[Federal Register Volume 84, Number 92 (Monday, May 13, 2019)]
[Notices]
[Pages 20935-20937]
[FR Doc No: 2019-09727]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85794; File No. SR-CboeBYX-2019-007]

Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change Amending
Rule 11.13 (Order Execution and Routing) and Fee Schedule To Delete
References to TRIM2 and SWPB Routing Options

May 7, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 29, 2019, Cboe BYX Exchange, Inc. (``Exchange'' or ``BYX'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I and II below, which Items
have been prepared by the Exchange. The Exchange filed the proposal as
a ``non-controversial'' proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6) thereunder.\4\ The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BYX'') proposes to
amend Rule 11.13 (Order Execution and Routing), as well as its Fee
Schedule, to delete references to the TRIM2 and SWPB routing options.
The text of the proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/byx/), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Rule 11.13(b)(3)(G) (Other Routing
Strategies) to delete the TRIM2 routing option. The Exchange also
proposes to amend its fee schedule to delete references to the TRIM2
routing options under fee codes BJ and C, as well as the ``Routing
Tier'' under footnote 3. Additionally, the Exchange proposes to amend
Rule 11.13(b)(3)(I) (SWP) to delete the SWPB routing option and to
delete references to SWPB in the fee schedule under fee code SW and
under footnote 9. The Exchange intends to implement the proposed rule
changes on May 1, 2019.
    Currently, Rule 11.13(b)(3)(G) provides for the routing options
under which an order checks the System \5\ for available shares if so
instructed by the entering User \6\ and then is sent to destinations on
the applicable System routing table. The term ``System routing table''
refers to the proprietary process for determining the specific trading
venues to which the System routes orders and the order in which it
routes them.\7\ Rule 11.13(b)(3)(G) currently includes TRIM2 as one of
such routing options.\8\ In addition, current fee code BJ is yielded on
orders routed to EDGA using TRIM, TRIM2 or SLIM routing strategy \9\
and fee code C is yielded on orders routed to BX using Destination
Specific, TRIM, TRIM2 or SLIM routing strategy.\10\ Also, current
footnote 3 provides for additional rebate per share for orders yielding
fee code C (thus inclusive of a TRIM2 routing strategy) if a Member
achieves certain criteria.
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    \5\ The ``System'' is the Exchange's electronic communications
and trading facility designated by the Board through which
securities orders of Users are consolidated for ranking, execution
and, when applicable, routing away. See Exchange Rule 1.5(aa).
    \6\ The term ``User'' is defined as ``any Member or Sponsored
Participant who is authorized to obtain access to the System
pursuant to Rule 11.3.'' See Exchange Rule 1.5(cc).
    \7\ The Exchange reserves the right to maintain a different
System routing table for different routing options and to modify the
System routing table at any time without notice. See Exchange Rule
11.13(b)(3).
    \8\ TRIM2 routing strategy currently sends orders to: BYX + DRT
+ BX + EDGA. See also note 3.
    \9\ Orders that yield fee code BJ receive a rebate of $0.0024
per share.
    \10\ Orders that yield fee code C receive a rebate of $0.0010
per share.
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    Current Rule 11.13(b)(3)(I) provides for SWP routing options. SWP
is a routing option under which an order checks the System for
available displayed shares and then is sent to destinations on the
System routing table. SWP orders route only to Protected Quotations and
only for displayed size. Specifically, the current rule provides for
two forms of SWP routing, SWPA and SWPB. A SWPA order routes to
destinations on the System routing table even if at the time of entry
there is an insufficient share quantity in the SWPA order to fulfill
the displayed size of all Protected Quotations, whereas an entire SWPB
order will be cancelled back to a User immediately if at the time of
entry there is an insufficient share quantity in the SWPB order to
fulfill the displayed size of all Protected Quotations. Moreover,
current fee code SW is yielded on orders routed using Parallel T, SWPA
or SWPB routing strategies,\11\ and current footnote 9 describes the
fees charged for orders yielding fee code SW that remove liquidity in
securities priced below $1.00 for Parallel T, SWPA or SWPB routed
executions.
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    \11\ Orders that yield fee code SW receive a discounted fee of
$0.0033 per share.
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    The Exchange has determined that because few Users elect the TRIM2
routing option and the SWPB routing option, which often experiences no
usage for extended periods of time, the current demand does not warrant
the infrastructure and ongoing maintenance expenses required to support
these products. Therefore, the Exchange now proposes to delete TRIM2 as
a routing option under Rule 11.13(b)(3)(G)(v) and SWPB as a routing
option under Rule 11.13(b)(3)(I). The Exchange proposes to amend the
Rule formatting accordingly, changing current subparagraph
(b)(3)(G)(vi) to subparagraph 11.13(b)(3)(G)(v). The Exchange also
proposes to amend its fee schedule to delete references to the TRIM2
routing option under fee codes BJ and C, as well

as within the ``Routing Tier'' under footnote 3, and to delete
references to the SWPB routing option under fee code SW and footnote 9.
Users seeking to route to other trading centers may use alternative
methods, such as utilizing other routing strategies offered by the
Exchange, or connecting to those venues directly or through a third
party service provider.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\12\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \13\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \14\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(5).
    \14\ Id.
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    In particular, The Exchange does not believe that this proposal
will permit unfair discrimination among customers, brokers, or dealers
because the TRIM2 and SWPB routing options will no longer be available
to all Users. Also, the Exchange believes the proposed rule change to
remove references to TRIM2 and SWPB will remove impediments to the
mechanism of a free and open market, thereby protecting investors and
the public interest. As stated, the Exchange noted that few Users elect
the TRIM2 or SWPB routing options and has determined that the current
demand does not warrant the infrastructure and ongoing maintenance
expense required to support these products. Therefore, the Exchange is
discontinuing these routing options. The Exchange notes that routing
through the Exchange is voluntary and alternative routing options
offered by the Exchange as well as other methods remain available to
Users that wish to route to other trading centers. In addition, neither
the TRIM2 nor the SWPB routing option are core product offerings by the
Exchange, nor is the Exchange required by the Act to offer such
products. By removing references to routing options that will no longer
be offered by the Exchange, the Exchange believes the proposed rule
change will remove impediments to the mechanism of a free and open
market and protect investors by providing investors with rules that
accurately reflect routing options currently available.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The proposed rule change to
remove TRIM2 and SWPB is not designed to address any competitive issues
but rather to delete the TRIM2 and SWPB routing options that are rarely
used on the Exchange.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange neither solicited nor received comments on the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \15\ and Rule 19b-4(f)(6) \16\ thereunder
because the proposal does not: (i) Significantly affect the protection
of investors or the public interest; (ii) impose any significant burden
on competition; and (iii) by its terms, become operative for 30 days
from the date on which it was filed, or such shorter time as the
Commission may designate if consistent with the protection of investors
and the public interest.\17\
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    \15\ 15 U.S.C. 78s(b)(3)(A).
    \16\ 17 CFR 240.19b-4(f)(6).
    \17\ In addition, Rule 19b-4(f)(6)(iii) requires the Exchange to
give the Commission written notice of the Exchange's intent to file
the proposed rule change, along with a brief description and text of
the proposed rule change, at least five business days prior to the
date of filing of the proposed rule change, or such shorter time as
designated by the Commission. The Exchange has satisfied this
requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) normally may
not become operative prior to 30 days after the date of filing.
However, Rule 19b-4(f)(6)(iii) \18\ permits the Commission to designate
a shorter time if such action is consistent with the protection of
investors and the public interest. The Exchange has requested that the
Commission waive the 30-day operative delay period. The Commission
believes that waiver of the 30-day operative delay period is consistent
with the protection of investors and the public interest. Specifically,
the Commission believes that the proposal would accurately reflect
routing options that are currently available on the Exchange and delete
routing options no longer offered by the Exchange. For these reasons,
the Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest,
and designates the proposed rule change to be operative upon filing
with the Commission.\19\
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    \18\ 17 CFR 240.19b-4(f)(6)(iii).
    \19\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.\20\
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    \20\ 15 U.S.C. 78s(b)(3)(C).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CboeBYX-2019-007 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CboeBYX-2019-007. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will

post all comments on the Commission's internet website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent
amendments, all written statements with respect to the proposed rule
change that are filed with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change. Persons submitting comments are cautioned that we do
not redact or edit personal identifying information from comment
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
CboeBYX-2019-007 and should be submitted on or before June 3, 2019.
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    \21\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-09727 Filed 5-10-19; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: October 16, 2007 (Volume 72, Number 199)]
[Rules and Regulations]
[Page 58523-58528]
[DOCID:fr16oc07-15]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-RO5-OAR-2005-OH-0005; FRL-8464-6]

Approval and Promulgation of Implementation Plans; Ohio
Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is granting final approval of Ohio rules concerning
equivalent visible emission limits (EVELs), i.e., alternate opacity
limits that may be established for stack sources that meet mass
emission limits but cannot meet standard opacity limits. Ohio's rules
provide criteria for establishment of EVELs, and the rules provide that
EVELs established according to these criteria take effect without
formal review by EPA. Ohio submitted these rules on July 18, 2000, and
EPA published notices of proposed rulemaking on December 2, 2002, and
on January 23, 2007, that proposed to approve these rules. EPA received
one adverse comment letter. EPA will honor the commenter's
recommendation to fully codify the effects of this action, but EPA does
not agree that further notice and opportunity for comment is necessary.
As a result of this action, previous State modifications to EVELs will
become effective at the Federal level on November 15, 2007. Similarly,
any future action by the State to establish, modify, or rescind EVELs
in accordance with the criteria given in these Ohio rules, as approved,
will become effective at the federal level immediately upon the
effective date of the State action.

DATES: This final rule is effective on November 15, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2005-OH-0005. All documents in the docket are listed on
the http://www.regulations.gov web site. Although listed in the index, 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 http://www.regulations.gov or in hard copy at the

Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone John Summerhays,
Environmental Scientist, at<PHONE_NUMBER> before visiting the Region 5
office.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Environmental
Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This supplementary information section is
arranged as follows:

I. What did EPA Propose?
II. What Is EPA's Response to Comments?
III. What Action Is EPA Taking Today?
IV. What Statutory and Executive Orders Apply?

I. What Did EPA Propose?

    On July 18, 2000, Ohio submitted and requested approval of numerous
particulate matter rules. On December 2, 2002, at 67 FR 71515, EPA
proposed to approve many of these rules, including provisions in Ohio
Administrative Code (OAC) 3745-17-07(C) relating to EVELs. (On August
9, 2005, at 70 FR 46127, EPA proposed to approve most of the remainder
of the rules that Ohio had submitted.) These provisions on EVELs
established procedures and criteria by which sources meeting applicable
particulate mass emission limits but unable to meet applicable opacity
limits could justify a visible emission limit that is ``equivalent'' in
stringency to the mass emission limit. Ohio's rules provide further
that EVELs established according to the rules' procedures and criteria
immediately modify the federally enforceable opacity limits without
requirement for review as a revision to the State Implementation Plan
(SIP).
    Most States' rules provide no detailed criteria for establishing
EVELs. In these situations, EPA requires that any EVEL that the State
wishes to adopt must be submitted to EPA for review, and the EVEL does
not alter the federally enforceable opacity limits unless and until EPA
approves the EVEL.
    Ohio sought to apply a different process for establishing,
modifying, and rescinding EVELs. Ohio adopted detailed procedures and
criteria by which it would determine whether and at what level it would
establish EVELs. EPA proposed to find that those procedures and
criteria are appropriate and replicable, i.e., that an EPA review of
appropriate opacity limits for particular facilities would follow the
same procedures and criteria and would reach the same conclusion as
Ohio. Under these circumstances, EPA proposed to find federal review of
the actions that Ohio takes to establish, modify, or rescind EVELs to
be unnecessary. As a result, EPA proposed in effect to delegate
responsibility to Ohio for managing the subset of EVELs within the set
of federally enforceable opacity limits for sources in Ohio.
    EPA approved most of the Ohio rules on November 8, 2006, at 71 FR
65417. However, EPA did not approve Ohio's rules regarding EVELs in
that rulemaking. Instead, on January 23, 2007, at 72 FR 2823, EPA re-
proposed action on the rules regarding EVELs. EPA published this re-
proposal for purposes of clarifying and soliciting comments on the
treatment of historic EVELs that were previously approved into the
State Implementation Plan (SIP).
    Under the approach that EPA proposed to approve, Ohio may take
several actions on EVELs. Ohio may

rescind a previously established EVEL, thereby reestablishing
applicability of Ohio's general opacity limits. Ohio may modify a
previously established EVEL. Ohio may establish a new EVEL. In each
case, Ohio is to examine opacity values during qualifying stack tests
showing compliance with mass emission limits, and then Ohio is to
establish the indicated opacity limits that may or may not reflect an
EVEL, as appropriate.
    The key question addressed in EPA's notice of re-proposed
rulemaking was the timing by which EVEL actions taken by Ohio come into
effect at the federal level. For future actions, EPA proposed that the
federally enforceable limit would reflect the opacity limits adopted by
the State (with or without an EVEL) at the same time that Ohio
establishes the limits. For past actions altering opacity limits, EPA
proposed that the State's actions would alter the federally enforceable
opacity limits upon the effective date of final federal rulemaking on
the EVEL rules. That is, EPA proposed that, starting on the effective
date of EPA's final rulemaking on OAC 3745-17-07(C), the federally
enforceable opacity limits shall exactly match the opacity limits in
place in Ohio at any given time, including only those EVELs that Ohio
has in place pursuant to OAC 3745-17-07(C).
    EPA's notice of re-proposed rulemaking specifically addressed
situations in which EPA had previously approved EVELs into the SIP. EPA
proposed to rescind the previously issued EVELs (to the extent that
they are still effective at the Federal level), thereby providing
clarity that the applicable federally enforceable opacity limit for any
source is the currently effective limit that Ohio has established
pursuant to OAC 3745-17-07(C) and not the previously SIP-approved
limit. EPA proposed that the limits in these EVELs (to the extent they
remain in effect) would remain in effect if and only if the limits
remained in effect at the State level. EPA proposed that if Ohio has
established changed limits pursuant to OAC 3745-17-07(C), the limits
applicable to the affected sources would be changed (the EVEL either
rescinded or modified) as of the effective date of EPA's final
rulemaking on Ohio's rules. Similarly, any future State change in
opacity limits for these sources pursuant to OAC 3745-17-07(C) would
also yield an immediate corresponding change in the federally
enforceable opacity limit, again without regard to the previous
approval of an EVEL into the SIP.

II. What Is EPA's Response to Comments?

    EPA received one comment letter regarding the proposed rule,
comments submitted by Katerina Milenkovski of Porter Wright Morris &
Arthur on behalf of FirstEnergy. EPA approved an EVEL for FirstEnergy's
Bay Shore facility near Toledo, codified at 40 CFR 52.1870(c)(58),
approved on November 2, 1983 at 48 FR 50530. FirstEnergy objects on
procedural grounds to EPA's proposal to rescind EVELs such as this, and
FirstEnergy objects to EPA's proposal to eliminate existing EVELs such
as the EVEL for its Bay Shore facility without explicitly codifying the
change for each affected facility. The following discussion describes
FirstEnergy's comments in more detail and provides EPA's evaluation of
and response to the comments.
    Comment: FirstEnergy describes EPA's proposed action as having
``two parts-one prospective and one retroactive. FirstEnergy has no
objection to the prospective portion of the proposal which provides
that, once EPA's proposed approval of OAC 3745-17-07(C) is final, any
EVELs issued pursuant to it will be automatically federally enforceable
and will not require separate federal review. However, FirstEnergy
objects to EPA's proposal to eliminate all other EVELs-some identified
and some not-that have been historically approved by EPA in the Ohio
SIP.''
    Response: In fact, OAC 3745-17-07(C) does not have separable
provisions for ``prospective'' versus ``retroactive'' revisions to
opacity limits. OAC 3745-17-07(C) provides procedures and criteria for
determining whether an EVEL is warranted and if so at what level. The
procedures and criteria in OAC 3745-17-07(C) provide for periodic
review of opacity limits without regard to whether an EVEL was issued
in the past or whether an EVEL was approved into the SIP. Once Ohio
makes its determination regarding the justification for and level of
any EVEL, and once Ohio establishes the warranted opacity limits (with
or without an EVEL), OAC 3745-17-07(C) provides that these opacity
limits become the federally enforceable opacity limits without EPA SIP
review.
    FirstEnergy does not specify a recommended EPA rulemaking action.
Nevertheless, FirstEnergy's comment implies a recommendation that EPA
approve OAC 3745-17-07(C) for one set of circumstances (facilities with
no SIP-approved EVEL) and disapprove the rule for another set of
circumstances (facilities with a SIP-approved EVEL). Since OAC 3745-17-
07(C) does not differentiate between EVELs that have been approved into
the SIP and EVELs that have not, EPA does not have the authority to
rulemake in this manner. (As discussed below, EPA also believes that
such a rulemaking would not be warranted.)
    The central question EPA faced is when to change federally
enforceable opacity limits once Ohio finds that revisions to opacity
limits under OAC 3745-17-07(C) are warranted. Previously, in the
absence of specific procedures and criteria that can be expected to
yield appropriate and replicable limits, EPA had required that
federally enforceable limits not change without EPA review following
SIP review procedures. Now that Ohio has incorporated appropriate
procedures and criteria into OAC 3745-17-07(C), EPA believes that
opacity limit revisions that Ohio finds warranted should take effect at
the Federal level as well, without further EPA review. Specifically,
EPA believes that future Ohio actions on EVELs should take effect
simultaneously at the State and Federal levels, and that past Ohio
actions should take effect at the Federal level as soon as final EPA
action (being taken here) becomes effective (i.e., November 15, 2007).
    Comment: FirstEnergy objects to EPA's proposal ``to delete EVELs
that are currently part of the SIP without identifying those EVELs or
the facilities in question, and without providing a rationale or
explanation for doing so.''
    Response: FirstEnergy appears to misunderstand the nature of EPA's
proposed action and the rationale that EPA provided for this proposed
action. Ohio requested that EPA approve a rule that would change the
process by which EVELs are established, modified, and rescinded. The
new process would require that Ohio review opacity values and set
opacity limits according to specified criteria and would remove the
current requirement for EPA to conduct formal SIP review of the opacity
limits that Ohio sets. EPA's proposed rulemaking thus evaluated the
revised process and provided EPA's rationale for its belief that the
revised process assures that Ohio will set appropriate opacity limits
without the need for formal EPA review of Ohio's actions.
    EPA's proposed rulemaking did not address the merits of particular
opacity limits at particular facilities. Indeed, Ohio has requested
that EPA approve a process in which formal EPA review of the merits of
particular opacity limits at particular facilities is no longer
necessary. The acceptability of Ohio's requested process is a function
of the

adequacy of the criteria to establish a replicable set of limits, the
adequacy of the criteria to establish limits that are reliably
consistent with EPA policy on EVELs, and the adequacy of the process to
meet procedural requirements. The acceptability of Ohio's requested
process is not a function of what particular opacity limits are
appropriate at particular facilities.
    As a point of clarification, elimination of EVELs from the SIP does
not necessarily mean that the relevant facilities are no longer subject
to EVELs. If Ohio has retained an EVEL or re-established an EVEL
identical to the EVEL in the SIP, then no changes in opacity limits
would apply to such facility. EPA is accepting Ohio's determinations as
to whether and at what level any EVEL is warranted for any particular
source, and EPA is eliminating EVELs in the SIP to avoid confusion and
to assure that the opacity limits set by the State (with or without an
EVEL) unambiguously represent the federally enforceable opacity limits.
    For this rulemaking, as for many rulemakings, EPA need not identify
the affected facilities to explain the basis for its action. An
illustrative example here is the rulemaking on the other rules that
Ohio submitted along with OAC 3745-17-07(C). (See the final rule on
November 8, 2006, at 71 FR 65417, and the proposed rules on December 2,
2002, and August 9, 2005, at 67 FR 71515 and 70 FR 46127,
respectively.) For example, part of that rulemaking addressed storage
pile opacity limits at several Ohio utility plants. EPA addressed these
limits on the basis of general properties of storage piles, not on the
properties of specific facilities. Therefore, EPA did not identify the
facilities affected by this rulemaking, and EPA had no need to identify
these facilities.
    Comment: FirstEnergy believes that EPA failed to provide proper
notice and opportunity for comment on this revision. FirstEnergy
comments that EPA was proposing ``a SIP revision, governed by Section
307(d) of the Clean Air Act, which requires that EPA's Federal Register
notice `shall be accompanied by a statement of its basis and purpose,'
which shall include a summary of--(A) the factual data on which the
proposed rule is based; (B) the methodology used in obtaining the data
an in analyzing the data; and (C) the major legal interpretations and
policy considerations underlying the proposed rule.''
    Response: Even though EPA believes that section 307(d) of the Clean
Air Act is not applicable to this SIP action, EPA for this action has
provided the statement of basis and purpose described in section
307(d)(3). As discussed above, Ohio requested that EPA approve a
revised process for setting opacity limits. The merits of Ohio's
request process are independent of the merits of particular opacity
limits at particular facilities, and EPA reviewed Ohio's request
accordingly. Therefore, the basis and purpose that EPA specified for
its proposed action by necessity did not address particular conditions
at particular facilities, and EPA had no need to identify the affected
facilities in order to approve the process.
    EPA believes that it has provided the basis and purpose of its
proposed action with sufficient particularity for interested parties to
comment meaningfully. The notice of proposed rulemaking that EPA
published on December 2, 2002 provides much of the rationale for
concluding that OAC 3745-17-07(C) provides appropriate procedures and
criteria for Ohio to take action on EVELs without further EPA review.
The notice of proposed rulemaking published on January 23, 2007
supplements the earlier notice by clarifying the timing by which EVELs
adopted by Ohio would take effect at a federal level.
    FirstEnergy misinterprets the type of information that EPA must
provide in its proposed rulemaking. In this rulemaking, the ``data''
underlying EPA's proposed rulemaking are procedural and programmatic
data such as the criteria that Ohio would use and the related
provisions of Ohio's rule and the criteria that are stated in EPA
policies. The ``methodology'' used in obtaining and analyzing these
procedural and programmatic data involved a comparison of the Ohio
criteria against the criteria stated in EPA policies and a review of
whether EPA had sufficient assurances that Ohio's process would yield
appropriate opacity limits to be justified in finding formal SIP review
of such opacity limits to be unnecessary. The policy considerations
involve various features of EPA's policy on EVELs and the desirability
of periodic review of EVELs, and the legal interpretations involve
statutory provisions regarding the processing of revisions to SIPs. EPA
believes that its proposed rulemaking provided all the necessary
information of these types to offer the public an adequate opportunity
for meaningful comment on EPA's proposed action.
    Nevertheless, EPA views FirstEnergy's comments as requesting that
EPA identify the affected facilities and the effect of this action that
EPA anticipates for each facility. EPA has reviewed the SIP and
consulted with Ohio, and EPA is providing the requested information
here.
    FirstEnergy is correct that EPA took action in 1983 that approved
an EVEL for the Toledo Bay Shore facility, although this EVEL may have
expired under the terms of the approved permit. The codification of
this action did not explicitly note that the approved provisions
included an EVEL. EPA believes that this facility is the only facility
in Ohio for which EPA approved an EVEL without explicitly noting the
EVEL in the Code of Federal Regulations. The current Title V permit for
this facility includes no EVEL, indicating that Ohio has concluded in
accordance with OAC 3745-17-07(C) that an EVEL is no longer warranted
for this facility. The facility is instead subject at the state level
to general opacity limits (20 percent opacity with exemptions), and
today's action will ensure that federally enforceable opacity limits
match the state limits. That is, regardless of whether the 29 percent
opacity limits that EPA approved in 1983 (implicitly codified at 40 CFR
52.1870(c)(58)) have expired, today's action clarifies that the general
opacity limits now apply, effective on November 15, 2007.
    Other facilities for which EPA approved EVELs are those facilities
explicitly identified in either paragraph (c)(62) or paragraph (c)(65)
of 40 CFR 52.1870. According to Ohio, four of these facilities--Corning
Glass, Chardon Rubber, Springview Center, and Packaging Corporation of
America (subsequently called Caraustar Industries)--have shut down, so
today's action to have federal opacity limits match state limits will
have no effect on them. For one facility--a Denman Tire Corporation
facility--Ohio has concluded that the EVEL approved into the SIP
remains warranted. For this facility, strictly speaking, EPA is
implementing Ohio's approved EVEL process by rescinding the old permit
approved into the SIP (which may have expired under its terms) but
effectively re-establishing the identical limit as part of a newer
permit issued by Ohio. Today's action therefore has the effect of
clarifying that the EVEL limits approved into the SIP for the Denman
Tire facility are currently in effect.
    Ohio also provided information regarding other EVELs that would
become the federally enforceable opacity limits by virtue of today's
action. Ohio identified four facilities for which Ohio issued EVELs
that are no longer in effect. (Ohio rescinded the EVELs for three
facilities and the fourth facility shut down.) Ohio concluded

that no facilities other than Denman Tire Corporation's facility
presently have an EVEL issued by the State. Thus, EPA believes that
FirstEnergy's Bay Shore facility is the only active facility for which
a SIP-approved EVEL is clarified to be not in effect as a result of
today's action, and Denman Tire Corporation will have the only
federally enforceable EVEL (matching the level of the EVEL approved in
1985) at the effective date of this rulemaking.
    Under the process submitted by Ohio, the merits of alternative
opacity limits are evaluated by the State as it contemplates issuance
of a permit or administrative order that would specify applicable
opacity limits. In the case of FirstEnergy's Bay Shore plant, Ohio
issued a preliminary proposed permit on February 19, 2004, that
proposed to subject this facility to general opacity limits (i.e.,
limits that reflect no EVEL). FirstEnergy had the opportunity to
comment at that time on whether an EVEL was warranted at this facility.
Ohio considered comments it received and issued a final permit, again
applying general opacity limits, on November 19, 2004. This case
illustrates the fact that the process requested by Ohio provides
suitable opportunity for comment on the merits of particular opacity
limits at particular facilities during the State process for issuing
opacity limits.
    FirstEnergy evidently had adequate notice of EPA's proposed action,
insofar as a law firm submitted comments on its behalf. FirstEnergy's
Bay Shore facility is the only operating facility with an SIP-approved
EVEL that clearly has no EVEL following today's action. This provides
further evidence that EPA provided adequate notice and opportunity for
comment on the proposed rulemaking.
    Comment: FirstEnergy believes that ``elimination of [EVELs
established through SIP approval] should be subject to the same process
and the same scrutiny as their initial adoption.'' FirstEnergy notes
that the past rulemaking that approved these EVELs provided a review of
the basis and justification for approving these specific EVELs.
FirstEnergy states that ``EPA must, at a minimum, provide an
explanation of the change in facts and/or change in law'' that warrants
changing the SIP by eliminating these EVELs. (FirstEnergy believes that
EPA has found the SIP ``substantially inadequate''; this comment is
addressed separately below.)
    Response: Under OAC 3745-17-07(C), Ohio is to conduct a periodic
review of opacity limits of Ohio sources. The review may suggest that
either an increase or a decrease in opacity limits is warranted; in
either case, due to the adequacy of the process being approved, EPA
believes that the opacity limits that are shown to be warranted
according to the procedures and criteria of OAC 3745-17-07(C) need not
be reviewed by EPA as SIP revisions.
    The periodic review of opacity limits is an important feature of
Ohio's rule. Facilities can achieve varying opacity levels as control
technology improves and as plant conditions change with time. EVELs
often remain in the SIP longer than they are warranted, and Ohio's rule
offers a procedure that facilitates periodic review to assure that
opacity limits remain appropriate for current conditions. Indeed, this
periodic review was an important advantage of OAC 3745-17-07(C)
factoring into EPA's decision to approve this rule.
    FirstEnergy seems to wish that an EVEL that EPA found warranted
under conditions that applied over 20 years ago would be more difficult
to rescind than an EVEL that Ohio might currently establish. In
particular, FirstEnergy wishes for EPA to disallow rescission of EVELs
that have been approved into the SIP unless the rescission undergoes
full SIP review.
    EPA does not agree with FirstEnergy's recommendation. EPA believes
that Ohio's rule is appropriately designed with appropriate procedures
regardless of whether or not an affected facility has a previously SIP-
approved EVEL. Ohio's rule provides for a review based on current
conditions at each facility, with Ohio establishing opacity limits that
are currently appropriate without regard to whether different opacity
limits may have been appropriate in the past. In cases like
FirstEnergy's Bay Shore facility, where Ohio has determined that no
EVEL is currently warranted, EPA believes that this change in opacity
limits should reflect the same process (involving immediate
effectiveness) as applies to any other Ohio EVEL review.
    Comment: FirstEnergy believes that ``EPA must * * * provide an
explanation of [the basis for finding] the current SIP `substantially
inadequate,' pursuant to Section 110(a)(2)(H)(ii) of the Clean Air Act.
EPA must also follow the statutorily prescribed procedures for
correcting substantially inadequate SIPs.''
    Response: This rulemaking reflects no finding of the current SIP to
be ``substantially inadequate.'' Ohio has requested that EPA approve a
rule that would change the process for taking actions on EVELs in Ohio
and that would alter the federally enforceable opacity limits according
to determinations on EVELs that Ohio has made and will make. EPA is
approving this rule.
    Comment: FirstEnergy further objects to EPA's proposal to
discontinue EVELs without explicitly modifying the text in the Code of
Federal Regulations that identifies the EVELs as part of the SIP. A
footnote to this comment identifies FirstEnergy's Bay Shore facility as
having an EVEL that ``would be eliminated upon finalization of the
proposed action but would still be reflected in the Ohio SIP.'' In
FirstEnergy's view, with this approach, the Code of Federal Regulations
``would no longer accurately reflect the contents of the Ohio SIP and
the SIP would be more confusing than ever.'' FirstEnergy concludes that
if ``EPA is to eliminate EVELs as part of this rulemaking, EPA needs to
identify those EVELs in its proposed rulemaking with specificity and,
if the proposal is finalized, EPA needs to modify the text of the CFR
accordingly.''
    Response: Upon review, EPA agrees to honor the commenter's
recommendation that EPA modify the CFR for all EVELs that are currently
in the SIP. To help implement the process being approved today, a
process that provides that a source shall be subject to a federally
enforceable EVEL if and only if Ohio has established a currently
effective EVEL pursuant to OAC 3745-17-07(C), EPA is modifying the text
of the CFR to remove EVELs that are explicitly or implicitly identified
as part of the SIP. As proposed, EPA will rescind from the SIP
paragraphs (c)(62) and (c)(65) of 40 CFR 52.1870, which currently name
the only EVELs explicitly identified in the SIP. EPA will also amend
the language of 40 CFR 52.1870(c)(58) to clarify that the EVELs that
were included in the permit that EPA approved for FirstEnergy's Bay
Shore facility are no longer part of the SIP. EPA believes that the SIP
includes no other EVELs, so no other amendments to existing SIP
language are necessary. At the effective date of this rulemaking, the
Denman Tire Corporation facility will be subject to an EVEL by virtue
of an EVEL being specified in the facility's Title V permit, and no
other facilities will be subject to an EVEL.

III. What Action Is EPA Taking Today?

    EPA is approving OAC 3745-17-07(C) as submitted by Ohio on July 18,
2000. Under the procedures of this rule, a facility shall be subject to
a federally enforceable EVEL if and only if the facility is subject to
an EVEL that Ohio has established pursuant to OAC 3745-17-07(C). To
implement this procedure, and to avoid potential for confusion
regarding previously approved EVELs,

EPA is removing the previously approved EVELs from the SIP. Hereafter,
EPA intends that federally enforceable EVELs will not be codified in
the Code of Federal Regulations as part of the SIP but will instead be
reflected only in the permit or other document that Ohio uses to
establish the EVEL. Therefore, EPA is rescinding paragraphs (c)(62) and
(c)(65) of 40 CFR 52.1870 and is adding language to 40 CFR
52.1870(c)(58) clarifying that the EVEL for FirstEnergy's Bay Shore
facility is no longer part of the SIP. These revisions will help
clarify that the federally enforceable opacity limits for a facility
shall reflect only those EVELs that have been established by Ohio and
are currently in effect in accordance with OAC 3745-17-07(C).

IV. What Statutory and Executive Orders Apply?

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget.

Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant regulatory action,'' this
action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely approves state law as meeting federal
requirements and imposes no additional requirements beyond those
imposed by state law. Accordingly, the Administrator certifies that
this rule will not have a significant economic impact on a substantial
number of small entities under the Regulatory Flexibility Act (5 U.S.C.
601 et seq.).

Unfunded Mandates Reform Act

    Because this rule approves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it 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).

Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments

    This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely approves a state rule implementing a
federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the Clean Air
Act.

Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks

    This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it approves a state rule implementing a
Federal Standard.

National Technology Transfer Advancement Act

    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

    This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).

Congressional Review Act

    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 rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 17, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.

    Dated: August 24, 2007.
Richard C Karl,
Acting Regional Administrator, Region 5.

0
For the reasons stated in the preamble, part 52, chapter I, title 40 of
the Code of Federal Regulations 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 KK--Ohio

0
2. Section 52.1870 is amended as follows:
0
a. By removing and reserving paragraphs (c)(62) and (c)(65).
0
b. By revising paragraphs (c)(58) and (c)(134) to read as follows:

Sec.  52.1870  Identification of plan.

* * * * *

    (c) * * *
    (58) On July 14, 1982, the State submitted revisions to its State
Implementation Plan for TSP and SO2 for Toledo Edison Company's Bay
Shore Station in Lucas County, Ohio, except that the equivalent visible
emission limitations in this submittal are no longer in effect.
* * * * *
    (134) On July 18, 2000, the Ohio Environmental Protection Agency
submitted revised rules for particulate matter. Ohio adopted these
revisions to address State-level appeals by various industry groups of
rules that the State adopted in 1995 that EPA approved in 1996. The
revisions provide reformulated limitations on fugitive emissions from
storage piles and plant roadways, selected revisions to emission limits
in the Cleveland area, provisions for Ohio to follow specified criteria
to issue replicable equivalent visible emission limits, the correction
of limits for stationary combustion engines, and requirements for
continuous emissions monitoring as mandated by 40 CFR part 51, Appendix
P. The State's submittal also included modeling to demonstrate that the
revised Cleveland area emission limits continue to provide for
attainment of the PM10 standards. EPA is disapproving two
paragraphs that would allow revision of limits applicable to Ford Motor
Company's Cleveland Casting Plant through permit revisions without the
full EPA review provided in the Clean Air Act.
    (i) Incorporation by reference.
    (A) The following rules in Ohio Administrative Code Chapter 3745-17
as effective January 31, 1998: Rule OAC 3745-17-01, entitled
Definitions, Rule OAC 3745-17-03, entitled Measurement methods and
procedures, Rule OAC 3745-17-04, entitled Compliance time schedules,
Rule OAC 3745-17-07, entitled Control of visible particulate emissions
from stationary sources, Rule OAC 3745-17-08, entitled Restriction of
emission of fugitive dust, Rule OAC 3745-17-11, entitled Restrictions
on particulate emissions from industrial processes, Rule OAC 3745-17-
13, entitled Additional restrictions on particulate emissions from
specific air contaminant sources in Jefferson county, and OAC 3745-17-
14, entitled Contingency plan requirements for Cuyahoga and Jefferson
counties.
    (B) Rule OAC 3745-17-12, entitled Additional restrictions on
particulate emissions from specific air contaminant sources in Cuyahoga
county, as effective on January 31, 1998, except for paragraphs (I)(50)
and (I)(51).
    (C) Engineering Guide 13, as revised by Ohio EPA, Division
of Air Pollution Control, on June 20, 1997.
    (D) Engineering Guide 15, as revised by Ohio EPA, Division
of Air Pollution Control, on June 20, 1997.
    (ii) Additional material.
    (A) Letter from Robert Hodanbosi, Chief of Ohio EPA's Division of
Air Pollution Control, to EPA, dated February 12, 2003.
    (B) Telefax from Tom Kalman, Ohio EPA, to EPA, dated January 7,
2004, providing supplemental documentation of emissions estimates for
Ford's Cleveland Casting Plant.
    (C) Memorandum from Tom Kalman, Ohio EPA to EPA, dated February 1,
2005, providing further supplemental documentation of emission
estimates.
    (D) E-mail from Bill Spires, Ohio EPA to EPA, dated April 21, 2005,
providing further modeling analyses.
* * * * *
 [FR Doc. E7-20253 Filed 10-15-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: April 3, 2007 (Volume 72, Number 63)]
[Notices]
[Page 15874]
[DOCID:fr03ap07-48]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP07-361-000]

El Paso Natural Gas Company; Notice of Tariff Filing and Firm
Transportation Service Agreements

March 28, 2007.
    Take notice that on March 26, 2007, El Paso Natural Gas Company (El
Paso) tendered for filing as part of its FERC Gas Tariff, Second
Revised Volume No. 1A, Fifteenth Revised Sheet No. 2 to become
effective April 26, 2007.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible online at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Philis J. Posey,
Acting Secretary.
[FR Doc. E7-6105 Filed 4-2-07; 8:45 am]

BILLING CODE 6717-01-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

                         Issued by the Department of Transportation on
December 27, 2005

             NOTICE OF ACTION TAKEN -- DOCKET OST-97-2183

________________________________________________________________________
____________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Application of      Amerijet International, Inc.        filed
11/23/04   to:

XX  Renew for two years exemption under 49 U.S.C. 40109 to provide the
following service:

Scheduled foreign air transportation of property and mail between Miami
and Ft. Lauderdale, Florida, on the one hand, and the Turks and Caicos
Islands, on the other.

Applicant rep:    John L. Richardson<PHONE_NUMBER>      DOT Analyst:
Sylvia Moore<PHONE_NUMBER>

D I S P O S I T I O N

XX  Granted

The above action was effective when taken:   December 27, 2004  through
  December 27, 2006

Action taken by:   Paul L. Gretch, Director

		    Office of International Aviation

XX  The authority granted is consistent with the aviation agreement
between the United States and the United Kingdom.

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:  XX  Holder’s
Certificates of Public Convenience and Necessity

	   XX  Standard Exemption Conditions (attached)

________________________________________________________________________
______________

On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found the applicant qualified to provide
the services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) grant of the exemption was consistent with the public
interest; and (3) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.
To the extent not granted, we denied all requests in the referenced
Docket.  We may amend, modify, or revoke the authority granted in this
Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp"
http://dms.dot.gov//reports/reports_aviation.asp

U.S. Carrier Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier
applicant(s) shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

(5)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR 203, concerning
waiver of Warsaw Convention liability limits and defenses;

(6)  Comply with all applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security, including, but not limited to, 49 CFR Part 1544.
To assure compliance with all applicable U.S. Government requirements
concerning security, the holder shall, before commencing any new service
(including charter flights) to or from a foreign airport, contact its
International Principal Security Inspector (IPSI) to advise the IPSI of
its plans and to find out whether the Transportation Security
Administration has determined that security is adequate to allow such
airport(s) to be served; and

(7)  Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department of Transportation, with all applicable orders and regulations
of other U.S. agencies and courts, and with all applicable laws of the
United States.

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

								05/2004


AGENDA

FIFRA SCIENTIFIC ADVISORY PANEL (SAP)

	OPEN MEETING

October 28 – 31, 2008

FIFRA SAP WEB SITE http://www.epa.gov/scipoly/sap/

OPP Docket Telephone:<PHONE_NUMBER>

Docket Number: EPA-HQ- OPP-2008-0550

U.S. Environmental Protection Agency

Conference Center - Lobby Level

One Potomac Yard (South Bldg.)

2777 S. Crystal Drive, Arlington, VA 22202

Selected Issues Associated with the Risk Assessment Process for
Pesticides with Persistent, Bioaccumulative and Toxic Characteristics

Please note that all times are approximate

(See note at the end of the Agenda)

Tuesday, October 28, 2008

8:30 A.M.	Opening of Meeting and Administrative Procedures by Designated
Federal Official – Myrta Christian, M.S., Designated Federal Official,
Office of Science Coordination and Policy, EPA

8:35 A.M.	Introduction and Identification of Panel Members - Steven G.
Heeringa, Ph.D., FIFRA Scientific Advisory Panel Chair

8:45 A.M.	Welcome – Frank Sanders, Director, Office of Science
Coordination and Policy, EPA

8:50 A.M.	Welcome and Opening Remarks – Steven Bradbury, Ph.D.,
Division Director, Special Review and Reregistration Division, Office of
Pesticide Programs, EPA

9:00 A.M.	Goals and Objectives – Donald Brady, Ph.D., Division
Director, Environmental Fate and Effects Division, Office of Pesticide
Programs, EPA

9:15 A.M	Background and Overview:  Issues Associated with Assessing
Ecological Risks of Pesticides with Persistence, Bioaccumulation, and
Toxic Characteristics - Keith Sappington, M.S., Environmental Fate and
Effects Division, Office of Pesticide Programs, EPA

9:45 A.M.	Background and Overview:  Aquatic Ecological Exposure
Assessments:  Rapid Overview of Current Methods - Ronald Parker, Ph.D.,
Environmental Fate and Effects Division, Office of Pesticide Programs,
EPA

10:15 A.M.	Break

10:30 A.M.	Environmental Persistence Issues – Mohammed Ruhman, Ph.D.,

		Environmental Fate and Effects Division, Office of Pesticide Programs,
			EPA

11:15 A.M.	Introduction - Donald Brady, Ph.D., Division Director,
Environmental Fate and Effects Division, Office of Pesticide Programs,
EPA

11:30 A.M.	Current EFED Methods of Modeling Soil and Sediment Dynamics
– Ronald Parker, Ph.D., Environmental Fate and Effects Division,
Office of Pesticide Programs, EPA

12:15 P.M.	Lunch

1:15 P.M.	Overview of the AGRO Model for Pesticides - Donald Mackay,
Ph.D., 			Canadian Environmental Modeling Centre, Trent University

2:00 P.M.	Application of Environmental Fate and Food Web Bioaccumulation
			Models for Assessing Ecological Risks of PBT-type Pesticides -
Frank Gobas, Ph.D., School of Resource and Environmental 				Management,
Simon Fraser University

2:45 P.M.	Sediment Transport Processes in Pesticide Models – Robert B.
			Ambrose, Jr., P.E., Ecosystems Research Division, National Exposure
	Research Laboratory, Office of Research and Development, EPA

3:30 P.M.	Break

3:45 P.M.	Conclusions:  Simulating Sediment Dynamics for Pesticide
Aquatic Ecological Exposure Assessments - Ronald Parker, Ph.D.,
Environmental Fate and Effects Division, Office of Pesticide Programs,
EPA

4:15 P.M.	Assessing Pesticide Bioaccumulation in Aquatic Food Webs -
Keith 			Sappington, M.S., Environmental Fate and Effects Division,
Office of 			Pesticide Programs, EPA

5:15 P.M.	Adjourn

AGENDA

FIFRA SCIENTIFIC ADVISORY PANEL (SAP)

	OPEN MEETING

October 28 - 31, 2008

FIFRA SAP WEB SITE http://www.epa.gov/scipoly/sap/

OPP Docket Telephone:<PHONE_NUMBER>

Docket Number: EPA-HQ- OPP-2008-0550

U.S. Environmental Protection Agency

Conference Center - Lobby Level

One Potomac Yard (South Bldg.)

2777 S. Crystal Drive, Arlington, VA 22202

Selected Issues Associated with the Risk Assessment Process for
Pesticides with Persistent, Bioaccumulative and Toxic Characteristics

Wednesday, October 29, 2008

8:30 A.M.	Opening of Meeting - Administrative Procedures by Designated
Federal Official - Myrta Christian, M.S., Designated Federal Official,
Office of Science Coordination and Policy, EPA

8:35 A.M.	Introduction and Identification of Panel Members -

		Steven G. Heeringa, Ph.D., FIFRA Scientific Advisory Panel Chair

8:50 A.M.	Assessing Terrestrial Bioaccumulation - Kristina Garber, M.S.,
				Environmental Fate and Effects Division, Office of Pesticide
Programs, 			EPA

9:30 A.M.	Assessing Long-range Transport – Faruque Khan, Ph.D.,
Environmental Fate and Effects Division, Office of Pesticide Programs,
	EPA

10:15 A.M.	Break

10:30 A.M.	Evaluating Aquatic Toxicity of Persistent, Bioaccumulative
	Pesticides - Brian Anderson, M.E.M., Environmental Fate and Effects
Division, Office of Pesticide Programs, EPA

11:15 A.M. 	Conclusions and Path Forward – Keith Sappington, M.S.,
Environmental Fate and Effects Division, Office of Pesticide Programs,
EPA

12:00 P.M.	Lunch

1:00 P.M.	Public Comment

3:30 P.M.	Break

3:45 P.M.	Charge to Panel – Question 1

Assessing Environmental Persistence

1.	Assessing Exposure to Parent and Degradation Products.   When
assessing the potential ecological risks of proposed pesticide uses, the
Agency is charged with considering both the parent compound and any
degradation products of concern.  In several of the case studies
presented in this White Paper, the Agency has illustrated three
approaches for assessing the PBT characteristics and exposure to parent
and degradation products. When parent and degradates are considered
sufficiently similar in their environmental fate and toxicological
properties or when these properties were unknown for the degradates, the
Agency has used the Total Residue (TR) method (i.e., the Agency modeled
the combined parent and degradate using a common set of environmental
fate and toxicological data). In situations where the environmental fate
and toxicological properties of the parent and degradate are available
and considered sufficiently dissimilar, the Agency has modeled the
environmental fate separately using the Residue Summation (RS) or
Formation/Degradation kinetics (FD) methods (i.e., modeling individual
residues from the parent and degradation products).

Please comment on the Agency’s characterization of the strengths and
limitations of these methods and the conditions under which each method
should be applied.

To what extent does the Agency’s use of the total residue (TR) and
individual residue methods (RS, FD) reflect the current state of the
science for assessing exposure to combined parent and degradate
compounds?

Please identify any methods the SAP would recommend for addressing
combined exposure to parent and degradate compounds based on the data
typically available for pesticide ecological risk assessments as
described in this White Paper.

4:45 P.M.	Charge to Panel – Question 2

2.   Interpretation of Aquatic Degradation Rates for Persistent
Pesticides with High Sediment Sorption Coefficients.   The environmental
fate of persistent pesticides with high sediment sorption coefficients
is often influenced by dissipation processes (e.g., sorption on
sediment) rather than degradation processes (e.g., hydrolysis,
metabolism, photolysis).  In aquatic metabolism studies, the sorption
process can be a most important process in removing pesticide from the
water column.  This removal process, however, is not considered as a
degradation pathway because the pesticide is simply transferred from the
water column to the sediment.  Therefore, the total system half-life of
the pesticide in aquatic metabolism studies is used to represent the
most accurate degradation rate in aquatic environments.

Considering the environmental fate data typically available to support
pesticide registration decisions, please comment on the strengths and
limitations of the Agency’s approach of using total system half-life
for assessing pesticide persistence in aquatic metabolism studies.

6:00 P.M.	Adjournment

 AGENDA

FIFRA SCIENTIFIC ADVISORY PANEL (SAP)

	OPEN MEETING

October 28 - 31, 2008

FIFRA SAP WEB SITE http://www.epa.gov/scipoly/sap/

OPP Docket Telephone:<PHONE_NUMBER>

Docket Number: EPA-HQ- OPP-2008-0550

U.S. Environmental Protection Agency

Conference Center - Lobby Level

One Potomac Yard (South Bldg.)

2777 S. Crystal Drive, Arlington, VA 22202

Selected Issues Associated with the Risk Assessment Process for
Pesticides with Persistent, Bioaccumulative and Toxic Characteristics

Thursday, October 30, 2008

8:30 A.M.	Opening of Meeting - Administrative Procedures by Designated
Federal Official - Myrta Christian, M.S., Designated Federal Official,
Office of Science Coordination and Policy, EPA

8:35 A.M.	Introduction and Identification of Panel Members -

		Steven G. Heeringa, Ph.D., FIFRA Scientific Advisory Panel Chair

8:50 A.M.	Follow-up from Previous Day’s Discussion – Donald Brady,
Ph.D., Division Director, Environmental Fate and Effects Division,
Office of Pesticide Programs, EPA

9:15 A.M.	Charge to Panel – Question 3

3.  	Sediment Dynamics.  As part of its baseline ecological risk
assessment process, OPP uses environmental fate and transport computer
models to generate estimated environmental concentrations (EECs) of a
pesticide in surface water, pore water and sediment. The EECs are
generated using the EXAMS model parameterized to represent a static farm
pond receiving pesticide mass in runoff from a treated agricultural
field simulated by PRZM. It is assumed by OPP that EECs generated from
this scenario are conservative representations of expected pesticide
concentrations not only in this farm pond but also in small first and
second order streams that receive runoff-containing pesticide residues
from many fields.  Currently, the OPP modeling approach accounts for
movement of pesticide mass between the water column and benthic region
using a set of “lumped” parameters (PRBEN) and a mass transfer
coefficient.  These parameters are intended to implicitly account for
pesticide mass transfer due to processes such as diffusion, settling,
resuspension and other processes that tend to mix the sediment layer
with the water column. The current OPP modeling approach does not
include inflow of sediment to the water body which could lead to burial
of sediment containing pesticide through deposition.

Please comment on the strengths and limitations of OPP’s current
approach for modeling pesticide transport between the water column and
benthic region which relies on the use of lumped parameters to represent
multiple transport mechanisms (e.g., diffusion, settling, resuspension)
in static ponds.

In the context of screening-level and refined assessments, please
comment on the strengths and limitations of simulating pesticide burial
by sediment in static ponds as a process that renders pesticide
permanently unavailable for biological interaction (i.e., not
bioavailable).

Please comment on the strengths and limitations of models described in
the White Paper with respect to modeling pesticide transport via
sediment dynamics.  Which processes associated with sediment-based
pesticide transport (e.g., sediment enrichment, settling, re-suspension,
burial, bioperturbation, pore water diffusion, scour, bank erosion)
would be most important to consider in static ponds?  Which processes
would be most important in flowing water systems?

10:30 A.M.	Break

10:45 A.M.	Charge to Panel - Question 4

Assessing Bioaccumulation Potential

4.	Aquatic Bioaccumulation Methods. Traditionally, OPP’s assessment of
pesticide bioaccumulation potential in aquatic organisms has relied
extensively on the use of bioconcentration factors (BCFs).  BCFs
consider direct chemical uptake through aqueous exposure routes only.
For organic chemicals with PBT characteristics, bioaccumulation from
non-aqueous exposure routes (e.g., diet and sediment) can be
substantial.  For these chemicals, risk assessments in other Agency
programs (e.g., Office of Water ambient water quality criteria,
Superfund site risk assessments, Office of Research and Development
ecological risk assessments) have used a combination of laboratory-,
field- and model-based methods for incorporating bioaccumulation via
multiple exposure routes. In the pesticides program, a similar
integrative approach is being considered for assessing the
bioaccumulation potential of organic pesticides with PBT
characteristics. This approach considers the type and quantity of data
typically available for pesticide ecological risk assessments, relative
strengths and limitations of each bioaccumulation assessment method, and
uncertainty associated with bioaccumulation predictions using each
method.

Please comment on the need to consider alternatives to the BCF method
for assessing the bioaccumulation potential of organic pesticides with
PBT characteristics.

Please comment on the applicability of the Agency’s approach of using
multiple methods (including laboratory-, field- and model-based methods)
for assessing bioaccumulation potential of organic pesticides as
illustrated in the White Paper.

12:00 P.M.	Lunch

1:00 P.M.	Charge to Panel – Question 5

5.	Terrestrial Bioaccumulation in Terrestrial Food Webs.  The Agency
currently assesses risks to terrestrial vertebrates that result from
direct deposition of pesticides on food items that inhabit the treatment
area.  In general, this assessment is considered to provide relatively
“high end” estimates of acute exposure through the ingestion
pathway. At this time, however, the Agency does not routinely assess
pesticide bioaccumulation in terrestrial food webs in non-target sites,
in part, because the methods and tools for assessing bioaccumulation in
terrestrial food webs are not as developed compared to those for aquatic
food webs.

Please comment on factors (e.g., physico-chemical properties) the Agency
can consider to identify when bioaccumulation potential in terrestrial
food webs may be important to consider in its pesticide ecological risk
assessments?

Please comment on the current state of the science underlying existing
terrestrial food web bioaccumulation models and their relative strengths
and limitations.

2:00 P.M.	Charge to Panel – Question 6

Assessing Toxicity

6.	Incorporating Multiple Exposure Routes.  For a number of organic
chemicals with PBT profiles, aquatic organism exposure via non-aqueous
routes (diet, sediment) can be important relative to direct exposure
from water.  Most standard aquatic toxicity test studies submitted to
the Agency for pesticide registration do not incorporate realistic
chemical exposure through the diet (e.g., water only exposures).
Therefore, toxicity reference values (TRVs) from these studies may
underestimate actual environmental effects. To address this concern,
other Programs within the Agency have proposed using a tissue residue
approach (TRA) for quantifying chemical toxicity (e.g., Office of Water,
Office of Research and Development).  For quantifying toxicity of
organic pesticides with PBT characteristics, the Agency is also
considering the use of the TRA.

Please comment on the strengths and limitations of the tissue residue
approach for addressing pesticide toxicity from multiple exposure routes
and other methods the SAP deems appropriate.

In the context of the tissue residue approach, please comment on the
strengths and limitations of using measured and predicted tissue
residue-effect relationships that are derived from water-only exposures
in laboratory toxicity tests.

3:00 P.M.	Break

3:15 P.M.	Charge to Panel – Question 7

Assessing Long-Range Transport

7.	Screening for Long-Range Transport Potential.  For some pesticides
with PBT characteristics, long-range transport (i.e., transcontinental
and intercontinental transport) has been well documented.  Currently,
OPP’s ecological risk assessment process relies heavily on monitoring
data for assessing long-range transport concerns.  However, this process
does not a priori screen for long-range transport potential prior to
pesticide release in the environment.  Difficulties in linking local use
patterns of pesticides to far-field (e.g., intercontinental) deposition
and exposure in a modeling framework is considered a major challenge in
screening and assessing long-range transport potential.

Please comment on the strengths and limitations of available tools for
screening the long-range transport potential of pesticides (e.g., the
OECD screening tool for long-range transport).

4:15 P.M.	Charge to Panel – Question 8

Cross-Cutting Questions

8. 	PBT Risk Assessment Issues:  In this White Paper, the Agency
describes a number of issues associated it has encountered when
assessing persistence, bioaccumulation, toxicity and long-range
transport in its aquatic and terrestrial ecological risk assessments
involving pesticides with PBT profiles.  In addition, the Agency has
identified various methods and approaches that it is considering for
refining its ecological risk assessment process specifically to address
these PBT and LRT-related issues.  Please comment on:

The extent to which the Agency has identified and characterized the
unique or problematic issues associated with assessing ecological risks
of pesticides with PBT characteristics,

The need for the Agency to incorporate refinements in the tools and
methods it uses to assess ecological risks of these compounds

5:30 P.M.	Adjournment

AGENDA

FIFRA SCIENTIFIC ADVISORY PANEL (SAP)

	OPEN MEETING

October 28 - 31, 2008

FIFRA SAP WEB SITE http://www.epa.gov/scipoly/sap/

OPP Docket Telephone:<PHONE_NUMBER>

Docket Number: EPA-HQ- OPP-2008-0550

U.S. Environmental Protection Agency

Conference Center - Lobby Level

One Potomac Yard (South Bldg.)

2777 S. Crystal Drive, Arlington, VA 22202

Selected Issues Associated with the Risk Assessment Process for
Pesticides with Persistent, Bioaccumulative and Toxic Characteristics

Please note that all times are approximate (see note at end of Agenda).

Friday, October 31, 2008

8:30 A.M.	Opening of Meeting - Administrative Procedures by Designated
Federal Official - Myrta Christian, M.S., Designated Federal Official,
Office of Science Coordination and Policy, EPA

8:35 A.M.	Introduction and Identification of Panel Members -

		Steven G. Heeringa, Ph.D., FIFRA Scientific Advisory Panel Chair

8:50 A.M. 	Follow-up from Previous Day’s Discussion – Donald Brady,
Ph.D., 			Division Director, Environmental Fate and Effects Division,
Office of 			Pesticide Programs, EPA

9:15 A.M.	Charge to Panel – Question 9

9. 	Example Pesticide Assessments. In this White Paper, the Agency
provides examples of how it has assessed the environmental persistence,
bioaccumulation, toxicity and long-range transport of several
unidentified pesticides using refinements to its ecological risk
assessment methods.  Given the data available, as illustrated in the
pesticide examples provided in the White Paper, please comment on:

Whether the Agency has used these data appropriately to the fullest
extent possible in assessing ecological risks of pesticides with PBT
characteristics

Methods it has used to characterize environmental persistence,
bioaccumulation, toxicity and long-range transport potential of the
example pesticides.

10:15 A.M.	Break

10:30 A.M.	Charge to Panel - Question 10

Future PBT-Related Refinements

10.	The Agency is considering refinements to its problem formulation
process to improve the ecological risk assessment of pesticides with PBT
characteristics, as outlined in Chapter 8 of the White Paper.   In
particular, please comment on:

The Agency’s proposed process for identifying (screening) pesticides
for potential PBT risk assessment issues that need to be addressed

The priority for developing new models, methods, and information for
addressing PBT issues.

11:30 A.M.	Adjournment

Please be advised that agenda times are approximate; when the discussion
for one topic is completed, discussions for the next topic will begin.
For further information, please contact the Designated Federal Official
for this meeting, Myrta R. Christian, M.S., via telephone: (202)
564-8498; fax:<PHONE_NUMBER>; or email<EMAIL_ADDRESS>
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