[Federal Register: October 11, 2006 (Volume 71, Number 196)]
[Proposed Rules]
[Page 59697-59698]
[DOCID:fr11oc06-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 174

[EPA-HQ-OPP-2006-0642; FRL-8095-2]

Plant-Incorporated Protectants Derived from a Plant Viral Coat
Protein Gene (PVCP-PIPs); Notification to the Secretary of Agriculture

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification to the Secretary of Agriculture.

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SUMMARY: This document notifies the public that the Administrator of
EPA

has forwarded to the Secretary of Agriculture a draft proposed rule as
required by section 25(a) of the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA). As described in the Agency's semi-annual
Regulatory Agenda, the draft proposed rule would add certain plant-
incorporated protectants based on viral coat protein genes (PVCP-PIPs)
to its plant-incorporated protectants exemptions at 40 CFR part 174.
Substances that plants produce for protection against pests and the
genetic material necessary to produce them are pesticides under FIFRA
if humans intend these substances to ``prevent, repel or mitigate any
pest.''

ADDRESSES:  EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2006-0642. All documents in the
docket are listed on the regulations.gov web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either in the electronic docket at http://www.regulations.gov
, or, if only available in hard copy, at the Office

of Pesticide Programs (OPP) Regulatory Public Docket in Rm. S-4400, One
Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA.
The hours of operation of this Docket Facility are from 8:30 a.m. to 4
p.m., Monday through Friday, excluding legal holidays. The Docket
telephone number is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Tom McClintock, Hazard Assessment
Coordination and Policy Division (7202M), Office of Science
Coordination and Policy, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington DC 20460-0001; telephone number:
202-564-8488; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action is directed to the public in general. It simply
announces the submission of a draft proposed rule to the U.S.
Department of Agriculture (USDA) and does not otherwise affect any
specific entities. This action may, however, be of particular interest
to people or companies involved with agricultural biotechnology that
may develop and market plant-incorporated protectants. Since other
entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be interested in this
action. If you have any questions regarding this action, consult the
person listed under FOR FURTHER INFORMATION CONTACT.

B. How Can I Access Electronic Copies of this Document and Other
Related Information?

    In addition to using regulations.gov, you may access this Federal
Register document electronically through the EPA Internet under the
``Federal Register'' listings at http://www.epa.gov/fedrgstr.

II. What Action is EPA Taking?

    Section 25(a)(2) of FIFRA requires the Administrator to provide the
Secretary of Agriculture with a copy of any proposed regulation at
least 60 days before signing it for publication in the Federal
Register. The draft proposed rule is not available to the public until
after it has been signed by EPA. If the Secretary comments in writing
regarding the draft proposed rule within 30 days after receiving it,
the Administrator shall include the comments of the Secretary and the
Administrator's response to those comments in the proposed rule when
published in the Federal Register. If the Secretary does not comment in
writing within 30 days after receiving the draft proposed rule, the
Administrator may sign the proposed regulation for publication in the
Federal Register anytime after the 30-day period not withstanding the
foregoing 60-day time requirement.

III. Do Any Statutory and Executive Order Reviews Apply to this
Notification?

    No. This document is not a proposed rule, it is merely a
notification of submission to the Secretary of Agriculture. As such,
none of the regulatory assessment requirements apply to this document.

List of Subjects in Part 174

    Environmental protection, Administrative practice and procedures,
Pesticides and pests.

    Dated: October 2, 2006.
 Clifford J. Gabriel
Director, Office of Science Coordination and Policy.
[FR Doc. E6-16751 Filed 10-10-06; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register Volume 84, Number 233 (Wednesday, December 4, 2019)]
[Notices]
[Page 66401]
[FR Doc No: 2019-26174]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RM98-1-000]

Records Governing Off-the-Record Communications; Public Notice

    This constitutes notice, in accordance with 18 CFR 385.2201(b), of
the receipt of prohibited and exempt off-the-record communications.
    Order No. 607 (64 FR 51222, September 22, 1999) requires Commission
decisional employees, who make or receive a prohibited or exempt off-
the-record communication relevant to the merits of a contested
proceeding, to deliver to the Secretary of the Commission, a copy of
the communication, if written, or a summary of the substance of any
oral communication.
    Prohibited communications are included in a public, non-decisional
file associated with, but not a part of, the decisional record of the
proceeding. Unless the Commission determines that the prohibited
communication and any responses thereto should become a part of the
decisional record, the prohibited off-the-record communication will not
be considered by the Commission in reaching its decision. Parties to a
proceeding may seek the opportunity to respond to any facts or
contentions made in a prohibited off-the-record communication, and may
request that the Commission place the prohibited communication and
responses thereto in the decisional record. The Commission will grant
such a request only when it determines that fairness so requires. Any
person identified below as having made a prohibited off-the-record
communication shall serve the document on all parties listed on the
official service list for the applicable proceeding in accordance with
Rule 2010, 18 CFR 385.2010.
    Exempt off-the-record communications are included in the decisional
record of the proceeding, unless the communication was with a
cooperating agency as described by 40 CFR 1501.6, made under 18 CFR
385.2201(e)(1)(v).
    The following is a list of off-the-record communications recently
received by the Secretary of the Commission. The communications listed
are grouped by docket numbers in ascending order. These filings are
available for electronic review at the Commission in the Public
Reference Room or may be viewed on the Commission's website at http://www.ferc.gov using the eLibrary link. Enter the docket number,
excluding the last three digits, in the docket number field to access
the document. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at<PHONE_NUMBER>, or for TTY,
contact<PHONE_NUMBER>.

------------------------------------------------------------------------
           Docket No.               File date     Presenter or requester
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                               Prohibited
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1. CP18-512-000................      11-22-2019  FERC Staff.\1\
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                                 Exempt
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1. CP16-22-000.................       11-7-2019  Congressman Bob Gibbs.
2. P-14992-000, P-14994-000....       11-7-2019  Arizona U.S. House of
                                                  Representatives.
3. CP16-9-000..................      11-20-2019  U.S. Senate.\2\
4. CP19-7-000..................      11-20-2019  U.S. Senate.\3\
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\1\ Communication Summary regarding Cheniere Energy Inc. facilities.
\2\ Senator Edward J. Markey and Senator Elizabeth Warren.
\3\ Senator Edward J. Markey and Senator Elizabeth Warren.

    Dated: November 26, 2019.
Kimberly D. Bose,
Secretary.
[FR Doc. 2019-26174 Filed 12-3-19; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 83, Number 159 (Thursday, August 16, 2018)]
[Proposed Rules]
[Pages 40723-40728]
[FR Doc No: 2018-17587]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2017-0165; FRL-9982-30--Region 5]

Air Plan Approval; Ohio; Approval of Sulfur Dioxide Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve, under the Clean Air Act, Ohio's revised sulfur dioxide
(SO2) regulations, which Ohio submitted to EPA on March 13,
2017. Ohio updated its regulations to correct facility information
which has changed and to add new emission limits for selected sources
in Lake and Jefferson Counties. The revised regulations do not impose
substantive changes or additional emission restrictions upon the Ohio
State Implementation Plan (SIP) except for the site-specific provisions
which have been revised in response to Ohio's nonattainment area
designations of August 5, 2013. EPA is proposing to approve the
majority of the revised regulations which the state submitted. EPA
proposes to take no action on a portion of one submitted rule, which
has never been federally approved. EPA also proposes to remove one rule
from the SIP, which Ohio rescinded and replaced in 2009.

DATES: Comments must be received on or before September 17, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2017-0165 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER>, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:

I. Introduction
II. Review of Rules
    A. Overview
    B. Revisions to General Rules
    C. Rules Addressing Nonattainment Areas
    1. Lake County Area
    2. Muskingum River Area (Morgan and Washington Counties)
    3. Steubenville Area (Jefferson County)
    D. County-Specific Issues
    1. Cuyahoga County
    2. Lorain County
    3. Ross County
    4. Wayne County
    E. Removal of Rescinded Rule
III. What action is EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Introduction

    On March 13, 2017, Ohio submitted revisions to the Ohio
Administrative Code Chapter 3745-18 (OAC 3745-18), effective on
February 16, 2017, for incorporation by EPA into the Ohio
SO2 SIP. OAC 3745-18 contains Ohio's air emission
regulations for SO2, which include both statewide
requirements and emission limits for each Ohio county. This submittal
was the product of a comprehensive examination of the state's
SO2 rules which Ohio undertook in accordance with its
routine five-year rule review process. The state made a number of
revisions to OAC 3745-18, updating facility data to match the current
information in its operating permits database and removing requirements
which only applied to facilities which have closed or units which have
been removed from existing facilities. For several sources, Ohio
retained the existing limits in OAC 3745-18, but separately issued
federally enforceable permits containing tighter limits than those in
the rule, or new provisions reflecting physical changes at the
facility. Generally, these permits addressed changes which had occurred
too late to include in the state's rulemaking action. The effect of
EPA's approval of the revised OAC 3745-18 SIP rules submitted on March
13, 2017, would be to retain federal enforceability of both sets of
limits for each source.
    Ohio's March 13, 2017 submittal also included rules which Ohio had
developed to address Clean Air Act (CAA) requirements for three 1-hour
SO2 nonattainment areas. Ohio first adopted these new rules,
which are found in OAC 3745-18-03, OAC 3745-18-04, OAC 3745-18-47, and
OAC 3745-18-49, on October 13, 2015, and submitted the rules to EPA as
part of the state's October 13, 2015, nonattainment SIP submittal.
Later, Ohio made significant revisions and corrections to some of the
nonattainment area rules. The state adopted the revised nonattainment
area rules on February 6, 2017, and submitted them to EPA on March 13,
2017, within Ohio's larger five-year rule review package. EPA is
proposing action on Ohio's entire March 13, 2017 submittal of revisions
to OAC 3745-18, regarding their incorporation into the state's
SO2 SIP. Separate action will address whether Ohio's
revisions to OAC 3745-18-03, OAC 3745-18-04, OAC 3745-18-47, and OAC
3745-18-49 satisfy EPA's nonattainment planning requirements.

II. Review of Rules

A. Overview

    Ohio's federally approved SO2 SIP contains six generally
applicable chapters of OAC 3745-18 and 88 county-specific chapters. The
six generally applicable chapters are OAC 3745-18-01, ``Definitions and
incorporation by reference,'' OAC 3745-18-02, ``Ambient air quality
standards; sulfur dioxide,'' OAC 3745-18-03, ``Attainment dates and
compliance time schedules,'' OAC 3745-18-04, ``Measurement methods and

procedures,'' OAC 3745-18-05, ``Ambient and meteorological monitoring
requirements,'' and OAC 3745-18-06, ``General emission limit
provisions.'' Specific emission limits for SO2 sources in
each Ohio county are found in OAC 3745-18-07 (``Adams county emission
limits'') through OAC 3745-18-94 (``Wyandot county emission limits'').
    Ohio's March 13, 2017 SIP revision request included revised
versions of all of these rules except OAC 3745-18-02 and OAC 3745-18-
06. Ohio's federally approved SO2 SIP currently includes OAC
3745-18-02, ``Ambient air quality standards; sulfur dioxide,'' with an
effective date of January 23, 2006. However, Ohio rescinded this rule
in 2009 and moved its contents to a new rule. See section II E. for the
discussion of EPA's proposed action regarding OAC 3745-18-02. Ohio's
federally approved SO2 SIP also includes OAC 3745-18-06,
with an effective date of February 17, 2011. Ohio did not submit any
revisions to this rule. Therefore, the 2011 version of this rule is
retained in Ohio's SIP.
    Ohio's March 13, 2017 submittal updated OAC 3745-18 with current
information for each listed facility, as confirmed by the state
database. Some Ohio facilities have merged or changed ownership in
recent years. Ohio updated the rules where necessary to reflect each
facility's current name or ownership and the current location of the
emission units that are subject to SO2 emission limits. Ohio
removed some facilities entirely from the site-specific emission limit
listings if the state had evidence confirming that the entire facility
has closed, or that all the emission units at the facility which were
subject to the site-specific emission limits have been removed or are
no longer emitting SO2. If a facility's site-specific
emission limits were removed, but the facility is still operating and
could be subject to its general countywide limit, Ohio retained the
facility's listing in the compliance date section of OAC 3745-18-03.

B. Revisions to General Rules

    OAC 3745-18-01 contains definitions and references to test methods
and other Federal requirements. Ohio updated the Code of Federal
Regulations publication dates in this rule. EPA is proposing to approve
OAC 3745-18-01.
    OAC 3745-18-03 contains the compliance dates and schedules
applicable to Ohio SO2 sources. Ohio has removed and
reserved OAC 3745-18-03(A), which required attainment with the NAAQS by
specific dates, because the county-specific attainment dates in OAC
3745-18-03(A)(2) have passed and Ohio found the requirements in OAC
3745-18-03(A)(1) duplicative of language in other state and Federal
documents. Since the attainment date language was no longer contained
in the rule, Ohio retitled OAC 3745-18-03 ``Compliance time
schedules.'' Ohio added paragraphs in OAC 3745-18-03(B) and OAC 3745-
18-03(C) which apply to sources in the Lake County nonattainment area
and the Steubenville WV-OH interstate nonattainment area. These
paragraphs are discussed below in section II C. EPA is proposing to
approve OAC 3745-18-03.
    OAC 3745-18-04 contains fuel test method requirements for Ohio
facilities. Ohio revised OAC 3745-18-04 to update facility names and
locations for sources with facility-specific coal test method
requirements. Ohio removed facility-specific or county-specific coal
test methods where they were no longer necessary, because the affected
facilities are no longer operating, no longer using coal, or currently
using other methods, such as a continuous emission monitoring system
(CEMS), for determining compliance.
    Ohio added one paragraph and removed another paragraph in OAC 3745-
18-04(D), which are applicable to sources in the Lake County
nonattainment area and the Steubenville WV-OH interstate nonattainment
area. These paragraphs are discussed below in section II C.
    Several paragraphs in OAC 3745-18-04 have not been previously
approved by EPA, because they appeared to allow compliance
determinations based on 30-day averaged emission calculations for
emission limits which were intended to address NAAQS with averaging
times of 24 hours and less. These paragraphs, OAC 3745-18-04(D)(2),
(D)(3), (D)(5), (D)(6) and OAC 3745-18-04(E)(2), (E)(3) and (E)(4),
have not been significantly revised in Ohio's March 13, 2017 submittal.
As the previously identified deficiencies have not been adequately
addressed, EPA proposes to take no action on these provisions, and they
are not part of the SIP.\1\
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    \1\ When these provisions were originally submitted, EPA policy
was generally to find that limits with compliance based on 30-day
averaging did not assure attainment with standards based on shorter
averaging times. In 2014, EPA issued guidance reflecting a new
policy, indicating that it could find that limits with averaging
times up to 30 days may provide for attainment in selected cases,
subject to various criteria, most notably that the longer-term
average limit reflect an adjustment so as to have comparable
stringency to the 1-hour limit which had been demonstrated to
provide for attainment. Ohio has not sought to demonstrate that
these criteria are met on a state-wide basis, and so EPA has no new
information that might warrant revisiting the approvability of these
provisions.
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    In the March 13, 2017 submittal, OAC 3745-18-04(D)(9)(c) contains a
typographical error which misnames the required method for coal
sampling and analysis for facilities in Butler County. OAC 3745-18-
04(D)(9)(c) was approved into Ohio's SO2 SIP without the
typographical error on January 31, 2002 (67 FR 4669). EPA proposes to
take no action on the March 13, 2017 submittal of OAC 3745-18-
04(D)(9)(c). The paragraph will instead be retained in Ohio's
SO2 SIP as it was previously approved.
    Ohio made minor grammatical changes to OAC 3745-18-05, which covers
requirements for ambient monitoring. EPA proposes to find these changes
approvable.
    Most of Ohio's county-specific rules, OAC 3745-18-07 through OAC
3745-18-94, have been updated significantly. Ohio removed facility-
specific emission limits where the affected facilities have closed, or
where the units which were subject to the previously approved rules
have been retired or have converted to use lower sulfur fuels. Ohio
confirmed the facilities' current emissions and emission limitations
with its operating permits database. Each county-specific rule has
retained its previously approved general SO2 emission limit,
applicable to all coal-fired steam generating units in the county. CAA
section 110(l) states that SIP revisions cannot be approved if they
interfere with applicable requirements concerning attainment and
reasonable further progress. EPA proposes to find that it is
permissible under CAA section 110(l) to approve the revised rules in
Ohio's March 13, 2017 SIP submittal where Ohio has removed obsolete
emission limits for units which have permanently closed and for which
the permits to operate have been revoked, as these rule revisions do
not indicate permission to increase emissions.

C. Rules Addressing Nonattainment Areas

    On August 5, 2013, EPA designated three areas nonattainment for
SO2 in Ohio: Lake County, the Muskingum River area, and the
Steubenville OH-WV interstate area. Ohio was required to prepare SIPs
which would bring its three SO2 nonattainment areas into
attainment by October 4, 2018. After evaluating local SO2
emissions and using dispersion models to determine the emission limits
which could be expected to provide for attainment, Ohio revised its
SO2 SIP rules to address SO2 sources within these
nonattainment areas at OAC 3745-18-49 (Lake County) and OAC 3745-18-47
(Jefferson County). Ohio added related provisions

in OAC 3745-18-03 and OAC 3745-18-04. Ohio first adopted these
nonattainment area provisions in October 2015, but later made
significant revisions and corrections to the rules. Ohio adopted the
revised rules on February 6, 2017, and submitted them to EPA on March
13, 2017.
1. Lake County Area
    The new and revised rules relevant to the Lake County nonattainment
area include OAC 3745-18-03(B)(9), OAC 3745-18-03(C)(11), OAC 3745-18-
04(D)(10), OAC 3745-18-49(F), OAC 3745-18-03(C)(3)(hh), and the removal
of the previously approved paragraph OAC 3745-18-49(G). Ohio revised
the Lake County rule at OAC 3745-18-49(F) to add new emission limits
for the Painesville Municipal Electric Plant in Painesville, Ohio (the
Painesville plant). OAC 3745-18-49(F) restricts the Painesville plant
to operate only one of its three boilers on coal at any time; limits
Boiler 5 to 287 pounds of SO2 per hour (lb/hr), averaged
over 30 operating days; and limits Boilers 3 and 4 each to 340 lb/hr,
averaged over 30 operating days. The combined average operating rate
for the three boilers must not exceed 249 million British Thermal Units
per hour (MMBtu/hr) for any calendar day, excluding heat input from
burning natural gas or biomass. Each boiler is additionally limited to
no more than a ten percent annual capacity factor as defined in 40 CFR
63.7575, excluding heat input from burning natural gas or biomass. The
rule also defines biomass as an additional fuel source for this
facility; the biomass would not be a significant source of
SO2. The revisions to OAC 3745-18-49(F) represent a
reduction in allowable SO2 emissions and operating rates for
this facility.
    Ohio added OAC 3745-18-03(B)(9) to require the Painesville plant to
apply for a permit or permit modification to provide for compliance
with its site-specific SO2 emission limits. Ohio added OAC
3745-18-03(C)(11) to require compliance with the revised site-specific
rules for the Painesville plant as of thirty days from February 16,
2017, which is the effective date of the revised rules OAC 3745-18-
03(C)(11) and OAC 3745-18-49(F). The Painesville plant's compliance
date is the earliest compliance date practicable after Ohio revised the
facility's previously adopted rules to address an issue EPA identified
in Ohio's 2015 nonattainment SIP submittal for Lake County. Ohio added
OAC 3745-18-04(D)(10) to provide the method for calculating compliance
with the Painesville plant's revised emission limits in OAC 3745-18-
49(F).
    Ohio has removed the entry at OAC 3745-18-49(G) for the Eastlake
Power Plant in Willoughby, Ohio (now known as the Eastlake Substation),
because the boilers at the Eastlake Substation which were subject to
OAC 3745-18-49(G) were permanently shut down in April 2015. OAC 3745-
18-03(C)(3)(hh) still requires any remaining emission units at the
Eastlake Substation to comply with the county-wide SO2
limits at OAC 3745-18-49(A). The shut-down units, however, may not
restart without applying for a new permit. Because the Eastlake
Substation has permanently retired its boilers and has thus
significantly reduced its SO2 emissions, and because the
Eastlake Substation no longer holds a permit to restart the boilers,
EPA proposes to find that the removal from the SIP of the Eastlake
Substation's boiler limits is permissible under CAA section 110(l).
    EPA is proposing to approve the rule revisions in OAC 3745-18 which
apply to the Painesville plant and the Eastlake Substation in Lake
County, because the rules update the SIP and strengthen it by reducing
allowable emissions. EPA is not proposing action regarding whether
Ohio's revisions to OAC 3745-18-49 and related material satisfy
nonattainment planning requirements for the Lake County nonattainment
area. EPA intends to address whether Ohio has satisfied the
nonattainment planning requirements for the Lake County nonattainment
area in a separate action.
2. Muskingum River Area (Morgan and Washington Counties)
    The rules relevant to the Muskingum River nonattainment area
include OAC 3745-18-64 (Morgan County), OAC 3745-18-90 (Washington
County) and OAC 3745-18-03(C)(3)(tt). The previously approved rules OAC
3745-18-64(B) and OAC 3745-18-90(B) contained identical SO2
emission limits for the Muskingum River power plant, located near
Waterford, Ohio (the Muskingum River plant). The boilers at the
Muskingum River plant were permanently shut down as of July 14, 2015,
leaving no emission units at the Muskingum River plant which are
subject to OAC 3745-18-64(B) or OAC 3745-18-90(B). These units have
been removed from the facility's permit. The shut-down units may not
restart unless the facility applies for and receives a new permit.
Therefore, Ohio has removed the entries for the Muskingum River plant
from OAC 3745-18-64(B) and OAC 3745-18-90(B). Ohio retained and
renumbered paragraph OAC 3745-18-03(C)(3)(tt) for the Muskingum River
plant and updated the facility's name to Muskingum River Development,
LLC. OAC 3745-18-03(C)(3)(tt) requires any remaining SO2
emission units at the facility to comply with the limits specified in
OAC 3745-18-90, which, as revised, contains only the Washington County
general SO2 limit for coal-fired steam generating units at
OAC 3745-18-90(A). Because the Muskingum River plant has permanently
retired its large boilers and has thus significantly reduced its
SO2 emissions, and because the Muskingum River plant no
longer holds a permit to restart the boilers, EPA proposes to find that
the removal from the SIP of the Muskingum River plant's boiler emission
limits is permissible under CAA section 110(l). EPA is proposing to
approve the rule revisions applicable to the Muskingum River plant
because they update Ohio's SO2 SIP by removing obsolete
emission limits while complying with CAA section 110(l). EPA is not
proposing action regarding whether Ohio's revisions to OAC 3745-18-
64(B), OAC 3745-18-90(B) and related material satisfy nonattainment
planning requirements for the Muskingum River nonattainment area. EPA
intends to address whether Ohio has satisfied the nonattainment
planning requirements in a subsequent action.
3. Steubenville Area (Jefferson County)
    The new and revised rules relevant to the Steubenville OH-WV
interstate nonattainment area include the new paragraphs at OAC 3745-
18-03(B)(9) and OAC 3745-18-03(C)(11), the revised emission limits in
OAC 3745-18-47, and the removal of OAC 3745-18-04(D)(4). Ohio addressed
three Jefferson County sources for the Steubenville nonattainment area:
The Cardinal Power Plant in Brilliant, Ohio (the Cardinal plant), the
Mingo Junction Steel Works, LLC facility in Mingo Junction, Ohio (Mingo
Junction Steel Works), and the Mingo Junction Energy Center, LLC
facility in Mingo Junction, Ohio, (Mingo Junction Energy Center). Ohio
revised OAC 3745-18-47(D) for the Cardinal plant to limit each of units
1 and 2 to 1.065 pounds of SO2 per million British Thermal
Units (lb/MMBtu) actual heat input. These limits, which reflect current
permit conditions for the Cardinal plant, represent an SO2
emission reduction from the previously approved limits for the Cardinal
plant, which had allowed 7.08 lb/MMBtu at units 1 and 2. Ohio also
revised the emission limit for the Cardinal plant's unit 3 to 0.66 lb/
MMBtu actual heat input and moved the listing to OAC 3745-18-47(D).
Unit 3 had previously

been listed under OAC 3745-18-47(O) as a unit operated by Buckeye
Power, Incorporated, with a limit of 2.0 lb/MMBtu. EPA is proposing to
approve these rule revisions because they update the Ohio
SO2 SIP and strengthen it by reducing allowable
SO2 emissions.
    For Mingo Junction Steel Works, which was formerly listed in OAC
3745-18-47(G) as Wheeling-Pittsburgh Steel, Steubenville South Plant,
Ohio has removed the obsolete emission limits in OAC 3745-18-47(G)(1)
for Boilers 1 through 12 and the obsolete emission limits in OAC 3745-
18-47(G)(2) for the forty-four-inch soaking pits combusting coke oven
gas. The boilers have shut down and the Mingo Junction Steel Works no
longer receives or uses coke oven gas as fuel; it now uses natural gas.
Ohio added limits of 1.0 lb/hr for the facility's reheat furnaces 2 to
4 at OAC 3745-18-47(G)(3), a limit of 105.0 lb/hr for the electric arc
furnace number 1 at OAC 3745-18-47(G)(4), and a limit of 14.0 lb/hr for
the ladle metallurgical furnace to the electric arc furnace at OAC
3745-18-47(G)(5). EPA is proposing to approve these rule revisions
because they update the Ohio SO2 SIP to reflect the current
facility name and operations at Mingo Junction Steel Works. EPA is also
proposing to approve OAC 3745-18-47(G) because it strengthens the SIP
by reducing allowable emissions.
    For the Mingo Junction Energy Center, the state has added OAC 3745-
18-47(P) which limits units 1 to 4 to 0.0028 lb/MMBtu actual heat input
each. This limit reflects a fuel change from coke oven gas to natural
gas. EPA is proposing to approve this rule revision because it
strengthens the Ohio SO2 SIP by reducing allowable
emissions.
    Ohio added OAC 3745-18-03(B)(9) to require Mingo Junction Steel
Works and the Mingo Junction Energy Center to apply for a permit or
permit modification to provide for compliance with their site-specific
SO2 emission limits. (Cardinal's revised limits are already
in its permit.) Ohio added OAC 3745-18-03(C)(11) to require compliance
with the revised site-specific rules for the Cardinal plant, Mingo
Junction Steel Works and the Mingo Junction Energy Center by January 1,
2017. This compliance date reflects the recommendations of EPA's
nonattainment SIP guidance.
    Ohio removed OAC 3745-18-04(D)(4), which gave a specific compliance
test method for the Cardinal plant. The provision is no longer
considered necessary due to the Cardinal plant's current limits,
operations, and emission controls. The Cardinal plant is subject to the
federally approved compliance test requirements in OAC 3745-18-04(D).
Under its current operating permit, the Cardinal plant uses CEMS to
determine compliance with its permitted emission limits.
    EPA is proposing to approve the revised rules for the Cardinal
plant, Mingo Junction Steel Works and the Mingo Junction Energy Center
as measures which update the state's SO2 SIP and strengthen
the SIP by reducing allowable emissions. EPA is not proposing action
regarding whether Ohio's revisions to OAC 3745-18 for the Cardinal
plant, Mingo Junction Steel Works and the Mingo Junction Energy Center,
and related material, satisfy nonattainment planning requirements for
the Steubenville OH-WV interstate nonattainment area. EPA intends to
address whether Ohio has satisfied the nonattainment planning
requirements for the Steubenville WV-OH nonattainment area in a
subsequent action.

D. County-Specific Issues

1. Cuyahoga County
    Ohio revised OAC 3745-18-24(V) regarding the Medical Center
Company, located in Cleveland, to update the facility's operating unit
names and to remove emission limits for units which have not been
present at the facility since 2002. The Medical Center Company has
recently replaced two boilers, 1N and 2N, with three new units having
lower SO2 emissions. Ohio placed new requirements in a 2015
federally enforceable permit-to-install for the Medical Center Company,
stating that the old boilers must be permanently retired by January 13,
2017. See final permit-to-install number P0118541. Ohio relied on the
emission reductions from this boiler replacement during the designation
process for the 2010 SO2 NAAQS. However, the Cuyahoga County
rule at OAC 3745-18-24, as adopted February 6, 2017, and submitted to
EPA on March 13, 2017, retained the Medical Center Company's previously
approved emission limit of 4.6 lb/MMBtu for each of the old boilers.
Although the rule retained the previously approved limit, the
facility's boiler closure requirement and the lower SO2
emission limits applicable to its new units are federally enforceable
in the facility's permit. EPA is proposing to approve the revised OAC
3745-18-24(V) as an update to the SIP, since this action would retain
EPA's authority to enforce both limits.
    Likewise, the emission limits for Cleveland Thermal, LLC, at OAC
3745-18-24(G) and OAC 3745-18-24(H), have been updated to revise the
facility's name, address, and premise number, and to remove emission
limits for units which shut down prior to 2002. The updated rules still
contain limits for several units, B101, B102, B104, B001, B002, B003,
B005, and B006, which Cleveland Thermal, LLC, was to retire or convert
to auxiliary status by January 2017, in accordance with a consent
decree. The consent decree is in force and Cleveland Thermal, LLC's
federally enforceable permit no longer includes these units. EPA is
proposing to approve the revised OAC 3745-18-24(G) and OAC 3745-18-
24(H) as an update to the SIP, since this action would retain EPA's
authority to enforce both limits.
    The remainder of the Cuyahoga County rule has been revised to
update facility names and locations and to remove emission limits for
facilities which were no longer operating and for units which no longer
operate at existing facilities. EPA is proposing to approve OAC 3745-
18-24.
2. Lorain County
    Ohio revised the Lorain County rule at OAC 3745-18-53(B) for the
Avon Lake Power Plant (the Avon Lake plant) in Lorain County, to update
facility identification and remove emission limits for units which were
shut down between 1981 and 1997. In November 2016, Ohio placed new
SO2 emission limits for the Avon Lake plant in a federally
enforceable operating permit. The new limits, which were effective as
of January 13, 2017, provided a combined emission limit of 1.59 lb/
MMBtu for Boilers 10 and 12 on a 30-day average basis. See permit-to-
install number P0121748. Ohio relied on these limits, which reduced the
Avon Lake plant's allowable SO2 emissions, during the
designation process for the 2010 SO2 NAAQS. However, the
Lorain County rule, as adopted February 6, 2017, and submitted to EPA
on March 13, 2017, retained the Avon Lake plant's previously approved
emission limit of 4.65 lb/MMBtu for Boilers 10 and 12 each. Although
the revised rule retained the previous, higher emission limit, the
tighter SO2 emission limits within the Avon Lake plant's
operating permit are federally enforceable. EPA is proposing to approve
OAC 3745-18-53(B), since this action would retain EPA's authority to
enforce both limits.
    Ohio added paragraph OAC 3745-18-53(G) for U.S. Steel Seamless
Tubular Operations, LLC--Lorain. This paragraph covers an emissions
unit which was previously listed under OAC 3745-18-53(D), but has been
transferred to a new location and a new owner within the city of
Lorain, Ohio. The unit

retains its previously approved emission limits of 1.98 lb/MMBtu and
178 lb/hr.
    The remainder of the Lorain County rule has been revised to update
facility names and locations, and to remove emission limits for
facilities which were no longer operating and for units which no longer
operate at existing facilities. EPA is proposing to approve OAC 3745-
18-53.
3. Ross County
    Ohio revised the Ross County rule at OAC 3745-18-77(B) for the P.
H. Glatfelter Company-Chillicothe Facility (Glatfelter) in Ross County,
to update facility identification and remove emission limits for units
which have been shut down for many years. In 2016, Ohio placed a new
facility-wide SO2 emission limit of 1,800 tons per year,
effective January 13, 2017, in a federally enforceable permit for
Glatfelter. See permit-to-install number P0118906. This limit reduced
Glatfelter's allowable SO2 emissions, and Ohio relied on
this limit during the designation process for the 2010 SO2
NAAQS. However, the Ross County rule, as adopted February 6, 2017, and
submitted to EPA on March 13, 2017, retained Glatfelter's previously
approved emission limit of 9.9 lb/MMBtu for Boilers 7 and 8 each.
Although the rule retains the higher emission limit for Boilers 7 and
8, the tighter SO2 emission limit in Glatfelter's permit is
federally enforceable. EPA is proposing to approve OAC 3745-18-77(B) as
an update to the SIP, since this action would retain EPA's authority to
enforce both limits.
    The remainder of the Ross County rule has been revised to remove
emission limits for facilities which were no longer operating and for
units which no longer operate at existing facilities. EPA is proposing
to approve OAC 3745-18-77.
4. Wayne County
    In 2016, Ohio placed a new facility-wide SO2 emission
limit of 1,475 tons per year, effective January 13, 2017, in a
federally enforceable operating permit for the Department of Public
Utilities, City of Orrville, Ohio facility (the Orrville plant) in
Wayne County. See permit number P0120280. Ohio relied on this limit,
which reduced the Orrville plant's allowable SO2 emissions,
during the designation process for the 2010 SO2 NAAQS. The
Wayne County rule at OAC 3745-18-91, as adopted February 6, 2017, and
submitted to EPA on March 13, 2017, updated the Orrville plant's
facility identification but retained the Orrville plant's previously
approved emission limit of 7.0 lb/MMBtu for Boilers 10 to 13 each (OAC
3745-18-91(E)). Since the Orrville plant's tighter SO2
emission limit in its permit is federally enforceable, EPA is proposing
to approve OAC 3745-18-91(E) as an update to the SIP, since this action
would retain EPA's authority to enforce both limits.
    In 2015, Ohio revised the federally enforceable permit for Morton
Salt, Inc., in Rittman, Ohio, to reflect the facility's replacement of
two boilers with new units with lower SO2 emissions. See
permit number P0120758. Ohio relied on this boiler replacement and the
resulting reduction in allowable SO2 emissions during the
designation process for the 2010 SO2 NAAQS. The Wayne County
rule at OAC 3745-18-91, as adopted February 6, 2017, and submitted to
EPA on March 13, 2017, updated Morton Salt, Inc.'s facility
identification but retained the facility's previously approved emission
limit of 7.0 lb/MMBtu for Boilers 1 and 2 each (OAC 3745-18-91(F)).
Since Morton Salt, Inc. has replaced its old boilers, and has federally
enforceable SO2 emission limits for its new units in its
permit, EPA is proposing to approve OAC 3745-18-91(F) as an update to
the SIP, since this action would retain EPA's authority to enforce both
limits.
    The remainder of the Wayne County rule has been revised to remove
emission limits for facilities which were no longer operating and for
units which no longer operate at existing facilities. EPA is proposing
to approve OAC 3745-18-91.

E. Removal of Rescinded Rule

    On September 17, 2009, Ohio submitted revisions to its SIP, and
requested that EPA remove OAC 3745-18-02, ``Ambient air quality
standards; sulfur dioxide,'' from the SIP, because Ohio had rescinded
OAC 3745-18-02 and moved its contents to a new rule, OAC 3745-25-02,
``Ambient air quality standards,'' effective April 18, 2009. This rule
defined and listed the primary and secondary SO2 standards
(prior to the 2010 SO2 NAAQS) and required ambient air
quality sampling using the EPA Reference Method or an equivalent
method. In accordance with Ohio's September 17, 2009, SIP revision
request, EPA approved OAC 3745-25-02 into Ohio's SIP on October 26,
2010 (75 FR 65572), but EPA did not remove OAC 3745-18-02 from the SIP.
Ohio's rule OAC 3745-25-02(B), effective on April 18, 2009, contained
substantially identical rule language to the existing SIP version of
OAC 3745-18-02 which was effective on January 23, 2006. As the rule
language which was previously approved as OAC 3745-18-02 can now be
found within Ohio's federally approved SIP at OAC 3745-25-02(B), the
removal of rule OAC 3745-18-02 from the SIP is permissible under
section 110(l) of the CAA. Therefore, EPA proposes to remove OAC 3745-
18-02 from Ohio's SIP.

III. What action is EPA taking?

    EPA is proposing to approve Ohio's March 13, 2017 submittal of OAC
3745-18-01; OAC 3745-18-03; OAC 3745-18-04 [with the exception of OAC
3745-18-04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-
18-04(E)(2), (E)(3) and (E)(4)]; OAC 3745-18-05; and OAC 3745-18-07
through OAC 3745-18-94; as effective on February 16, 2017. EPA proposes
to find that these regulations update and strengthen the Ohio
SO2 SIP. EPA proposes to take no action on OAC 3745-18-
04(D)(2), (D)(3), (D)(5), (D)(6), and (D)(9)(c), and OAC 3745-18-
04(E)(2), (E)(3) and (E)(4). EPA proposes to remove OAC 3745-18-02 from
the Ohio SO2 SIP.

IV. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Ohio rules OAC 3745-18-01; OAC 3745-18-03; OAC 3745-18-04
[with the exception of OAC 3745-18-04(D)(2), (D)(3), (D)(5), (D)(6),
and (D)(9)(c), and OAC 3745-18-04(E)(2), (E)(3) and (E)(4)]; OAC 3745-
18-05; and OAC 3745-18-07 through OAC 3745-18-94, as effective on
February 16, 2017. EPA has made, and will continue to make, these
documents generally available through www.regulations.gov, and at the
EPA Region 5 Office (please contact the person identified in the For
Further Information Contact section of this preamble for more
information).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of

Management and Budget under Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.

    Dated: August 2, 2018.
Cathy Stepp,
Regional Administrator, Region 5.
[FR Doc. 2018-17587 Filed 8-15-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 235 (Wednesday, December 7, 2011)]
[Proposed Rules]
[Pages 76333-76335]
[FR Doc No: 2011-31430]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 77

[Docket No.: FAA-2011-1279; Notice No. 11-07]

Notification for Airborne Wind Energy Systems (AWES)

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of policy and request for information.

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

SUMMARY: The FAA seeks comments on revising its policy regarding the
application of Title 14 of the Code of Federal Regulations (14 CFR)
part 77, ``Safe, Efficient Use and Preservation of the Navigable
Airspace,'' to airborne wind energy systems (AWES). In addition, this
notice requests information from airborne wind energy system developers
and the public related to these systems so that the FAA can
comprehensively analyze the AWES and their integration into the
National Airspace System (NAS).

DATES: Written comments must be received on or before February 6, 2012.

ADDRESSES: Send comments identified by docket number 2011-1279 using
any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov, including any personal
information the commenter provides. Using the search function of the
docket web site, anyone can find and read the electronic form of all
comments received into any FAA dockets, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or Docket Operations in Room W12-140 of the
West Building Ground Floor at 1200 New Jersey Avenue SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: For questions concerning this action,
contact Mr. Ren[eacute] Joseph (RJ) Balanga, Mission Support Services,
Airspace, Regulations and ATC Procedures Group, Air Traffic
Organization, AJV-11, Federal Aviation Administration, 800 Independence
Avenue SW., Washington, DC 20591; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority

    Title 49 of the United States Code, section 40103 vests the
Administrator with broad authority to regulate the safe and efficient
use of the navigable airspace. The Administrator is authorized to issue
rules and regulations to govern the flight, navigation, protection, and
identification of aircraft for the protection of persons and property
on the ground, and for the efficient use of the navigable airspace (49
U.S.C. 40103(b)). The Administrator also is authorized under Sec.
44701(a)(5) to promote safe flight of civil aircraft in air commerce by
prescribing regulations and minimum standards for other practices,
methods, and procedures necessary for safety in air commerce and
national security.

Background

    During the past decade, there has been an increased focus on the
use of clean renewable energy resources, including wind energy. The FAA
has been approached by various entities, including manufacturers,
scientists, engineers, and advocacy groups representing the wind energy
community, who are researching the use of more sustained and consistent
winds at higher altitudes where conventional ground-based wind turbines
cannot reach. As part of their research, the energy community is
examining various concepts for system designs to harness high altitude
winds as a potential source of energy.
    Airborne Wind Energy Systems (AWES) are described broadly as
mechanical devices that are moored to the ground, via a tether or
cabling component, for the purpose of capturing the fluid stream
kinetic energy of winds. The kinetic energy captured by the device is
then utilized in various fashions to generate electricity. In one
option, the wind energy is immediately converted into consumable power,
at the system component keeping the system aloft, and then transferred
to the ground by a mechanical tether, cabling conductor, or other
method. In another option, the combination of the wind, the aloft
device, and the mooring cables are systematically utilized to drive an
electrical generator located on the ground.
    The basic overall components that comprise various AWESs are fairly
similar in concept, however, the technologies and the specific devices
that keep them aloft differ dramatically. Such devices have leveraged
on similar engineering designs that apply to kites, balloons, kytoons,
aircraft wings, aircraft, airfoils, as well as others.\1\
---------------------------------------------------------------------------

    \1\ 14 CFR 1.1 defines a balloon as a ``lighter-than-air
aircraft that is not engine driven, and that sustains flight through
the use of either gas buoyancy or an airborne heater,'' and defines
a kite as a ``framework, covered with paper, cloth, metal, or other
material, intended to be flown at the end of a rope or cable, and
having as its only support the force of the wind moving past its
surfaces.''
---------------------------------------------------------------------------

    Although some of these AWES components could be covered by 14 CFR
part 101, Moored balloons, kites, amateur rockets and unmanned free
balloons, some conceptual designs include hybrid concepts or utilize
new innovative techniques that are not as easily classifiable. For
example, the FAA identified some AWESs employing ``balloon-like''
design structures with

motorized rotors for vertical and/or horizontal control, resembling a
moored airship which does not fall within the category of 14 CFR part
101 devices.\2\ Additionally, the FAA also identified some AWESs that
employ a moored kite or balloon with one or more wind capturing devices
(wings or blades) attached along the mooring cable that spin a separate
cable and activate ground-based power generators. Consequently, the FAA
has determined that AWES are unique and would not fall under 14 CFR
part 101.
---------------------------------------------------------------------------

    \2\ 14 CFR 1.1 defines an airship as, ``an engine-driven
lighter-than-air aircraft that can be steered.''
---------------------------------------------------------------------------

    Furthermore, since AWES is a relatively new technology that will be
used to support clean, renewable energy initiatives, the FAA finds that
part 101 does not currently contain the necessary provisions to address
these systems.
    Whether designed with conventional 14 CFR part 101 type devices or
non-conventional hybrid-type components, each AWES possesses differing
attributes. These attributes include, but are not limited to, its
physical design, how it operates, necessary airspace utilized, radar
cross-section, and reflection coefficient. The FAA is concerned with
these differing attributes and their unknown impacts to the NAS,
navigable airspace, and to the flying public. Therefore, the FAA
concludes that each AWES deployment needs to be studied on a case-by-
case basis with respect to the surrounding aviation environment to
ensure aviation safety.

Policy

    Given the altitudes that these structures can operate and their
operating characteristics, the FAA concludes that they should be
studied and the potential impacts to the navigable airspace must be
identified and addressed. Presently, the FAA has an existing regulatory
framework that outlines standards for determining obstructions to air
navigation or navigational aids or facilities (see 14 CFR part 77). 14
CFR part 77 is utilized to evaluate the impact of wind turbines and
other forms of renewable energy on the navigable airspace. Therefore,
we conclude that any new forms of wind gathering devices would be
included in the Obstruction Evaluation Process, which is administered
under 14 CFR part 77.
    Accordingly, the FAA announces that the provision of part 77 will
apply to temporary AWES proposals that will be used for data collection
purposes. The FAA finds that the provisions of 14 CFR part 77 can be
applied to these ``structures'' without the need to amend the
regulations. Permanent and operational AWES may be addressed in the
future upon further evaluations and risk assessments are performed. The
purpose of this change in policy is to allow for the continued
development of this emerging technology and to provide the FAA with
data regarding these devices so that the safety and integrity of the
NAS is maintained. Persons proposing to conduct temporary airborne
testing of AWES for data collection purposes must provide notice to the
FAA pursuant to 14 CFR 77.13(a)(1), which requires notice of any
construction or alternation of more than 200 feet above ground level.
    In order to facilitate the timely manner in which AWES proposals
are reviewed, AWES developers and operators are requested to limit
temporary operations to the following:
    (1) Airborne operations of AWES should be temporary in nature for
testing and data collection purposes only;
    (2) Single AWES devices only (e.g.--no ``farms'' or multiple
simultaneous testing);
    (3) AWES should be limited to a single fixed location (e.g.--no
mobile ground facilities);
    (4) Testing is confined to heights at or below 499 feet above
ground level (AGL);
    (5) Airborne flight testing of AWES will only occur during daylight
hours; and
    (6) AWES will be made conspicuous to the flying public. (The
sponsor of the AWES will provide the FAA with their marking and
lighting scheme. FAA Advisory Circular 70/7460-1K (AC 70/7460-1K),
Obstruction Marking and Lighting, currently does not address AWES, but
may be used as a guide, as some portions may be applicable.)

Request for Information

    The FAA is working jointly with industry, the Department of Energy,
as well as other airspace stakeholders, and believes that additional
information from AWES developers would be beneficial. The information
will assist the FAA as it considers long-term policies and guidance to
integrate the AWES safely into the NAS.
    The FAA has several concerns regarding AWES operations in the NAS,
including:
    (1) Impact(s) to various surveillance systems (radars);
    (2) Conspicuity to aircraft (marking and lighting);
    (3) Overall safety--safety to other airspace users, safety to
persons and property on the ground, safety to the efficient and
effective use of NAS facilities, safety to airports, safety to air
commerce, and safety to the efficient operations and managing of the
NAS;
    (4) AWES fly-away protection (mooring cable is severed);
    (5) AWES physical dimensions per unit and per farm;
    (6) AWES operating dimensions per unit and per farm (amt. of
airspace it may require);
    (7) AWES mobility (potential for AWES to relocate from physical
ground location to a different ground location); and
    (8) Wake turbulence or vortices of wind capturing component(s).
    The FAA recognizes the various design concepts utilized by AWES
developers for components of their overall AWES. These may include the
components that keep the system aloft, the power generating equipment,
the energy transferring equipment, the maneuvering controls, and the
physical and operational dimensions, amongst others. Given these
variations in technologies, the FAA seeks information from the industry
to help us evaluate the potential risks of permanent AWES and AWES
farms operating in the NAS.
    The FAA is requesting AWES sponsors provide information on the
following. Additional information may be requested upon further contact
and coordination. This information must be submitted by February 6,
2012.
     General information on a developer's specific AWES design
concept and plans for operation.
    [cir] What type(s) of mechanical devices are you employing to keep
the system aloft?
    [cir] What are the physical dimensions of the device(s) with
relation to the above?
    [cir] What kind of materials will comprise this device?
    [cir] What are the operational dimensions (requirement for
airspace) for the system?
    [cir] Is there a requirement to operate more than one device in the
air?
    [cir] What are your long-term plans for this system?
     Marking and lighting.
    [cir] Can you comply with marking and lighting requirements?
    [cir] Can you identify any impacts to your system when complying
with current guidance for marking and lighting standards?
    [cir] What are your plans or how is your system designed to make
the system conspicuous to the flying public?
     Safety to other airspace users and persons and property on
the ground.
    [cir] What safety mechanisms or devices have you designed into the
system to ensure all aspects of aviation safety?

    [cir] What safety mechanisms or devices have you designed into the
system to minimize or mitigate hazards to persons or property on the
ground?
     Minimized impacts to NAS facilities.
    [cir] What are your plans or how is your system designed to reduce
a large radar cross-section and become less conspicuous to surveillance
systems?
    [cir] What are your plans or how is your system designed to reduce
impacts to any communication or navigation systems supporting the NAS?
    In addition, the FAA is requesting input from airspace users
regarding the impact AWES would have on the NAS. Specifically, we
request airspace users provide comments to the following. Additional
information may be requested upon further contact and coordination.
This information must be submitted by February 6, 2012.
     What safety implications do you foresee of AWES operations
with respect to your use of the airspace or your interest to the NAS?
     Would you have any concerns about AWES permanently
operating at altitudes above 500 feet AGL, but, under 1,999 feet AGL?
If so, what and why?
     If AWES were permitted to permanently operate in altitudes
at or above 2,000 feet AGL, how do you foresee this as negatively
impacting your missions, use of the airspace, or other interests in the
NAS?
     What other concerns and/or issues might you have with
respect to AWES co-existing in the NAS?

Comments Invited

    The FAA invites interested persons to submit written comments,
data, or views. The agency also invites comments relating to the
economic, environmental, energy, or federalism impacts that might
result from adopting the proposals in this document. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. To
ensure the docket does not contain duplicate comments, commenters
should send only one copy of written comments, or if comments are filed
electronically, commenters should submit only one time.
    The FAA will file in the docket all comments it receives. Before
acting on this proposal, the FAA will consider all comments it receives
on or before the closing date for comments. The FAA will consider
comments filed after the comment period has closed if it is possible to
do so without incurring expense or delay. The agency may change this
proposal in light of the comments it receives.
    Proprietary or Confidential Business Information: Commenters should
not file proprietary or confidential business information in the
docket. Such information must be sent or delivered directly to the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this document, and marked as proprietary or confidential. If submitting
information on a disk or CD-ROM, mark the outside of the disk or CD-
ROM, and identify electronically within the disk or CD-ROM the specific
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), the FAA is aware of proprietary information
filed with a comment, the agency does not place it in the docket. It is
held in a separate file to which the public does not have access, and
the FAA places a note in the docket that it has received it. If the FAA
receives a request to examine or copy this information, it treats it as
any other request under the Freedom of Information Act (5 U.S.C. 552).
The FAA processes such a request under Department of Transportation
procedures found in 49 CFR part 7.

    Issued in Washington, DC, on November 30, 2011.
Dennis E. Roberts,
Director of Airspace Services.
[FR Doc. 2011-31430 Filed 12-6-11; 8:45 am]
BILLING CODE 4910-13-P


profit margin thereon? Should the Exchange be required to identify
for what services or fees the remaining percentage of un-allocated
expenses are attributable to (e.g., what services or fees are
associated with the 37% of applicable depreciation and amortization
expenses the Exchange does not allocate to the Proposed Access
Fees)? Do commenters believe that the costs projected for 2021 are
generally representative of expected costs going forward (to the
extent commenters consider 2021 to be a typical or atypical year),
or should an exchange present an estimated range of costs with an
explanation of how profit margins could vary along the range of
estimated costs? Should the Exchange use cost projections or actual
costs estimated for 2021 in a filing made in 2022, or make cost
projections for 2022?
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    \105\ See supra Section II.A.2.
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    2. Revenue Estimates and Profit Margin Range. The Exchange
provides a single monthly revenue figure as the basis for
calculating the profit margin of 47%. Do commenters believe this is
reasonable? If not, why not? The Exchange states that their proposed
fee structure is ``designed to cover its costs with a limited return
in excess of such costs,'' and that ``revenue and associated profit
margin [ ] are not solely intended to cover the costs associated
with providing access services subject to the Proposed Access
Fees,'' and believes that a 47% margin is a limited return over such
costs.\106\ The profit margin is also dependent on the accuracy of
the cost projections which, if inflated (intentionally or
unintentionally), may render the projected profit margin
meaningless. The Exchange acknowledges that this margin may
fluctuate from month to month due to changes in the number of
connections purchased, and that costs may increase. They also state
that the number of connections has not materially changed over the
prior months and so the months that the Exchange has used as a
baseline to perform its assessment are representative of reasonably
anticipated costs and expenses.\107\ The Exchange does not account
for the possibility of cost decreases, however. What are commenters'
views on the extent to which actual costs (or revenues) deviate from
projected costs (or revenues)? Do commenters believe that the
Exchange's methodology for estimating the profit margin is
reasonable? Should the Exchange provide a range of profit margins
that they believe are reasonably possible, and the reasons therefor?
---------------------------------------------------------------------------

    \106\ See supra Section II.A.2.
    \107\ See id.
---------------------------------------------------------------------------

    3. Reasonable Rate of Return. Do commenters agree with the
Exchange that its expected 47% profit margin would constitute a
reasonable rate of return over cost for 10GB ULL connectivity? If
not, what would commenters consider to be a reasonable rate of
return and/or what methodology would they consider to be appropriate
for determining a reasonable rate of return? What are commenters'
views regarding what factors should be considered in determining
what constitutes a reasonable rate of return for 10Gb ULL
connectivity fees? Do commenters believe it relevant to an
assessment of reasonableness that the Exchange's proposed fees for
10Gb ULL connections, even at the highest tier, are lower than those
of other options exchanges to which the Exchange has compared the
Proposed Access Fees? What are commenters' views regarding the
difference in profit margins between the Exchange, at 47%, and that
of its affiliates (MIAX and PEARL Options), at 21.3%? Do commenters
believe that this profit margin difference between affiliates for
the same Proposed Access Fees is appropriate given the Exchange's
Proposed Access Fees are not for shared 10Gb ULL connectivity; why
or why not? Should an assessment of reasonable rate of return
include consideration of factors other than costs; and if so, what
factors should be considered, and why?
    4. Periodic Reevaluation. The Exchange has addressed whether it
believes a material deviation from the anticipated profit margin
would warrant the need to make a rule filing pursuant to Section
19(b) of the Act to increase or decrease the fees accordingly,
stating that ``[a]ny requirement that an exchange should conduct a
periodic re-evaluation on a set timeline of its cost justification
and amend its fees accordingly should be established by the
Commission holistically, applied to all exchanges and not just
through pending fee proposals, such as this filing,'' and that
``[i]n order to be fairly applied, such a mandate should be applied
to existing access fees as well.'' \108\ In light of the impact that
the number of subscribers has on connectivity profit margins, and
the potential for costs to decrease (or increase) over time, what
are commenters' views on the need for exchanges to commit to
reevaluate, on an ongoing and periodic basis, their cost-based
connectivity fees to ensure that they stay in line with their stated
profitability target and do not become unreasonable over time, for
example, by failing to adjust for efficiency gains, cost increases
or decreases, and changes in subscribers? How formal should that
process be, how often should that reevaluation occur, and what
metrics and thresholds should be considered? How soon after a new
connectivity fee change is implemented should an exchange assess
whether its subscriber estimates were accurate and at what threshold
should an exchange commit to file a fee change if its estimates were
inaccurate? Should an initial review take place within the first 30
days after a connectivity fee is implemented? 60 days? 90 days? Some
other period?
---------------------------------------------------------------------------

    \108\ See supra Section II.A.2.
---------------------------------------------------------------------------

    5. Tiered Structure for 10Gb ULL Connections. The Exchange
states that the proposed tiered fee structure is designed to
decrease the monthly fees for those firms that connect to the
Exchange as part of their best execution obligations and generally
tend to send the least amount of orders and messages over those
connections, because such firms generally only purchase a limited
number of

connections, and also ``generally send fewer orders and messages
over those connections, resulting in less strain on Exchange
resources.'' \109\ According to the Exchange, 80% of firms have not
experienced a fee increase as a result of the tiered structure.
However, firms that purchase five or more connections will see a 30%
increase in their fees for each connection above the fourth.
Regarding these firms, the Exchange has not asserted that it is 30%
more costly for the Exchange to offer such connections to these
firms, but instead argues generally that these firms are ``likely''
to result in greater expenditure of Exchange resources and increased
cost to the Exchange and that as the number of connections an entity
has increases, certain other costs incurred by the Exchange that are
correlated to, though not directly affected by, connection costs
(e.g., storage costs, surveillance costs, service expenses) also
increase.\110\ Do commenters believe that the price differences
between the tiers are supported by the Exchange's assertions that it
set the level of its proposed fees in a manner that it is equitable
and not unfairly discriminatory? Do commenters believes the Exchange
should demonstrate how the proposed tiered fee levels correlate with
tiered costs (e.g., by providing cost information broken down by
tier, messaging and order volumes through the additional 10Gb ULL
connections by tier, and/or mid-month add/drop of connection rates
by tier)? Do commenters believe that the Exchange should provide
more detail about the costs that firms purchasing three or more or
five or more 10Gb ULL connections impose on the Exchange, to permit
an assessment of the Exchange's statement that the Proposed Access
Fees ``do not depend on any distinction between Members and non-
Members because they are solely determined by the individual
Members' or non-Members' business needs and its impact on Exchange
resources?'' \111\
---------------------------------------------------------------------------

    \109\ See id.
    \110\ See id.
    \111\ See id.

    Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the Exchange
Act and the rules and regulations issued thereunder . . . is on the
[SRO] that proposed the rule change.'' \112\ The description of a
proposed rule change, its purpose and operation, its effect, and a
legal analysis of its consistency with applicable requirements must all
be sufficiently detailed and specific to support an affirmative
Commission finding,\113\ and any failure of an SRO to provide this
information may result in the Commission not having a sufficient basis
to make an affirmative finding that a proposed rule change is
consistent with the Act and the applicable rules and regulations.\114\
Moreover, ``unquestioning reliance'' on an SRO's representations in a
proposed rule change would not be sufficient to justify Commission
approval of a proposed rule change.\115\
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    \112\ 17 CFR 201.700(b)(3).
    \113\ See id.
    \114\ See id.
    \115\ See Susquehanna Int'l Group, LLP v. Securities and
Exchange Commission, 866 F.3d 442, 446-47 (D.C. Cir. 2017)
(rejecting the Commission's reliance on an SRO's own determinations
without sufficient evidence of the basis for such determinations).
---------------------------------------------------------------------------

    The Commission believes it is appropriate to institute proceedings
to allow for additional consideration and comment on the issues raised
herein, including as to whether the proposal is consistent with the
Act, any potential comments or supplemental information provided by the
Exchange, and any additional independent analysis by the Commission.

V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. In particular, the Commission invites the written views of
interested persons concerning whether the proposal is consistent with
Sections 6(b)(4), 6(b)(5), and 6(b)(8), or any other provision of the
Act, or the rules and regulations thereunder. The Commission asks that
commenters address the sufficiency and merit of the Exchange's
statements in support of the proposal, in addition to any other
comments they may wish to submit about the proposed rule change.
Although there do not appear to be any issues relevant to approval or
disapproval that would be facilitated by an oral presentation of views,
data, and arguments, the Commission will consider, pursuant to Rule
19b-4, any request for an opportunity to make an oral
presentation.\116\
---------------------------------------------------------------------------

    \116\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants
the Commission flexibility to determine what type of proceeding--
either oral or notice and opportunity for written comments--is
appropriate for consideration of a particular proposal by an SRO.
See Securities Acts Amendments of 1975, Report of the Senate
Committee on Banking, Housing and Urban Affairs to Accompany S. 249,
S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975).
---------------------------------------------------------------------------

    Interested persons are invited to submit written data, views, and
arguments regarding whether the proposal should be approved or
disapproved by March 15, 2022. Any person who wishes to file a rebuttal
to any other person's submission must file that rebuttal by March 29,
2022.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File No. SR-EMERALD-2022-04 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-EMERALD-2022-04. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-EMERALD-2022-04 and should be submitted
on or before March 15, 2022. Rebuttal comments should be submitted by
March 29, 2022.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Act,\117\ that File Numbers SR-EMERALD-2022-04 be, and hereby is,
temporarily suspended. In addition, the Commission is instituting
proceedings to determine whether the proposed rule change should be
approved or disapproved.
---------------------------------------------------------------------------

    \117\ 15 U.S.C. 78s(b)(3)(C).

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    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\118\
---------------------------------------------------------------------------

    \118\ 17 CFR 200.30-3(a)(12), (57) and (58).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-03652 Filed 2-18-22; 8:45 am]
BILLING CODE 8011-01-P