[Federal Register Volume 77, Number 218 (Friday, November 9, 2012)]
[Rules and Regulations]
[Pages 67285-67290]
[FR Doc No: 2012-27382]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 206

[Docket ID FEMA-2012-0004]
RIN 1660-AA75

Debris Removal: Eligibility of Force Account Labor Straight-Time
Costs Under the Public Assistance Program for Hurricane Sandy

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Interim final rule.

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SUMMARY: The Fiscal Year 2007 Department of Homeland Security
Appropriations Act authorized a Public Assistance Pilot Program
intended to reduce the costs to the Federal government of providing
assistance to States and local governments; increase flexibility in the
administration of assistance; and expedite the provision of assistance
under the Robert T. Stafford Disaster Relief and Emergency Assistance
Act. Due to the current pressing need for efficient and timely recovery
from a catastrophic disaster event, Hurricane Sandy, which has cast
widespread debris over a major portion of the eastern seaboard of the
United States, this rule implements one of the debris-related Public
Assistance Pilot procedures: it allows for the reimbursement of the
straight- or regular time salaries and benefits of the employees of
Public Assistance applicants who perform disaster-related debris and
wreckage removal work for any major disaster or emergency declared by
the President on or after October 27, 2012, in response to Hurricane
Sandy.

DATES: This interim final rule is effective November 9, 2012, and
applicable October 27, 2012. Comments must be submitted by January 8,
2013.

ADDRESSES: You may submit comments, identified by Docket ID FEMA-2012-
0004, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
    Mail/Hand Delivery/Courier: Regulatory Affairs Division, Office of
Chief Counsel, Federal Emergency Management Agency, Room 835, 500 C
Street, SW., Washington, DC 20472.

FOR FURTHER INFORMATION CONTACT: William Roche, Director, Public
Assistance Division, Federal Emergency Management Agency, 500 C Street
SW., Washington, DC 20472-3100, (phone)<PHONE_NUMBER>; or (email)
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

A. The Public Assistance Program

1. General
    Each year, the United States is struck by natural disasters, which
may include events such as storms, earthquakes, volcanic eruptions, and
landslides, as well as events that occur from various other causes,
such as fires, floods, and explosions. When a locality is, or will be,
overwhelmed by the magnitude of the damage from any such event, the
community turns to the State for help. If it is evident that the
situation is or will be beyond the combined capabilities of local and
State resources, the Governor may request that the President declare
that an emergency or major disaster exists in the State, under the
authority of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (Stafford Act), 42 U.S.C. 5121-5207.
    If the President declares an emergency or major disaster and
authorizes Public Assistance, FEMA may award Public Assistance grants
to assist State and local governments (including Indian Tribal
governments) and certain private nonprofit (PNP) organizations as
defined in subpart H of 44 CFR part 206 (collectively referred to as
``applicants,'' ``grantees,'' or ``subgrantees''). Public Assistance
grants assist State, Tribal, and local governments with the response to
and recovery from the declared event. Specifically, the Public
Assistance program provides assistance for debris removal, emergency
protective measures, and permanent restoration of public
infrastructure. FEMA refers to debris removal and emergency protective
measures as ``emergency work.'' FEMA also categorizes these types of
work as Category A (debris removal) and Category B (emergency
protective measures). Category B includes debris removal costs that are
incurred as emergency protective measures, such as

clearing debris to establish immediate emergency access. Permanent
restoration of infrastructure, which FEMA refers to as ``permanent
work,'' includes several categories, including Roads and Bridges
(Category C), Water Control Facilities (Category D), Buildings and
Equipment (Category E), Utilities (Category F), and Parks, Recreational
Facilities, and Other Items (Category G). This rulemaking applies to
debris removal activities only (Categories A and B).
2. Debris Removal
    Sections 403(a)(3)(A), 407 and 502(a)(5) of the Stafford Act
authorize FEMA to provide assistance to eligible applicants to remove
debris from public and private property following a Presidential major
disaster or emergency declaration, when in the public interest. See 42
U.S.C. 5170b(a)(3)(A), 5173, and 5192. Removal must be necessary to
eliminate immediate threats to lives, public health and safety,
eliminate immediate threats of significant damage to improved public or
private property, or ensure the economic recovery of the affected
community-at-large. See 44 CFR 206.224. The debris must be the direct
result of the disaster and located in the disaster area, and the
applicant must have the legal responsibility to remove the debris. To
ensure these requirements are met, FEMA has issued extensive guidance
on oversight processes and procedures to monitor debris removal
activities.
    In the immediate aftermath of an event, the removal of debris is a
critical aspect of a community's economic recovery and return to
normalcy. Debris blocks roadways prohibiting the passage of police,
fire, and medical teams. Debris slows repairs and reconstruction of
essential buildings and homes. It also may cause health and safety
problems if left to fall on passersby, grow mold, or foster insect
infestation.
    Between January 1, 1999, and December 1, 2010, FEMA obligated an
annual average of 3,940 Project Worksheets (PWs) and $675,534,796 for
Category A, Debris Removal for major disasters and emergency
declarations. This figure does not include Category B debris removal
work, including work to remove debris blocking emergency response;
therefore, the total amount of debris removal funded during this time
period is even higher.

B. The Public Assistance Pilot Program

    The Fiscal Year (FY) 2007 Department of Homeland Security
Appropriations Act (Appropriations Act), Public Law 109-295, authorized
FEMA to conduct a Public Assistance Pilot Program to reduce the costs
to the Federal government of providing debris-related assistance to
States and local governments, increase flexibility in the
administration of assistance, and expedite the provision of assistance
under sections 403(a)(3)(A), 502(a)(5), and 407 of the Stafford Act.
FEMA implemented four of the six Pilot procedures authorized by the
Appropriations Act for the administration of Public Assistance grants.
The four initiatives that FEMA offered as part of the Pilot were:
grants based on estimates (for Category A and C-G large projects up to
$500,000); an increased Federal cost share for debris removal projects
for applicants with a FEMA-approved debris management plan;
reimbursement of straight-time wages for applicant force account labor
performing disaster related debris removal work; and a debris recycling
initiative. The Appropriations Act also gave FEMA the authority to
waive regulations and policies to implement the Public Assistance Pilot
Program. It allowed State and local governments to participate in the
Public Assistance Pilot Program on a voluntary basis. Public Assistance
applicants were not required to use the Pilot procedures, but could
elect to use one or more of the Pilot procedures for one or more of its
projects. The Appropriations Act did not authorize the participation of
private non-profit applicants in the Pilot Program. FEMA was prohibited
from approving any Pilot projects after December 31, 2008, and was
required to submit a report to Congress regarding the effectiveness of
the Pilot Program. On May 20, 2009, FEMA submitted the report, entitled
``FEMA Public Assistance Pilot Program Fiscal Year 2009 Report to
Congress.''
    This rule implements one of the debris-related Pilot Program
procedures, Force Account Labor, for disaster-related debris and
wreckage removal work for any major disaster or emergency declared by
the President on or after October 27, 2012, in response to Hurricane
Sandy.
    Under the current Public Assistance program, FEMA only pays
overtime for an applicant's own labor forces and equipment, referred to
as ``force account labor,'' performing debris removal work. The regular
time (also called ``straight-time'') salaries and benefits of
permanently employed personnel are not eligible in calculating
allowable costs. See 44 CFR 206.228(a)(2). However, FEMA reimburses
reasonable costs associated with a debris contract, including the cost
of contract workers' regular time as well as overtime. This creates an
incentive for applicants to contract for debris removal work, even
after relatively small events which could have been handled in part, or
entirely, by an applicant's employees. For over a decade, State and
local applicants have requested reimbursement for straight-time
salaries for their force account labor who are pulled away from their
normal day-to-day work to perform debris removal operations. In
response to these requests and under the Force Account Labor procedure
of the Pilot Program, FEMA reimbursed the straight-time salaries and
benefits of the applicant's employees who performed disaster-related
debris and wreckage removal work. FEMA's objective in reimbursing force
account labor was to provide applicants the opportunity and incentive
to use their own employees for debris removal activities in situations
where applicants determine that is the most appropriate method to
perform the work. In addition, FEMA wanted to evaluate whether debris
removal operations and monitoring performed by force account labor was
less costly and more efficient than contractor operations.
    Feedback received on the Public Assistance Pilot Program indicated
that the Force Account Labor procedure resulted in administrative
benefits. States and FEMA Regional Offices reported that grant
applicants who utilized this procedure relied less on contractors,
which resulted in fewer complaints and negotiation over costs and
scopes of work and thus eliminated delays in accomplishing the work.
FEMA also found that the Force Account Labor procedure provided
applicants an incentive to monitor debris removal activities of
contractors with its regular employees, rather than enter into
contracts to perform the work. Indeed, ninety percent of all applicants
participating in the Public Assistance Pilot Program requested
reimbursement for straight- or regular time salary and benefits for
their permanent employees who performed at least some of the monitoring
or debris removal activities. This large participation rate, coupled
with reporting from the States and FEMA Regions, shows that reimbursing
straight-time for an applicant's regular employees who performed debris
removal work provided an incentive for applicants to complete debris
removal work themselves rather than entering into contracts to perform
the work.
    The Force Account Labor procedure of the Public Assistance Pilot
Program also resulted in cost and time savings. Funding straight- or
regular time force account labor costs provided applicants an incentive
to manage debris

operations more effectively and decreased the number of contractors
required to both perform debris operations and monitor debris removal
contractors. Not only did it reduce contractor costs, but it also
allowed applicants to stop paying for contract equipment, and use their
own equipment for debris operations. Funding the straight-time of an
applicant's employees also provided additional flexibility to local
governments, allowing them to use a combination of contracting and
force account labor for debris removal work.
    In addition, because applicants started debris operations more
expeditiously, and reduced or eliminated delays related to procuring
and mobilizing contractors, the force account provision of the Pilot
Program resulted in faster obligation of funding from FEMA. FEMA
obligated funds for debris removal projects that used the Force Account
Labor procedure in 60 percent less time than for those that used
contractors for debris removal projects.

II. Discussion of the Rule

    This rule implements the Force Account Labor procedure of the
Public Assistance Pilot Program for debris removal work related to
Hurricane Sandy, a catastrophic disaster event of unprecedented
magnitude and severity. The geographic depth of this storm is
exceptional, covering major portions of the Mid-Atlantic and Northeast,
and bringing devastation to much of the Eastern seaboard. In response
to this event, FEMA is promulgating this rule to accelerate the
nation's recovery by maximizing the use of force account labor. A 2011
Department of Homeland Security Inspector General Report recommended
that FEMA implement the force account labor procedure in some form,
especially for an event of this magnitude, which would assist in
reducing the occurrence of waste, fraud, and abuse.
    This rule revises 44 CFR 206.228(a)(2) to allow the reimbursement
of straight-or regular-time salaries and benefits of a grantee's or
subgrantee's permanently employed personnel for debris removal work due
to Hurricane Sandy performed under the Stafford Act's Major Disaster
Assistance Programs (sections 403 and 502) or Emergency Assistance
Programs (section 407). In order to receive reimbursement, force
account labor employees must work exclusively on Hurricane Sandy debris
removal. They cannot combine Hurricane Sandy debris removal with their
normal work-related tasks or any other tasks, including tasks related
to emergencies or major disasters declared by the President before
October 27, 2012. Finally, reimbursement is restricted to 30
consecutive calendar days. These provisions will provide an incentive
to applicants to maximize the use of their force account labor, thus
lessening the need to secure and oversee contract labor, and
encouraging them to allot 100 percent of the work time of their regular
staff to Hurricane Sandy debris removal, thereby contributing to a
quicker and more efficient recovery.
    Eligible activities include disaster-related debris and wreckage
removal work for any major disaster or emergency declared by the
President on or after October 27, 2012, in response to Hurricane Sandy
under Category A, Debris Removal, and/or Category B, Emergency
Protective Measures. Emergency work is that work which must be
performed to reduce or eliminate an immediate threat to life, protect
public health and safety, and to protect improved property that is
threatened as a result of the disaster. See 44 CFR 206.225. Debris
removal work, whether labeled as Category A or Category B, must be in
the public interest. See 44 CFR 206.224. In practice, FEMA treats
debris removal work the same whether it is under Category A or under
Category B. Therefore, this rule makes straight-or regular-time
salaries and benefits for an eligible applicant's force account labor
eligible in calculating the cost of eligible Category A and/or Category
B debris removal work. This rule does not allow for the reimbursement
of straight- or regular time salaries and benefits of a grantee's or
subgrantee's permanently employed personnel for any other emergency
protective measures under Category B.
    Non-Substantive Changes.
    This rule adds a reference to ``grantee'' in paragraph (a)(2) of
section 206.228; it currently only refers to ``subgrantees.'' The
eligibility of force account labor costs outlined in 44 CFR
206.228(a)(2) applies to grantees as well as subgrantees. The State, in
most cases, acts as the grantee for the Public Assistance Program.
Applicants who are successful in obtaining Public Assistance are
identified as ``subgrantees.'' Since State, Tribal, and local
government agencies are eligible applicants for Public Assistance,
States may act as the grantee, as well as the subgrantee. While most
work is performed by the subgrantees, it is possible that grantees
could perform eligible debris removal and/or permanent work, and
therefore incur straight-time force account labor costs for those
activities. To be more accurate, this rule adds ``grantee'' to
paragraph (a)(2) of section 206.228. The rule also establishes a cross
reference to the exception for host state evacuation and sheltering in
44 CFR 206.202.

III. Administrative Procedure Act

    FEMA has good cause to publish this interim final rule without
notice and comment under 5 U.S.C. 553(b)(3)(B), as it would be
impracticable, unnecessary and contrary to the public interest. The
impacts of Hurricane Sandy illustrate the need for promulgating this
rule as quickly as possible. Between October 28, 2012 and October 31,
2012, Hurricane Sandy produced widespread wind, storm surge, flood, and
snow damage to the Mid-Atlantic and Northeast regions of the United
States. Before Hurricane Sandy had even made landfall the President
issued emergency declarations for nine States, authorizing Federal
resources to assist those States with their preparations for the
historic storm. Hurricane force winds were experienced along portions
of the coasts from Virginia to Massachusetts. On October 29, 2012,
Hurricane Sandy made landfall as a post-tropical cyclone with maximum
sustained winds of 85 miles per hour, which corresponds to a strong
Category 1 hurricane on the Saffir Simpson Scale. Landfall occurred
very close with high tide in many areas, resulting in substantial storm
surge including almost 14 feet in New York City, and the Holland and
Brooklyn-Battery tunnels remain closed due to flooding as of October
30, 2012. Thus far, Sandy is responsible for 30 fatalities in the
United States, with search and rescue operations still ongoing.
    Efficient and effective debris operations are arguably the single
most important step toward community recovery following a major
disaster--the ability of residents to return and live in a safe and
healthy environment depends on the quality of the debris response.
Since 2000, the Public Assistance Program awarded over $8 billion in
grant funding--nearly 20 percent of all Public Assistance grants
obligated during the period--to reimburse eligible applicants for
debris removal. In addition, over $3 billion has been expended on
Direct Federal Assistance related to debris removal. While the full
scope of the damage from Sandy has yet to be determined, United States
Army Corps of Engineering modeling estimates that a Category 1
hurricane making landfall in approximately the same area as Sandy could
result in an excess of 27.3 million cubic yards of debris, spread
across nine states and the District of Columbia.
    Removing the current disincentive to applicants using their own
employees

for debris removal operations will encourage applicants to use their
own labor forces to perform debris work that may be done more quickly,
more efficiently, and at less cost than going through a procurement
process and bringing in debris removal contractors.
    This rule implements a procedure that has already been thoroughly
tested through a Pilot Program in which any eligible State or local
government was welcome to participate. Over 4,000 applicants chose to
participate, and FEMA's analysis of the Pilot program indicated that it
was very beneficial to those applicants. State and local governments
that participated in the Pilot program were highly supportive of this
procedure. In addition, the Department of Homeland Security's Office of
Inspector General has recommended that this procedure be implemented in
some form.
    Due to the widespread, significant impact of disasters like
Hurricane Sandy, and given that the procedure implemented by this
interim final rule was extensively tested during the Public Assistance
Pilot Program, FEMA has determined that it would be impracticable,
unnecessary, and contrary to the public interest to delay putting the
provisions of this interim final rule in place until a public notice
and comment process has been completed. We find good cause to waive the
notice of proposed rulemaking and to issue this final rule on an
interim basis. We will accept public comments on this interim final
rule for 60 days.
    We are also dispensing with the Administrative Procedure Act
requirement that a new rule not take effect until 30 days after it is
issued. Instead, this rule is effective October 27, 2012, to allow the
maximum benefit for Hurricane Sandy debris removal operations.
Immediate effectiveness is authorized because this is a substantive
rule granting an exception to the prohibition on reimbursing Public
Assistance applicants for their straight-time force account labor costs
associated with debris removal in response a major disaster or
emergency. In addition, for the reasons set forth above, there is good
cause to make the procedure implemented by this rule effective
immediately.

IV. Regulatory Analysis

A. National Environmental Policy Act (NEPA)

    CEQ regulations provide for Federal agencies to establish
categories of actions that do not individually or cumulatively have a
significant impact on the human environment which do not require an
environmental assessment or environmental impact statement. 40 CFR
1508.4. FEMA's ``List of exclusion categories'' at 44 CFR
10.8(d)(2)(ii) categorically excludes the preparation, revision, and
adoption of regulations related to actions that qualify for categorical
exclusions. Further, essential assistance under section 403 and debris
removal under section 407 of the Stafford Act are categorically
excluded at 44 CFR 10.8(d)(2)(xix)(B) and (C). These categorical
exclusions cover all debris removal actions under the Stafford Act.
    Finally, FEMA has evaluated the potential for extraordinary
circumstances as required in 44 CFR 10.8(d)(3) and determined that the
procedure authorized under this rule does not change its environmental
effect. The straight-time force account labor provision does not change
the nature or extent of debris removal activities reimbursed by FEMA.
The potential for reimbursement of straight-time force account labor
provides applicants with more flexibility to perform debris removal
work with their own employees in addition to, or in place of,
contractors, but does not affect the eligibility of debris removal
actions under this program. An environmental assessment was not
prepared for this rulemaking action because a categorical exclusion
applies and no extraordinary circumstances exist.

B. Paperwork Reduction Act of 1995

    As required by the Paperwork Reduction Act of 1995 (PRA), as
amended, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless the collection of information displays a valid control number.
The collection of information associated with the Public Assistance
program is approved under OMB Control No. 1660-0017, which expires on
April 30, 2013. This rule does not contain any new collections of
information.

C. Executive Order 12866, Regulatory Planning and Review & Executive
Order 13563, Improving Regulation and Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess the
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). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a ``significant regulatory
action'' under section 3(f) of Executive Order 12866. Accordingly, the
rule has been reviewed by the Office of Management and Budget.
    The rule provides (unquantified) benefits that are vitally
important to further FEMA's mission. This rule increases efficiency,
flexibility, and reduces the costs of performing debris removal work
after Hurricane Sandy. The rule affects States, Indian Tribal
governments, local governments, as well as certain private non-profit
organizations that have been affected by Hurricane Sandy, by maximizing
the use of force account labor for debris removal, thus accelerating
the recovery process.
    Review of FEMA's existing debris regulations revealed that they
could be expanded to provide for more efficient and timely debris
removal after a disaster. As discussed earlier in this preamble, the
reimbursement of force account labor for debris removal under the Pilot
Program greatly improved efficient and timely debris removal. In
reimbursing force account labor, FEMA provided applicants with an
incentive to perform the work in-house, as well as improve oversight of
debris removal operations. Therefore, FEMA is expanding the debris
regulations to incorporate this procedural improvement into the debris
removal program in response to Hurricane Sandy.

D. Executive Order 13132, Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
sets forth principles and criteria that agencies must adhere to in
formulating and implementing policies that have federalism
implications, that is, regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Federal
agencies must closely examine the statutory authority supporting any
action that would limit the policymaking discretion of the States and,
to the extent practicable, must consult with State and local officials
before implementing any such action.
    FEMA has reviewed this rule under Executive Order 13132 and has
concluded that this rule does not have federalism implications as
defined by Executive Order 13132. FEMA has determined that this rule
does not significantly affect the rights, roles, and

responsibilities of States, and involves no preemption of State law nor
does it limit State policymaking discretion. This rulemaking amends a
voluntary grant program that may be used by State, local and Tribal
governments and eligible private nonprofit organizations to receive
Federal grants to assist in the recovery from disasters. States are not
required to seek grant funding, and this rulemaking does not limit
their policymaking discretion.

E. Executive Order 12898, Environmental Justice

    Under Executive Order 12898, as amended ``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, Feb. 16, 1994), FEMA has undertaken to
incorporate environmental justice into its policies and programs.
Executive Order 12898 requires each Federal agency to conduct its
programs, policies, and activities that substantially affect human
health or the environment, in a manner that ensures that those
programs, policies, and activities do not have the effect of excluding
persons from participation in, denying persons the benefit of, or
subjecting persons to discrimination because of their race, color, or
national origin or income level.
    The purpose of this rule is to implement a debris-related Public
Assistance Pilot Program procedure. This rule reimburses straight- or
regular time wages for the permanent employees of Public Assistance
applicants while they perform disaster-related debris and wreckage
removal activities related to Hurricane Sandy for a period of 30
consecutive calendar days. Reimbursing straight- or regular time for an
applicant's permanent employees who perform debris removal work will
provide an incentive for applicants to complete debris removal work
themselves rather than entering into contracts to perform the work.
Removing debris expeditiously provides value to the American people by
creating safer communities and reducing loss of life and property,
enables communities to recover more rapidly from disasters, and lessens
the financial impact of disasters on individuals, the United States
Department of the Treasury, State, local and Tribal communities.
    No action that FEMA can anticipate under this rule will have a
disproportionately high and adverse human health or environmental
effect on any segment of the population. Accordingly, the requirements
of Executive Order 12898 do not apply to this rule.

F. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments

    FEMA has reviewed this rule under Executive Order 13175
``Consultation and Coordination with Indian Tribal Governments'' (65 FR
67249, Nov. 9, 2000). Under Executive Order 13175, FEMA may not issue a
regulation that has Tribal implications, that imposes substantial
direct compliance costs on Indian Tribal governments, and that is not
required by statute. In reviewing this rule, FEMA finds that because
Indian Tribal governments are potentially eligible applicants under the
Public Assistance Program, this rule does have ``tribal implications''
as defined in the Executive Order. However, eligibility to receive
reimbursement for force account labor for debris removal operations
will not have a substantial direct effect on one or more Indian Tribes,
on the relationship between the Federal Government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian Tribes. This rule does not impose
substantial direct compliance costs on Indian Tribal governments nor
does it preempt tribal law, impair treaty rights nor limit the self-
governing powers of Indian Tribal governments.

G. Regulatory Flexibility Act Statement

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, and
section 213(a) of the Small Business Regulatory Enforcement Fairness
Act of 1996, 5 U.S.C. 601 note, agencies must consider the impact of
their rulemakings on ``small entities'' (small businesses, small
organizations and local governments). The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
This rule does not require a notice of proposed rulemaking and
therefore is exempt from the requirements of the RFA.

H. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et
seq., requires each Federal agency, to the extent permitted by law, to
prepare a written assessment of the effects of any Federal mandate in a
proposed or final agency rule that may result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. UMRA exempts from its definition of
``Federal intergovernmental mandate'' regulations that establish
conditions of Federal assistance or provide for emergency assistance or
relief at the request of any State, local, or Tribal government.
Therefore, this rule is not an unfunded Federal mandate under that Act.

I. Executive Order 12988, Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, ``Civil Justice Reform'' (61 FR 4729, Feb. 7,
1996), to minimize litigation, eliminate ambiguity, and reduce burden.

J. Executive Order 12630, Governmental Actions and Interference With
Constitutionally Protected Property Rights

    FEMA has reviewed this rule under Executive Order 12630,
``Governmental Actions and Interference with Constitutionally Protected
Property Rights'' (53 FR 8859, Mar. 18, 1988) as supplemented by
Executive Order 13406, ``Protecting the Property Rights of the American
People'' (71 FR 36973, June 28, 2006). Sections 403(a)(3)(A) and 407 of
the Stafford Act, 42 U.S.C. 5170b and 5173, respectively, provide FEMA
authority to fund debris removal from private property provided that
the State or local government arranges an unconditional authorization
for removal of the debris, and agrees to indemnify the Federal
government against any claim arising from the removal. The regulations
implementing Sections 403 and 407 of the Stafford Act at 44 CFR 206.224
establish the requirement that debris removal be in the ``public
interest'' in order to be eligible for reimbursement. Generally, debris
removal from private property following a disaster is the
responsibility of the property owner. However, large-scale disasters
may deposit enormous quantities of debris on private property over a
large area resulting in widespread immediate threats to the public-at-
large. In these cases, the State or local government may need to enter
private property to remove debris to: Eliminate immediate threats to
life, public health, and safety; eliminate immediate threats of
significant damage to improved property; or ensure economic recovery of
the affected community to the benefit of the community-at-large. In
these situations, debris removal from private property may be
considered to be in the public interest and thus may be eligible for
reimbursement under the Public Assistance Program. See 44 CFR 206.224.
FEMA will work with States

affected by a disaster to designate those areas where the debris is so
widespread that removal of the debris from private property is in the
``public interest'' pursuant to 44 CFR 206.224, and thus is eligible
for FEMA Public Assistance reimbursement on a case-by-case basis. This
rule will not affect a taking of private property or otherwise have
taking implications under Executive Order 12630.

K. Congressional Review of Agency Rulemaking

    FEMA is sending the rule to Congress and to the Government
Accountability Office pursuant to the Congressional Review of Agency
Rulemaking Act (Congressional Review Act)(CRA), Public Law 104-121, 110
Stat. 873 (March 29, 1996) (5 U.S.C. 801 et seq). This rule is not a
``major rule'' within the meaning of the CRA. Furthermore, Section 808
of the CRA allows the issuing agency to make a rule effective sooner
than otherwise provided by the CRA if the agency makes a good cause
finding that notice and public procedure is impracticable, unnecessary
or contrary to the public interest. As stated previously, FEMA has made
such a good cause finding, including the reasons therefore.

List of Subjects in 44 CFR Part 206

    Administrative practice and procedure, Coastal zone, Community
facilities, Disaster assistance, Fire prevention, Grant programs-
housing and community development, Housing, Insurance,
Intergovernmental relations, Loan programs-housing and community
development, Natural resources, Penalties, Reporting and recordkeeping
requirements.

    For the reasons discussed in the preamble, the Federal Emergency
Management Agency amends 44 CFR part 206 as follows:

PART 206--FEDERAL DISASTER ASSISTANCE

0
1. The authority citation for part 206 is revised to read as follows:

    Authority:  Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act
of 2002, 6 U.S.C. 101 et seq.; Department of Homeland Security
Delegation 9001.1.

0
2. Revise Sec.  206.228, paragraph (a)(2) to read as follows:

Sec.  206.228  Allowable costs.

* * * * *
    (a) * * *
    (2) Force Account Labor Costs. The straight- or regular-time
salaries and benefits of a grantee's or subgrantee's permanently
employed personnel are:
    (i) Eligible in calculating the cost of eligible permanent repair,
restoration, and replacement of facilities under section 406 of the
Stafford Act;
    (ii) Eligible, at the Administrator's discretion, in calculating
the cost of eligible debris removal work under sections 403(a)(3)(A),
502(a)(5), and 407 of the Stafford Act for a period not to exceed 30
consecutive calendar days, provided the grantee's or subgrantee's
permanently employed personnel are dedicated solely to eligible debris
removal work for any major disaster or emergency declared by the
President on or after October 27, 2012, in response to Hurricane Sandy;
and
    (iii) Not eligible in calculating the cost of other eligible
emergency protective measures under sections 403 and 502 of the
Stafford Act, except for those costs associated with host state
evacuation and sheltering, as established in Sec.  206.202.
* * * * *

Janet Napolitano,
Secretary.
[FR Doc. 2012-27382 Filed 11-8-12; 8:45 am]
BILLING CODE 9111-23-P


(A) Three hour emissions in pounds per three hour period from the
flares, coker CO-boiler stack, and refinery fuel gas combustion system;
    (B) Daily emissions in pounds per calendar day from the coker CO-
boiler stack and refinery fuel gas combustion system;
    (C) The results of the quarterly Cylinder Gas Audits (CGA) or
Relative Accuracy Audits (RAA) required by 40 CFR part 60, Appendix F,
and the annual Relative Accuracy Test Audit (RATA) for the CEMS
required by 40 CFR 52.1392(f)(2)(ii) (total sulfur analyzer(s) only),
(f)(3)(ii) and (f)(4)(ii);
    (D) For all periods of flare volumetric flow rate monitoring system
or concentration analyzer system downtime, coker CO-boiler stack CEMS
downtime, or refinery fuel gas combustion system CEMS downtime, the
written report shall identify:
    (1) Dates and times of downtime;
    (2) Reasons for downtime; and
    (3) Corrective actions taken to mitigate downtime;
    (E) For each three hour period and calendar day in which the flare
emission limits, the coker CO-boiler stack emission limits, or the fuel
gas combustion system emission limits are exceeded, the written report
shall identify:
    (1) The date, start time, and end time of the excess emissions;
    (2) Total hours of operation with excess emissions, the hourly
emissions, the three hour emissions, and the daily emissions;
    (3) All information regarding reasons for operating with excess
emissions; and
    (4) Corrective actions taken to mitigate excess emissions.
    (F) For all periods that the range of the volumetric flare flow
rate monitor(s) is (are) exceeded, the quarterly written report shall
identify:
    (1) Date and time when the range of the flare volumetric flow
monitor(s) is (are) exceeded and
    (2) The reliable estimation parameters used to determine flow in
the gas stream to the flare and how the estimation parameters were
derived.
    (G) When no excess emissions have occurred or the continuous
monitoring system(s) have not been inoperative, repaired, or adjusted,
such information shall be stated in the report.
    (g) Montana Sulphur & Chemical Company (MSCC) emission limits and
compliance determining methods: (1) Introduction: The provisions for
MSCC cover the following units:
    (i) The flares, which consist of the 80 foot west flare, 125 foot
east flare, and 100-meter flare.
    (ii) The SRU 100-meter stack.
    (iii) The auxiliary vent stacks which consist of the vent stacks
associated

with the Railroad Boiler, the H-1 Unit, the H1-A unit, the H1-1 unit
and the H1-2 unit.
    (iv) The SRU 30-meter stack. The units that can exhaust through the
SRU 30-meter stack are identified in section 3(A)(2)(d) and (e) of
MSCC's 1998 exhibit.
    (2) Flare requirements: (i) Emission limit: Total combined
emissions of SO2 from the 80 foot west flare, 125 foot east
flare and 100-meter flare shall not exceed 150.0 pounds per three hour
period.
    (ii) Compliance determining method: Compliance with the emission
limit in 40 CFR 52.1392(g)(2)(i) shall be determined in accordance with
40 CFR 52.1392(h). In the event MSCC cannot monitor all three flares
from a single location, MSCC shall establish multiple monitoring
locations.
    (3) SRU 100-meter stack requirements: (i) Emission limits:
Emissions of SO2 from the SRU 100-meter stack shall not
exceed:
    (A) 3,003.1 pounds per three hour period,
    (B) 24,025.0 pounds per calendar day, and
    (C) 9,088,000 pounds per calendar year.
    (ii) Compliance determining method. (A) Compliance with the
emission limits contained in 40 CFR 52.1392(g)(3)(i) shall be
determined by the CEMS and emission testing methods required by
sections 6(B)(1) and (2) and section 5, respectively, of MSCC's 1998
exhibit.
    (B) MSCC shall notify EPA in writing of each annual source test a
minimum of 25 working days prior to actual testing.
    (C) The CEMS referenced in 40 CFR 52.1392(g)(3)(ii)(A) shall
achieve a temporal sampling resolution of at least one concentration
and flow rate measurement per minute, meet the requirements expressed
in the definition of ``hourly average'' in 40 CFR 52.1392(c)(12), and
meet the CEM Performance Specifications in sections 6(C) and (D) of
MSCC's 1998 exhibit, except that MSCC shall also notify EPA in writing
of each annual Relative Accuracy Test Audit at least twenty five (25)
working days prior to actual testing.
    (4) Auxiliary vent stacks: (i) Emission limits: (A) Total combined
emissions of SO2 from the auxiliary vent stacks shall not
exceed 12.0 pounds per three hour period,
    (B) Total combined emissions of SO2 from the auxiliary
vent stacks shall not exceed 96.0 pounds per calendar day,
    (C) Total combined emissions of SO2 from the auxiliary
vent stacks shall not exceed 35,040 pounds per calendar year, and
    (D) The H2S concentration in the fuel gas burned in the
Railroad Boiler, the H-1 Unit, the H1-A unit, the H1-1 unit, and the
H1-2 unit while any of these units is exhausting to the auxiliary vent
stacks shall not exceed 100 ppm per three hour period.
    (ii) Compliance determining method: (A) Compliance with the
emission limits in 40 CFR 52.1392(g)(4)(i) shall be determined by
measuring the H2S concentration of the fuel burned in the
Railroad Boiler, the H-1 Unit, the H1-A unit, the H1-1 unit, and the
H1-2 unit (when fuel other than natural gas is burned in one or more of
these units) according to the procedures in 40 CFR
52.1392(g)(4)(ii)(C).
    (B) Beginning [DATE 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN
THE Federal Register], MSCC shall maintain logs of
    (1) The dates and time periods that emissions are exhausted through
the auxiliary vent stacks;
    (2) The heaters and boilers that are exhausting to the auxiliary
vent stacks during such time periods; and
    (3) The type of fuel burned in the heaters and boilers during such
time periods.
    (C) Beginning [DATE 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN
THE Federal Register], MSCC shall measure the H2S content of
the fuel burned when fuel other than natural gas is burned in a heater
or boiler that is exhausting to an auxiliary vent stack. MSCC shall
begin measuring the H2S content of the fuel at the fuel
header within one hour from when a heater or boiler begins exhausting
to an auxiliary vent stack and on a once-per-three-hour period
frequency until no heater or boiler is exhausting to an auxiliary vent
stack. To determine the H2S content of the fuel burned, MSCC
shall use a portable H2S monitor with a range of 0--500 ppm
of H2S and an accuracy of ( 2% of 500 ppm. H2S
concentrations shall be measured on an actual wet basis in ppm.
    (5) SRU 30-meter stack: (i) Emission limits: (A) Emissions of
SO2 from the SRU 30-meter stack shall not exceed 12.0 pounds
per three hour period,
    (B) Emissions of SO2 from the SRU 30-meter stack shall
not exceed 96.0 pounds per calendar day,
    (C) Emissions of SO2 from the SRU 30-meter stack shall
not exceed 35,040 pounds per calendar year, and
    (D) The H2S concentration in the fuel gas burned in the
heaters and boilers identified in 40 CFR 52.1392(g)(1)(iv) while any of
these units is exhausting to the SRU 30-meter stack shall not exceed
100 ppm per three hour period.
    (ii) Compliance determining method: (A) Compliance with the
emission limits in 40 CFR 52.1392(g)(5)(i) shall be determined by
measuring the H2S concentration of the fuel burned in the
heaters and boilers identified in 40 CFR 52.1392(g)(1)(iv) (when fuel
other than natural gas is burned in one or more of these heaters or
boilers) according to the procedures in 40 CFR 52.1392(g)(5)(ii)(C).
    (B) Beginning [DATE 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN
THE Federal Register], MSCC shall maintain logs of
    (1) The dates and time periods that emissions are exhausted through
the SRU 30-meter stack;
    (2) The heaters and boilers that are exhausting to the SRU 30-meter
stack during such time periods; and
    (3) The type of fuel burned in the heaters and boilers during such
time periods.
    (C) Beginning [DATE 60 DAYS AFTER PUBLICATION OF THE FINAL RULE IN
THE Federal Register], MSCC shall measure the H2S content of
the fuel burned when fuel other than natural gas is burned in a heater
or boiler that is exhausting to the SRU 30-meter stack. MSCC shall
begin measuring the H2S content of the fuel at the fuel
header within one hour from when any heater or boiler begins exhausting
to the SRU 30-meter stack and on a once-per-three-hour period frequency
until no heater or boiler is exhausting to the SRU 30-meter stack. To
determine the H2S content of the fuel burned, MSCC shall use
a portable H2S monitor with a range of 0--500 ppm of
H2S and an accuracy of +/-2% of 500 ppm. H2S
concentrations shall be measured on an actual wet basis in ppm.
    (6) Data reporting requirements: (i) MSCC shall submit quarterly
reports beginning with the first calendar quarter following [DATE 30
DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE Federal Register]. The
quarterly reports shall be submitted within 30 days of the end of each
calendar quarter. The quarterly reports shall be submitted to Air
Program Contact at EPA's Montana Operations Office, Federal Building,
10 West 15th Street, Suite 3200, Helena, MT 59626. The quarterly report
shall be certified for accuracy in writing by a responsible MSCC
official. The quarterly report format shall consist of both a
comprehensive electronic-magnetic report and a written hard copy data
summary report.
    (ii) The electronic report submitted to the EPA shall be on
magnetic or optical media, and such submittal shall follow the
reporting format of electronic data

being submitted to the MDEQ. The EPA may modify the reporting format
delineated in this section, and thereafter, MSCC shall follow the
revised format. In addition to submitting the electronic quarterly
reports to the EPA, MSCC shall also record, organize and archive for at
least five years the same data, and upon request by the EPA, MSCC shall
provide the EPA with any data archived in accordance with this
provision. The electronic report shall contain the following:
    (A) Hourly average total sulfur concentrations in ppm, in the gas
stream to the flare(s);
    (B) Hourly average SO2 concentrations in ppm from the
SRU 100-meter stack.
    (C) Hourly average volumetric flow rates in SCFH in the gas stream
to the flare(s) and in the SRU 100-meter stack;
    (D) Hourly average temperature (in [deg]F) and pressure (in mm or
inches of Hg) in the gas stream to the flare(s);
    (E) Hourly emissions in pounds per clock hour from the flare(s) and
SRU 100-meter stack;
    (F) Daily calibration data for flare CEMS, and the SRU 100-meter
stack CEMS;
    (iii) The quarterly written report submitted to the EPA shall
contain the following information:
    (A) Three hour emissions in pounds per three hour period from the
flares and SRU 100-meter stack, and three hour H2S
concentrations in the fuel gas burned in the heaters and boilers
identified in 40 CFR 52.1392(g)(1)(iii) and (iv) while any of these
units is exhausting to the SRU 30-meter stack or auxiliary vent stacks
and burning fuel other than natural gas;
    (B) Daily emissions in pounds per calendar day from the SRU 100-
meter stack;
    (C) Annual emissions of SO2 in pounds per calendar year
from the SRU 100-meter stack;
    (D) The results of the quarterly Cylinder Gas Audits (CGA) or
Relative Accuracy Audits (RAA) required by 40 CFR part 60, Appendix F,
the annual Relative Accuracy Test Audit (RATA) for total sulfur
analyzer(s) and for the SRU 100-meter stack CEMS;
    (E) For all periods of flare volumetric flow rate monitoring system
or concentration analyzer system downtime, SRU 100-meter CEMS downtime,
or failure to obtain an H2S concentration sample as required
by 40 CFR 52.1392(g)(4)(ii)(C) and (g)(5)(ii)(C), the written report
shall identify:
    (1) Dates and times of downtime or failure;
    (2) Reasons for downtime or failure; and
    (3) Corrective actions taken to mitigate downtime or failure;
    (F) For each three hour period and calendar day in which the flare
emission limit, the SRU 100-meter stack emission limits, the SRU 30-
meter stack emission limits, or auxiliary vent stack emission limits
are exceeded, the written report shall identify:
    (1) The date, start time, and end time of the excess emissions;
    (2) Total hours of operation with excess emissions, the hourly
emissions, the three hour emissions, and the daily emissions;
    (3) All information regarding reasons for operating with excess
emissions; and
    (4) Corrective actions taken to mitigate excess emissions.
    (G) For all periods that the range of the volumetric flare flow
rate monitor(s) is (are) exceeded, the quarterly written report shall
identify:
    (1) Date and time when the range of the flare volumetric flow
monitor(s) is (are) exceeded and
    (2) The reliable estimation parameters used to determine flow in
the gas stream to the flare and how the estimation parameters were
derived.
    (H) Identification of dates:
    (1) The dates and time periods that emissions are exhausted through
the auxiliary vent stacks or the 30-meter stack;
    (2) The heaters and boilers that are exhausting to the auxiliary
vent stacks or 30-meter stack during such time periods; and
    (3) The type of fuel burned in the heaters and boilers during such
time periods.
    (I) When no excess emissions have occurred, the continuous
monitoring system(s) have not been inoperative, repaired, or adjusted,
or all H2S concentration samples for the heaters and boilers
have been taken as required, such information shall be stated in the
report.
    (h) Flare compliance determining method:
    (1) Compliance with the emission limits in 40 CFR 52.1392(d)(2)(i),
(e)(2)(i), (f)(2)(i) and (g)(2)(i) shall be determined by measuring the
total sulfur concentration and volumetric flow rate of the gas stream
to the flare(s) (corrected to 1 atmosphere pressure and 68 [deg]F) and
using the methods contained in the flare monitoring plan required by 40
CFR 52.1392(h)(5). Volumetric gas stream flow rate to the flare(s)
shall be determined in accordance with the requirements in 40 CFR
52.1392(h)(2) and the total sulfur concentration of the gas stream to
the flare(s) shall be determined in accordance with 40 CFR
52.1392(h)(3).
    (2) Flare flow monitoring: (i) Within 180 days after receiving EPA
approval of the flare monitoring plan required by 40 CFR 52.1392(h)(5),
each facility named in 40 CFR 52.1392(a) shall install and calibrate,
and thereafter calibrate, maintain and operate, a continuous flow
monitoring system capable of measuring the total volumetric flow of the
gas stream to the flare(s) over the full range of operation. The flow
monitoring system may require one or more flow monitoring devices or
flow measurements at one or more locations if one monitor cannot
measure the total volumetric flow to each flare.
    (ii) Volumetric flow monitors meeting the proposed volumetric flow
monitoring specifications below should be able to measure the majority
of volumetric flow in the gas streams to the flare. However, in rare
events (e.g., such as upset conditions) it is possible for the flow to
the flare to exceed the range of the monitor. In such cases, reliable
flow estimation parameters may be used to determine the volumetric flow
rate to the flare, which shall then be used to calculate SO2
emissions. In quarterly reports, sources shall indicate when reliable
estimation parameters are used and how such parameters were derived.
    (iii) The flare gas stream volumetric flow rate shall be measured
on an actual wet basis in SCFH. The minimum detectable velocity of the
flow monitoring device(s) shall be 0.1 feet per second (fps). The flow
monitoring device(s) shall continuously measure the range of flow rates
corresponding to velocities from 0.5 to 275 fps and have a
manufacturer's specified accuracy of 5% over the range of 1
to 275 fps. The volumetric flow monitor(s) shall feature automated
daily calibrations at low and high ranges. The volumetric flow monitors
shall be calibrated annually according to manufacturer's
specifications.
    (iv) For correcting flow rate to standard conditions (defined as 68
[deg]F and 760 mm, or 29.92 inches, of Hg)), temperature and pressure
shall be monitored continuously. The temperature and pressure shall be
monitored in the same location as the flow monitoring device(s) and
shall be calibrated to meet accuracy specifications as follows:
temperature shall be calibrated annually to within 2.0% at
absolute temperature and the pressure monitor shall be calibrated
annually to within 5.0 mmHg.
    (v) The flow monitoring device(s) shall be initially calibrated,
prior to installation, to demonstrate accuracy to within 5.0% at flow
rates equivalent to 30%, 60% and 90% of monitor full scale.

    (vi) Each flow monitoring device shall achieve a temporal sampling
resolution of at least one flow rate measurement per minute, meet the
requirements expressed in the definition of hourly average in 40 CFR
52.1392(c)(12), and be installed in a manner and at a location that
will allow for accurate measurements of the total volume of the gas
stream going to each flare.
    (3) Flare concentration monitoring:
    (i) Within 180 days after receiving EPA approval of the flare
monitoring plan required by 40 CFR 52.1392(h)(5), each facility named
in 40 CFR 52.1392(a) shall install and calibrate, and thereafter
calibrate, maintain and operate, a continuous total sulfur
concentration monitoring system capable of measuring the total sulfur
concentration of the gas stream to each flare. Continuous monitoring
shall occur at a location(s) that is (are) representative of the gas
combusted in the flare and be capable of measuring the expected range
of total sulfur in the gas stream to the flare. The concentration
monitoring system may require one or more concentration monitoring
devices or concentration measurements at one or more locations if one
monitor cannot measure the total sulfur concentration to each flare.
    (ii) The total sulfur analyzer(s) shall achieve a temporal sampling
resolution of at least one concentration measurement per fifteen
minutes, meet the requirements expressed in the definition of ``hourly
average'' in 40 CFR 52.1392(c)(12), be installed, certified (on a
concentration basis), and operated in accordance with 40 CFR part 60,
Appendix B, Performance Specification 5, and be subject to and meet the
quality assurance and quality control requirements (on a concentration
basis) of 40 CFR part 60, Appendix F.
    (iii) Each affected facility named in 40 CFR 52.1392(a) shall
notify the Air Program Contact at EPA's Montana Operations Office,
Federal Building, 10 West 15th Street, Suite 3200, Helena, MT 59626, in
writing of each Relative Accuracy Test Audit a minimum of twenty-five
(25) working days prior to the actual testing.
    (4) Calculation of SO2 emissions from flares. Methods for
calculating hourly and three hour SO2 emissions from flares
shall be submitted with the flare monitoring plan discussed in 40 CFR
52.1392(h)(5).
    (5) By [DATE 180 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE
Federal Register], each facility named in 40 CFR 52.1392(a) shall
submit a flare monitoring plan. Each flare monitoring plan shall
include, at a minimum, the following:
    (i) A facility plot plan showing the location of each flare in
relation to the general plant layout;
    (ii) Information regarding pilot and purge gas for each flare; what
is used for pilot and purge gas and how the concentration and
volumetric flow rate monitors are analyzing the pilot and purge gases.
    (iii) Drawing(s) with dimensions, preferably to scale, and an as
built process flow diagram of the flare(s) identifying major
components, such as flare header, flare stack, flare tip(s) or
burner(s), purge gas system, pilot gas system, ignition system, assist
system, water seal, knockout drum and molecular seal.
    (iv) A representative flow diagram showing the interconnections of
the flare system(s) with vapor recovery system(s), process units and
other equipment as applicable.
    (v) A complete description of the assist system process control,
flame detection system and pilot ignition system.
    (vi) A complete description of the gas flaring process for an
integrated gas flaring system that describes the method of operation of
the flares.
    (vii) A complete description of the vapor recovery system(s) which
have interconnection to a flare, such as compressor description(s),
design capacities of each compressor and the vapor recovery system, and
the method currently used to determine and record the amount of vapors
recovered.
    (viii) Drawing(s) with dimensions, preferably to scale, showing the
following information for proposed flare gas stream monitoring system:
    (A) Sampling locations; and
    (B) Flow monitoring device and total sulfur analyzer locations and
the methods used to determine the locations.
    (ix) A detailed description of manufacturer's specifications,
including but not limited to, make, model, type, range, precision,
accuracy, calibration, maintenance, a quality assurance procedure and
any other relevant specifications and information referenced in 40 CFR
52.1392(h)(2) and (3) for all existing and proposed flow monitoring
devices and total sulfur analyzers.
    (x) A complete description of the proposed data recording,
collection and management and any other relevant specifications and
information referenced in 40 CFR 52.1392(h)(2) and (3) for each flare
monitoring system.
    (xi) A complete description of the proposed method to determine,
monitor and record total volume and total sulfur concentration of gases
combusted in the flare.
    (xii) A complete description of the method and equations used to
calculate the amount of total sulfur, including all conversion factors.
The total sulfur concentrations will be used in the methods referenced
in 40 CFR 52.1392(h)(4) to determine compliance with the three-hour
emission limit.
    (xiii) A schedule for the installation and operation of each flare
monitoring system consistent with the deadline in 40 CFR 52.1392(h)(2).
    (xiv) A complete description of the methods to be used to estimate
flare emissions when either the flow monitoring device or total sulfur
analyzer are not working or the operating range of the monitor or
analyzer is exceeded.
    (xv) A complete description of the methods to be used for
calculating, and hourly and three-hour SO2 emission from
flares.
    (6) Thirty days prior to installing the continuous monitors
required by 40 CFR 52.1392(h)(2) and (3), each facility named in 40 CFR
52.1392(a) shall submit for EPA review a quality assurance/quality
control (QA/QC) plan for each monitor being installed.

[FR Doc. 06-6096 Filed 7-11-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: June 4, 2010 (Volume 75, Number 107)]
[Rules and Regulations]
[Page 31709-31711]
[DOCID:fr04jn10-13]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2009-0957; FRL-9158-4]

Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Reasonable Further Progress Plan, 2002 Base Year Emission
Inventory, Contingency Measures, Reasonably Available Control Measures,
and Transportation Conformity Budgets for the Baltimore 1997 8-Hour
Moderate Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is approving a revision to the Maryland State
Implementation Plan (SIP) to meet the 2002 base year emissions
inventory, the reasonable further progress (RFP) plan, RFP contingency
measure, and reasonably available control measure (RACM) requirements
of the Clean Air Act (CAA) for the Baltimore moderate 1997 8-hour ozone
nonattainment area. EPA is also approving the transportation conformity
motor vehicle emissions budgets (MVEBs) associated with this revision.
EPA is approving the SIP revision because it satisfies the emission
inventory, RFP, RACM, RFP contingency measures, and transportation
conformity requirements for areas classified as moderate nonattainment
for the 1997 8-hour ozone national ambient air quality standard (NAAQS)
and demonstrates further progress in reducing ozone precursors. EPA is
approving the SIP revision pursuant to the CAA and EPA's regulations.

DATES: Effective Date: This final rule is effective on July 6, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2009-0957. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittal are available at the Maryland Department of the Environment,
1800 Washington Boulevard, Suite 705, Baltimore, Maryland, 21230.

FOR FURTHER INFORMATION CONTACT: Maria A. Pino,<PHONE_NUMBER>, or by
e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On January 7, 2010 (75 FR 958), EPA published a notice of proposed
rulemaking (NPR) for the State of Maryland. The NPR proposed approval
of Maryland's 2002 base year emissions inventory, RFP plan, RFP
contingency measures, RACM, and MVEBs for the Baltimore moderate 1997
8-hour ozone nonattainment area. EPA is approving the SIP revision
because it satisfies the emission inventory, RFP, RACM, RFP contingency
measure, and transportation conformity requirements of the section 110
and part D of the CAA and EPA's regulations. The formal SIP revision
was submitted by the State of Maryland on June 4, 2007.

II. Summary of SIP Revision

    The SIP revision addresses emissions inventory, RACM, RFP and
contingency measures requirements for the 1997 8-hour ozone NAAQS for
the Baltimore 8-hour ozone moderate nonattainment area. The SIP
revision also establishes MVEBs for 2008. Other specific requirements
of Maryland's June 4, 2007 SIP revision for the Baltimore 8-hour ozone
nonattainment area and the rationale for EPA's proposed action are
explained in the NPR and will not be restated here. No public comments
were received on the NPR.

III. Final Action

    EPA is approving the 2002 base year emissions inventory; the 2008
ozone projected emission inventory; the 2008 RFP plan; RFP contingency
measures; RACM analysis; and 2008 transportation conformity budgets for
the Baltimore 8-hour ozone nonattainment area, contained in Maryland's
June 4, 2007 SIP revision submittal for the Baltimore 8-hour ozone
nonattainment area. The SIP revision satisfies the requirements for
1997 8-hour ozone NAAQS nonattainment areas classified as moderate and
demonstrates further progress in reducing ozone precursors.

IV. Statutory and Executive Order Reviews

A. General 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.

B. Submission to Congress and the Comptroller General

    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).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by August 3, 2010. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action pertaining to the Baltimore
moderate 1997 8-hour ozone nonattainment area's 2002 base year
emissions inventory; 2008 ozone projected emission inventory; 2008 RFP
plan; RFP contingency measures; RACM analysis; and 2008 transportation
conformity budgets may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: May 21, 2010.
William C. Early,
Acting Regional Administrator, EPA Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart V--Maryland

0
2. In Sec.  52.1070, the table in paragraph (e) is amended by adding at
the end of the table, the entries for Reasonable Further Progress Plan
(RFP), Reasonably Available Control Measures and Contingency Measures;
2002 Base Year Inventory for VOC, NOX and CO; and 2008 RFP
Transportation Conformity Budgets. The amendments read as follows:

Sec.  52.1070  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
   Name of non-regulatory SIP        Applicable           State
            revision               geographic area   submittal date   EPA approval date   Additional explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Reasonable Further Progress      Baltimore 1997 8-           6/4/07  6/4/10 [Insert page
 Plan (RFP), Reasonably           hour ozone                          number where the
 Available Control Measures,      moderate                            document begins]
 and Contingency Measures.        nonattainment
                                  area.
2002 Base Year Inventory for     Baltimore 1997 8-           6/4/07  6/4/10 [Insert page
 VOC, NOX, and CO.                hour ozone                          number where the
                                  moderate                            document begins]
                                  nonattainment
                                  area.
2008 RFP Transportation          Baltimore 1997 8-           6/4/07  6/4/10 [Insert page
 Conformity Budgets.              hour ozone                          number where the
                                  moderate                            document begins]
                                  nonattainment
                                  area.
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.1075 is amended by revising the section heading and by
adding paragraph (i) to read as follows:

Sec.  52.1075  Base year emissions inventory.

* * * * *
    (i) EPA approves as a revision to the Maryland State Implementation
Plan the 2002 base year emissions inventories for the Baltimore 1997 8-
hour ozone moderate nonattainment area submitted by the Secretary of
the Maryland Department of the Environment on June 4, 2007. This
submittal consists of the 2002 base year point, area, non-road mobile,
and on-road mobile source inventories in area for the following
pollutants: Volatile organic compounds (VOC), carbon monoxide (CO) and
nitrogen oxides (NOX).

0
4. Section 52.1076 is amended by adding paragraphs (q) and (r) to read
as follow:

Sec.  52.1076  Control strategy plans for attainment and rate-of-
progress: Ozone.

* * * * *
    (q) EPA approves revisions to the Maryland State Implementation
Plan consisting of the 2008 reasonable further progress (RFP) plan,
reasonably available control measures, and contingency measures for the
Baltimore 1997 8-hour ozone moderate nonattainment area submitted by
the Secretary of the Maryland Department of the Environment on June 4,
2007.
    (r) EPA approves the following 2008 RFP motor vehicle emissions
budgets (MVEBs) for the Baltimore 1997 8-hour ozone moderate
nonattainment area submitted by the Secretary of the Maryland
Department of the Environment on June 4, 2007:

                       Transportation Conformity Emissions Budgets for the Baltimore Area
----------------------------------------------------------------------------------------------------------------
                                                                                Effective date of adequacy
     Type of control strategy SIP           Year        VOC (TPD)     NOX (TPD)    determination or SIP approval
----------------------------------------------------------------------------------------------------------------
Rate of Progress Plan.................         2008          41.2         106.8   April 13, 2009, (74 FR 13433),
                                                                                published March 27, 2009.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-13381 Filed 6-3-10; 8:45 am]
BILLING CODE 6560-50-P