail transportation appears at 49 U.S.C. 11901-11908. The Board's penalty authority related to motor carriers, water carriers, brokers, and freight forwarders appears at 49 U.S.C. 14901-14915. The Board's penalty authority related to pipeline carriers appears at 49 U.S.C. 16101-16106. 2

Because the Board was created in 1996, the year 2000 would have been the first time that the Board should have amended its regulations to adjust its civil monetary penalties for inflation. 3 Subsequent amendments should have been effected in 2004, 2008, and in 2012. The Board's initial adjustment, however, cannot exceed 10% of each penalty, regardless of the rate of inflation. As set forth in the rule, the Board is adding 49 CFR 1022 to adjust the penalty for each violation for which a statutory minimum or maximum amount is specified under the ICA as amended by ICCTA. These adjusted penalties will apply only to violations which occur after the effective date of this regulation.

Immediate Final Rule. The Board has no discretion to set alternative levels of adjusted civil monetary penalties, since the amount of the inflation adjustment must be calculated in accordance with the statutory formula. Accordingly, the Board is issuing this regulation as a final rule, without opportunity for public notice and comment. The Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), does not require that process “when the agency for good cause finds” that public notice and comment are “impracticable, unnecessary, or contrary to the public interest.” The Board finds that solicitation of public comments in this rulemaking is unnecessary and impracticable because Congress has prescribed that agencies adjust the civil monetary penalties under their jurisdiction and has provided no discretion to the agencies regarding the substance of the adjustments. The Board is only required to determine the amount of inflation adjustments by performing technical, ministerial computations. Thus, there is no need for affected parties to have 30 days' notice or opportunity to comment prior to the effectiveness of this regulation to adjust their conduct because the regulation concerns penalties for conduct that is already illegal under existing law. Accordingly, the Board has determined that there is good cause to make this regulation effective immediately upon publication.

Regulatory Flexibility Statement. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.

Paperwork Reduction Act. This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

Effective Date. For the same reasons the Board has determined that public notice and comment is unnecessary and impracticable, the Board finds that it has good cause to make this regulation effective upon publication.

For the reasons set forth in the preamble, the Surface Transportation Board amends title 49, chapter X, of the Code of Federal Regulations by adding part 1022 to read as follows: