8298 Federal Register / Vol. 76, No. 30 / Monday, February 14, 2011 / Rules and Regulations 

do a gastric bypass or gastroplasty to 

help the patient avoid regaining the 

weight that was lost. In this situation, 

payment is authorized even though the 

patient’s condition technically may not 

meet the definition of morbid obesity 

because of the weight that was already 

lost following the initial surgery. 

(B) Payment is authorized for 

otherwise covered medical services and 

supplies directly related to 

complications of obesity when such 

services and supplies are an integral and 

necessary part of the course of treatment 

that was aggravated by the obesity. 

(iii) Exclusions. CHAMPUS payment 

may not be extended for weight control 

services, weight control/loss programs, 

dietary regimens and supplements, 

appetite suppressants and other 

medications; food or food supplements, 

exercise and exercise programs, or other 

programs and equipment that are 

primarily intended to control weight or 

for the purpose of weight reduction, 

regardless of the existence of co-morbid 

conditions. 

* * * * * 

(g) * * * 

(28) Obesity, weight reduction. 

Service and supplies related ‘‘solely’’ to 

obesity or weight reduction or weight 

control whether surgical or nonsurgical; 

wiring of the jaw or any procedure of 

similar purpose, regardless of the 

circumstances under which performed 

(except as provided in paragraph (e)(15) 

of this section). 

* * * * * 

Dated: February 1, 2011. 

Morgan F. Park, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2011–3207 Filed 2–11–11; 8:45 am] 

BILLING CODE 5001–06–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–0902; FRL–9265–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Revision to the Definition of Volatile 

Organic Compound 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve a revision to the 

Virginia State Implementation Plan 

(SIP). The revision amends the 

definition of Volatile Organic 

Compound (VOC). EPA is approving 

these revisions to Virginia’s definitions 

in accordance with the requirements of 

the Clean Air Act (CAA). 

DATES: This rule is effective on April 15, 

2011 without further notice, unless EPA 

receives adverse written comment by 

March 16, 2011. If EPA receives such 

comments, it will publish a timely 

withdrawal of the direct final rule in the 

Federal Register and inform the public 

that the rule will not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2010–0902 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: frankford.harold@epa.gov. 

C. Mail: EPA–R03–OAR–2010–0902, 

Harold A. Frankford, Air Protection 

Division, Mailcode 3AP00, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2010– 

0902. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., 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 in http:// 

www.regulations.gov or in hard copy 

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 Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Harold A. Frankford, (215) 814–2108, or 

by e-mail at frankford.harold@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Throughout this document, whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. On September 27, 2010, the 

Commonwealth of Virginia submitted a 

formal revision to its State 

Implementation Plan (SIP). The SIP 

revision consists of the revised 

definition of ‘‘Volatile organic 

compound’’ (VOC) listed in 9VAC5 

Chapter 10 (General Definitions), 

Regulation 5–10–20 (Terms defined). 

II. Summary of SIP Revision 

Virginia amended the definition of 

‘‘Volatile organic compound’’ to add the 

organic compounds propylene 

carbonate and dimethyl carbonate to the 

list of excluded compounds. The 

exclusion of these compounds is 

consistent with the list of excluded 

compounds found in EPA’s definition of 

‘‘Volatile organic compounds (VOC)’’ at 

40 CFR 51.100(s)(1). 

III. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege’’ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

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Federal Register / Vol. 76, No. 30 / Monday, February 14, 2011 / Rules and Regulations 8299 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code Sec. 10.1–1198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information (1) 

that are generated or developed before 

the commencement of a voluntary 

environmental assessment; (2) that are 

prepared independently of the 

assessment process; (3) that demonstrate 

a clear, imminent and substantial 

danger to the public health or 

environment; or (4) that are required by 

law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

Law, Va. Code Sec. 10.1–1198, 

precludes granting a privilege to 

documents and information ‘‘required 

by law,’’ including documents and 

information ‘‘required by Federal law to 

maintain program delegation, 

authorization or approval,’’ since 

Virginia must ‘‘enforce Federally 

authorized environmental programs in a 

manner that is no less stringent than 

their Federal counterparts ....’’ The 

opinion concludes that ‘‘[r]egarding 

§ 10.1–1198, therefore, documents or 

other information needed for civil or 

criminal enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.’’ 

Virginia’s Immunity law, Va. Code Sec. 

10.1–1199, provides that ‘‘[t]o the extent 

consistent with requirements imposed 

by Federal law,’’ any person making a 

voluntary disclosure of information to a 

state agency regarding a violation of an 

environmental statute, regulation, 

permit, or administrative order is 

granted immunity from administrative 

or civil penalty. The Attorney General’s 

January 12, 1998 opinion states that the 

quoted language renders this statute 

inapplicable to enforcement of any 

Federally authorized programs, since 

‘‘no immunity could be afforded from 

administrative, civil, or criminal 

penalties because granting such 

immunity would not be consistent with 

Federal law, which is one of the criteria 

for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

IV. Final Action 

EPA is approving the amendment to 

the definition of ‘‘Volatile organic 

compound’’ in Virginia Regulation 

9VAC5–10–20 (Terms defined) as a 

revision to the Virginia State 

Implementation Plan. EPA is publishing 

this rule without prior proposal because 

the Agency views this as a 

noncontroversial amendment and 

anticipates no adverse comment. 

However, in the ‘‘Proposed Rules’’ 

section of today’s Federal Register, EPA 

is publishing a separate document that 

will serve as the proposal to approve the 

SIP revision if adverse comments are 

filed. This rule will be effective on April 

15, 2011 without further notice unless 

EPA receives adverse comment by 

March 16, 2011. If EPA receives adverse 

comment, EPA will publish a timely 

withdrawal in the Federal Register 

informing the public that the rule will 

not take effect. EPA will address all 

public comments in a subsequent final 

rule based on the proposed rule. EPA 

will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. 

V. Statutory and Executive Order 

Reviews 

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. 

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 

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8300 Federal Register / Vol. 76, No. 30 / Monday, February 14, 2011 / Rules and Regulations 

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 CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by April 15, 2011. 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 to 

approve Virginia’s revision to the 

definition of ‘‘Volatile organic 

compound’’ 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, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: February 1, 2011. 

W.C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority for citation for part 52 

continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(c) is amended by adding a seventh 

entry under 5–10–20 to read as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject 

State 

effective 

date 

EPA approval date Explanation [former SIP 

citation] 

9 VAC 5 Chapter 10 ................ General Definitions [Part I] 

* * * * * * * 

5–10–20 .................................... Terms Defined ......................... 2/18/10 2/14/11 [Insert page number 

where the document begins].

Revised definition of ‘‘Volatile 

organic compound.’’ 

* * * * * * * 

* * * * * 

[FR Doc. 2011–3096 Filed 2–11–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0041; FRL–9264–1] 

Finding of Failure To Submit State 

Implementation Plan Revisions for 

Particulate Matter, PM–10, Maricopa 

County (Phoenix) PM–10 

Nonattainment Area, AZ 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

find that Arizona failed to make a state 

implementation plan (SIP) submittal 

required under the Clean Air Act (CAA 

or Act) for the Maricopa County 

(Phoenix) nonattainment area (Maricopa 

area) for particulate matter of 10 

microns or less (PM–10). The Maricopa 

area is a serious PM–10 nonattainment 

area which, having failed to attain the 

PM–10 National Ambient Air Quality 

Standards (NAAQS) by its required 

statutory attainment deadline, is subject 

to section 189(d) of the CAA. For such 

areas, section 189(d) requires that states 

submit within 12 months after the 

applicable attainment date, plan 

revisions which provide for attainment 

of the PM–10 NAAQS, and from the 

date of such submission until 

attainment, for an annual reduction of 

PM–10 or PM–10 precursor emissions 

within the area of not less than 5 

percent of the amount of such emissions 

as reported in the most recent inventory 

prepared for the area. 

Arizona submitted a section 189(d) 

plan for the Maricopa area on December 

21, 2007, and EPA proposed action on 

this plan on September 9, 2010. On 

January 25, 2011, prior to final action on 

the plan by EPA, Arizona withdrew the 

submitted plan from the Agency’s 

consideration. As a result of the 

withdrawal, EPA is today finding that 

Arizona failed to make the submittal 

required for the Maricopa area under 

section 189(d) of the Act. 

This action triggers the 18-month 

clock for mandatory application of 

sanctions and 2-year clock for a federal 

implementation plan (FIP) under the 

Act. This action is consistent with the 

CAA mechanism for assuring SIP 

submissions. 

DATES: Effective Date: This action was 

effective as of February 14, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Nudd, U.S. Environmental 

Protection Agency, Region 9, Air 

Division (AIR–2), 75 Hawthorne Street, 

San Francisco, CA 94105–3901, 

Telephone: (415) 947–4107; 

nudd.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The NAAQS are standards for certain 

ambient air pollutants set by EPA to 

protect public health and welfare. PM– 

10 is among the ambient air pollutants 

for which EPA has established healthbased standards. PM–10 causes adverse 

health effects by penetrating deep in the 

lungs, aggravating the cardiopulmonary 

system. Children, the elderly, and 

people with asthma and heart 

conditions are the most vulnerable. 

WReier-Aviles on DSKGBLS3C1PROD with RULES