[Federal Register: November 12, 2009 (Volume 74, Number 217)]
[Notices]
[Page 58358-58360]
[DOCID:fr12no09-123]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60934; File No. SR-BX-2009-071]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Amending the
Fee Schedule of the Boston Options Exchange Facility

November 4, 2009.
    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 October 30, 2009, NASDAQ OMX BX, Inc. (the ``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I, II, and III below, which Items
have been prepared by the Exchange. The Exchange filed the proposed
rule change pursuant to Section 19(b)(3)(A)(ii) of the Act \3\ and Rule
19b-4(f)(2) thereunder,\4\ which renders the proposal effective upon
filing with the Commission. 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)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the Fee Schedule of the Boston
Options Exchange Group, LLC (``BOX''). The text of the proposed rule
change is available from the principal office of the Exchange, at the
Commission's Public Reference Room and also on the Exchange's Internet
Web site at http://nasdaqomxbx.cchwallstreet.com/NASDAQOMXBX/Filings/.

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 self-regulatory organization
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 self-regulatory organization
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
    Section 7 of the BOX Fee Schedule currently applies to all classes
listed for trading on BOX that are not included in the Penny Pilot
Program, as referenced in Chapter V, Section 33 of the BOX Rules
(``Non-Penny Pilot Classes''). The Exchange proposes to amend Section 7
to make the following changes.\5\
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    \5\ Changes to other sections of the Fee Schedule other than
Section 7 are required for conformity purposes.
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Extend Section 7 Fees and Credits to Penny Pilot Classes
    The Exchange proposes to extend the applicability of Section 7 of
the Fee Schedule to also include Penny Pilot Classes.\6\ The Exchange
proposes that the applicability of this pricing will apply to Penny
Pilot Classes and Non-Penny Pilot Classes alike, whereby transactions
that remove liquidity from the BOX Book will receive a `removal' credit
and transactions that add liquidity will be charged an `add' fee.
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    \6\ Except for transactions within the PIP, as discussed below,
SPY, QQQQ and IWM will remain subject only to `standard' fees.
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    However, the Exchange proposes that the level of credits and fees
differ for Penny Pilot Classes as compared to Non-Penny Pilot Classes.
Specifically, the Exchange proposes that both the fees and credits for
Penny Pilot Classes be $0.20, in addition to the `standard' fees.\7\
The proposed lower fees and credits for Penny Pilot Classes, as
compared to Non-Penny Pilot Classes, is based on the

narrower spreads exhibited in Penny Pilot Classes.
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    \7\ The next 300 most actively traded classes, as per Options
Clearing Corporation volume data, will be added to the Penny Pilot
Program. See Securities Exchange Act Release No. 60886 (October 27,
2009) (SR-BX-2009-067). The first tranche of 75 classes will be
eligible for quoting and trading in $0.01 increments on November 2,
2009.
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    For example, a Public Customer Order in a Penny Pilot Class is
entered into the BOX Trading Host and executes against a Broker
Dealer's order resting on the BOX Book. The Public Customer is the
remover of liquidity and the Broker Dealer is the adder of liquidity.
The Public Customer will receive a $0.20 `removal' credit and the
Broker Dealer will be charged a $0.20 `add' fee. The Public Customer
will receive a $0.20 total credit (free `standard' charge plus the
$0.20 `removal' credit) and the Broker Dealer will be charged $0.40
total (the $0.20 `add' fee for adding liquidity in addition to the
`standard' $0.20 transaction fee).
Change the Title of Section 7 of the Fee Schedule
    The Exchange also proposes that the name of the pricing structure
of Section 7 of the BOX Fee Schedule be changed to `Liquidity Fees and
Credits', as the name `Non-Penny Pilot Class Pricing Structure' will no
longer be appropriate once the inclusion of Penny Pilot Classes is
implemented.\8\
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    \8\ The remainder of this proposal will refer to Section 7 of
the Fee Schedule in generic terms rather than with the current Non-
Penny Pilot Class Pricing Structure moniker.
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Increase Credits and Fees for Non-Penny Pilot Classes
    The Exchange also proposes to increase both the credits and fees
for Non-Penny Pilot Classes from $0.30 to $0.75 within Section 7 of the
Fee Schedule. These credits and fees apply equally to all account
types, whether Public Customer, Firm or Market Maker and are in
addition to any applicable `standard' trading fees and/or volume
discounts, as described in Sections 1 through 4 of the BOX Fee
Schedule.
    For example, a Public Customer Order in a Non-Penny Pilot Class is
entered into the BOX Trading Host and executes against a Broker
Dealer's order resting on the BOX Book. The Public Customer is the
remover of liquidity and the Broker Dealer is the adder of liquidity.
The Public Customer will receive a $0.75 `removal' credit and the
Broker Dealer will be charged a $0.75 `add' fee. The Public Customer
will receive a $0.75 total credit (free `standard' charge plus the
$0.75 `removal' credit) and the Broker Dealer will be charged $0.95
total (the $0.75 fee for adding liquidity in addition to the standard
$0.20 transaction fee).
The Price Improvement Period (``PIP'')
    Additionally, the Exchange proposes to make transactions within the
PIP subject to Section 7, as described in new subsection 7(d) of the
Fee Schedule.\9\ Currently, transactions on both sides of a PIP are
exempt from Section 7 and are charged `standard' execution fees
according to Sections 1 through 3 of the Fee Schedule. The Exchange
proposes that the Section 7(d) fees and credits will be $0.20 for both
Penny Pilot and Non-Penny Pilot Classes traded within the PIP.
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    \9\ This will be applicable for all classes trading on BOX,
including transactions in the PIP in SPY, QQQQ and IWM.
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    For example, a BOX Participant submits a Public Customer Order
(``Initiating Participant'') in a Non-Penny Pilot Class into the BOX
PIP (``PIP Order'') with a matching contra order (``Primary Improvement
Order'') for the full size with a price at least equal to the National
Best Bid or Offer (``NBBO''). The PIP runs for the specified duration
period, currently one (1) second, and the Public Customer's PIP Order,
which must be filled, executes against the Initiating Participant's
Primary Improvement Order. The Public Customer will be charged the
`standard' transaction fee for orders submitted into the PIP and
receive the `removal' credit ($0.20).\10\ The Initiating Participant
will be charged the `add' fee ($0.20) in addition to its `standard'
transaction fee ($0.20) for orders submitted in the PIP, resulting in a
total fee of $0.40.
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    \10\ The PIP Order will always be treated as the remover of
liquidity.
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    Alternatively, a Public Customer's PIP Order in a Penny Pilot Class
executes in the PIP against a competing improvement order
(``Improvement Order'') in the PIP from a BOX Participant other than
the Initiating Participant. The Public Customer will be charged the
`standard' transaction fee for orders submitted into the PIP and
receive the `removal' credit ($0.20) and the Participant whose
Improvement Order executed against the Public Customer's PIP Order will
be charged the `standard' execution fee of $0.20 in addition to the fee
for adding liquidity of $0.20, resulting in a total fee of $0.40.
    The changes proposed herein are in response to various `Payment for
Order Flow' programs currently in operation on other options exchanges.
The Exchange believes that the proposed fees are competitive, fair and
reasonable, and non-discriminatory in that they apply equally to all
BOX Participants.
    The Exchange further proposes to implement a volume discount for
the fees charged to Initiating Participants. The volume discount will
only apply to executions in PIP auctions initiated by the particular
Initiating Participant which occur at a price at least better than the
NBBO.\11\ A threshold average daily volume (``ADV'') of 50,000
contracts per month is proposed for all such executions. Any executions
of the Initiating Participant above this threshold will receive a $0.05
discount.
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    \11\ For purpose of this volume discount NBBO shall be
determined at the time the PIP is initiated.
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    For Example, suppose that at the end of a calendar month a BOX
Participant's executions in PIP auctions which it initiated and which
were filled at a price better than the NBBO totaled 2.5 million
contracts. For a month with 20 trading days this would average 125,000
such contracts per trading day. For these daily executions the
Initiating Participant will be billed $0.20 per contract ($25,000) in
`standard' execution fees in addition to $0.20 per contract ($25,000)
in Section 7 `add' fees. The 75,000 contracts over the 50,000 ADV
threshold will be discounted by $0.05 per contract ($3,750 volume
discount). The net daily transaction cost for the Initiating
Participant is the initial $25,000 `standard' transaction fee plus the
$25,000 in Section 7 `add' fees less the $3,750 volume discount for a
grand total of $46,250.
    The Exchange believes that providing a volume discount to the
Initiating Participant's fees is appropriate to incent BOX Participants
to submit their Public Customer Orders into the PIP for the possibility
of price improvement. Furthermore, such a discount is necessary to
limit the exposure that Initiating Participants will have removal fees,
because as Initiating Participants they will be adders of liquidity
should the Primary Improvement Order execute against the PIP Order.
    The Exchange believes that the proposed pricing changes are
equitable in that they apply uniformly to all similarly situated
Participants, specifically, Participants seeking price improvement for
their customer order flow. The pricing changes are also consistent with
industry precedent that allows for different prices to be charged for
different orders types originated by dissimilarly classified market
participants. The other options exchanges currently apply different
rates to firms facilitating their own customer order flow as opposed to
orders of other market participants.\12\

The degree of difference between the rates charged for different order
types is the result of competitive forces in the marketplace and
reflects certain competitive differences amongst market participants.
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    \12\ See Securities Exchange Act Release No. 60379 (July 23,
2009), 74 FR 38244 (July 31, 2009) (SR-NYSEArca-2009-62). See also
Securities Exchange Act Release No. 60378 (July 23, 2009), 74 FR
38245 (July 31, 2009) (SR-NYSEAmex-2009-38). See also Securities
Exchange Act Release No. 60477 (August 11, 2009), 74 FR 41777
(August 18, 2009) (SR-Phlx-2009-67).
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    For example, under the current fee schedule of the NYSE Arca
(``NYSE Arca'') a firm facilitation trade is charged $0.00\13\ while
manual broker dealer executions are charged $0.25 and market maker non-
directed orders are charged $0.16. BOX believes that these differences
exist, in part, because customers have historically been at a
competitive disadvantage in the options markets as compared to firms
actively engaged in the market, thus firms are appropriately
incentivized to facilitate customer order flow.\14\
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    \13\ The NYSEArca firm facilitation fee applies to any
transaction involving a firm proprietary trading account that has a
customer of that same firm on the contra side of the transaction.
    \14\ See also supra note 12.
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    The Exchange believes that making executions within the PIP auction
subject to Section 7 fees and credits as well as instituting the
proposed volume discount follows existing precedent for rate
differentials and further encourages BOX Participants to provide their
customers' orders with the opportunity for price improvement, thereby
assisting customers in their attempt to transact in the options markets
at the best price and lower cost.
    Finally, the Exchange proposes to make additional changes to
Section 4 and Section 7 of the BOX Fee Schedule in order to eliminate
all references to outbound P and P/A Orders. Effective November 1, 2009
BOX will no longer be sending outbound P and P/A Orders so references
to these orders is no longer necessary.
    The proposed rule change shall be implemented on November 2, 2009.
2. Statutory Basis
    The Exchange believes that the proposal is consistent with the
requirements of Section 6(b) of the Act,\15\ in general, and Section
6(b)(5) of the Act,\16\ in particular, in that it is not designed to
permit unfair discrimination, as well as Section 6(b) of the Act,\17\
in general, and Section 6(b)(4) of the Act,\18\ in particular, in that
it provides for the equitable allocation of reasonable dues, fees, and
other charges among its members and issuers and other persons using its
facilities. In particular, the proposed change will allow the fees
charged on BOX to remain competitive with other exchanges and treats
similarly situated Participants uniformly.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(5).
    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(4).
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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 not necessary or appropriate in
furtherance of the purposes of the Act.

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

    The Exchange has 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)(ii) of the Exchange Act \19\ and Rule 19b-4(f)(2)
thereunder,\20\ because it establishes or changes a due, fee, or other
charge applicable only to a member.
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    \19\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \20\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate the rule change if it
appears to the Commission that the action is necessary or appropriate
in the public interest, for the protection of investors, or would
otherwise further the purposes of the Act.

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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-BX-2009-071 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2009-071. This file
number should be included on the subject line if e-mail 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 Web site (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 inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing will also be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. SR-BX-2009-071 and should be
submitted on or before December 3, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
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    \21\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-27090 Filed 11-10-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: October 28, 2010 (Volume 75, Number 208)]
[Notices]
[Page 66421-66422]
[DOCID:fr28oc10-84]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Reports, Forms and Recordkeeping Requirements; Agency Information
Collection Activity Under OMB Review

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Notice.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), this notice announces that the Information
Collection Request (ICR) abstracted below has been forwarded to the
Office of Management and Budget (OMB) for review and comment. The ICR
describes the nature of the information collections and their expected
burden. The Federal Register Notice with a 60-day comment period was
published on July 16, 2010 (75 FR 41565).

DATES: Comments must be submitted on or before November 29, 2010.

FOR FURTHER INFORMATION CONTACT: Coleman Sachs, Office of Vehicle
Safety Compliance (NVS-223), National Highway Traffic Safety
Administration, West Building--4th Floor--Room W43-481, 1200 New Jersey
Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

National Highway Traffic Safety Administration

    Title: Importation of Vehicles and Equipment Subject to the Federal
Motor Vehicle Safety, Bumper, and Theft Prevention Standards.
    OMB Number: 2127-0002.
    Type of Request: Extension of a Currently Approved Collection.
    Abstract: The National Highway Traffic Safety Administration
(NHTSA) has requested OMB to extend that agency's approval of the
information collection that is incident to NHTSA's administration of
the regulations at 49 CFR parts 591, 592, and 593 that govern the
importation of motor vehicles and motor vehicle equipment. The
information collection includes declarations that are filed (on the HS-
7 Declaration form) with U.S. Customs and Border Protection (CBP) upon
the importation of motor vehicles or motor vehicle equipment that is
subject to the Federal motor vehicle safety, bumper, and theft
prevention standards administered by NHTSA. The information collection
also includes the Department of Transportation (DOT) conformance bond
that is furnished to CBP (on form HS-474) for each motor vehicle
offered for importation that does not conform to all applicable Federal
motor vehicle safety standards (FMVSS). The bond ensures that such
vehicles are brought into conformity with those standards within 120
days from the date of entry or are exported from, or abandoned to, the
United States. The information collection also includes paperwork that
must be submitted to NHTSA and in some instances retained by registered
importers (RIs) of motor vehicles that were not originally manufactured
to comply with all applicable FMVSS. These items include information
that a person or business entity must submit to NHTSA to be registered
as an RI and to retain that status. The paperwork also includes the
statement of conformity that an RI must submit to NHTSA following the
completion of conformance modifications on an imported nonconforming
vehicle to obtain release of the DOT conformance bond furnished for the
vehicle at the time of entry. Also included is the petition that an RI
or manufacturer may submit to NHTSA for the agency to decide that a
vehicle that was not originally manufactured to comply with all
applicable FMVSS is capable of being modified to conform to those
standards and is therefore eligible for importation under 49 U.S.C.
30141. The information collection also includes applications that are
filed with NHTSA for permission to import nonconforming vehicles for
purposes of research, investigations, demonstrations, training,
competitive racing events, and show or display, as well as applications
requesting the agency to recognize vehicles manufactured for racing
purposes as being qualified to be imported as vehicles that were not
primarily manufactured for use on public roads, precluding the need for
those vehicles to comply with the FMVSS. This information collection is
necessary to ensure that motor vehicles and motor vehicle equipment
subject to the Federal motor vehicle safety, bumper, and theft
prevention standards are lawfully imported into the United States and
that RIs and applicants for RI status are capable of meeting their
obligations under the statutes and regulations governing the
importation of nonconforming vehicles.
    Affected Public: Individuals and commercial entities that import
motor vehicles or motor vehicle equipment subject to the FMVSS and
vehicles that are not primarily manufactured for use on public roads,
as well as applicants for RI status and existing RIs.
    Estimated Total Annual Burden: 40,764 hours; $1,591,243.

ADDRESSES: Send comments, within 30 days, to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street, NW., Washington, DC 20503, Attention: NHTSA Desk Officer.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility; the accuracy of the Department's estimate of the burden of the
proposed information collection; ways to enhance the quality, utility
and clarity of the information to be collected; and ways to minimize
the burden of the collection of information on respondents, including
the use of automated collection techniques or other forms of
information technology.
    A Comment to OMB is most effective if OMB receives it within 30
days of publication.

    Issued on October 18, 2010.
Daniel C. Smith,
Associate Administrator for Enforcement.
[FR Doc. 2010-27239 Filed 10-27-10; 8:45 am]
BILLING CODE 4910-59-P


CONCRETE PIPE & PRODUCTS OF CALIFORNIA, INC. v. CONSTRUCTION LABORERS PENSION TRUST FOR SOUTHERN CALIFORNIA certiorari to the united states court of appeals for the ninth circuit No. 91 904. Argued December 1, 1992  Decided June 14, 1993 The Multiemployer Pension Plan Amendments Act of 1980 ( MPPAA) amended the Employee Retirement Income Security Act of 1974 ( ERISA) to provide that in certain circumstances an employer withdrawing from a multiemployer plan incurs as " withdrawal liability" a share of the plan's unfunded vested benefits, 29 U. S. C. "" 1381 1391. Withdrawal liability is assessed by means of a notification by the " plan sponsor" and a demand for payment. " 1399( b). An unresolved dispute is referred to arbitration, where ( 1) the sponsor's factual determinations are " presumed correct" unless a contesting party " shows by a preponderance of the evidence that the determination was unreasonable or clearly erroneous," " 1401( a)( 3)( A); and ( 2) the sponsor's actuary's calculation of a plan's unfunded vested benefits is presumed correct unless a contesting party " shows by a preponderance of the evidence" that, inter alia, " the actuarial assumptions and methods" used in a calculation " were, in the aggregate, unreasonable," " 1401( a)( 3)( B). Petitioner Concrete Pipe is an employer charged with withdrawal liability by the trustees of respondent, a multiemployer pension plan ( Plan). After losing in arbitration, Concrete Pipe filed an action to set aside or modify the arbitrator's decision and raised a constitutional challenge to the MPPAA, but the court granted the Plan's motion to confirm the award. The Court of Appeals affirmed. Held: 1. The MPPAA does not unconstitutionally deny Concrete Pipe an impartial adjudicator by placing the determination of withdrawal liability in the plan sponsor, here the trustees, subject to " 1401' spresumptions. Pp. 12 33. ( a) Even assuming that the possibility of trustee bias toward imposing the greatest possible withdrawal liability would suffice to bar the trustees from serving as adjudicators of Concrete Pipe's withdrawal liability because of their fiduciary obligations to beneficiaries of the Plan, the Due Process Clause is not violated here because the first adjudication in this case was the arbitration proceeding, not the trustees' initial liability determination. The trustees' statutory notification and demand obligations are taken in an enforcement capacity. Pp. 12 16. ( b) Nor did the arbitrator's adjudication deny Concrete Pipe its right to procedural due process. While the " 1401( a)( 3)( A) presumption shifts the burden of persuasion to the employer, the statute is incoherent with respect to the degree of certainty required to overturn a plan sponsor's factual determination.

In light of the assumed bias, deference to a plan sponsor's determination would raise a substantial due process question. The uncertainty raised by this incoherent statute is resolved by applying the canon requiring that an ambiguous statute be construed to avoid serious constitutional problems unless such construction is plainly contrary to Congress's intent. Thus, the presumption is construed to place the burden on the employer to disprove an alleged fact by a preponderance permitting independent review by the arbitrator of the trustees' factual determinations. The approach taken by the arbitrator and courts below in this case is not inconsistent with this Court's interpretation of the first presumption. Pp. 17 29. ( c) The " 1401( a)( 3)( B) presumption also raises no procedural due process issue. The assumptions and methods used in calculating withdrawal liability are selected in the first instance not by the trustees, but by the plan actuary, " 1393( c), who is a trained professional subject to regulatory standards. The technical nature of the assumptions and methods, and the necessity for applying the same ones in several contexts, limit an actuary's opportunity to act unfairly toward a withdrawing employer. Moreover, since " 1401( a)( 3)( B) speaks not about the reasonableness of the trustees' conclusions of historical fact, but about the aggregate reasonableness of the actuary's assumptions and methods in calculating the dollar liability figure, an employer's burden to overcome the presumption is simply to show that an apparently unbiased professional, whose obligations tend to moderate any claimed inclination to come down hard on withdrawing employers, has based a calculation on a combination of methods and assumptions that falls outside the range of reasonable actuarial practice. Pp. 29 33. 2. The MPPAA, as applied, does not deny substantive due processin violation of the Fifth Amendment. The imposition of withdrawal liability is clearly rational here because Concrete Pipe's liability is based on a proportion of its contributions during its participation in the Plan. Pp. 33 39. 3. The MPPAA, as applied, did not take Concrete Pipe's property without just compensation. The application of a regulatory statute that is otherwise within Congress's powers may not be defeated by private contractual provisions, such as those protecting Concrete Pipe from liability beyond what was specified in its collective bargaining and trust agreements. See Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211, 223 224. Examining Concrete Pipe's relationship with the Plan in light of the three factors the Court has said have particular significance for takings claims confirms this. First, the Government did not physically invade or permanently appropriate Concrete Pipe's assets for its own use. Second, Concrete Pipe has failed to show that having to pay out an estimated 46% of shareholder equity is an economic impact out of proportion to its experience with the Plan, since diminution in a property's value, however serious, is insufficient to demonstrate a taking. See, e. g., Euclid v. Ambler Realty Co., 272 U. S. 365, 384. Third, the conditions on its contractual promises did not give Concrete Pipe a reasonable expectation that it would not be faced with liability for promised benefits. At the time it began making payments to the Plan, pension plans had long been subject to federal regulation. Indeed, withdrawing employers already faced contingent liability under ERISA, and Concrete Pipe's reliance on ERISA's original limitation of contingent withdrawal liability to 30% of net worth is misplaced, there being no reasonable basis to expect that the legislative ceiling would never be lifted, see Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 16. Pp. 39 45. 936 F. 2d 576, affirmed. Souter, J., delivered the opinion of the Court, which was unanimous except insofar as O'Connor, J., did not join the sentence to which n. 29 is attached, Scalia, J., did not join Part III B% 1 b, and Thomas, J., did not join Part III B% 1. O'Connor, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment. copyright about us help


[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Notices]
[Pages 1117-1118]
[FR Doc No: 2019-00604]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings #1

    Take notice that the Commission received the following electric
corporate filings:

    Docket Numbers: EC19-50-000.
    Applicants: Frontier Utilities Northeast LLC, NextEra Energy
Services, LLC.
    Description: Application for Authorization Under Section 203 of the
Federal Power Act, et al. of Frontier Utilities Northeast LLC, et al.
    Filed Date: 1/25/19.
    Accession Number: 20190125-5181.
    Comments Due: 5 p.m. ET 2/15/19.

    Docket Numbers: EC19-51-000.
    Applicants: Bloom Energy Corporation, Diamond State Generation
Partners, LLC, Yellow Jacket Energy, LLC, 2014 ESA Project Company,
LLC, 2015 ESA Project Company, LLC, Canada Pension Plan Investment
Board.
    Description: Application for Authorization Under Section 203 of the
Federal Power Act, et al. of Bloom Energy Corporation, et al.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5109.
    Comments Due: 5 p.m. ET 2/19/19.

    Take notice that the Commission received the following exempt
wholesale generator filings:

    Docket Numbers: EG19-52-000.
    Applicants: Crystal Lake Wind Energy I, LLC.
    Description: Notice of Self-Certification of Exempt Wholesale
Generator Status of Crystal Lake Wind Energy I, LLC.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5120.
    Comments Due: 5 p.m. ET 2/19/19.

    Docket Numbers: EG19-53-000.
    Applicants: Crystal Lake Wind Energy II, LLC.
    Description: Self-Certification of Self-Certification of Exempt
Wholesale Generator Status of Crystal Lake Wind Energy II, LLC.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5121.
    Comments Due: 5 p.m. ET 2/19/19.

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER17-615-003; ER10-2184-027; ER10-2192-032; ER10-
2178-032; ER11-2014-025; ER11-2013-025; ER13-1536-016; ER11-2005-025.
    Applicants: Albany Green Energy, LLC, CER Generation, LLC,
Constellation Energy Commodities Group Maine, LLC, Constellation
NewEnergy, Inc., Cow Branch Wind Power, LLC, CR Clearing, LLC, Exelon
Generation Company, LLC, Wind Capital Holdings, LLC.
    Description: Supplement to December 22, 2017 Updated Market Power
Analysis for the Southeast Region of the Exelon Southeast Entities.
    Filed Date: 1/24/19.
    Accession Number: 20190124-5212.
    Comments Due: 5 p.m. ET 2/7/19.

    Docket Numbers: ER17-2386-001.
    Applicants: Great Bay Solar I, LLC.
    Description: Report Filing: Refund Report (ER17-2386 and EL18-8) to
be effective N/A.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5137.
    Comments Due: 5 p.m. ET 2/19/19.

    Docket Numbers: ER18-1708-001.
    Applicants: Copenhagen Wind Farm, LLC.
    Description: Notice of Non-Material Change in Status of Copenhagen
Wind Farm, LLC.
    Filed Date: 1/24/19.
    Accession Number: 20190124-5229.
    Comments Due: 5 p.m. ET 2/14/19.

    Docket Numbers: ER18-1954-002.
    Applicants: Gulf Power Company.
    Description: Compliance filing: Notice of Effective Date &
Compliance Filing (NITSA/NOA) ER18-1954 to be effective 1/1/2019.
    Filed Date: 1/25/19.
    Accession Number: 20190125-5141.
    Comments Due: 5 p.m. ET 2/15/19.

    Docket Numbers: ER18-2352-002.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Tariff Amendment: 2019-01-28_Amendment to Real-Time
Buybacks of Spinning and Offline Supplemental to be effective 2/14/
2019.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5041.
    Comments Due: 5 p.m. ET 2/19/19.

    Docket Numbers: ER19-871-000.
    Applicants: Southwestern Electric Power Company.
    Description: Sec.  205(d) Rate Filing: SWEPCO-ETEC Contracting
Services Agreements (Monitor, Op, Dispatch) to be effective 1/1/2019.
    Filed Date: 1/25/19.
    Accession Number: 20190125-5113.
    Comments Due: 5 p.m. ET 2/15/19.

    Docket Numbers: ER19-872-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Sec.  205(d) Rate Filing: 2019-01-28_SA 1925 ITC
Midwest-Interstate Power and Light 4th Rev DTIA to be effective 3/30/
2019.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5104.
    Comments Due: 5 p.m. ET 2/19/19.

    Docket Numbers: ER19-873-000.
    Applicants: AEP Texas Inc.
    Description: Sec.  205(d) Rate Filing: AEPTX-Lighthouse EC-Golden
Spread EC Interconnection Agreement to be effective 1/15/2019.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5108.
    Comments Due: 5 p.m. ET 2/19/19.

    Docket Numbers: ER19-874-000.
    Applicants: PJM Interconnection, L.L.C.
    Description: Sec.  205(d) Rate Filing: Original WMPA, SA No. 5260;
Queue No. AD1-060 to be effective 1/2/2019.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5119.
    Comments Due: 5 p.m. ET 2/19/19.

    Docket Numbers: ER19-875-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Sec.  205(d) Rate Filing: 2019-01-28_Cyber Security
Coordination to be effective 3/30/2019.
    Filed Date: 1/28/19.
    Accession Number: 20190128-5135.
    Comments Due: 5 p.m. ET 2/19/19.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's

Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern
time on the specified comment date. Protests may be considered, but
intervention is necessary to become a party to the proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: January 28, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2019-00604 Filed 1-31-19; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register: July 5, 2007 (Volume 72, Number 128)]
[Notices]
[Page 36696-36697]
[DOCID:fr05jy07-61]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

June 29, 2007.
    Take notice that the Commission received the following electric
rate filings:
    Docket Numbers: ER05-1065-010.
    Applicants: Entergy Services, Inc.
    Description: Entergy Operating Companies submits its compliance
filing in accordance with Commission's May 25, 2007 Order.
    Filed Date: 06/25/2007.
    Accession Number: 20070627-0102.
    Comment Date: 5 p.m. Eastern Time on Monday, July 16, 2007.

    Docket Numbers: ER07-157-001, ER06-398-002, ER06-399-002, ER04-268-
005, ER98-4159-008.
    Applicants: Macquarie Cook Power, Inc.; Duquesne Keystone LLC;
Duquesne Conemaugh LLC; Duquesne Power, LLC; Duquesne Light Company.
    Description: Macquarie Cook Power, Inc et al submit their notice of
change in status related to the 5/31/07 acquisition of Duquesne Light
Holdings, Inc.
    Filed Date: 06/25/2007.
    Accession Number: 20070627-0101.
    Comment Date: 5 p.m. Eastern Time on Monday, July 16, 2007.

    Docket Numbers: ER07-613-004, ER07-1077-000.
    Applicants: California Independent System Operator Corporation.
    Description: California Independent System Operator Corp submits
amendments to the ISO Tariff 2007 Congestion Revenue Rights Credit
Policy Amendment.
    Filed Date: 06/22/2007.
    Accession Number: 20070627-0104.
    Comment Date: 5 p.m. Eastern Time on Friday, July 13, 2007.

    Docket Numbers: ER07-1076-000.
    Applicants: Upper Peninsula Power Company.
    Description: Upper Peninsula Power Co submits a letter of
understanding with the City of Escanaba, Michigan, will begin on 6/25/
07.
    Filed Date: 06/25/2007.
    Accession Number: 20070627-0108.
    Comment Date: 5 p.m. Eastern Time on Monday, July 16, 2007.

    Docket Numbers: ER07-1078-000.
    Applicants: American Electric Power Service Corporation.
    Description: AEP Operating Companies submit an Interconnection and
Local Delivery Service Agreement with the Village of Glouster, Ohio.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0084.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1079-000.
    Applicants: American Electric Power Service Corporation.
    Description: Ohio Power Co and Columbus Southern Power Company
submit their eighth revision to the Interconnection and Local Delivery
Service Agreement with Buckeye Power, Inc.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0085.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1080-000.
    Applicants: American Electric Power Service Corporation.
    Description: AEP Operating Companies submits an Interconnection and
Local Delivery Service Agreement with the Village of Woodsfield,
Woodsfield, Ohio.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0086.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1081-000.
    Applicants: Southern California Edison Company.
    Description: Southern California Edison submits a Large Generator
Interconnection Agreement etc for Wholesale Distribution Service
between the Transmission and Distribution

Business Unit of SCE et al for the Mira Loma Peaker Project.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0221.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1082-000.
    Applicants: Southern California Edison Company.
    Description: Southern California Edison submits a Large Generator
Interconnection Agreement etc for Wholesale Distribution Service
between the Transmission and Distribution Business Unit of SCE et al
for the Grapeland Peaker Project.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0220.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1083-000.
    Applicants: Southern California Edison Company.
    Description: Southern California Edison submits a Large Generator
Interconnection Agreement etc for Wholesale Distribution Service
between the Transmission and Distribution Business Unit of SCE et al
for the Center Peaker Project.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0219.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1084-000.
    Applicants: Southern California Edison Company.
    Description: Southern California Edison submits a Large Generator
Interconnection Agreement etc for Wholesale Distribution Service
between the Transmission and Distribution Business Unit of SCE et al
for the Barre Peaker Project.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0218.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Docket Numbers: ER07-1085-000.
    Applicants: Niagara Mohawk Power Corporation.
    Description: Niagara Mohawk Power Corp dba National Grid submits an
Amended and Restated Power Sales Agreement with Fulton Cogeneration
Associates, LP, designated as Service Agreement 1150.
    Filed Date: 06/26/2007.
    Accession Number: 20070628-0082.
    Comment Date: 5 p.m. Eastern Time on Tuesday, July 17, 2007.

    Any person desiring to intervene or to protest in any of the above
proceedings 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) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. 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. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov.
 To facilitate electronic service, persons with Internet

access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St. NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also 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 email notification
when a document is added to a subscribed dockets(s). For assistance
with any FERC Online service, please e-mail<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Kimberly D. Bose,
Secretary,
[FR Doc. E7-13064 Filed 7-3-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 75, Number 129 (Wednesday, July 7, 2010)]
[Rules and Regulations]
[Pages 38923-38926]
[FR Doc No: 2010-16263]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0220]
RIN 1625-AA11

Regulated Navigation Area: Niantic Railroad Bridge Construction,
Niantic, CT

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments; notice of
meeting.

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SUMMARY: The United States Coast Guard is establishing a regulated
navigation area (RNA) on the navigable waters of the Niantic River
Channel under and surrounding the Amtrak Railroad Bridge that crosses
Niantic Bay in the Town of Niantic, Connecticut. This temporary interim
rule allows the Coast Guard to suspend all vessel traffic within the
RNA for construction operations, both planned and unforeseen, that
could pose an imminent hazard to vessels operating in the area. This
rule is necessary to provide for the safety of life on the navigable
waters during the construction of the Niantic Railroad Bridge.

DATES: This rule is effective in the CFR from July 7, 2010, through
April 20, 2013, and with actual notice for purposes of enforcement from
June 20, 2010, through April 20, 2013. Public comments should be
submitted by August 6, 2010, but will be accepted and reviewed by the
Coast Guard through April 20, 2013.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0220 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand Delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.
    Documents indicated in this preamble as being available in the
docket are part of docket USCG-2010-0220 and are available online by
going to http://www.regulations.gov, inserting USCG-2010-0220 in the
``Keyword'' box, and then clicking ``Search.'' They are also available
for inspection or copying at the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim
rule, call or e-mail LT Judson Coleman, Prevention Department, Coast
Guard Sector Long Island Sound, telephone<PHONE_NUMBER>, e-mail
<EMAIL_ADDRESS>If you have questions on viewing the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
    As this interim rule will be in effect before the end of the
comment period, the Coast Guard will evaluate and revise this rule as
necessary to address significant public comments. Alternatively, if the
bridge construction necessitating the interim rule is completed before
April 20, 2013, and we receive no public comments that indicate a
substantive need to revise the rule, we may allow it to expire on that
date without further regulatory action.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2010-0220), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online (via http://www.regulations.gov) or by fax, mail, or hand
delivery, but please use only one of these means. If you submit a
comment online via www.regulations.gov, it will be considered received
by the Coast Guard when you successfully transmit the comment. If you
fax, hand deliver, or mail your comment, it will be considered as
having been received by the Coast Guard when it is received at the
Docket Management Facility. We recommend that you include your name and
a mailing address, an e-mail address, or a telephone number in the body
of your document so that we can contact you if we have questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Proposed Rule'' and insert ``USCG-2010-0220'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column. If you submit comments by mail or hand delivery, submit them in
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period and may change this rule
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2010-0220'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
You may also visit the Docket Management Facility in Room W12-140 on
the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. We have an
agreement with the Department of Transportation to use the Docket
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting in connection with the
public comment period for this interim rule. But you may submit a
request for one using one of the four methods specified under
ADDRESSES. Please explain why you believe a public meeting would be
beneficial. If we determine that one would aid this rulemaking, we will
hold one at a time and place announced by a later notice in the Federal
Register. Although they were not held specifically to solicit public
comments on this interim rule, and were not announced in the Federal
Register, the Coast Guard has held or participated in two locally
announced public meetings, on March 22 and April 15, 2010, where
waterway closures and restrictions were discussed, and we anticipate
holding one or more additional informational meetings, with opportunity
for public questions or comments, during the bridge construction. We
will provide written summaries of any such meetings in the docket.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior notice
pursuant to authority under section 4(a) of the Administrative
Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an
agency to issue a rule without prior notice when the agency for good
cause finds that those procedures are ``impracticable, unnecessary, or
contrary to the public interest.'' Under 5 U.S.C. 553(b)(B), the Coast
Guard finds that good cause exists for not publishing a notice of
proposed rulemaking (NPRM) with respect to this rule because it is
impracticable and contrary to the public interest to do so. The need
for waterway closures was not brought to the attention of the Coast
Guard until March 11, 2010. This left insufficient time to issue an
NPRM and solicit public comments prior to issuing the interim rule,
which is necessary to protect the safety of both the construction crew
and the waterway users operating in the vicinity of the bridge
construction zone. Further, it would be impracticable and contrary to
the public interest to delay or cancel this American Recovery and
Reinvestment Act (ARRA) construction project, because to do so would
delay necessary repairs thus prolonging the time that construction
barges and equipment would be in this location. Additionally, the
dynamic nature of the construction process and multitude of
construction vessels necessitates that all mariners navigate at a safe
speed within the RNA in accordance with Rule 6 of the Inland Navigation
Rules, as the barge and construction equipment configuration may change
on a daily basis. Further, the Coast Guard finds that issuance of an
NPRM followed by a public comment period is unnecessary, because
locally announced public maritime stakeholder meetings were held on
March 22 and April 15, 2010, with Coast Guard Sector Long Island Sound,
Amtrak, First Coast Guard District Bridge Branch, local marinas, town
police, and small business owners in attendance. The construction plan
was presented by Amtrak, the bridge owner; public comments and concerns
were identified and many have been incorporated into this regulation.
For the same reasons, under 5 U.S.C. 553(d)(3) the Coast Guard finds
that good cause exists for making this rule effective less than 30 days
after publication in the Federal Register.

Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the
authority to establish RNAs in defined water areas that are determined
to have hazardous conditions and in which vessel traffic can be
regulated in the interest of safety. See 33 U.S.C. 1231 and Department
of Homeland Security Delegation No. 0170.1.
    The purpose of this rule is to ensure construction worker and
public safety for the duration of the Niantic Railroad Bridge
construction from June 20, 2010 through April 20, 2013.

Discussion of Rule

    This RNA encompasses the navigable waters of the Federal channel on
the Niantic River in Niantic, Connecticut, within the limits defined in
the regulation.
    During demolition of the existing Niantic Railroad Bridge and
construction of its replacement, the Coast Guard may close the RNA to
all unauthorized vessel traffic during any circumstance, planned or
unforeseen, that poses an imminent threat to waterway users operating
in the area. Complete waterway closure will be made with as much
advance notice as possible and, when closure is planned, at least ten
days in advance.
    The Coast Guard has discussed this project at length with Amtrak
and their contractor Cianbro/Middlesex to identify if the project can
be completed without channel closures and, if possible, what impact
that would have on the project timeline. Through these discussions, it
became clear that while the majority of construction activities during
the span of this project would not require waterway closures, there are
certain tasks that can only be completed in the channel and will
require closing the waterway. Amtrak issued a letter on May 21, 2010
detailing the required channel work phases that will need waterway
closures.
    There currently planned and proposed channel closure periods are
outlined below:
    The currently planned closure period will be from June 20 through
October 15, 2010, on Sunday and Monday nights from 10 p.m. to 4:30
a.m., with two exceptions: (1) The channel will remain open during the
four days on either side of the full moon to accommodate striped bass
charters that depart during nighttime hours, and (2) there will be a
scheduled opening between 1:30 to 2 a.m., from August 1 to October 15
to accommodate nighttime departures for offshore tuna fishing.
    Other proposed closure periods will be from October 16 through
December 15, 2010, on Sunday through Thursday nights from 9 p.m. to 5
a.m.; from December 16, 2010 through March 15, 2011 on Sunday through
Thursday from 9 a.m. to 5 p.m. and 9 p.m. to 5 a.m.; and from March 16
through May 15, 2011, on Sunday through Wednesday from 10 p.m. to 4:30
a.m.
    Closure periods listed above will be made available to Amtrak and
their contractor with the understanding that the construction schedule
as well as weather and tide conditions may not allow them to use all
closures. On a case-by-case basis, depending on the construction
schedule, Amtrak may request a waterway closure from June 20 through
October 15, 2010 on Wednesday morning from 12:30 a.m. to 4:30 a.m.
Amtrak will notify the Coast Guard of planned activities as soon as
possible; preferably four weeks in advance of any event. The Coast
Guard will notify the maritime community of those Wednesday dates with
a waterway closure via Marine Information Broadcasts, Coast Guard Local
Notice to Mariners and Marine Safety Information Bulletins. Closure
periods similar to those outlined above should be expected throughout
the duration of this rule.
    Additionally, during the winter of 2011 and into the early spring
of 2012 there will be certain tasks (i.e. picking and setting of the
heel girders and float-in of the new bridge) that will require 12 to 24
hour closures as well as a seven day closure to float-in and install
the new bridge. Once these closure periods are identified they will
also be published in the Federal Register as a notice of enforcement.
    In the event of an emergency all construction equipment will be

removed from the channel to allow for emergency vessels to pass (i.e.,
Fire Rescue Boat, Marine Police Boat, or Environmental Response Boat).
    The implementation of this RNA does not negate the fact that the
Inland Rules of the Road as found in 33 CFR part 84 must be strictly
adhered to. Mariners are strongly urged to monitor VHF channel 13 when
transiting the area and to communicate with fellow mariners to
facilitate movement and/or passing arrangements within the channel.
    Any violation of the RNA described herein is punishable by, among
others, civil and criminal penalties, in rem liability against the
offending vessel, and the initiation of suspension or revocation
proceedings against Coast Guard-issued merchant mariner credentials.
    The Captain of the Port Sector Long Island Sound (COTP) will cause
notice of enforcement, suspension of enforcement, or closure of this
RNA to be made by all appropriate means to effect the widest
distribution among the affected segments of the public. Such means of
notification will include, but are not limited to, Notice of
Enforcement published in the Federal Register, Broadcast Notice to
Mariners, and Local Notice to Mariners.

Regulatory Analyses

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

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
    This regulation may have some impact on the public, but the
potential impact will be minimized for the following reasons: Vessels
are currently scheduled to be excluded from the RNA only at night on
Sunday and Monday, not including full moon tide weeks for night fishing
or impacting busy weekend boating times, and vessels will be able to
operate on all other portions of the Niantic River not covered by the
RNA. Marine radio broadcasts informing the public of any closures made
by the RNA will be made before, during, and at the conclusion of the
RNA closure enforcement periods.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on substantial number of small
entities. This rule will affect the following entities some of which
may be small entities: Owners or operators of marinas, charter fishing
vessels and commercial fishing vessels who intend to transit in those
portions of the Niantic River between June 20, 2010 and April 20, 2013.
    Although the RNA will apply to the entire width of the river, under
and surrounding the Niantic Railroad Bridge, traffic will be allowed to
pass through the area with the permission of the COTP. Before the
effective period, we will issue maritime advisories widely available to
users of the river.''

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process. If this rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please call LT Judson Coleman, Prevention
Department, Sector Long Island Sound, at<PHONE_NUMBER>.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and

responsibilities between the Federal Government and Indian tribes.

Energy Effects

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

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions which do not individually
or cumulatively have a significant effect on the human environment.
This rule is categorically excluded, under figure 2-1, paragraph
(34)(g), of the Instruction. This rule involves the establishing of a
regulated navigation area and therefore falls within the categorical
exclusion noted above. An environmental analysis checklist and a
categorical exclusion determination are available in the docket where
indicated under ADDRESSES. Any comments received concerning
environmental impacts will be considered and changes made to the
environmental analysis checklist and categorical exclusion
determination as appropriate.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR Part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.

0
2. Add Sec.  165.t01-0220 to read as follows:

Sec.  165.t01-0220  Regulated Navigation Area: Niantic Railroad Bridge
Construction, Niantic, Connecticut

    (a) Location. The following area is a regulated navigation area:
All navigable waters of the Federal channel on the Niantic River in
Niantic, CT, from surface to bottom, bounded to the north by the
Highway 156/Main Street Bridge and to the south beginning at a point on
land located at 41[deg]19[min]26.000[sec] N, 72[deg]10[min]51.000[sec]
W, then running southeast to position 41[deg]19[min]16.158[sec] N,
72[deg]10[min]45.519[sec] W (Niantic River Channel Buoy 3 (LLNR 22310))
and 41[deg]19[min]15.285[sec] N, 72[deg]10[min]44.867[sec] W (Niantic
River Channel Buoy 4 (LLNR 22315)), then running east to a point on
land located at 41[deg]19[min]14.000[sec] N, 72[deg]10[min]38.000[sec]
W.
    (b) Regulations. (1) The general regulations contained in 33 CFR
165.10, 165.11, and 165.13 apply.
    (2) In accordance with the general regulations, entry into or
movement within this zone, during periods of enforcement, is prohibited
unless authorized by the Captain of the Port, Long Island Sound (COTP).
    (3) All persons and vessels must comply with the COTP or the COTP's
designated on-scene Coast Guard patrol personnel.
    (4) Upon being hailed by a Coast Guard vessel by siren, radio,
flashing light or other means, the operator of the vessel must proceed
as directed.
    (5) Persons and vessels may request permission to enter the zone
during periods of enforcement on VHF-16 or via phone at<PHONE_NUMBER>.
    (6) Rules of the Road (33 CFR part 84, Inland Navigational Rules)
remain in effect and must be strictly adhered to at all times.
    (c) Enforcement Period. (1) This regulated navigation area is
enforceable 24 hours a day from June 20, 2010 until April 20, 2013.
    (2) The COTP may temporarily suspend enforcement of the RNA. If
enforcement is suspended, the COTP will cause a notice of the
suspension of enforcement by all appropriate means to effect the widest
publicity among the affected segments of the public. Such means of
notification may include, but are not limited to, Broadcast Notice to
Mariners and Local Notice to Mariners. Such notification will include
the date and time that enforcement is suspended as well as the date and
time that enforcement will resume.
    (3) The COTP may temporarily suspend all traffic through the RNA
for any situation that would pose imminent hazard to life on the
navigable waters. In the event of a complete waterway closure, the COTP
will make advance notice of the closure by all means available to
effect the widest public distribution including, but are not limited
to, Broadcast Notice to Mariners and Local Notice to Mariners. Such
notification will include the date and time of the closure as well as
the date and time that normal vessel traffic can resume.
    (4) Violations of this regulated navigation area should be reported
to the Captain of the Port Sector Long Island Sound, at<PHONE_NUMBER> or
on VHF-Channel 16. Persons in violation of this regulated navigation
area may be subject to civil and/or criminal penalties.

    Dated: June 10, 2010.
J.A. Servidio,
Captain, U.S. Coast Guard, Acting, Commander, First Coast Guard
District.
[FR Doc. 2010-16263 Filed 7-6-10; 8:45 am]
BILLING CODE 9110-04-P


It will not have substantial direct effects on the States,

on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

The agency is required by section 112 of the CAA, to establish the standards in the final rule. The final rule primarily affects private industry, and does not impose significant economic costs on State or local governments.

The final rule does not include an express provision preempting State or local regulations. Thus, the requirements of section 6 of the Executive Order do not apply to the final rule.

Although section 6 of Executive Order 13132 does not apply to the final rule, we consulted with representatives of State and local governments to enable them to provide meaningful and timely input into the development of the final rule. This consultation took place during the ICCR Federal Advisory Committee Act ( FACA) committee meetings where members representing State and local governments participated in developing recommendations for EPA's 192 combustion related rulemakings, including the final rule.

The concerns raised by representatives of State and local governments were considered during the development of the final rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the final rule from State and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175 ( 65 FR 67249, November 9, 2000)

requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." The final rule does not have tribal implications, as specified in Executive Order 13175.

The final rule does not significantly or uniquely affect the communities of Indian tribal governments. We do not know of any industrial commercial institutional boilers or process heaters owned or operated by Indian tribal governments. However, if there are any, the effect of these rules on communities of tribal governments would not be unique or disproportionate to the effect on other communities. Thus, Executive Order 13175 does not apply to the final rule. The EPA specifically solicited additional 193 comment on the final rule from tribal officials, but received none.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks Executive Order 13045 ( 62 FR 19885, April 23, 1997)

applies to any regulation that: ( 1) Is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned regulation on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the EPA.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5 501 of the Executive Order has the potential to influence the regulation. The final rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or 194 Use Executive Order 13211 ( 66 FR 28355, May 22, 2001)

provides that agencies shall prepare and submit to the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, a Statement of Energy Effects for certain actions identified as " significant energy actions." Section 4( b) of Executive Order 13211 defines " significant energy actions" as " any action by an agency ( normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of final rulemaking, and notices of final rulemaking: ( 1) ( i) That is a significant regulatory action under Executive Order 12866 or any successor order, and ( ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or ( 2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a " significant energy action." The final rule is not a " significant energy action" because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The basis for the determination is as follows.

The reduction in petroleum product output, which includes reductions in fuel production, is estimated at only 195 0.001 percent, or about 68 barrels per day based on 2000 U. S. fuel production nationwide. That is a minimal reduction in nationwide petroleum product output. The reduction in coal production is estimated at only 0.014 percent, or about 3.5 million tons per year ( or less than 1,000 tons per day) based on 2000 U. S. coal production nationwide. The combination of the increase in electricity usage estimated with the effect of the increased price of affected output yields an increase in electricity output estimated at only 0.012 percent, or about 0.72 billion kilowatt hours per year based on 2000 U. S. electricity production nationwide. All energy price changes estimated show no increase in price more than 0.05 percent nationwide,

and a similar result occurs for energy distribution costs.

We also expect that there will be no discernable impact on the import of foreign energy supplies, and no other adverse outcomes are expected to occur with regards to energy supplies. All of the results presented above account for the pass through of costs to consumers, as well as the cost impact to producers. For more information on the estimated energy effects, please refer to the economic impact analysis for the final rule. The analysis is available in the public docket. It should be noted that these energy impact estimates are in advance of any facility demonstrating eligibility for the health based provisions. 196 With the presumption of low risk provisions, the reduction in petroleum product output, which includes reductions in fuel production, is now 65 barrels per day, or only 0.001 percent. This reduction is now 3 barrels per day less than that for the final rule. The reduction is coal production is estimated at only 0.010 percent, or about 2.5 million tons per year based on 2000 U. S. coal production nationwide. This reduction is now 0.004 percent, or 1.0 million tons per year less, than that for the final rule.

The combination of the increase in electricity usage estimated with the effect of the increased price of affected output yields an increase in electricity output of only 0.0067 percent, or about 0.40 billion kilowatt hours per year based on 2000 U. S. electricity production nationwide.

This increase is 0.32 billion kilowatt hours per year less than that for the final rule. All energy price changes are estimated show no increase more than 0.04 percent nationwide, which is smaller by 0.01 percent than that for the final rule, and a similar result occurs for energy distribution costs. There should be no discernable impact on import of foreign energy supplies, and no other adverse outcomes are expected to occur with regards to energy supplies. All of the results presented about with presumption of the low risk provisions account for the pass through of costs to consumers as well as the cost impact to 197 producers.

Therefore, we conclude that the final rule when implemented is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act ( NTTAA) of 1995 ( Public Law No. 104 113;

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

The final rule involves technical standards. The EPA cites the following standards in the final rule: EPA Methods 1, 2, 2F, 2G, 3A, 3B, 4, 5, 5D, 17, 19, 26, 26A, 29 of 40 CFR part 60. Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 2F, 2G, 198 5D, and 19. The search and review results have been documented and are placed in the docket for the final rule.

The three voluntary consensus standards described below were identified as acceptable alternatives to EPA test methods for the purposes of the final rule.

The voluntary consensus standard ASME PTC 19 10 1981

Part 10, " Flue and Exhaust Gas Analyses," is cited in the final rule for its manual method for measuring the oxygen,

carbon dioxide, and carbon monoxide content of exhaust gas.

This part of ASME PTC 19 10 1981 Part 10 is an acceptable alternative to Method 3B.

The voluntary consensus standard ASTM D6522 00,

" Standard Test Method for the Determination of Nitrogen Oxides, Carbon Monoxide, and Oxygen Concentrations in Emissions from Natural Gas Fired Reciprocating Engines,

Combustion Turbines, Boilers and Process Heaters Using Portable Analyzers" is an acceptable alternative to EPA Method 3A for identifying carbon monoxide and oxygen concentrations for the final rule when the fuel is natural gas.

The voluntary consensus standard ASTM Z65907, " Standard Method for Both Speciated and Elemental Mercury Determination," is an acceptable alternative to EPA Method 29 ( portion for mercury only) for the purpose of the final rule. This standard can be used in the final rule to 199 determine the mercury concentration in stack gases for boilers with rated heat input capacities of greater than 250 MMBtu per hour.

In addition to the voluntary consensus standards EPA uses in the final rule, the search for emissions measurement procedures identified 15 other voluntary consensus standards. The EPA determined that 13 of these 15 standards identified for measuring emissions of the HAP or surrogates subject to the emission standards were impractical alternatives to EPA test methods for the purposes of the final rule. Therefore, EPA does not intend to adopt these standards for this purpose. ( See Docket ID No. OAR 2002

0058 for further information on the methods.)

Two of the 15 voluntary consensus standards identified in this search were not available at the time the review was conducted for the purposes of the final rule because they are under development by a voluntary consensus body:

ASME/ BSR MFC 13M, " Flow Measurement by Velocity Traverse,"

for EPA Method 2 ( and possibly 1); and ASME/ BSR MFC 12M,

" Flow in Closed Conduits Using Multiport Averaging Pitot Primary Flowmeters," for EPA Method 2.

Section 63.7520 and Tables 4A through 4D to subpart DDDDD of this standard list the EPA testing methods included in the final rule. Under § 63.7( f) and § 63.8( f) of subpart A, 40 CFR part 63, of the General Provisions, a source may 200 apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any of the EPA testing methods, performance specifications, or procedures.

J. 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. The EPA will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives,

and the Comptroller General of the United States prior to publication of the final 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 a " major rule" as defined by 5 U. S. C. § 804( 2). The rule will be effective on [ INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE FEDERAL REGISTER].

List of Subjects in 40 CFR part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances,

Intergovernmental relations, Reporting and recordkeeping NESHAP: Industrial, Commercial, and Institutional Boilers and Process Heaters   FINAL RULE  Page 201 of 203 201 requirements.

______________________ Dated:

_______________________ Michael O. Leavitt, Administrator. 125 place rule here............ km