SUMMARY AND RESPONSE TO COMMENTS

Spill Prevention, Control and Countermeasure

Extension of Compliance Dates for All Facilities

40 CFR Part 112

June 5, 2009

U.S. Environmental Protection Agency

This document addresses the comments received in response to the
proposal to extend the compliance dates for the Spill Prevention,
Control and Countermeasure regulation, published in the Federal Register
on November 26, 2008 (73 FR 72016).  Comments submitted to the public
docket for this rulemaking appear in their entirety at   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov , identified under
Docket number “EPA-HQ-OPA-2008-0546.”  This document is in the
sequence of the topics listed below.

Support

Suggestions & Requests for Clarification

Opposed Length of the Extension  / Suggested Alternative Dates

Opposed Different Dates for Certain SectorsGeneral Comment Summary:

On November 26, 2008 the Environmental Protection Agency (EPA or Agency)
proposed to amend the dates by which facilities must prepare or amend
Spill Prevention, Control, and Countermeasure (SPCC) Plans, and
implement those Plans.  The Agency also proposed to establish dates for
farms to prepare or amend their SPCC Plans, and implement those Plans.
EPA had delayed establishing compliance dates for farms pending
revisions to the SPCC rule that would specifically address this sector.
Different extension dates were proposed for farms and oil production
facilities that meet the qualified facilities criteria in §112.3(g) (73
FR 72016).

The Agency received 25 unique comments on the proposed rule. Comments
primarily represent farms, agricultural cooperatives and trade
associations; and oil and gas production companies and trade
associations. Additional sectors submitted comments, including,
construction; electrical utilities; consultants; and trade associations
representing manufacturers and automotive industries. The discussion
below summarizes and responds to the substantive comments received.

The majority of comments supported the Agency’s proposal to extend the
compliance dates in §112.3. They agreed with the Agency that the
extension was necessary to allow owners and operators sufficient time to
amend and implement their SPCC Plans.  Of those who supported an
extension of the compliance dates, some agreed with extending the
compliance dates as proposed. Others supported the extension but opposed
the length of the extension proposed by the Agency. These requests cited
the extent of modifications necessary at facilities, the need to obtain
the services of Professional Engineers (PE), and the need for a revised
SPCC Guidance for Regional Inspectors from EPA to better understand the
regulation and the 2006 and 2008 regulatory amendments.

Specifically, a number of comments requested that the Agency extend the
date of compliance to December 5, 2009.  Comments argued that, since the
official promulgation of the rule occurred with its publication in the
Federal Register on December 5, 2008, the one year compliance period
should be calculated from that date.

A subset of comments also requested that the Agency reinstate a
six-month interim period between the compliance dates for Plan amendment
and implementation.  They requested that the date for implementing
amended SPCC Plans be revised to include a six-month period after the
date for Plan amendment.

Some comments requested that the compliance date for oil production
facilities that do not meet the qualified facilities criteria in
§112.3(g) be extended to December 5, 2010, to allow an additional year
for two full years from publication of the final rule amendments in the
Federal Register.  They argued that the November 20, 2009 date provides
insufficient time to comply with the rule. Finally, many asked that the
Agency reaffirm the application of the extended compliance dates in the
final rule.

Some comments objected to the Agency’s proposal of different
compliance dates for qualified farms and qualified oil production
facilities. Comments requested that the compliance dates for all farms
and oil production facilities, whether they meet the qualified
facilities criteria in §112.3(g) or not, be extended to November 20,
2013. They argued that assigning differentiated compliance dates to
different industries was unnecessary and that additional time was
necessary to conduct outreach and compliance assistance to the regulated
community. Some also argued that assigning differentiated compliance
dates to qualified facilities and all other facilities within one
industry caused confusion over the applicability of the rule.

I. Support for the Extension

Topic Comment Summary: The majority of comments generally supported the
extension of the compliance dates by which the facility must prepare or
amend and implement its SPCC Plan. The comments generally agreed that an
extension would allow additional time for affected facility owners and
operators to prepare or update their Plans. Of those who supported an
extension of the compliance dates, some agreed with extending the
compliance dates as proposed, and others opposed the proposed length of
the extension, as described in Section III of this document.

Topic Response: EPA agrees with these comments and has amended the dates
in §112.3(a), (b) and (c) by which facilities must prepare or amend
their SPCC Plans, and implement those Plans.  The Agency has established
a compliance date of November 10, 2010, which provides approximately 16
months beyond the previous compliance date.  This action will provide
more time for owners or operators to prepare or amend their SPCC Plans
and implement those Plans to comply with the rule amendments promulgated
December 5, 2008 (73 FR 74236).

Comment Excerpts:

Submitted by - Jon Koepke and Daniel R. Beatty of- Cemex Construction
Materials Florida, LLC.

Comment Text: Cemex Construction Materials Florida, LLC (CEMEX) supports
EPA’s proposal…to amend the dates by which facilities must prepare
or amend Spill Prevention, Control and Countermeasure (SPCC) plans, and
implement those plans.

Submitted by - Steve Whitt of Martin Marietta Materials

Comment Text: Martin Marietta Materials, Inc. believes that this
extension of the compliance date to November 20, 2009 is justified and
will allow facilities the time needed to implement changes and to make
the necessary modifications to the SPCC Plans.

Submitted by - G.H. Holliday of Holliday Environmental Services, Inc.

Comment Text: I support the proposed extension of the SPCC Plan
Implementation Dates for farm and production facilities, but not for the
reasons given by EPA in the proposal dated 26 November 2008 at 72016...I
support the proposed extension, because there are many major and large
independents which require time to prepare new SPCC Plan, since the cost
of modifying 1973 style is prohibitive.

Submitted by - David F. Darling of the National Paints and Coatings
Association

Comment Text: NPCA believes the extension is warranted since EPA has
just published amendments to the SPCC rule and the regulated community
needs time to review these amendments and develop/modify existing plans
and start executing the requirements.  Without this additional time,
facilities could be stranded in their compliance efforts.  Therefore
NPCA believes that it is appropriate for EPA to extend the SPCC
compliance dates to November 20, 2009.

Submitted by - Douglas I. Greenhaus of National Automobile Dealers
Association

Comment Text: NADA fully supports the establishment of the November 20,
2009, compliance date in the proposal as it would afford dealers a few
extra months to comply with SPCC mandates, including those applicable to
Tier I and Tier II qualified facilities.

Submitted by - Jeff Spillyards of Entergy Services, Inc.

Comment Text: Entergy Services, Inc. (ESI) is supportive of EPA's
proposal to extend the deadline for amendment and implementation of
changes to oil SPCC plans necessary as a result of the 2002-2008 changes
to the Part 112 rule.

Submitted by - James D. Thrift of Agricultural Retailers Association

Comment Text: ARA believes that the modifications in the SPCC rule are
generally positive and should be applied equally to all agribusiness
sectors…

Submitted by - Roger Claff of American Petroleum Institute

Comment Text: API supports EPA's proposed compliance date extension to
establish a date one year from promulgation of the additional amendments
to the SPCC Rule...The extension of the compliance date would provide
affected facility owners and operators with adequate time to meet the
amended requirements…

Submitted by - P.F. Faggert of Dominion Resources Services, Inc.

Comment Text: As EPA has recognized, the regulated community should not
be expected to dedicate resources to develop and implement SPCC plans
for aspects of the regulations that EPA is in the process of
amending.…We therefore strongly support an extension of the compliance
deadline.

Submitted by - Jerry Schwartz of American Forest & Paper Association

Comment Text: AF&PA strongly supports an extension to the compliance
date for preparing or amending and implementing SPCC Plans. An extension
allows facility owners and operators time to fully understand the
regulatory amendments to the 2002 rule and make changes to their SPCC
Plans based on the final requirements.

Submitted by – Phillip Yee of Dow Chemical Company

Comment Text: Dow supports EPA’s proposed SPCC compliance date
extension rule in §112.3(a)( I ) which extends the compliance date for
facilities in operation on or before August 16, 2002 to make the
necessary changes in the plan and fully implement the requirements
before November 20, 2009. Our support for this rule extension is based
on the minimum anticipated time needed to develop and implement
compliant measures to the December 5, 2008 SPCC final rule amendments
and clarifications.

Submitted by – John S. Hayden of the National Stone, Sand and Gravel
Association

Comment Text: NSSGA believes such an extension of the compliance dates
to November 20, 2009 is appropriate because it will provide the owner or
operator of a facility the opportunity to fully understand the
regulatory amendments offered by revisions to the 2002 SPCC rule
promulgated on December 26, 2006 (71 FR 77266) and with the revised SPCC
requirements also found in 73 FR 71941; November 26, 2008.

Submitted by – Barry A. Mader of Martin Marietta Materials

Comment Text: We believe that an extension of the compliance dates to
November 20, 2009 is appropriate because it will provide the owner
and/or operator of a facility the opportunity to fully understand the
regulatory amendments offered by revisions to the 2002 SPCC rule
promulgated on December 26, 2006 (71 FR 77266) and revised SPCC
requirements found in 73 FR 71941; November 26, 2008. We believe that a
one-year extension provides sufficient time to understand the
streamlined amendments to the SPCC rule finalized at 73 FR 71941.

II. Suggestions & Requests for Clarification

Topic Comment Summary: Several comments requested that the EPA reaffirm
the scope of the compliance requirements that are affected by the
proposed extension. Comments urged EPA to confirm that the extended
compliance dates apply to “new or more stringent compliance
obligations” imposed by the July 2002 SPCC amendments and not to
provisions in the amendments that provide regulatory relief to regulated
facilities. One comment requested an extension until an agreed
definition of “oil” is established. The agricultural sector urged
EPA to set up a hotline specifically for agricultural producers seeking
information and clarity on the rule and how it applies to their
operation and encouraged the Agency to continue coordinated efforts with
USDA and the Cooperative Extension Service to conduct outreach and
compliance assistance. Finally, another comment suggested that EPA
provide time for states to facilitate implementation and compliance
before EPA enforcement can take place.

Topic Response: This rulemaking provides an extension of the compliance
dates for those facilities that were in compliance with the SPCC
regulation in 2002 and those facilities that became subject to the SPCC
regulation after the 2002 amendments’ effective date. The compliance
date provision (§112.3(a)) means that components of the 2002 amendments
or subsequent amendments in 2006 or 2008 (see 71 FR  77266, December 26,
2006; 73 FR 74236, December 5, 2008) that imposed new or more stringent
requirements than those in the SPCC rule prior to the 2002 amendments
must be met by this date. Provisions in the amendments that provide
regulatory relief to facilities are applicable as of the effective date
of the amendment.

Comments regarding issues for clarification, such as the definition of
“oil” are beyond the scope of this rulemaking, and while EPA may
address additional issues in a future action, this extension is not
intended to postpone compliance with the SPCC rule to accommodate such
an action. The compliance date extension in this rulemaking is intended
to provide additional time for facilities to comply with the SPCC rule
amendments promulgated in 2008 (73 FR 74236, December 5, 2008) and
earlier amendments in 2006 and 2002 (71 FR 77266, December 26, 2006; 67
FR 47042, July 17, 2002).

Finally, EPA does not delegate responsibility of enforcement or
implementation of the SPCC regulation to states and therefore we do not
believe that additional time for states to conduct outreach on the SPCC
regulation is appropriate. However, EPA agrees to continue partnering
with USDA, states, and agricultural trade associations and cooperatives
to provide ongoing outreach and compliance assistance to farmers. The
Superfund, TRI, EPCRA, RMP, and Oil Information Center is equipped to
answer questions on the SPCC regulation and can be reached at: (800)
424-9346 or<PHONE_NUMBER> / TDD<PHONE_NUMBER> or<PHONE_NUMBER>.

Comment Excerpts:

Submitted by - Roger Claff of American Petroleum Institute

Comment Text: As with other deadline extensions of this rule, API
continues to have concerns about the scope of the compliance obligations
that are affected by the proposed extension of the
amendment/implementation dates. Attached is a letter API sent to EPA on
January 29, 2003 describing our understanding of the scope of the
extension… Similar to the confirmation in the April 17, 2003 extension
(68 Fed. Reg. 18893), EPA should reaffirm API's understanding in the
preamble to the final rule. [See attachment to submission entitled: In
The Final Rule, EPA Should Confirm that the Deadline Extension Applies
to All New or More Stringent Compliance Obligations in the July 2002
SPCC Rule.]

Submitted by - Jeffrey G. Luzenski of PPL Corporation

Comment Text: We ask EPA to reaffirm in the preamble to the final
compliance extension that the new compliance deadline applies to "new or
more stringent compliance obligations" imposed by or subsequent to the
July 2002 SPCC amendments and not to provisions in the amendments that
provide regulatory relief to regulated facilities.

Submitted by - Jerry Schwartz of American Forest & Paper Association

Comment Text: We also urge EPA to make it clear in the final rule that
those provisions that reduce the regulatory burden become effective on
the effective date of the rule…

Submitted by - Scott L. Davis of Utility Solid Waste Activities Group

Comment Text: In addition, as EPA stated in the 2004 and 2006 final
extension notices (see 69 Fed. Reg. 48794, 48796 (Aug. 11, 2004); 71
Fed. Reg. 8462, 8463 (Feb. 17, 2006)), we ask EPA to reaffirm in the
preamble to the final compliance extension that the new compliance
deadline applies to “new or more stringent compliance obligations”
imposed by or subsequent to the July 2002 SPCC amendments and not to
provisions in the amendments that provide regulatory relief to regulated
facilities.

Submitted by - James D. Thrift of Agricultural Retailers Association

Comment Text: ARA supports the modifications in the SPCC rule but asks
the Agency to delay the implementation of the rule for one year to allow
for an agreed definition of "oil" and full communication of the rule to
the entire agricultural community.

Submitted by - Lisa Y. Kelley for the Agriculture Coalition on the SPCC
Rule

Comment Text: Additionally, states should be given timelines to
facilitate implementation and compliance before EPA enforcement can take
place. This extra time will provide farmers and others the opportunity
to work within their organizations and with appropriate government
agencies, including USDA, regarding the development of guidelines that
could be utilized to meet such requirements.

We also urge EPA to set up a hotline specifically for agricultural
producers seeking information and clarity on the rule and how it applies
to their operation… We encourage the Agency to continue coordinated
efforts with USDA…We also appreciate EPA’s coordinated efforts with
the USDA Natural Resources Conservation Service (NRCS) and the
Cooperative Extension Service on this issue.

III. Opposed Length of the Extension / Suggested Alternative Dates

Topic Comment Summary: Although some comments supported the proposed
two-year and five-year extension of the compliance dates for farms and
oil production facilities, respectively, that meet the qualified
facilities criteria in §112.3(g), several suggested alternative dates
and requested additional time. These requests cited the extent of
modifications necessary at facilities, the need to obtain the services
of Professional Engineers (PE), and the need for a revised SPCC Guidance
for Regional Inspectors from EPA to better understand the regulation and
the 2006 and 2008 regulatory amendments. Comments argued for a number of
different options as alternates to the extension period. Two comments
requested six months between a compliance date for SPCC Plan amendment
and implementation of the Plan. Comments requested revising the date by
15 days so the compliance date is exactly one year from the publication
date of the final rule amendments in the Federal Register, including
some who requested an additional year to allow two full years following
publication of the final rule amendments in the Federal Register.

Topic Response: The Agency agrees with comments that the compliance
dates should be extended beyond the proposed November 20, 2009 date. The
Agency recognizes that the owner or operator of a regulated facility
needs adequate time to comply with the SPCC rule following amendments to
the regulation. Therefore, the Agency has extended the date of
compliance for all facilities that were in operation on or before August
16, 2002 to November 10, 2010.  This period of time will allow
facilities to prepare, amend, and implement an SPCC Plan following final
Agency action on the SPCC rule. The Agency also believes that this
action is appropriate because it will provide the owner or operator of
all facilities the opportunity to fully understand the regulatory
amendments offered by revisions to the SPCC rule promulgated on December
5, 2008 (73 FR 74236). Additionally, EPA intends to issue revisions to
the SPCC Guidance for Regional Inspectors that address changes made to
the SPCC rule, consistent with the 2006 and 2008 regulatory amendments
(71 FR 77266, December 26, 2006; 73 FR 74236, December 5, 2008).

The Agency also disagrees with comments that requested that EPA
incorporate a six-month period between Plan preparation/amendment date
and Plan implementation date. The Agency did not propose such a
provision and therefore it is outside the scope of this rulemaking.
Additionally, in February 2006, the Agency eliminated the gap between
Plan preparation/amendment and implementation to allow the owner or
operator additional time to prepare or amend the SPCC Plan (71 FR 8462,
February 17, 2006). The Agency believes that this approach provides
added flexibility, given that facilities are not required to submit SPCC
Plans to the Agency at the time of Plan preparation or amendment.

EPA recognizes that the delay in the effective date for the December
2008 rule amendments may cause uncertainty among those potentially
affected in the regulated community.  The Agency expects to promulgate
final revisions to the December 5, 2008 amendments, if any, in November
of 2009 and is therefore choosing a compliance date that is
approximately one year from the expected publication date of those
revisions. The Agency believes that this timeframe (almost one year
longer than proposed) provides sufficient time for the Agency to review
comments received on the 2008 amendments and to promulgate additional
revisions, if any, that result from this review and still provide those
potentially affected by any modifications ample time to come into
compliance.

The Agency proposed a two-year and a five-year extension of the
compliance dates for farms and oil production facilities, respectively,
that meet the qualified facilities criteria in §112.3(g). This was
intended to allow additional time for EPA to partner with federal and
state agencies and industry stakeholders to conduct outreach and
compliance assistance to these facilities. However, after reviewing
comments, EPA believes that a November 10, 2009 compliance date is
appropriate for the following reasons:

The SPCC compliance dates have been delayed since the promulgation of
amendments in 2002; during this time, new facilities (those that have
become operational after the effective date of the 2002 amendments) have
not yet been required to prepare and implement a Plan. Therefore, EPA
believes that any compliance date beyond the date finalized in this
action would not be environmentally protective.

Facilities in operation prior to the effective date of the 2002
amendments are required to maintain their SPCC Plans and have had ample
time to schedule and conduct facility modifications to comply with these
amendments.

The SPCC amendments published in 2006 and 2008 were intended to
streamline rule requirements. Facilities should not require extensive
modifications in order to comply with these regulatory amendments.

In 2006, EPA provided an option to allow owners and operators of
eligible facilities the option to self-certify SPCC Plans, thereby
minimizing reliance on PEs to certify Plans. This should reduce the
scheduling problems associated with obtaining a PE to certify Plan
amendments.

The Agency provides ongoing outreach and compliance assistance to
SPCC-regulated facilities and we do not believe that it is necessary to
delay amendment and implementation of SPCC Plans to account for these
ongoing activities.

Finally, if an owner or operator of an SPCC-regulated facility requires
additional time to comply with the SPCC rule, he may submit a written
request to the Regional Administrator in accordance with §112.3(f). The
Regional Administrator may authorize an extension of time for the
owner/operator to prepare or amend and implement an SPCC Plan for the
facility, when he finds that the owner or operator cannot comply with
all SPCC requirements by the compliance date as a result of either
non-availability of qualified personnel, or delays in construction or
equipment delivery beyond his control.

Comment Excerpts:

Submitted by - Gregory D. Russell of Vorys, Sater, Seymour and Pease LLP
for the Ohio Oil and Gas Association

Comment Text: But the Association is concerned that the general deadline
of November 20, 2009 - only 11 months away - will not give non-qualified
oil production facility owners sufficient time to adequately understand
and implement their obligations under the new SPCC rule...

Submitted by - Angie Burckhalter of the Oklahoma Independent Petroleum
Association

Comment Text: While EPA has proposed a November 20, 2013 compliance date
for certain qualified facilities, our current reading of the constraints
on qualifying for this extension may limit its utility to a small number
of facilities. Most wells in Oklahoma are marginal wells that are
operated by small companies who do not have easy access to PEs to assist
them. It will take time for our association to develop training
materials for smaller operators.

Submitted by - Steve Hensley of USA Rice Federation

Comment Text Further complications will arise as EPA attempts to address
compliance assistance through the various USDA field offices.  This will
take time which is not reflected in either the one or two-year deadline.
 As of December 3rd, EPA and USDA were scheduled to talk about
cooperation on this issue in the future.  USA Rice does not understand
how the agency can expect short term compliance when they don’t have
the compliance assistance documents, process or agreements in place.

Submitted by - Jeff Spillyards of Entergy Services, Inc.

Comment Text: …ESI wishes to suggest the compliance deadline be
established as December 5, 2009, rather than November 20, 2009, in order
to “harmonize” the compliance deadline with the December 5, 2008,
publication of the final rulemaking in the Federal Register.

Submitted by - Lee Fuller of Independent Petroleum Association of
America

Comment Text: We believe that the November 20, 2009 deadline should be
extended to December 5, 2010 because the additional burdens on American
producers cannot be implemented in a one year time frame….we believe
the necessary compliance actions will be extensive and will be difficult
to complete both physically and with professional engineer certification
by EPA’s proposed date.

Submitted by - Roger Claff of American Petroleum Institute

Comment Text: Since the SPCC-2 Rule was promulgated on December 5, 2008,
API recommends EPA resolve this ambiguity by correctly specifying the
compliance date as December 5, 2009. API also recommends, however, that
EPA maintain a separation of six months between the deadline for SPCC
Plan amendment and implementation of that Plan, to allow facility
owners/operators adequate time after plan amendment to modify their
facilities, properly train employees on the amended plan requirements,
and allow for full implementation of the amended plan requirements.
Accordingly, API recommends a SPCC Plan amendment compliance deadline of
December 5, 2009, and a SPCC Plan implementation compliance deadline of
June 5, 2010.

Submitted by - Angie Burckhalter of the Oklahoma Independent Petroleum
Association

Comment Text: We believe the proposed compliance date should be extended
to December 5, 2010 to allow oil and gas operators time to fully
understand the regulation, obtain the appropriate training, and
implement the requirements to comply with the 2002, 2006 and 2008
amendments… Furthermore, a December 5, 2010 compliance deadline will
provide the EPA time to revise its guidance document and allow companies
ample time to better understand the regulation and comply.

Submitted by - P.F. Faggert of Dominion Resources Services, Inc.

Comment Text: The extension of the compliance date for amending and
implementing SPCC Plans for non-production and non-qualified production
facilities until approximately a year after promulgation of the December
5, 2008, rule, and 5 years after the rule for qualified production
facilities, is both appropriate and necessary in order to provide
affected facility owners and operators adequate time to meet the amended
requirements of the 2006 and 2008 rules.

Submitted by – Gregory Russell of Vorys, Sater, Seymour and Pease LLP
for the Ohio Oil and Gas Association

Comment Text:  The Association… supports the proposal by U.S. EPA to
extend the date by which qualified oil production facilities must
prepare, amend, and implement their SPCC plans to November 20, 2013; and
further urges U.S. EPA to extend the date for compliance for
non-qualified production facilities an additional year from the date
proposed (i.e., to November 20, 2010).

Submitted by - Jeffrey G. Luzenski of PPL Corporation

Comment Text: The proposed rule would extend the compliance deadline for
most regulated facilities to November 20, 2009. EPA apparently selected
that date because it is exactly one year after the EPA Administrator
signed the final 2008 rule. But that is not the date on which the final
rule became generally available to the public. Official promulgation of
the rule did not occur until publication in the Federal Register on
December 5, 2008...we suggest that EPA calculate the one year compliance
period from the date of the Federal Register publication...

Submitted by - Jerry Schwartz of American Forest & Paper Association

Comment Text: AF&PA strongly supports an extension to the compliance
date for preparing or amending and implementing SPCC Plans.  An
extension allows facility owners and operators time to fully understand
the regulatory amendments to the 2002 rule and make changes to their
SPCC Plans based on the final requirements. However, we think the
compliance date should be set at December 5, 2009 rather than November
20, 2009. The December 5, 2009 date gives operators one full year after
promulgation of the revised requirements in the Federal Register on
December 5, 2008.

Additionally, AF&PA recommends that a six month separation be maintained
between the deadline for amending plans and implementing plans in
accordance with the provisions outline in 40 CFR 112.5(a). Thus, AF&PA
recommends that the compliance date for amending SPCC Plans be set at
December 5, 2009 (one year after promulgation of the final amendments)
and the Plan implementation date be set at May 5, 2010 (six months
later.)

Submitted by - Scott L. Davis of Utility Solid Waste Activities Group

Comment Text: The proposed rule would extend the compliance deadline for
most regulated facilities to November 20, 2009. EPA apparently selected
that date because it is exactly one year after the EPA Administrator
signed the final 2008 rule. But that is not the date on which the final
rule became generally available to the public. Official promulgation of
the rule did not occur until publication in the Federal Register on
December 5, 2008...we suggest that EPA calculate the one year compliance
period from the date of the Federal Register publication..."

IV. Opposed Different Dates for Certain Sectors

Topic Comment Summary: Comments objected to the Agency’s proposal of
different compliance dates for farms and production facilities that meet
the criteria for qualified facilities. Comments requested that the
compliance date for all farms and production facilities, whether they
meet the qualified facilities criteria in §112.3(g) or not, be extended
to November 20, 2013. They argued that assigning differentiated
compliance dates to different industries was unnecessary and that
additional time was necessary to conduct outreach and compliance
assistance to the regulated community.  Some also argued that assigning
differentiated compliance dates to qualified facilities and all other
facilities within one industry caused confusion over the applicability
of the rule.

Topic Response: EPA agrees with comments who objected to different
compliance dates for certain sectors. EPA also agrees with the comment
who indicated that owners or operators of facilities eligible for
self-certified SPCC Plans do not require more time to amend or prepare
an SPCC Plan than owners or operators of facilities that must hire a PE
to certify the Plan. Furthermore, the Agency does not have information
to support a longer extension of the compliance dates for qualified
facilities in the farming or oil production sectors. Therefore, the
Agency believes that a single compliance date for all regulated
facilities avoids potential confusion by an owner or operator when
determining the date for compliance at his facility. In providing a
single compliance date applicable to all sectors, EPA believes that an
owner or operator will have additional clarity and should result in
increased compliance with the SPCC rule.

Comment Excerpts:

Submitted by - Lee Fuller of Independent Petroleum Association of
America

Comment Text: Moreover, while EPA has proposed a November 20, 2013
compliance date for certain qualified facilities, our current reading of
the constraints on qualifying for this extension will limit its utility
to a small number of operations.

Submitted by - Steve Hensley of USA Rice Federation

Comment Text: This rule was published, along with a direct final rule on
the same issue, on November 26, 2008 and references a third rule
presumably in the same Federal Register issue.  The third rule, however,
was not published until December 5, 2008 as a final rule and contains
language needed to adequately understand this proposal.  To further
complicate matters, the agency does not use the same language in both
documents when referring to the same things.  The result is, in this
proposal, language that is clearly confusing on the topic of which farms
have which deadlines.

Second, it is now our understanding that the farms requiring a
Professional Engineer (PE) certification (called “all other
facilities” in the Dec. 5 rule) have until November 20, 2009, whereas
the farms allowed self-certification of either a template or a plan
(called “qualified facilities” in both documents) have until
November 20, 2010.  In essence, the agency is giving less time to those
farms that must find and hire a limited number of PEs while competing
with other farms for the same PEs than they are giving those farms that
don’t have to hire a PE but instead fill out a template or a plan.
Adding further confusion to the issue, the EPA is proposing to give oil
production facilities five years to come into compliance....

Submitted by – Lisa Y. Kelley for the Agriculture Coalition on the
SPCC Rule

Comment Text: …That said, we do not understand why the Agency provided
a five-year time frame for the oil production industry to comply with
the December 5, 2008 final rule. EPA stated in the final rule that
“the agricultural community did not provide information that would
lead the Agency to conclude that farms are sufficiently different to
warrant further differentiation from other facilities that store oil.”
The Coalition would remind EPA of the 2005 USDA study which found that
data on oil spill on farms, cooperatives, and other agribusinesses is
almost nonexistent. The Agency has failed to provide data or anecdotal
evidence of agricultural spills to justify such a resource-intensive
rulemaking and also failed to adequately justify the longer time period
for the oil production industry that has a history of spills.

Submitted by - Steve Hensley of USA Rice Federation

Comment Text: USA Rice strongly believes that the EPA has made a mistake
in their compliance deadlines for agriculture.  Farms should have a five
year deadline to come into compliance regardless of their “qualified
facility” or “all other facility” status.

Submitted by – Lisa Y. Kelley for the Agriculture Coalition on the
SPCC Rule

Comment Text: For simplicity, we call on the Agency to establish one
compliance deadline for all industry sectors impacted by this final rule
to avoid further confusion.  Since the Agency sees no differentiation
between the agriculture community’s risk under SPCC compared to that
of other covered facilities such as oil production facilities, we see no
reason for differentiation in compliance deadlines. A compliance
deadline of November 20, 2013 is recommended for both the agricultural
community and oil production facilities.

 Signatories of this submission are listed as follows: American Farm
Bureau Federation; California Dairies, Inc.; CHS Inc.; Dairy Farmers of
America; Kansas Cooperative Council; Maryland & Virginia Milk Producers
Cooperative Association, Inc.; National Association of Wheat Growers;
National Cattlemen’s Beef Association; National Corn Growers
Association; National Council of Farmer Cooperatives; National Farmers
Union; National Grange; National Grape Cooperative, Inc.; National Milk
Producers Federation; South East Dairy Farmers Association; United Egg
Producers; USA Rice Federation; and Western United Dairymen.

 These comments are filed on behalf of the Independent Petroleum
Association of America (IPAA), the International Association of Drilling
Contractors (IADC), the International Association of Geophysical
Contractors (IAGC), the National Stripper Well Association (NSWA), the
Petroleum Equipment Suppliers Association (PESA), the US Oil & Gas
Association (USOGA) and the following organizations: Arkansas
Independent Producers and Royalty Owners Association; California
Independent Petroleum Association; Coalbed Methane Association of
Alabama; Colorado Oil & Gas Association; East Texas Producers & Royalty
Owners Association; Eastern Kansas Oil & Gas Association; Florida
Independent Petroleum Association; Illinois Oil & Gas Association;
Independent Oil & Gas Association of New York; Independent Oil & Gas
Association of Pennsylvania; Independent Oil & Gas Association of West
Virginia; Independent Oil Producers Agency; Independent Oil Producers
Association Tri-State; Independent Petroleum Association of Mountain
States; Independent Petroleum Association of New Mexico; Indiana Oil &
Gas Association; Kansas Independent Oil & Gas Association; Kentucky Oil
& Gas Association; Louisiana Independent Oil & Gas Association; Michigan
Oil & Gas Association; Mississippi Independent Producers & Royalty
Association; Montana Petroleum Association; National Association of
Royalty Owners; Nebraska Independent Oil & Gas Association; New Mexico
Oil & Gas Association; New York State Oil Producers Association; North
Dakota Petroleum Council; Northern Alliance of Independent Producers;
Ohio Oil & Gas Association; Oklahoma Independent Petroleum Association;
Panhandle Producers & Royalty Owners Association; Pennsylvania Oil & Gas
Association; Permian Basin Petroleum Association; Petroleum Association
of Wyoming; Southeastern Ohio Oil & Gas Association; Tennessee Oil & Gas
Association; Texas Alliance of Energy Producers; Texas Independent
Producers and Royalty Owners Association; Virginia Oil and Gas
Association; and Wyoming Independent Producers Association

EXTENSION OF SPCC COMPLIANCE DATES

	  PAGE  2 	June 5, 2009


Registration Form for EPA’s SunWise Program

Your Name:
_____________________________________________________________________

How did you learn about SunWise?
___________________________________________________

________________________________________________________________________
________

About Your Organization

My organization is a:	  FORMCHECKBOX   Childcare Center / Pre-K
FORMCHECKBOX   Museum		  FORMCHECKBOX   Civic Group

  FORMCHECKBOX   Science or Health Ed. Center	  FORMCHECKBOX
Not-for-profit 	  FORMCHECKBOX   Health Org.	  FORMCHECKBOX  University

  FORMCHECKBOX   Government			  FORMCHECKBOX
Other:_________________________________________

Org. Name:
_____________________________________________________________________

Org. Address:
___________________________________________________________________

City: ___________________________________ State:__________ Zip Code:
________________

Phone: (_______)__________________________ County:
________________________________

Your E-mail :
____________________________________________________________________

Org. Web site:
___________________________________________________________________

Mailing Address: Please send materials to:	  FORMCHECKBOX   My
Organization (listed above)

						  FORMCHECKBOX   Another Address (enter below)

Alternate Address:
________________________________________________________________

City: ___________________________________ State:__________ Zip Code:
________________

Phone:
(_______)_______________________________________________________________
__

Number of students you plan to teach SunWise in a year:
_________________________________

How do you plan to use the kit (i.e., on testing days as a fun break for
students, during our solar unit, or at the beginning of outdoor
activities, during rainy day P.E. activities, etc.)? _________________

________________________________________________________________________
________

________________________________________________________________________
________

Language: 	  FORMCHECKBOX   English Materials 	OR 	  FORMCHECKBOX
Spanish Materials?

In keeping with the EPA's commitment to program evaluation, are you
willing to be contacted periodically regarding SunWise?
FORMCHECKBOX   Yes 	    FORMCHECKBOX   No

Attachment 1b

Incomplete Forms May Not Be Processed

Information collection via this form is authorized by OMB Control No.
2060-0439


[Federal Register: October 22, 2008 (Volume 73, Number 205)]
[Proposed Rules]
[Page 62942-62945]
[DOCID:fr22oc08-25]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910 and 1926

[Docket OSHA-S215-2006-0063]
RIN 1218-AB67

Electric Power Generation, Transmission, and Distribution;
Electrical Protective Equipment; Limited Reopening of Record

AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.

ACTION: Notice of limited reopening of rulemaking record.

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

SUMMARY: On June 15, 2005, OSHA published a proposed rule to revise the
general industry and construction standards for electric power
generation, transmission, and distribution work and for electrical
protective equipment. Public comments were received, a hearing was
held, and the final posthearing briefs were due on July 14, 2006.
    The proposed general industry and construction standards for
electric power generation, transmission, and distribution work included
revised minimum approach distance tables. Those tables limit how close
an employee (or a conductive object he or she is contacting) may get to
an energized circuit part. After the rulemaking record on the proposal
closed, the technical committee responsible for developing the tables
in the consensus standards on which the proposal was based discovered
what in their view was an error in their calculation of minimum
approach distances for certain voltages.
    OSHA is reopening the record on this proposal to obtain comments
related to the affected minimum approach distances. The record will
remain open on this limited basis for 30 days.

DATES: Comments must be postmarked no later than November 21, 2008.

ADDRESSES: You may submit comments, identified by Docket No. OSHA-S215-
2006-0063, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     Fax: If your comments, including attachments, do not
exceed 10 pages, you may fax them to the OSHA Docket Office at (202)
693-1648.
     Mail, hand delivery, express mail, messenger, or courier
service: You must submit two copies of your comments and attachments to
the OSHA Docket Office, Docket No. OSHA-S215-2006-0063, U.S. Department
of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC
20210; telephone<PHONE_NUMBER> (OSHA's TTY number is<PHONE_NUMBER>).
Deliveries (hand, express mail, messenger, and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., e.s.t.
    Instructions: All submissions must include the agency name and the
docket number (Docket No. OSHA-S215-2006-0063) or Regulatory
Information Number (RIN 1218-AB67) for this rulemaking. All comments
received will be posted without change to http://dockets.osha.gov,
including any personal information provided.
    Docket: To read or download comments and materials submitted in
response to this Federal Register notice, go to Docket OSHA-S215-2006-
0063 at http://www.regulations.gov or at the OSHA Docket Office at the
previously listed address. All comments and submissions are listed in
the http://www.regulations.gov index. However, some information (for
example, copyrighted material) is not publicly available to read or
download through that Web page. All comments and submissions, including
copyrighted material, are available for inspection and copying at the
OSHA Docket Office.
    Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also are available at OSHA's Web page
at http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: General information and press
inquiries: Contact Ms. Jennifer Ashley, Office of Communications, Room
N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: On June 15, 2005, OSHA issued a proposed
rule to revise the general industry and construction standards for
electric power generation, transmission, and distribution work and for
electrical protective equipment (70 FR 34822). The Agency solicited
public comments and held a public hearing on March 6 through 14, 2006.
Administrative Law Judge William Colwell set a deadline of July 14,
2006, for the filing of written comments, summations, position
statements, and briefs.
    The proposed requirements for electric power generation,
transmission, and distribution work for general industry and
construction would be contained in 29 CFR 1910.269 and 29 CFR part
1926, subpart V (Sec. Sec.  1926.950 through 1926.968), respectively.
Proposed Sec.  1926.960(c)(1) would require employees to maintain
minimum approach distances from exposed energized parts. The minimum
approach distances are specified in proposed Tables V-2 through V-6.
Existing Sec.  1910.269(l)(2) and proposed Tables R-6 through R-10
contain equivalent requirements for general industry.
    OSHA developed the minimum approach distance tables in the proposal
using the following principles (see 70 FR 34862):
     ANSI/IEEE \1\ Standard 516-1987 was to be the electrical
basis for approach distances: Table 4 (Alternating Current) and Table 5
(Direct Current) for voltages above 72.5 kV. Lower voltages were to be
based on ANSI/IEEE Standard 4. The application of ANSI/IEEE Standard
516-1987 was inclusive of the formula used by that standard to derive
electrical clearance distances.
---------------------------------------------------------------------------

    \1\ ANSI is the American National Standards Institute. IEEE is
the Institute of Electrical and Electronics Engineers, Inc.
---------------------------------------------------------------------------

     Altitude correction factors were to be in accordance with
ANSI/IEEE Standard 516-1987, Table 1.
     The maximum design transient overvoltage data to be used
in the development of the basic approach distance tables were:

[cir] 3.0 per unit for voltages of 362 kV and less
[cir] 2.4 per unit for 500 to 550 kV
[cir] 2.0 per unit for 765 to 800 kV

     All phase-to-phase values were to be calculated from the
EPRI \2\ Transmission Line Reference Book for 115 to 138 kV.
---------------------------------------------------------------------------

    \2\ EPRI is the Electric Power Research Institute.
---------------------------------------------------------------------------

     An inadvertent movement factor (ergonomic component)
intended to account for errors in judging the approach distance was to
be added to all basic electrical approach distances (electrical
component) for all voltage ranges. A distance of 0.31 meters (1 foot)
was to be added to all voltage ranges. An additional 0.3 meters (1
foot) was to be added to voltage ranges below 72.6 kV.

     The voltage reduction allowance for controlled maximum
transient overvoltage was to be such that the minimum allowable
approach distance was not less than the given approach distance
specified for the highest voltage of the given range.
     The transient overvoltage tables were to be applied only
at voltage ranges inclusive of 72.6 kV to 800 kV. All tables were to be
established using the higher voltage of each separate voltage range.
    As noted in Appendix B to existing Sec.  1910.269 and in Appendix B
to proposed subpart V, the following equation is used to calculate the
electrical component of the minimum approach distance for voltages of
72.6 kV to 800 kV:
[GRAPHIC] [TIFF OMITTED] TP22OC08.000

Where:

D = Electrical component of the minimum approach distance in air in
feet
C = 0.01 to take care of correction factors associated with the
variation of gap sparkover with voltage
a = A factor relating to the saturation of air at voltages \3\ of
345 kV or higher
---------------------------------------------------------------------------

    \3\ This voltage is the maximum transient overvoltage.
---------------------------------------------------------------------------

pu = Maximum anticipated transient overvoltage, in per unit (p.u.)
Vmax = Maximum rms system line-to-ground voltage in kilovolts--it
should be the ``actual'' maximum, or the normal highest voltage for
the range (for example, 10 percent above the nominal voltage).

Source: Formula developed from ANSI/ IEEE Standard No. 516-1987.

    For phase-to-phase exposures, the maximum phase-to-phase transient
overvoltage must be used to calculate minimum approach distances from
one phase to another. As noted in Appendix B to existing Sec.  1910.269
and in Appendix B to proposed subpart V, the following equation is used
in determining the phase-to-phase maximum transient overvoltage based
on the per unit of the system nominal voltage phase-to-ground crest:
[GRAPHIC] [TIFF OMITTED] TP22OC08.001

Where:

pup = p.u. phase-to-phase maximum transient overvoltage
pug = p.u. phase-to-ground maximum transient overvoltage.

    This value was to be used in Equation (1) to calculate the phase-
to-phase minimum approach distance (MAD).
    The technical committees responsible for ANSI/IEEE and the National
Electrical Safety Code (NESC, ANSI C2) calculated minimum approach
distances based on these equations. Because OSHA intended to use the
same methodology, it relied on the technical committees' calculations
as they appeared in the two consensus standards and carried those
distances into the proposed standard.
    During the most recent revision cycle for ANSI/IEEE Standard 516,
the IEEE technical committee responsible for revising that standard
identified what in their view was an error in the calculations of
phase-to-phase minimum approach distances for nominal voltages 230 kV
and higher. At these voltages, the saturation factor, a, which appears
in Equation (1), varies depending upon the voltage. The value of a
increases with increasing voltage. The NESC subcommittee originally
calculated the phase-to-phase minimum approach distances using a value
for the saturation factor, a, corresponding to the phase-to-ground
maximum transient overvoltage rather than the maximum phase-to-phase
transient overvoltage.\4\ Because the MADs used in OSHA's 2005 proposal
were taken from the consensus standard, OSHA wants to obtain comments
on whether changes are necessary to the tables as proposed.
---------------------------------------------------------------------------

    \4\ ANSI/IEEE Standard 516-1987 did not contain distances for
phase-to-phase exposures. The NESC subcommittee derived them by
applying the IEEE equation to the phase-to-phase temporary
overvoltages calculated using Equation (2).
---------------------------------------------------------------------------

    The IEEE committee proposed a correction in a draft revised IEEE
Standard 516 (Draft 9).\5\ Table 1 shows the difference
between the minimum approach distances in that draft IEEE Standard 516
and those contained in proposed Sec.  1910.269 Table R-6 and proposed
Subpart V Table V-2 for voltages over 72.5 kV. A subsequent draft from
the IEEE committee (Draft 10) dropped values for voltages with
temporary overvoltages exceeding 1600 kV.\6\ Draft 10 leaves
the determination of these values to ``good engineering judgment.''
---------------------------------------------------------------------------

    \5\ This document is available for inspection and copying in the
Docket Office at the address listed in the ADDRESSES section of this
notice.
    \6\ This document is also available for inspection and copying
in the Docket Office at the address listed in the ADDRESSES section
of this notice.

                                Table 1--Comparison of Minimum Approach Distances
----------------------------------------------------------------------------------------------------------------
                                                                         Distance (m)
                                             -------------------------------------------------------------------
                                                  Phase-to-ground exposure           Phase-to-phase exposure
 Nominal voltage in kilovolts phase-to-phase -------------------------------------------------------------------
                                                                   Proposed                          Proposed
                                               Draft IEEE 516  tables R-6  and   Draft IEEE 516  tables R-6  and
                                                    \1\              V-2              \1\              V-2
----------------------------------------------------------------------------------------------------------------
72.6 to 121.................................            1.01             0.95             1.36             1.29
138 to 145..................................            1.15             1.09             1.57             1.50
161 to 169..................................            1.29             1.22             1.85             1.71
230 to 242..................................            1.71             1.59             2.91             2.27
345 to 362..................................            2.72             2.59             5.13             3.80
500 to 550..................................            3.54             3.42             6.89             5.50

765 to 800..................................            4.64             4.53             9.35             7.91
----------------------------------------------------------------------------------------------------------------
\1\ Draft 9 of IEEE Standard 516 provides separate minimum approach distances for exposures with and
  without tools in the air gap. The distances in the table are for tools in the air gap (called ``minimum tool
  insulation distances'' in the IEEE standard.). The NESC minimum approach distances tables are derived from the
  distances in IEEE Standard 516 corresponding to exposures with tools in the air gap.

    As can be seen from Table 1, the IEEE's proposed approach from
Draft 9 results in a substantial increase in MAD for phase-to-
phase exposures at voltages of 230 kV and higher.
    For purposes of the public's consideration of the issues in this
reopening notice, OSHA points out the following technical issues:
    1. For voltages over 72.5 kV, the electrical component of the
minimum approach distances \7\ in OSHA's proposal is based on testing
of rod-to-rod gaps performed by 13 laboratories. This testing extends
to approximately 1.6 MV. This voltage is sufficient to cover the
maximum transient overvoltage for all phase-to-ground exposures.
However, it does not extend to the maximum transient overvoltages for
phase-to-phase exposures of voltages 362 kV and higher, as shown in
Table 2.
---------------------------------------------------------------------------

    \7\ The electrical component of the minimum approach distance is
called ``minimum tool insulation distance'' or MTID in the IEEE
draft.

                 Table 2--Maximum Transient Overvoltages
------------------------------------------------------------------------
                                       Maximum transient overvoltage (in
                        Maximum                       kV)
  System voltage    anticipated per- -----------------------------------
   (in kV) Vmax      unit transient    Phase-to-ground   Phase-to-phase
                     overvoltage pu       exposure          exposure
------------------------------------------------------------------------
            362                3.0               1086              1665
            552                2.4               1325              2208
            800                2.0               2208              2880
------------------------------------------------------------------------
Note: The maximum transient overvoltage for phase-to-ground exposure
  equals Vmax x pu. The maximum overvoltage for phase-to-phase exposures
  equals Vmax x (pu + 1.6).

    In Draft 9, the IEEE committee addressed this issue by
extending the equations used for calculating the minimum air insulation
distance beyond the highest voltage covered by the test data. Other
approaches using the same criteria upon which the minimum approach
distances are based could include: (1) Using available test data for
conductor-to-conductor gaps and converting them to equivalent rod-to-
rod values, and (2) commissioning further tests.
    2. IEEE Drafts 9 and 10 also include other
refinements of the method used to calculate minimum approach distances
intended to make the calculations more precise and repeatable. For
example, the saturation factor is now based on equations resulting from
curve fitting the test data rather than from reading the value directly
from a graph of these data.
    3. If the minimum approach distances are based on the minimum tool
insulation distance, as is done in the NESC, there would be additional
slight increases in MAD for all voltages of 72.6 kV and higher with
both phase-to-ground and phase-to-phase exposures.
    In light of the IEEE committee's draft revisions, OSHA is reopening
the record on the electric power generation, transmission, and
distribution standard to invite comments, evidence, and data on the
limited question of whether the Agency should adopt minimum approach
distances different from those proposed for voltages of 72.6 kV and
higher. The Agency strives to adopt a final rule that is based on sound
and up-to-date engineering, and scientific principles and is
specifically inviting comments on the following questions:
    1. Should OSHA adopt MADs that are different from those proposed
for voltages of 72.6 kV and higher and, if so, should it adopt the
distances in Draft 9 or 10 of IEEE Standard 516?
    2. Are there methods other than those in Drafts 9 and
10 of IEEE Standard 516 that would be more appropriate in the
calculation of MAD for maximum transient overvoltages beyond existing
data for rod-to-rod gaps?
    3. Should MAD for voltages of 72.6 kV and higher be based on the
minimum tool insulation distance as is the case in the 2007 NESC?
    4. Should the final rule include separate minimum approach distance
tables for air gaps and for tools as is done in Drafts 9 and
10 of IEEE Standard 516?
    OSHA is reopening the record solely on issues related to minimum
approach distances for voltages of 72.6 kV and higher. The record is
not being reopened on any other issue.

List of Subjects in 29 CFR Parts 1910 and 1926

    Electric power, Fire prevention, Hazardous substances, Occupational
safety and health, Safety.

Authority and Signature

    This document was prepared under the direction of Edwin G. Foulke,
Jr., Assistant Secretary of Labor for Occupational Safety and Health,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210. It is issued pursuant to sections 4, 6, and 8 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657),

Secretary's Order 5-2007 (72 FR 31160), and 29 CFR Part 1911.

    Signed at Washington, DC, this 16th day of October 2008.
Edwin G. Foulke, Jr.
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. E8-25079 Filed 10-21-08; 8:45 am]

BILLING CODE 4510-26-P


[Federal Register Volume 77, Number 227 (Monday, November 26, 2012)]
[Notices]
[Page 70426]
[FR Doc No: 2012-28546]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12690-005]

Public Utility District No. 1 of Snohomish County, Washington;
Notice of Revised Procedural Schedule for Processing the License
Application

    Based on the information in the record now, the Commission will
continue processing the license application for the Admiralty Inlet
Pilot Tidal Project according to the schedule below. Revisions to the
schedule may be made as appropriate.

------------------------------------------------------------------------
              Milestone                           Target date
------------------------------------------------------------------------
Commission issues non-draft EA.......  January 18, 2013.
Comments on EA due...................  February 18, 2013.
------------------------------------------------------------------------

    Dated: November 19, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-28546 Filed 11-23-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 45 (Thursday, March 7, 2013)]
[Notices]
[Pages 14844-14847]
[FR Doc No: 2013-05241]

=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69011]

Topaz Exchange, LLC; Order Granting Application for a Conditional
Exemption Pursuant to Section 36(a) of the Exchange Act From Certain
Requirements of Rules 6a-1 and 6a-2 Under the Exchange Act

March 1, 2013.

I. Introduction

    On July 3, 2012, Topaz Exchange, LLC (``Applicant'') submitted to
the Securities and Exchange Commission (``Commission'') an application
on Form 1 under the Securities Exchange Act of 1934 (``Exchange Act''),
to register as a national securities exchange.\1\ In

addition, the Applicant, pursuant to Rule 0-12 \2\ under the Exchange
Act, has requested an exemption under Section 36(a)(1) of the Exchange
Act \3\ from certain requirements of Rules 6a-1(a) and 6a-2 under the
Exchange Act (``Exemption Request'').\4\ This order grants the
Applicant's request for exemptive relief, subject to the satisfaction
of certain conditions, which are outlined below.
---------------------------------------------------------------------------

    \1\ On December 19, 2012, the Applicant submitted Amendment No.
1 to its Form 1 application. Amendment No. 1, among other things,
includes changes to the Limited Liability Company Agreement and the
Constitution of Topaz Exchange concerning board composition and
size, the initial director election process, and the use of
regulatory funds. Amendment No. 1 also includes revisions to
proposed rules of Topaz Exchange to remove rules relating to complex
orders; to respond to comments on the Form 1 application from
Commission staff; and to reflect recent changes to comparable rules
of International Securities Exchange, LLC (``ISE''). Amendment No. 1
further provides additional descriptions in the Form 1 application
regarding proposed allocation procedures, auction mechanisms,
execution of qualified contingent crosses, and the initial director
election process, and removes references to complex orders. On
December 31, 2012, the Applicant submitted Amendment No. 2 to its
Form 1 application. Amendment No. 2, among other things, provides
updated information regarding the board of directors of ISE and the
Corporate Governance Committee of ISE and includes information
regarding Longitude S.A., a newly incorporated affiliate of Topaz
Exchange, which information includes the Articles of Incorporation
of Longitude S.A. Amendment No. 2 also provides financial
information for Longitude S.A. Finally, Amendment No. 2 provides an
updated organizational chart that reflects the affiliates of Topaz
Exchange.
    \2\ 17 CFR 240.0-12.
    \3\ 15 U.S.C. 78mm(a)(1).
    \4\ 17 CFR 240.6a-1(a) and 6a-2. See letter from Michael Simon,
General Counsel, Secretary and Chief Regulatory Officer, Topaz
Exchange, LLC, to Elizabeth Murphy, Secretary, Commission, dated
December 14, 2012.
---------------------------------------------------------------------------

II. Application for Conditional Exemption From Certain Requirements of
Exchange Act Rules 6a-1 and 6a-2

A. Filing Requirements Under Exchange Act Rule 6a-1(a)

    Exchange Act Rule 6a-1(a) requires an applicant for registration as
a national securities exchange to file an application with the
Commission on Form 1. Exhibit C to Form 1 requires the applicant to
provide certain information with respect to each of its subsidiaries
and affiliates.\5\ For purposes of Form 1, an ``affiliate'' is ``[a]ny
person that, directly or indirectly, controls, is under common control
with, or is controlled by, the national securities exchange * * *
including any employees.'' \6\ Form 1 defines ``control'' as ``[t]he
power, directly or indirectly, to direct the management or policies of
a company, whether through ownership of securities, by contract, or
otherwise * * *'' \7\ Form 1 provides, further, that any person that
directly or indirectly has the right to vote 25% or more of a class of
voting securities, or has the power to sell or direct the sale of 25%
or more of a class of voting securities, is presumed to control the
entity.\8\
---------------------------------------------------------------------------

    \5\ Specifically, Exhibit C requires the applicant to provide,
for each subsidiary or affiliate, and for any entity that operates
an electronic trading system used to effect transactions on the
exchange: (1) The name and address of the organization; (2) the form
of organization; (3) the name of the state and statute citation
under which it is organized, and the date of its incorporation in
its present form; (4) a brief description of the nature and extent
of the affiliation; (5) a brief description of the organization's
business or function; (6) a copy of the organization's constitution;
(7) a copy of the organization's articles of incorporation or
association, including all amendments; (8) a copy of the
organization's by-laws or corresponding rules or instruments; (9)
the name and title of the organization's present officers,
governors, members of all standing committees, or persons performing
similar functions; and (10) an indication of whether the business or
organization ceased to be associated with the applicant during the
previous year, and a brief statement of the reasons for termination
of the association.
    \6\ Form 1 Instructions, Explanation of Terms, 17 CFR 249.1.
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------

    Exhibit D to Form 1 requires an applicant for exchange registration
to provide unconsolidated financial statements for the latest fiscal
year for each subsidiary or affiliate. Exhibit D requires the financial
statements to include, at a minimum, a balance sheet and an income
statement with such footnotes and other disclosures as are necessary to
avoid rendering the financial statements misleading. Exhibit D
provides, in addition, that if any affiliate or subsidiary of the
applicant is required by another Commission rule to submit annual
financial statements, a statement to that effect, with a citation to
the other Commission rule, may be provided in lieu of the financial
statements required in Exhibit D.
    A Form 1 application is not considered filed until all necessary
information, including financial statements and other required
documents, have been furnished in the proper form.\9\
---------------------------------------------------------------------------

    \9\ 17 CFR 202.3(b)(2). See also 17 CFR 240.0-3(a). Defective
Form 1 applications ``may be returned with a request for correction
or held until corrected before being accepted as a filing.'' See 17
CFR 202.3(b)(2). See also Securities Exchange Act Release No. 40760
(Dec. 8, 1998), 63 FR 70844, 70881 (Dec. 22, 1998) (``Regulation ATS
Adopting Release'') at note 329 and accompanying text.
---------------------------------------------------------------------------

B. Filing Requirements Under Exchange Act Rule 6a-2

    Exchange Act Rule 6a-2(a)(2) requires a national securities
exchange to update the information provided in Exhibit C within 10 days
of any action that causes the information provided in Exhibit C to
become inaccurate or incomplete. In addition, Exchange Act Rule 6a-
2(b)(1) requires a national securities exchange to file Exhibit D on or
before June 30 of each year, and Exchange Act Rule 6a-2(c) requires a
national securities exchange to file Exhibit C every three years.

C. Exemption Request

    On December 14, 2012, the Applicant requested that the Commission
grant an exemption under Section 36 of the Exchange Act, subject to the
conditions set forth below, from the requirement under Exchange Act
Rule 6a-1 to file the information requested in Exhibits C and D to Form
1 for the ``Foreign Indirect Affiliates,'' as defined below, of the
Applicant.\10\ In addition, the Applicant requested an exemption,
subject to certain conditions, with respect to the Foreign Indirect
Affiliates from the requirements under: (1) Exchange Act Rule 6a-
2(a)(2) to amend Exhibit C within 10 days if the information in Exhibit
C becomes inaccurate or incomplete; and (2) Exchange Act Rules 6a-
2(b)(1) and (c) to file periodic updates to Exhibits C and D.
---------------------------------------------------------------------------

    \10\ See Exemption Request, supra note 4.
---------------------------------------------------------------------------

    The Applicant is a wholly-owned subsidiary of International
Securities Exchange Holdings, Inc. (``ISE Holdings'').\11\ ISE Holdings
is a wholly-owned subsidiary of U.S. Exchange Holdings, Inc., which is
wholly-owned by a German stock corporation, Eurex Frankfurt AG (``Eurex
Frankfurt''). Eurex Frankfurt is wholly-owned by a Swiss stock
corporation, Eurex Zurich AG (``Eurex Zurich''), which, in turn, is
fifty percent (50%) owned by Deutsche B[ouml]rse AG (``Deutsche
B[ouml]rse'') and fifty percent (50%) owned by Eurex Global Derivatives
AG (``EGD''). Deutsche B[ouml]rse has one hundred percent (100%) direct
ownership interest in EGD. According to the Applicant, the parent
ownership structure of U.S. Exchange Holdings, Inc. is comprised
entirely of foreign entities, Eurex Frankfurt, Eurex Zurich, Deutsche
B[ouml]rse and EGD (collectively, the ``Foreign Direct Affiliates''),
which in turn hold ownership interests, either directly or indirectly,
in excess of 25 percent (25%) in a large number of other foreign
entities, some of which also own interests in other entities in excess
of 25 percent (25%) as well (such Foreign Direct Affiliate-owned
entities are referred to, collectively, as the ``Foreign Indirect
Affiliates'').\12\
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    \11\ See Exemption Request, supra note 4, at 2.
    \12\ See id.
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    Because of the limited and indirect nature of its connection to the
Foreign Indirect Affiliates, the Applicant believes that the corporate
and financial information of the Foreign Indirect Affiliates required
by Exhibits C and D of Form 1 would have little relevance to the
Commission's review of the Applicant's Form 1 application or to the
Commission's ongoing oversight of the Applicant as a national
securities exchange if the Commission were to approve the Applicant's
Form 1 application, as amended.\13\ In this regard, the Exemption
Request states that the Foreign Indirect Affiliates have no ability to
influence the management, policies, or finances of the Applicant and no
obligation to provide funding to, or ability to materially affect the
funding

of, the Applicant.\14\ The Exemption Request also states that: (1) The
Foreign Indirect Affiliates have no ownership interest in the Applicant
or in any of the controlling shareholders of the Applicant; and (2)
there are no commercial dealings between the Applicant and the Foreign
Indirect Affiliates.\15\ Further, the Exemption Request states that
obtaining detailed corporate and financial information with respect to
the Foreign Indirect Affiliates (1) is unnecessary for the protection
of investors and the public interest and (2) would be unduly burdensome
and inefficient because these affiliates are located in foreign
jurisdictions and the disclosure of such information could implicate
foreign information sharing restrictions in such jurisdictions.\16\
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    \13\ See id.
    \14\ See Exemption Request, supra note 4, at 2-3.
    \15\ See Exemption Request, supra note 4, at 3.
    \16\ See id. The Applicant also believes that providing the
information required by Exhibits C and D with respect to the Foreign
Indirect Affiliates could raise confidentiality concerns because
many of the Foreign Indirect Affiliates are not public companies.
Id.
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    As a condition to the granting of exemptive relief, the Applicant
has agreed to provide: (i) A listing of the names of the Foreign
Indirect Affiliates; (ii) an organizational chart setting forth the
affiliation of the Foreign Indirect Affiliates and the Foreign Direct
Affiliates and the Applicant; and (iii) in Exhibit C of the Applicant's
Form 1 application, a description of the nature of the Foreign Indirect
Affiliates' affiliation with the Foreign Direct Affiliates and the
Applicant. In addition, as a condition to the granting of exemptive
relief from the requirements of Exchange Act Rule 6a-2(a)(2), 6a-
2(b)(1), and 6a-2(c), as described above, the Applicant has agreed to
provide amendments to the information required under conditions (i)
through (iii) above on or before June 30th of each year. Further, the
Applicant notes that it will provide the information required by
Exhibits C and D for all of its affiliates other than the Foreign
Indirect Affiliates, including the Foreign Direct Affiliates.\17\
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    \17\ See Exemption Request, supra note 4, at 3.
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III. Order Granting Conditional Section 36 Exemption

    Section 6 of the Exchange Act \18\ sets forth a procedure for an
exchange to register as a national securities exchange.\19\ Exchange
Act Rule 6a-1(a) \20\ requires an application for registration as a
national securities exchange to be filed on Form 1 in accordance with
the instructions in Form 1. A Form 1 application is not considered
filed until all necessary information, including financial statements
and other required documents, has been furnished in the proper
form.\21\ Exchange Act Rule 6a-2 establishes ongoing requirements to
file certain amendments to Form 1.
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    \18\ 15 U.S.C. 78f.
    \19\ Specifically, Section 6(a) of the Exchange Act states that
``[a]n exchange may be registered as a national securities exchange
* * * by filing with the Commission an application for registration
in such form as the Commission, by rule, may prescribe containing
the rules of the exchange and such other information and documents
as the Commission, by rule, may prescribe as necessary or
appropriate in the public interest or for the protection of
investors.'' Section 6 of the Exchange Act also sets forth various
requirements to which a national securities exchange is subject.
    \20\ 17 CFR 240.6a-1(a).
    \21\ 17 CFR 202.3(b)(2). See also supra note 9.
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    Section 36(a)(1) of the Exchange Act provides that ``the
Commission, by rule, regulation, or order, may conditionally or
unconditionally exempt any person, security, or transaction, or any
class or classes of persons, securities, or transactions, from any
provision or provisions of [the Exchange Act] or of any rule or
regulation thereunder, to the extent that such exemption is necessary
or appropriate in the public interest, and is consistent with the
protection of investors.'' \22\
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    \22\ 15 U.S.C. 78mm(a)(1).
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    For the reasons discussed below, the Commission believes that it is
appropriate in the public interest and consistent with the protection
of investors to exempt the Applicant from the requirement under
Exchange Act Rule 6a-1 to provide the information required in Exhibits
C and D to Form 1 with respect to the Foreign Indirect Affiliates,
subject to the following conditions:
    (1) The Applicant must provide a list of the names of the Foreign
Indirect Affiliates;
    (2) the Applicant must provide an organizational chart setting
forth the affiliation of the Foreign Indirect Affiliates and the
Foreign Direct Affiliates and the Applicant; and
    (3) as part of Exhibit C to the Applicant's Form 1 Application, the
Applicant must provide a description of the nature of the affiliation
between the Foreign Indirect Affiliates and the Foreign Direct
Affiliates and the Applicant.
    The Commission believes, further, that it is appropriate in the
public interest and consistent with the protection of investors to
exempt the Applicant, with respect to the Foreign Indirect Affiliates,
from the requirements under: (a) Exchange Act Rule 6a-2(a)(2) to amend
Exhibit C within 10 days of any action that renders the information in
Exhibit C inaccurate or incomplete; (b) Exchange Act Rules 6a-2(c) to
provide periodic updates of Exhibit C; and (c) Exchange Act Rules 6a-
2(b)(1) to provide periodic updates of Exhibit D, subject to the
condition that the Applicant provide amendments to the information
required under conditions (1) through (3) above on or before June 30th
of each year.
    As part of an application for exchange registration, the
information included in Exhibits C and D is designed to help the
Commission make the determinations required under Sections 6(b) and
19(a) of the Exchange Act \23\ with respect to the application. The
updated Exhibit C and D information required under Exchange Act Rule
6a-2 is designed to help the Commission exercise its oversight
responsibilities with respect to national securities exchanges.
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78f(b) and 78s(a).
---------------------------------------------------------------------------

    Specifically, Exhibit D is designed to provide the Commission with
information concerning the financial status of an exchange and its
affiliates and subsidiaries,\24\ and Exhibit C provides the Commission
with the names and organizational documents of these affiliates and
subsidiaries.\25\ Such information is designed to help the Commission
determine whether an applicant for exchange registration would have the
ability to carry out its obligations under the Exchange Act, and
whether a national securities exchange continues to have the ability to
carry out its obligations under the Exchange Act.
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    \24\ See Securities Exchange Act Release No. 18843 (June 25,
1982), 47 FR 29259 (July 6, 1982) (proposing amendments to Form 1);
see also Form 1, 17 CFR 249.1, and supra Section II.A.
    \25\ Form 1, 17 CFR 249.1. See also supra note 5.
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    Since the most recent amendments to Form 1 in 1998,\26\ many
national securities exchanges that previously were member-owned
organizations with few affiliated entities have demutualized. Some of
these demutualized exchanges have been consolidated under holding
companies with numerous affiliates that, in some cases, have only a
limited and indirect connection to the national securities exchange,
with no ability to influence the management or policies of the
registered exchange and no obligation to fund, or to materially affect
the funding of, the registered exchange. The Commission believes that,
for these affiliated entities, the information required under Exhibits
C and D would have limited relevance to the Commission's review of an
application

for exchange registration or to its oversight of a registered exchange.
---------------------------------------------------------------------------

    \26\ See Regulation ATS Adopting Release, supra note 9.
---------------------------------------------------------------------------

    Based on the Applicant's representations, the indirect nature of
the relationship between the Applicant and the Foreign Indirect
Affiliates, and the information that the Applicant will provide with
respect to the Foreign Direct Affiliates and the Foreign Indirect
Affiliates, the Commission believes that it will have sufficient
information to review the Applicant's Form 1 application and to make
the determinations required under Sections 6(b) and 19(a) of the
Exchange Act with respect to its application for registration as a
national securities exchange.\27\ The Commission believes, further,
that it will have the information necessary to oversee the Applicant's
activities as a national securities exchange if the Commission were to
approve the Applicant's Form 1 application. In particular, the
Commission notes that the Applicant has represented that it would have
no direct connection to the Foreign Indirect Affiliates, that the
Foreign Indirect Affiliates would have no ability to influence the
management or policies of the Applicant, and that the Foreign Indirect
Affiliates would have no obligation to fund, or ability to materially
affect the funding of, the Applicant. In addition, the Commission notes
that the Applicant represented that: (1) The Foreign Indirect
Affiliates have no ownership interest in the Applicant or in any of the
controlling equity holders of the Applicant; and (2) there are no
commercial dealings between the Applicant and the Foreign Indirect
Affiliates.\28\
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    \27\ 15 U.S.C. 78f(b) and 78s(a). Section 6(b) of the Exchange
Act enumerates certain determinations that the Commission must make
with respect to an exchange before granting the registration of the
exchange as a national securities exchange. The Commission will not
grant an exchange registration as a national securities exchange
unless the Commission determines that the exchange meets these
requirements. See Regulation ATS Adopting Release, supra note 9, at
IV.B.
    \28\ See Exemption Request, supra note 4, at 3.
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    Given the limited and indirect relationship between the Applicant
and the Foreign Indirect Affiliates, as described above, the Commission
believes that the detailed corporate and financial information required
in Exhibits C and D with respect to the Foreign Indirect Affiliates is
unnecessary for the Commission's review of the Applicant's Form 1
application and would be unnecessary for the Commission's oversight of
the Applicant as a registered national securities exchange following
any Commission approval of its Form 1 application.
    For the reasons discussed above, the Commission finds that the
conditional exemptive relief requested by the Applicant is appropriate
in the public interest and is consistent with the protection of
investors.
    It is ordered, pursuant to Section 36 of the Exchange Act,\29\ that
the Applicant is exempt from the requirements to: (1) Include in its
Form 1 application the information required in Exhibits C and D to Form
1 with respect to the Foreign Indirect Affiliates; and (2) with respect
to the Foreign Indirect Affiliates, update the information in Exhibits
C and D to Form 1 as required by Exchange Act Rules 6a-2(a)(2), 6a-
2(b)(1), and 6a-2(c) subject to the following conditions:
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78mm.
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    (i) The Applicant must provide a list of the names of the Foreign
Indirect Affiliates;
    (ii) the Applicant must provide an organizational chart setting
forth the affiliation of the Foreign Indirect Affiliates and the
Foreign Direct Affiliates and the Applicant; and
    (iii) as part of Exhibit C to the Applicant's Form 1 Application,
the Applicant must provide a description of the nature of the
affiliation between the Foreign Indirect Affiliates and the Foreign
Direct Affiliates and the Applicant.
    In addition, the Applicant must provide amendments to the
information required under conditions (i) through (iii) above on or
before June 30th of each year.

    By the Commission.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-05241 Filed 3-6-13; 8:45 am]
BILLING CODE 8011-01-P