\i\ To be comparable, units must be designed to burn both biomass and fuel oil or have switched from fuel oil to
  natural gas. Such units may also be designed to burn coal.

    In the mixed railroad ties scenarios above, as previously
discussed, SVOCs are present (up to 17,000 ppm) at levels well within
the range observed in fuel oil (up to 54,700 ppm). Therefore, railroad
ties mixed with creosote, borate and copper naphthenate have comparable
contaminant levels to biomass and fuel oil, and as such, meet this
criterion if used in combustion units that are designed to burn both of
those traditional fuels. Such units may also be designed to burn coal.
4. OTRT Sampling and Analysis Data History
    The data collection supporting the OTRT categorical non-waste
determination has been based on two rounds of data submittals by TWC,
followed by EPA questions and TWC responses on the data provided. The
process of developing the data set is described below and all materials
provided by TWC are available in the docket to this rulemaking.
    The TWC requested a categorical determination that all types of
treated wood were non-waste fuels and submitted data on various wood
preservative types, specifically, those referred to as OTRTs, in their
April 3, 2013 petition letter (see docket EPA-HQ-OLEM-2016-0248-0019).
However, the contaminant comparison data presented in the petition were
incomplete and not based on established analytical data. The EPA
response requested submittal of additional analytical data to determine
contaminant concentrations in the OTRT.
    In November 2013, TWC responded to EPA's request, submitting
laboratory reports on analyses of various \31\ preservative wood types
and combinations, including OTRTs. The EPA reviewed the laboratory
reports and techniques, and determined that there were limited data
points available (i.e., one data point per preservative type) and that
the analytical techniques for several contaminants (chlorine, nitrogen,
sulfur, and fluorine) were not appropriate to provide information on
the entire preserved wood sample as combusted, reflecting only a
leachable component. Furthermore, EPA questioned the representativeness
of the samples being analyzed and the repeatability of the analyses.
---------------------------------------------------------------------------

    \31\ Untreated, copper naphthenate, copper naphthenate and
borate, creosote, creosote and borate, combination of C/CB/CuN/CuNB
equal mixture C/CB/CuN/CuNB 56/41/1/2 percent mixture FIX.
---------------------------------------------------------------------------

    In August 2015, TWC performed additional sampling and analyses to
address these deficiencies in the data. In response to EPA's concerns,
TWC developed a sampling program in which 15 OTRT railroad ties of each
preservative type were collected from various geographical areas. These
15 ties were then separated into three 5-tie groups, then processed
into a boiler-fuel consistency using commercial processing techniques.
A sample of each 5-tie group was then shipped to an independent
laboratory for analysis, thereby producing 3 data points for each
preservative type. TWC also prepared two blends: One with equal
portions of creosote, creosote-borate, copper naphthenate, and copper
naphthenate-borate to estimate projected future ratios; and the second
a weighted blend of these tie types in proportion to current usage
ratios of each preservative chemistry. These blends samples were
analyzed in triplicate, for a total of 15 samples being analyzed (i.e.,
three from each tie sample group). Two laboratories were used by TWC to
perform the analysis: One laboratory analyzed metals, mercury, semi-
volatiles, and heat of combustion; and the other laboratory analyzed
volatiles, chlorine, fluorine, and nitrogen. All methods used were EPA
or ASTM methods, and were appropriate for the materials being tested.
No specific sampling methodology was employed in taking the samples
from the 5-ties group.
    The EPA reviewed the 2015 test data, which was provided by TWC on
September 11, 2015, and provided TWC with additional follow-up
questions and clarifications, including the specific sources of the
railroad ties. TWC's response noted the sources of railroad ties for
each chemistry and indicated that the railroad ties generally
originated in the southeast, but there are also ties from Pennsylvania,
South Dakota, and Kentucky represented within the TWC data set.
Chlorine is not part of any of the preservative chemistries, and was
not detected in any of the samples analyzed.
    The EPA also noted some exceptions and flags within the analytical
report, such as sample coolers upon receipt at the lab were outside the
required temperature criterion; surrogate recoveries for semi-volatile
samples (which represent extraction efficiency within a sample matrix)
were sometimes lower or higher than those for samples containing
creosote-treated wood; and dilution factors (dilution is used when the
sample is higher in concentration than can be analyzed) for creosote-
treated wood samples were high (up to 800). The laboratory noted these
issues in the report narrative, but concluded that there were no
corrective actions necessary. EPA requested further information on
these issues noted in the report narrative, as well as supporting
quality assurance documentation from the laboratories.

    With respect to surrogate recoveries and dilutions, the lab
indicated that the high dilutions were required for the creosote-
containing matrix to avoid saturation of the detector instrument.\32\
Also, the shipping cooler temperature criterion is 4 degrees Celsius
and the lab noted the discrepancy in the report as part of laboratory
standard operating procedure (see also section III. G. Responses to
Comments of this preamble). However, the ties were used and stored
after being taken out of service in ambient atmosphere and were not
biologically active, therefore, shipping cooler temperatures are not
expected to affect contaminant levels in the ties.
---------------------------------------------------------------------------

    \32\ Samples with concentrations exceeding the calibration range
must be diluted to fall within the calibration range. The more a
sample is diluted, the higher the reporting limit. Sample dilution
is required when the concentration of a compound exceeds the amount
that produces a full-scale response. At that point the detector
becomes saturated and fails to respond to additional target
compound(s). Diluting samples to accommodate the high-concentrations
can reduce the concentration of the target analytes to levels where
they can no longer be detected.
---------------------------------------------------------------------------

E. Copper and Borates Literature Review and Other EPA Program Summary

    Neither copper nor borate are currently listed as HAPs under the
Clean Air Act, and thus are not defined as contaminants under NHSM
regulations section 241.2. or used for contaminant comparison in
meeting legitimacy criteria (see 78 FR 9139-9143, February 7,
2013).33 34 To determine whether those compounds pose human
health or ecological risk concerns, outside the requirements of the
NHSM legitimacy criteria, and how those concerns might be addressed
under other Agency programs, we conducted a literature review of copper
and borate during development of the proposed rule. We also requested
comments or any additional information on this topic during proposal.
One comment was received on copper emissions which is discussed in
section E of this preamble.
---------------------------------------------------------------------------

    \33\ CAA Section 112 requires EPA to promulgate regulations to
control emissions of 187 HAPs from sources in source categories
listed by EPA under section 112(c), while CAA section 129 CISWI
standards include numeric emission limitations for the nine
pollutants, plus opacity (as appropriate), that are specified in CAA
section 129(a)(4). For the purpose of NHSM standards, the definition
of contaminants is limited to HAPs under CAA 112 and CAA 129.
    \34\ We also note that under the CAA standards for smaller area
sources, emission limits are not required for copper, borate (or for
HAPs). Standards for area sources focus on tune-ups of the boiler
unit (see 40 CFR 40 CFR part 63, subpart JJJJJJ).
---------------------------------------------------------------------------

    Under the Clean Water Act, EPA's Office of Water developed the Lead
and Copper Rule which became effective in 1991 (56 FR 26460, June 7,
1991). This rule set a limit of 1.3 ppm copper concentration in 10% of
customer taps sampled as an action level for public water systems.
Exceedances of this limit require additional treatment steps in order
to reduce drinking water corrosivity and prevent leaching of these
metals (including copper) from plumbing and distribution systems. EPA's
Office of Water also issued a fact sheet for copper under the Clean
Water Act section 304(a) titled the Aquatic Life Ambient Freshwater
Quality Criteria.\35\ This fact sheet explains that copper is an
essential nutrient at low concentrations, but is toxic to aquatic
organisms at higher concentrations and listed the following industries
that contribute to manmade discharges of copper to surface waters:
Mining, leather and leather products, fabricated metal products, and
electric equipment. There are no National Recommended Aquatic Life
Criteria for boron or borates.
---------------------------------------------------------------------------

    \35\ Aquatic life criteria for toxic chemicals are the highest
concentration of specific pollutants or parameters in water that are
not expected to pose a significant risk to the majority of species
in a given environment or a narrative description of the desired
conditions of a water body being ``free from'' certain negative
conditions. See https://www.epa.gov/wqc/aquatic-life-criteria-copper.
---------------------------------------------------------------------------

    EPA also investigated whether there were any concerns that copper
and borate can react to form polychlorinated dibenzodioxin and
dibenzofurans (PCDD/PCDF) during the combustion process. Specific
studies evaluating copper involvement in dioxins and furans formation
in municipal or medical waste incinerator flue gas have been
conducted.\36\ While the exact mechanism and effects of other
combustion parameters on PCDD and PCDF formation are still unknown,
increased copper chloride (CuCl) and/or cupric chloride
(CuCl2) on fly ash particles has been shown to increase
concentrations of PCDD and PCDF in fly ash. Various researchers
conclude that CuCl and/or CuCl2 are serving either roles as
catalysts in dioxin formation or as chlorine sources for subsequent
PCDD/PCDF formation reactions (i.e., the CuCl and/or CuCl2
serve as dechlorination/chlorination catalysts). Overall, results from
many studies reviewed indicate that most of the copper ends up in the
bottom ash, so fly ash copper content may be minimal. Further, copper
entrained on fly ash would be co-controlled or reduced with the use of
good particulate matter controls on the combustion device. A high
performance fabric filter may be the best control device, although some
portion of fine particulate matter may pass through. Cyclone separators
and electro-static precipitators have not been shown to be effective in
controlling these emissions, and these types of controls may be more
prevalent amongst smaller area source boilers.
---------------------------------------------------------------------------

    \36\ See memorandum ``Literature Review of Copper-related
Combustion Emissions Studies'' and bibliography available in the
docket to this rulemaking for specific studies and further
information on the findings from studies of copper compounds in
waste incinerators discussed in this section of the preamble.
---------------------------------------------------------------------------

    Generally, borates have a low toxicity and should not be a concern
from a health risk perspective.\37\ As indicated previously, neither
boron nor borates are listed as HAPs under CAA section 112, nor are
they considered to be criteria air pollutants subject to any emissions
limitations. However, elemental boron has been identified by EPA in the
coal combustion residuals (CCR) risk analysis \38\ to present some
potential risks for ecological receptors. As a result of this risk, and
boron's ability to move through the subsurface,\39\ boron has been
included as a constituent in CCR monitoring provisions for coal ash
impoundments.
---------------------------------------------------------------------------

    \37\ https://www.atsdr.cdc.gov/toxprofiles/tp26-c2.pdf.
    \38\ Human and Ecological Risk Assessment of Coal Combustion
Residuals, EPA, December 2014.
    \39\ See 80 FR 21302, April 17, 2015.
---------------------------------------------------------------------------

    Copper has some acute human health effects, but these exposures
appear to be the result of direct drinking water or cooking-related
intake. We anticipate the only possible routes that copper releases to
the environment could result from burning copper naphthenate treated
ties would be stormwater runoff from the ties during storage and
deposition from boiler emissions. As mentioned earlier, the majority of
copper in combusted material appears to remain in the bottom ash, so
human health effects from inhalation of fly ash and environmental
effects from deposition of copper-containing fly ash are likely very
low. Further, the amount of copper remaining in the railroad tie after
its useful life may be greatly reduced from the original content due to
weathering, and facilities manage the processed shredded railroad tie
material in covered areas to prevent significant moisture swings.
Therefore, we do not expect impacts from copper in stormwater runoff
from the storage of the copper naphthenate treated ties.

F. Summary of Comments Requested

    The Agency solicited comments in the proposed rule on non-waste
fuel categorical determinations as described previously. The Agency
also specifically requested comments on the following:

     Whether railroad ties with de minimis levels of creosote
should be allowed to be combusted in biomass only units;
     Should a particular de minimis level should be designated
and on what should this level be based;
     Whether these OTRTs are combusted in units designed to
burn coal in lieu of, or in addition to biomass and fuel oil, and
whether the contaminant comparisons to meet legitimacy criteria should
include comparisons to coal;
     In light of the data and sampling history described above,
whether the quality of data is adequate to support the proposed
determination;
     Additional data that should be considered in making the
comparability determinations for OTRT.
     Additional information on the copper borate literature
review.

G. Responses to Comments

    Summaries of comments received in response to solicitations listed
above are presented below, along with EPA's responses to the comments.
All additional comments received are addressed in EPA's Response to
Comments document, located in the docket EPA-HQ-OLEM-2016-0248.
1. De Minimis Levels of Creosote
    For purposes of contaminant comparisons under NHSM, contaminants in
railroad ties treated with creosote-borate and mixtures of creosote,
copper naphthenate and copper naphthenate-borate treated railroad ties
are not comparable to those contaminants found in biomass. Contaminants
in such railroad ties would, however, be comparable to contaminants in
fuel oil. Accordingly, such ties are categorical non-wastes fuels only
when they are processed and then combusted in: (i) Units designed to
burn both biomass and fuel oil and (ii) units at major source pulp and
paper mills or power producers that had been designed to burn biomass
and fuel oil, but are modified in order to use natural gas instead of
fuel oil. Mixtures of treated railroad ties containing creosote cannot
be combusted in biomass only units. The Agency requested comment as to
whether OTRTs used as fuel containing de minimis levels of creosote,
should be allowed to be combusted in biomass only units, and if so,
what should the level be based on.
    Comments: One commenter supported a de minimis exception, but did
not propose any specific levels that the exception would be based on.
The commenter stated that there was no practical method for
establishing with certainty the minimal amount of creosote that will be
present after processing and cited previous determinations discussed
above. Another commenter opposed a de minimis exception stating that
the Agency has proposed no rationale for such an action and it is
unclear what statute or requirements that the Agency was requesting an
exception from. The commenter also cited court decisions that
emphasized that a unit burning any solid waste was a solid waste
incineration unit (see NRDC v. EPA, 489 F. 3d 1250, 1257-60 (D.C. Cir.
2007).
    Response: De minimis contaminant levels have been addressed in
previous NHSM rules. The 2011 final rule stated that C&D wood that has
been processed to remove contaminants prior to burning (e.g., lead-
painted wood, and treated wood containing contaminants such as arsenic
and chromium, metals and other non-wood materials), likely meets the
processing standard and legitimacy criteria, and can be combusted as a
non-waste fuel. The 2011 rule further stated that such C&D wood may
contain de minimis amounts of contaminants and other materials after
processing provided it meets the legitimacy criteria for contaminant
level comparison. The February 2016 final rule specifically codified a
de minimis approach for removal of painted wood from C&D wood stating
that all painted wood must be excluded to the extent that only de
minimis quantities inherent to the processing limitations may remain
from the final product fuel (81 FR 6743, February 8, 2016).
    De minimis levels for OTRTs when combusted with creosote treated
railroad ties (CTRTs) were also addressed in the February 2016 final
NHSM rule (81 FR 6738, February 8, 2016). As discussed in the preamble,
TWC had requested that the Agency move forward on a subset of materials
(i.e., OTRTs) that were identified in their original April 2013
petition. As these treatments were just coming into use, concern was
expressed that the presence of small amounts of OTRTs, which were not
categorically listed non-waste fuels, that may have been processed with
CTRTs would render all of that material solid wastes since OTRTs are
not included in the February 2016 categorical determination. The Agency
concluded that, consistent with the determination in the March 2011
rule (76 FR 15486), small (de minimis) amounts of OTRTs would not
result in determinations that the CTRTs being combusted are solid
wastes.
    The processing of OTRTs is similar to CTRTs (e.g., removal of
contaminant metals using magnets, improvement of fuel characteristics
through grindings or shredding) and is conducted by the approximately
15 treated wood reclamation companies in North America. These systems
that may process mixtures of both CTRT and OTRT may result in the
presence of de minimis levels of cresosote in processed railroad ties
treated with copper naphthenate and copper-naphthenate borate.
    Regarding a definition for de minimis amounts of contaminants
remaining in OTRT, the agency stated in the February 2013 NHSM rule
that it was not appropriate to identify specific concentration levels.
Rather, the agency interprets de minimis as that term is commonly
understood; (i.e., insignificant or negligible amounts of contamination
such as small wood sliver containing lead paint \40\).
---------------------------------------------------------------------------

    \40\ See 78 FR 9139, February 7, 2013.
---------------------------------------------------------------------------

    Based on the factors discussed above, the Agency has concluded,
that OTRT containing de minimis levels (i.e., insignificant or
negligible amounts) of creosote railroad ties, in mixture combinations
with the other ORTS, can be combusted in biomass only units provided it
meets the legitimacy criteria for contaminant levels (i.e.,
concentration levels of contaminants in the processed OTRT are
comparable to or less than the levels in biomass.
2. Inclusion of Coal
    Comment: Regarding whether the OTRTs considered in this rulemaking
are combusted in units designed to burn coal (in lieu of or in addition
to biomass and fuel oil), one commenter indicated that, although they
were unaware of any cement kilns currently combusting OTRTs, cement
kilns have burned OTRTs, and cement kilns can burn a range of
materials, including biomass and coal. Another commenter requested that
EPA include comparisons to the traditional fuel in its analysis. The
commenter reported that contaminant comparisons to coal would show that
the categorical non-waste fuel definition of OTRTs should be expanded
to include OTRTs burned in units designed to burn coal or units
designed to burn coal and fuel oil.
    Specifically, the commenter noted the following:
     For the copper naphthenate treated ties, the maximum
contaminant levels in coal are higher for all contaminants except
naphthalene and 16-PAHs. However, the semi-volatile organic compound
(SVOC) grouping level (which includes naphthalene and 16-PAHs) is
higher for coal than copper naphthenate treated ties.

     For the copper naphthenate-borate treated ties, the
contaminant levels in coal are higher for all contaminants except
naphthalene. However, the SVOC grouping level (which includes
naphthalene) is higher for coal than copper naphthenate-borate treated
ties.
     For the creosote-borate treated ties, the contaminant
levels in coal are higher for all contaminants except naphthalene,
biphenyl, 16-PAHs, and the SVOC grouping overall. However, the SVOC
grouping contaminant level is higher for fuel oil than creosote-borate
treated ties.
    The commenter requested that EPA expand the proposed non-waste fuel
definition, based on these results, to include copper naphthenate and
copper naphthenate-borate treated ties combusted in units designed to
burn coal during normal operations. The commenter further requested
that EPA include creosote-borate treated ties combusted in units
designed to burn coal and fuel oil during normal operations.
    Response: EPA has added coal to the contaminant comparisons of
OTRTs to traditional fuels as well as adding specific regulatory
language. Specifically, contaminants in OTRTs are presented in
comparison to those in coal and other traditional fuels in the tables
in section III.D.3.iii of this preamble, and wording has been added to
the regulatory language in Sec.  241.4(a)(8)-(10).
    Thus, EPA is listing the following OTRTs as categorical non-waste
fuels:
     Copper naphthenate treated railroad ties combusted in
units designed to burn biomass only, biomass and fuel oil, or biomass
and coal.
     Copper naphthenate-borate treated railroad ties combusted
in units designed to burn biomass only, biomass and fuel oil or biomass
and coal.
     Creosote-borate treated railroad ties (and mixtures of
creosote, borate and copper naphthenate treated railroad ties)
combusted only in units designed to burn both biomass and fuel oil, or
units that have switched to natural gas from fuel oil; and where such
units may also be designed to burn coal.
3. Sampling and Data Quality Concerns
    Comment: Regarding the data used to support these non-waste
determinations, one commenter stated that the data were insufficient.
The commenter argued that only three data points were used and that
statistical techniques to address variability were not applied.
    Response: EPA disagrees with the commenter that the data were
insufficient. A total of 18 grab samples were analyzed, and sample ties
were comingled with ties originating from numerous manufacturing
locations in multiple states in order to represent actual processing.
All data and sampling procedures exceptions were addressed by the
company and were within normal operating and analytical parameters
(i.e., no corrective actions were deemed necessary to validate the
data). Thus, EPA agrees that the sampling results submitted were
appropriate for use in comparing contaminant levels with those in
comparable traditional fuels.
    To address the commenter's concerns regarding variability, EPA has
reviewed the TWC 2015 data presented in the petition and calculated the
90, 95, and 99 percent upper prediction limits (UPLs) for contaminants
listed in the comparison charts to see how they compare with the TWC's
data. EPA calculated UPLs for metals, sulfur, naphthalene, and 16-
PAH.\41\ The UPL calculation methodology and results are presented in
the memo ``Contaminant Data UPL Calculations for Other Treated Railroad
Ties (OTRTs)'' found in the docket for this rulemaking. For copper
naphthenate and copper naphthenate-borate treated ties, contaminant
levels at the 99 percent UPL fell within the corresponding contaminant
ranges for biomass and fuel oil. For creosote-borate treated ties,
SVOCs (naphthalene and 16-PAH) are the only contaminants at the 99
percent UPL that does not fall within the range of SVOC concentrations
found in biomass or fuel oil. At the 95 percent UPL, all three OTRTs
are within the biomass and fuel oil contaminant ranges. EPA therefore
believes that variability in the data has been sufficiently accounted
for in the contaminant comparisons.
---------------------------------------------------------------------------

    \41\ Cl, F and N were not detected in any of the analyses, so
with equal detection limits for each data point, no UPL value could
be calculated for these three contaminants.
---------------------------------------------------------------------------

    Comment: One commenter stated that more sensitive testing should
have been done to determine if pentachlorophenol was present in the
cases where it was tested for but results were below method detection
limit (MDL). The commenter noted that if high enough, pentachlorophenol
levels could render discarded railroad ties hazardous waste, which
would require a facility combusting the material to be regulated as a
hazardous waste combustor.
    Response: EPA has evaluated the comment against the data available,
and does not agree that more sensitive testing for pentachlorophenol is
necessary for the three OTRTs and mixtures analyzed and discussed in
the proposal. As noted in the proposal, pentachlorophenol is a distinct
preservative type used by the industry; it is not one of the
preservatives being presented in the data of the proposal, nor is it
expected to be present in any of the preservative types being
considered under the OTRT rulemaking. Pentachlorophenol has a
distinctly different chemical structure than any of the preservatives
being currently considered under the OTRT rulemaking. First, none of
the preservatives being considered contain chlorine as part of the
chemical structure. Pentachlorophenol, as the name suggests, contains 5
chlorine atoms attached to a phenolic base. In the case of the OTRT
samples, chlorine, in addition to pentachlorophenol, was found to be
non-detect at a level of 100 ppm (dry basis), which is at the lower
range of chlorine content values found in untreated wood.
    Second, as also discussed in the proposed rulemaking preamble, the
dilution amounts used for semivolatile (which behave similarly to
pentachlorophenol) was necessarily larger for the creosote-containing
preservative mixes, which influenced the detection levels for
semivolatile analytes. The detection levels for pentachlorophenol
follow this trend, where the copper naphthenate and copper naphthenate-
borate pentachlorophenol method reporting limits are 30 and 28 ppm,
respectively, and the mixtures with creosote being an order of
magnitude higher. This increase in the method reporting limit for these
creosote-containing samples is not an indication that pentachlorophenol
is present in the creosote-containing samples, but more of procedural
necessity due to the method and the equipment used for the analysis, as
the laboratory pointed out in their results narrative.
4. Additional Data for Copper and Borates Literature Review
    As discussed in the OTRT proposal, direct stormwater runoff from
material storage and deposition from boiler emissions are expected to
be the only paths for copper to be released to the environment from
burning copper naphthenate treated ties. Additionally, there is
evidence that copper in the presence of chlorine could lead to
polychlorinated dioxin/furan (PCDD/PCDF) through a reaction pathway
involving CuCl and CuCl2. EPA stated in the proposal that
copper emissions from units burning these ties would be controlled in
the units' air pollution control devices.

    Comment: Area sources may not have any PM control requirements
under the area source boilers rule. Emission limits for copper, borate,
or HAPs are not required under CAA standards for smaller area sources
(standards for area sources focus on tune-ups of the boiler unit).
    Response: EPA stated in the proposal that copper emissions from
units burning these ties would be controlled in the units' air
pollution control devices. While such controls are required for major
sources of HAPs, EPA agrees with the commenter that emission controls
for area source are not required. However, as stated previously, copper
is not a HAPs and is therefore not subject to regulation under CAA
sections 112 (nor is it a pollutant listed under CAA section 129). NHSM
rule limits the definition of ``contaminant'' to the HAPs covered under
CAA 112 and 129. CAA 112 lists 187 HAPs from sources in source
categories, and CAA section 129 CISWI standards include numeric
emission limitations for the nine pollutants, plus opacity (as
appropriate), that are specified in CAA section 129(a)(4).

IV. Effect of This Final Rule on Other Programs

    Beyond expanding the list of NHSMs that categorically qualify as
non-waste fuels, this rule does not change the effect of the NHSM
regulations on other programs as described in the March 21, 2011 NHSM
final rule (76 FR 15456), as amended on February 7, 2013 (78 FR 9138)
and February 8, 2016 (81 FR 6688). Refer to section VIII of the
preamble to the March 21, 2011 NHSM final rule \42\ for the discussion
on the effect of the NHSM rule on other programs.
---------------------------------------------------------------------------

    \42\ 76 FR 15456, March 21, 2011 (page 15545).
---------------------------------------------------------------------------

V. State Authority

A. Relationship to State Programs

    This final rule does not change the relationship to state programs
as described in the March 21, 2011 NHSM final rule. Refer to section IX
of the preamble to the March 21, 2011 NHSM final rule \43\ for the
discussion on state authority including, ``Applicability of State Solid
Waste Definitions and Beneficial Use Determinations'' and
``Clarifications on the Relationship to State Programs.'' The Agency,
however, would like to reiterate that this final rule (like the March
21, 2011 and the February 7, 2013 final rules) is not intended to
interfere with a state's program authority over the general management
of solid waste.
---------------------------------------------------------------------------

    \43\ 76 FR 15456, March 21, 2011 (page 15546).
---------------------------------------------------------------------------

B. State Adoption of the Rulemaking

    No federal approval procedures for state adoption of this final
rule are included in this rulemaking action under RCRA subtitle D.
While states are not required to adopt regulations promulgated under
RCRA subtitle D, some states incorporate federal regulations by
reference or have specific state statutory requirements that their
state program can be no more stringent than the federal regulations. In
those cases, the EPA anticipates that, if required by state law, the
changes being made in this document will be incorporated (or possibly
adopted by authorized state air programs) consistent with the state's
laws and administrative procedures.

VI. Costs and Benefits

    As discussed in previous sections, this final rulemaking
establishes a categorical non-waste determination for OTRT. The
determination allows OTRTs to be combusted as a product fuel in units
subject to the CAA section 112 emission standards (provided the
conditions of the categorical listing are met) without being subject to
a detailed case-by-case analysis of the material by individual
combustion facilities. The rule provides additional clarity and
direction for generators, potential users and owners or operators of
combustion facilities.
    The proposed OTRT rule stated that the action was definitional in
nature, and any costs or benefits accrued to the corresponding Clean
Air Act rules. In accordance with the Office of Management and Budget
(OMB) Circular A-4 requirement that EPA analyze the costs and benefits
of regulations, EPA prepared an economic assessment (EA) document \44\
for the proposal that examined the scope of indirect impacts for both
costs and benefits.
---------------------------------------------------------------------------

    \44\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits and Other Impacts for
the Proposed Rule: Categorical Non-Waste Determination for Selected
Non-Hazardous Secondary Materials (NHSMs) Creosote Borate Treated
Railroad Ties, Copper Naphthenate Treated Railroad Ties and Copper
Naphthenate-Borate Treated Railroad Ties'' EPA Docket Number: EPA-
HQ-OLEM-2016-0248.
---------------------------------------------------------------------------

    Based on public comments, information from stakeholders and the
Executive Order 13771 signed January 30, 2017, the Agency has expanded
the EA for the final rule to take into account additional cost savings.
In considering this information, EPA determined that the final OTRT
rule EA should consider the potential aggregate cost savings to
industry when these materials are regulated as non-waste fuels (because
of this rulemaking), rather than as solid waste. In addition, the
Agency is ensuring that its cost benefit analysis is consistent with
the OMB guidance for E.O. 13771. To do that, we made necessary
adjustments to the final OTRT rule EA.\45\
---------------------------------------------------------------------------

    \45\ U.S. EPA, Office of Resource Conservation and Recovery,
``Assessment of the Potential Costs, Benefits and Other Impacts for
the Final Rule: Categorical Non-Waste Determination for Selected
Non-Hazardous Secondary Materials (NHSMs) Creosote Borate Treated
Railroad Ties, Copper Naphthenate Treated Railroad Ties and Copper
Naphthenate-Borate Treated Railroad Ties'' EPA Docket Number: EPA-
HQ-OLEM-2016-0248.
---------------------------------------------------------------------------

    For purposes of the final rule EA, combustion facilities that wish
to add OTRT to their fuel mix now or in the future are assumed to
operate under CAA 112 standards. OTRTs currently represent a small
fraction of treated railroad ties combusted for fuel, but that amount
will increase over time. The EA concludes that absent the final
categorical rule, OTRT would be considered a solid waste and combustion
facilities that wish to add OTRT to their fuel mix would have to incur
the costs associated with upgrading to section 129.
    The EA concludes that the categorical rule, which designates OTRT
as non-wastes under certain conditions, results in a cost savings from
these avoided costs of section 129 upgrades for facilities adding OTRT
to the fuel mix. The unit-level cost savings were estimated, on
average, to be approximately $266,000 per year. EPA estimates that
industry-wide undiscounted costs savings from not having to operate
under CAA Section 129 regulations when combusting these OTRTs for
energy on the magnitude of between $3.1 million and $24 million
annually over the next 20 years. In addition, the assessment indicated
that the increased regulatory clarity associated with the action could
stimulate increased product fuel use for one or more of these NHSMs,
potentially resulting in upstream life cycle benefits associated with
reduced extraction of selected virgin materials.
    Another, more likely scenario is also addressed in the EA, where,
absent a categorical non-waste fuel determination for OTRTs, combustors
decide not to combust OTRTs and do not perform any air pollution
control upgrades to meet section 129 standards. In this scenario, OTRTs
are instead disposed of in landfills and virgin biomass is purchased by
the combustor to make up for the additional heat content that OTRTs
would provide. EPA

estimates that the undiscounted costs avoided by the final rule of
landfilling the OTRT, is between $190,000 and $1.4 million annually
over the next 20 years. Looking at these two scenarios and applying a
7% discount rate, EPA estimates that the present value range of cost
savings for this rule over 20 years are approximately $6.9 million on
the low end (landfilling) and approximately $110 million on the high
end (avoided air pollution control upgrades).

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review because it may
raise novel policy issues. Any changes made in response to OMB
recommendations have been documented in the docket. The EPA prepared an
economic analysis of the potential costs and benefits associated with
this action. This analysis, ``Assessment of the Potential Costs,
Benefits, and Other Impacts for the Final Rule--Categorical Non-Waste
Determination for Selected Non-Hazardous Secondary Materials (NHSMs):
Creosote-Borate Treated Railroad Ties, Copper Naphthenate Treated
Railroad Ties, and Copper Naphthenate-Borate Treated Railroad Ties,''
is available in the docket. Interested persons were asked to submit
comments on this document but none were received.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA as this action only adds three new categorical non-waste
fuels to the NHSM regulations. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2050-0205.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. The addition of three NHSMs to the list
of categorical non-waste fuels is expected to indirectly reduce
materials management costs. In addition, this action will reduce
regulatory uncertainty associated with these materials and help
increase management efficiency. We have therefore concluded that this
action will relieve regulatory burden for all directly regulated small
entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action contains no Federal mandates as described in UMRA, 2
U.S.C. 1531-1538, and does not significantly or uniquely affect small
governments. UMRA generally excludes from the definition of ``Federal
intergovernmental mandate'' duties that arise from participation in a
voluntary Federal program. Affected entities are not required to manage
the final additional NHSMs as non-waste fuels. As a result, this action
may be considered voluntary under UMRA. Therefore, this action is not
subject to the requirements of section 202 or 205 of the UMRA
    This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. In addition, this
proposal will not impose direct compliance costs on small governments.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. It will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law.
Potential aspects associated with the categorical non-waste fuel
determinations under this final rule may invoke minor indirect tribal
implications to the extent that entities generating or consolidating
these NHSMs on tribal lands could be affected. However, any impacts are
expected to be negligible. Thus, Executive Order 13175 does not apply
to this action.

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

    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in the Executive Order 12866,
and because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. Based on the following discussion, the Agency found that
populations of children near potentially affected boilers are either
not significantly greater than national averages, or in the case of
landfills, may potentially result in reduced discharges near such
populations.
    The final rule, in conjunction with the corresponding CAA rules,
may indirectly stimulate the increased fuel use of one or more the
three NHSMs by providing enhanced regulatory clarity and certainty.
This increased fuel use may result in the diversion of a certain
quantity of these NHSMs away from current baseline management
practices, which is assumed to be landscape use or being sent to
landfills. Some crossties may also go to CISWI units. Any corresponding
disproportionate impacts among children would depend upon whether
children make up a disproportionate share of the population living near
the affected units. Therefore, to assess the potential indirect
disproportionate effect on children, we conducted a demographic
analysis for this population group surrounding CAA section 112 major
source boilers, municipal solid waste landfills, and construction and
demolition (C&D) landfills for the Major and Area Source Boilers rules
and the CISWI rule.\46\ We assessed the share of the population under
the age of 18 living within a three-mile (approximately five
kilometers) radius of these facilities.

Three miles has been used often in other demographic analyses focused
on areas around industrial sources.\47\
---------------------------------------------------------------------------

    \46\ The extremely large number of area source boilers and a
lack of site-specific coordinates prevented us from assessing the
demographics of populations located near area sources. In addition,
we did not assess child population percentages surrounding cement
kilns that may use CTRTs/OTRTs for their thermal value.
    \47\ The following publications which have provided demographic
information using a 3-mile or 5-kilometer circle around a facility:
    * U.S. GAO (Government Accountability Office). Demographics of
People Living Near Waste Facilities. Washington DC: Government
Printing Office 1995.
    ** Mohai P, Saha R. ``Reassessing Racial and Socio-economic
Disparities in Environmental Justice Research''. Demography.
2006;43(2): 383-399.
    ** Mennis, Jeremy ``Using Geographic Information Systems to
Create and Analyze Statistical Surfaces of Population and Risk for
Environmental Justice Analysis'' Social Science Quarterly, 2002,
83(1):281-297.
    ** Bullard RD, Mohai P, Wright B, Saha R et al., Toxic Wastes
and Race at Twenty, 1987-2007, March 2007. 5 CICWI Rule and Major
Source Boilers Rule.
---------------------------------------------------------------------------

    For major source boilers, our findings indicate that the percentage
of the population in these areas under age 18 years is generally the
same as the national average.\48\ In addition, while the fuel source
and corresponding emission mix for some of these boilers may change as
an indirect response to this rule, emissions from these sources would
remain subject to the protective CAA section 112 standards. For
municipal solid waste and C&D landfills, we do not have demographic
results specific to children. However, using the population below the
poverty level as a rough surrogate for children, we found that within
three miles of landfills that may experience diversions of one or more
of these NHSMs, low-income populations, as a percent of the total
population, are disproportionately high relative to the national
average. Thus, to the extent that these NHSMs are diverted away from
municipal solid waste or C&D landfills, any landfill-related emissions,
transportation, discharges, or other negative activity potentially
affecting low-income (children) populations living near these units are
likely to be reduced. Finally, transportation emissions associated with
the diversion of some of this material away from landfills to boilers
are likely to be generally unchanged.
---------------------------------------------------------------------------

    \48\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
---------------------------------------------------------------------------

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

    This action is not ``significant energy action'' because it is not
likely to have a significance adverse effect on the supply,
distribution or use of energy. The selected NHSMs affected by this
final action are not generated in quantities sufficient to
significantly (adversely or positively) impact the supply,
distribution, or use of energy at the national level.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
This is because the overall level of emissions, or the emissions mix
from boilers, are not expected to change significantly because the
three NHSMs categorically listed as non-waste fuels are generally
comparable to the types of fuels that these combustors would otherwise
burn. Furthermore, these units remain subject to the protective
standards established under CAA section 112.
    Our environmental justice demographics assessment conducted for the
prior rulemaking \49\ remains relevant to this action. This assessment
reviewed the distributions of minority and low-income groups living
near potentially affected sources using U.S. Census blocks. A three-
mile radius (approximately five kilometers) was examined in order to
determine the demographic composition (e.g., race, income, etc.) of
these blocks for comparison to the corresponding national compositions.
Findings from this analysis indicated that populations living within
three miles of major source boilers represent areas with minority and
low-income populations that are higher than the national averages. In
these areas, the minority share \50\ of the population was 33 percent,
compared to the national average of 25 percent. For these same areas,
the percent of the population below the poverty line (16 percent) was
higher than the national average (13 percent).
---------------------------------------------------------------------------

    \49\ U.S. EPA, Office of Resource Conservation and Recovery.
Summary of Environmental Justice Impacts for the Non-Hazardous
Secondary Material (NHSM) Rule, the 2010 Commercial and Industrial
Solid Waste Incinerator (CISWI) Standards, the 2010 Major Source
Boiler NESHAP and the 2010 Area Source Boiler NESHAP. February 2011.
    \50\ This figure is for overall population minus white
population and does not include the Census group defined as ``White
Hispanic.''
---------------------------------------------------------------------------

    In addition to the demographics assessment described previously, we
also considered the potential for non-combustion environmental justice
concerns related to the potential incremental increase in NHSMs
diversions from current baseline management practices. These may
include the following:
     Reduced upstream emissions resulting from the reduced
production of virgin fuel: Any reduced upstream emissions that may
indirectly occur in response to reduced virgin fuel mining or
extraction may result in a human health and/or environmental benefit to
minority and low-income populations living near these projects.
     Alternative materials transport patterns: Transportation
emissions associated with NHSMs diverted from landfills to combustion
units are likely to be similar.
     Change in emissions from baseline management units: The
diversion of some of these NHSMs away from disposal in landfills may
result in a marginal decrease in activity at these facilities. This may
include non-adverse impacts, such as marginally reduced emissions,
odors, groundwater and surface water impacts, noise pollution, and
reduced maintenance cost to local infrastructure. Because municipal
solid waste and C&D landfills were found to be located in areas where
minority and low-income populations are disproportionately high
relative to the national average, any reduction in activity and
emissions around these facilities is likely to benefit the citizens
living near these facilities.
    Finally, this rule, in conjunction with the corresponding CAA
rules, may help accelerate the abatement of any existing stockpiles of
the targeted NHSMs. To the extent that these stockpiles may represent
negative human health or environmental implications, minority and/or
low-income populations that live near such stockpiles may experience
marginal health or environmental improvements. Aesthetics may also be
improved in such areas.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 241

    Environmental protection, Air pollution control, Non-hazardous

secondary materials, Waste treatment and disposal.

    Dated: January 26, 2018.
E. Scott Pruitt,
Administrator.

    For the reasons stated in the preamble, EPA is amending title 40,
chapter I, of the Code of Federal Regulations as follows:

PART 241--SOLID WASTES USED AS FUELS OR INGREDIENTS IN COMBUSTION
UNITS

0
1. The authority citation for part 241 continues to read as follows:

    Authority: 42 U.S.C. 6903, 6912, 7429.

0
2. Section 241.2 is amended by adding in alphabetical order the
definitions ``Copper naphthenate treated railroad ties'', ``Copper
naphthenate-borate treated railroad ties'', and ``Creosote-borate
treated railroad ties'' to read as follows:

Sec.  241.2  Definitions.

* * * * *
    Copper naphthenate treated railroad ties means railroad ties
treated with copper naphthenate made from naphthenic acid and copper
salt.
    Copper naphthenate-borate treated railroad ties means railroad ties
treated with copper naphthenate and borate, including borate made from
disodium octaborate tetrahydrate.
* * * * *
    Creosote-borate treated railroad ties means railroad ties treated
with a wood preservative containing creosols and phenols and made from
coal tar oil and borate, including borate made from disodium octaborate
tetrahydrate.
* * * * *

0
3. Section 241.4 is amended by adding paragraphs (a)(8) through (10) to
read as follows:

Sec.  241.4  Non-Waste Determinations for Specific Non-Hazardous
Secondary Materials When Used as a Fuel.

    (a) * * *
    (8) Creosote-borate treated railroad ties, and mixtures of
creosote, borate and/or copper naphthenate treated railroad ties that
are processed and then combusted in the following types of units.
Processing must include, at a minimum, metal removal and shredding or
grinding.
    (i) Units designed to burn both biomass and fuel oil as part of
normal operations and not solely as part of start-up or shut-down
operations; and
    (ii) Units at major source pulp and paper mills or power producers
subject to 40 CFR part 63, subpart DDDDD, designed to burn biomass and
fuel oil as part of normal operations and not solely as part of start-
up or shut-down operations, but are modified (e.g., oil delivery
mechanisms are removed) in order to use natural gas instead of fuel
oil, The creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties may continue to be combusted as
product fuel under this subparagraph only if the following conditions
are met, which are intended to ensure that such railroad ties are not
being discarded:
    (A) Creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties must be burned in existing (i.e.,
commenced construction prior to April 14, 2014) stoker, bubbling bed,
fluidized bed, or hybrid suspension grate boilers; and
    (B) Creosote-borate and mixed creosote, borate and copper
naphthenate treated railroad ties can comprise no more than 40 percent
of the fuel that is used on an annual heat input basis.
    (iii) Units meeting requirements in paragraph (a)(8)(i) or (ii) of
this section that are also designed to burn coal.
    (9) Copper naphthenate treated railroad ties that are processed and
then combusted in units designed to burn biomass, biomass and fuel oil,
or biomass and coal. Processing must include at a minimum, metal
removal, and shredding or grinding.
    (10) Copper naphthenate-borate treated railroad ties that are
processed and then combusted in units designed to burn biomass, biomass
and fuel oil, or biomass and coal. Processing must include at a
minimum, metal removal, and shredding or grinding.
* * * * *
[FR Doc. 2018-02337 Filed 2-6-18; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 80, Number 178 (Tuesday, September 15, 2015)]
[Proposed Rules]
[Pages 55275-55277]
[FR Doc No: 2015-22972]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2015-1834; Airspace Docket No. 15-AGL-8]

Proposed Revocation and Establishment of Class E Airspace;
Bowman, ND

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to establish Class E airspace at Bowman,
ND. Controlled airspace is necessary to accommodate new Standard
Instrument Approach Procedures at Bowman Regional Airport, for the
safety and management of Instrument Flight Rules (IFR) operations.
Class E airspace would be removed at Bowman Municipal Airport, Bowman,
ND, due to closure of the air traffic control tower.

DATES: Comments must be received on or before October 30, 2015.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001,
telephone<PHONE_NUMBER>. You must identify the docket number FAA-2015-
1834; Airspace Docket No. 15-AGL-8, at the beginning of your comments.
You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the
proposal, any comments received, and any final disposition in person in
the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through
Friday, except Federal holidays. The Docket Office (telephone 1-800-
647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Y, Airspace Designations and Reporting Points, and
subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy and Regulations Group, Federal Aviation Administration,
800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-
8783. The order is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call<PHONE_NUMBER>, or go to
http://www.archives.gov/federal_register/code_offederal-regulations/ibr_locations.html.
    FAA order 7400.9, Airspace Designations and Reporting Points is
published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT: Rebecca Shelby, Central Service
Center, Operations Support Group, Federal Aviation Administration,
Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177;
telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would amend controlled airspace for the Bowman, ND, area.

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2015-1834/
Airspace Docket No. 15-AGL-8.'' The postcard will be date/time stamped
and returned to the commenter.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received and any final disposition in person in the Dockets
Office (see ADDRESSES section for address and phone number) between
9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal
holidays. An informal docket may also be examined during normal
business hours at the office of the Central Service Center, 10101
Hillwood Parkway, Fort Worth, TX 76177.
    Persons interested in being placed on a mailing list for future
NPRMs should contact the FAA's Office of Rulemaking<PHONE_NUMBER>, to
request a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

Availability and Summary of Documents Proposed for Incorporation by
Reference

    This document proposes to amend FAA Order 7400.9Y, Airspace
Designations and Reporting Points, dated August 6, 2014, and effective
September 15, 2014. FAA Order 7400.9Y is publicly available as listed
in the ADDRESSES section of this proposed rule. FAA Order 7400.9Y lists
Class A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Proposal

    This action proposes to amend Title 14, Code of Federal Regulations
(14 CFR), Part 71 by establishing Class E airspace extending upward
from 700 feet above the surface within a 6.0-mile radius of Bowman
Regional Airport, Bowman, ND, to accommodate new standard instrument
approach procedures. Controlled airspace is needed for the safety and
management of IFR operations at the airport. This action also would
remove Class E airspace extending upward from 700 feet above the
surface at Bowman Municipal Airport, Bowman, ND. The closing of the air
traffic control tower at Bowman Municipal Airport has made this action
necessary for continued safety within the NAS.
    Class E airspace areas are published in Paragraph 6005 of FAA Order
7400.9Y, dated August 6, 2014, and effective September 15, 2014, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document will be published subsequently in
the Order.

Regulatory Notices and Analyses

    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal.
    Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule, when
promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.

Environmental Review

    This proposal will be subject to an environmental analysis in
accordance with FAA Order 1050.1E, ``Environmental Impacts: Policies
and Procedures'' prior to any FAA final regulatory action.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

     Authority:  49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Y,
Airspace Designations and Reporting Points, dated August 6, 2014, and
effective September 15, 2014, is amended as follows:

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth

* * * * *

AGL ND E5 Bowman, ND [New]

Bowman Regional Airport, ND
    (Lat. 46[deg]09'56'' N., long. 103[deg]18'03'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.0-mile radius of Bowman Regional Airport.

AGL ND E5 Bowman, ND [Removed]

Bowman Municipal Airport, ND

    Issued in Fort Worth, TX, on August 27, 2015.
Robert W. Beck,
Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2015-22972 Filed 9-14-15; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: December 21, 2007 (Volume 72, Number 245)]
[Notices]
[Page 72695-72696]
[DOCID:fr21de07-65]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12872-000]

Hydro Green Energy, LLC; Notice of Application Accepted for
Filing and Soliciting Motions To Intervene, Protests, and Comments

December 14, 2007.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Type of Application: Preliminary Permit.
    b. Project No.: 12872-000.
    c. Date Filed: July 25, 2007.
    d. Applicant: Hydro Green Energy, LLC.
    e. Name of Project: ``Alaska 24'' Project.
    f. Location: The project would be located in a section of the Kobuk
River in the Northwest Arctic Borough, Alaska. The project uses no dam
or impoundment.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)--825(r).
    h. Applicant Contacts: Mr. Wayne F. Krouse, Hydro Green Energy,
LLC, 5090 Richmond Avenue 390, Houston, TX 77056, and Mr.
James H. Hancock Jr., Balch & Bingham LLP, 1710 Sixth Avenue North,
Birmingham, Alabama 35203.
    i. FERC Contact: Kelly Houff,<PHONE_NUMBER>.
    j. Deadline for filing comments, protests, and motions to
intervene: 60 days from the issuance date of this notice.
    All documents (original and eight copies) should be filed with:
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. Comments, protests, and interventions may be
filed electronically via the Internet in lieu of paper; see 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
under the ``e-Filing'' link. The Commission strongly encourages
electronic filings. Please include the project number (P-12872-000) on
any comments or motions filed.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency.
    k. Description of Project: The proposed project consists of: (1) 5
arrays, each consisting of ten, 100 kilowatt hydrokinetic turbine
units, for a total installed capacity of 5 megawatts, (2) a proposed
transmission line no greater than 2500 feet from the ``node'' array to
the shore, (3) a mooring system which does not require the use of
pilings to permanently attach the units to the bedrock but instead uses
tethers and Danforth type anchors, and (4) appurtenant facilities. The
project would have an average annual generation of 32.873 gigawatt-
hours, which would be sold to a local utility.
    l. Locations of Applications: A copy of the application is
available for inspection and reproduction at the Commission in the
Public Reference Room, located at 888 First Street, NE., Room 2A,
Washington DC 20426, or by calling<PHONE_NUMBER>. This filing may also
be viewed on the Commission's Web site 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, call toll-free 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>For TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item h
above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Competing Preliminary Permit: Anyone desiring to file a
competing application for preliminary permit for a proposed project
must submit the competing application itself, or a notice of intent to
file such an application, to the Commission on or before the specified
comment date for the particular application (see 18 CFR 4.36).
Submission of a timely notice of intent allows an interested person to
file the competing preliminary permit application no later than 30 days
after the specified comment date for the particular application. A
competing preliminary permit application must conform with 18 CFR 4.30
and 4.36.
    o. Competing Development Application: Any qualified development
applicant desiring to file a competing development application must
submit to the Commission, on or before a specified comment date for the
particular application, either a competing development application or a
notice of intent to file such an application. Submission of a timely
notice of intent to file a development application allows an interested
person to file the competing application no later than 120 days after
the specified comment date for the particular application. A competing
license application must conform with 18 CFR 4.30 and 4.36.
    p. Notice of Intent: A notice of intent must specify the exact
name, business address, and telephone number of the prospective
applicant, and must include an unequivocal statement of intent to
submit, if such an application may be filed, either a preliminary
permit application or a development application (specify which type of

application). A notice of intent must be served on the applicant(s)
named in this public notice.
    q. Proposed Scope of Studies under Permit: A preliminary permit, if
issued, does not authorize construction. The term of the proposed
preliminary permit would be 36 months. The work proposed under the
preliminary permit would include economic analysis, preparation of
preliminary engineering plans, and a study of environmental impacts.
Based on the results of these studies, the Applicant would decide
whether to proceed with the preparation of a development application to
construct and operate the project.
    r. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210,
385.211, 385.214. In determining the appropriate action to take, the
Commission will consider all protests or other comments filed, but only
those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    s. Filing and Service of Responsive Documents: Any filings must
bear in all capital letters the title ``COMMENTS'', ``RECOMMENDATIONS
FOR TERMS AND CONDITIONS'', ``PROTEST'', ``COMPETING APPLICATION'' OR
``MOTION TO INTERVENE'', as applicable, and the Project Number of the
particular application to which the filing refers. Any of the above-
named documents must be filed by providing the original and the number
of copies provided by the Commission's regulations to: The Secretary,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. A copy of any motion to intervene must also be
served upon each representative of the Applicant specified in the
particular application.
    t. Agency Comments: Federal, State, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-24758 Filed 12-20-07; 8:45 am]

BILLING CODE 6717-01-P


December 2, 2004 MEMORANDUM From: William H. Maxwell CG/ ESD ( C439 01)

To: Utility MACT Project Files Subject: Meeting with National Wildlife Federation ( NWF), December 2, 2004 Attendees National Wildlife Federation: Duane Hovorka, Nebraska Wildlife Federation Dan Ward, Kansas Wildlife Federation Jennifer Geichenair, Delaware Nature Society Eileen M. Butler, Delaware Nature Society Jerry L. McCollum, Georgia Wildlife Federation Paula Yeager, Indiana Wildlife Federation Jason D. Bord, North Dakota Wildlife Federation Jeremy Vesbach, New Mexico Wildlife Federation Dave Gowdey, Wyoming Wildlife Federation Angela Viney, South carolina Wildlife Federation Randy Lanctot, louisiana Wildlife Federation Elizabeth Courtivey, Vermont Natures Council Aiken Kolton, National Wildlife Federation Loren Mitchell, League of Ohio Sportsmen Larry Thompson, North Carolina Wildlife Federation Manley Fuller, Florida Wildlife Federation Wayne East, Colorado Wildlife Federation Tim L. Gothard, Alabama Wildlife Federation Adam R. Moore, Connecticut Forest and Park Association Julie Sibbing, National Wildlife Federation Kristy Jones, National Wildlife Federation Robert Moore, Environmental Advocates of New York Donna Stine, Michigan United Conservation Clubs Melody Zullinger, Pennsylvania Federation of Sportsmen's Clubs Marjorie Ziegler, Conservation Council for Hawaii Jim Lyon, National Wildlife Federation George Meyer, Wisconsin Wildlife Federation Rich Innes, Conservation Strategies EPA: Steve Johnson, EPA/ OA Rich McKeown, EPA/ OA Jeff Holmstead, EPA/ OAR Rob Brenner, EPA/ OAR Drew Nelson, EPA/ OAR Michael Shapiro, EPA/ OW John Meagher, EPA/ OW Doreen Vetter, EPA/ OW Discussion The NWF attendees urged that the final Clean Air Mercury Rule ( CAMR) be " as realistic and aggressive a strategy as possible." They also indicated that they believe that " the technology is available to do the right thing" and " mercury is poisoning our fish."


Coppers Reader's Guide 1 Reader's Guide to Coppers E Docket # EPA HQ OPP 2005 0558 EPA has created this document to provide an organizational structure to the Coppers EDocket The Agency is providing the " Reader's Guide" to allow the reader to more easily access and navigate the various items contained in the Coppers E docket.

Docket Item 1. Federal Register Notice: Coppers Risk Assessments; Notice of Availability and Risk Reduction Options ( Phase 3 of 4 Phase Process);

This document formally and publicly announces the availability of coppers risk assessments for review on the internet or at the EPA's Office of Pesticides Programs' Public Docket and solicits comments and suggestions on the risk assessments and how to mitigate or address potential risks of concern.

Docket Item 2. Reader's Guide to the Coppers E Docket # EPA HQ OPP 2005 0558 This document is designed to annotate all the documents in the Coppers E Docket.

Docket Item 3. Summary of the Copper Pesticides Risk Assessments and Information Needs ( Phase 3 of 4 Phase Process). January 23, 2006 This document describes a brief summary and highlights of the human health and ecological risk assessments, as well as outlines the Agency's information needs on the use of copper on agricultural/ conventional sites.

Docket Item 4. Coppers: HED's Response to Comments Received During Phase 1. DP319682. January 17, 2006 ( C. Jarvis et al, HED)

This document describes the Agency's response to comments on the human health assessment received from the Copper Reregistration Task Force ( American Chemistry Council) and AdChem Australia.

Docket Item 5. Coppers: HED's Response to Comments Received During Phase 1. Case Numbers 0636, 0649, 4025, and 4026. October 24, 2005 ( C. Jarvis et al, HED)

This document describes the Agency's response to comments on the human health assessment received from the Copper Sulfate Task Force registrants.

Docket Item 6. Coppers: Second Revised Human Health Chapter of the Reregistration Eligibility Decision Document ( RED). Reregistration Case Numbers 0636, 0649, 4025, and 4026. DP Barcode D319683. January 17, 2006 ( C. Jarvis et al, HED) Coppers Reader's Guide 2 This document describes all human health risks resulting from the use of coppers including error only revisions based on registrants' comments.

Docket Item 7. Error Corrections for the Ecological Risk Assessment for Re Registration of Copper sulfate ( Case# 0636), Group II copper compounds ( Case # 0649), and Copper salts ( Case # 4029) for use on crops and as direct water applications. October 24, 2005 ( P. Doelling Brown and J. Hetrick, EFED)

This document describes the Agency's response to comments, comments on the ecological assessment received by the Copper Sulfate Task Force and error only revisions based on registrants' comments and the revised document of all potential ecological risks resulting from the use of copper pesticides.


[Federal Register: February 10, 2010 (Volume 75, Number 27)]
[Notices]
[Page 6762-6764]
[DOCID:fr10fe10-142]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61478; File No. SR-CBOE-2010-009]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Notice of Filing and Immediate Effectiveness of Proposed
Rule Change Relating to the Penny Pilot Program

February 3, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on January 29, 2010, the Chicago Board Options Exchange,
Incorporated (``Exchange'' or ``CBOE'') filed with the Securities and
Exchange Commission (the ``Commission'') the proposed rule change as
described in Items I and II below, which Items have been prepared by
the Exchange. The Exchange filed the proposal as a ``non-
controversial'' proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6) thereunder.\4\ The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    CBOE proposes to amend [sic] its rules relating to the Penny Pilot
Program. The text of the rule proposal is available on the Exchange's
Web site (http://www.cboe.org/legal), at the Exchange's Office of the
Secretary, at the Commission's Public Reference Room and on the
Commission's Web site http://www.sec.gov.

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

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

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

1. Purpose
    CBOE proposes to amend its rules in connection with the expansion
of the Penny Pilot on February 1, 2010. Specifically, CBOE proposes to
amend Rule 6.42 to provide that the minimum increment for all option
series in the IWM and SPY option classes will be $0.01 effective
February 1, 2010. Currently, the minimum increments in these two
classes are $0.01 for all option series quoted below $3 (including
LEAPS), and $0.05 for all option series $3 and above (including LEAPS).
CBOE notes that the SEC recently approved an NYSEArca rule filing which
provides that the minimum increment for all option series in the IWM
and SPY option classes will be $0.01 effective February 1, 2010.\5\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 61061 (November 24,
2009), granting partial approval of SR-NYSEArca-2009-44, as modified
by Amendment No. 4 thereto.
---------------------------------------------------------------------------

    CBOE also proposes to identify the 75 option classes that will be
added to the Penny Pilot Program beginning on February 1, 2010. CBOE
recently extended and expanded the Penny Pilot Program through December
31, 2010.\6\ As described in its filing, the Pilot

Program will be expanded by adding 300 option classes, in groups of 75
classes each quarter on the following dates: November 2, 2009, February
1, 2010, May 3, 2010, and August 2, 2010.\7\ The option classes will be
identified based on national average daily volume in the six calendar
months preceding their addition to the Pilot Program using data
compiled by The Options Clearing Corporation, except that the month
immediately preceding their addition to the Pilot Program will not be
utilized for purposes of the six-month analysis.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 60864 (October 22,
2009), granting immediate effectiveness to SR-CBOE-2009-76.
    \7\ The classes to be added are among the most actively-traded,
multiply-listed option classes that are not currently in the Pilot
Program, excluding option classes with high premiums. An option
class would be designated as ``high premium'' if, at the time of
selection, the underlying security was priced at $200 per share or
above, or the underlying index level was at 200 or above.
---------------------------------------------------------------------------

    The following 75 option classes will be added to the Pilot Program
beginning on February 1, 2010:

----------------------------------------------------------------------------------------------------------------
       Symbol                    Company name                   Symbol                    Company name
----------------------------------------------------------------------------------------------------------------
ABT.................  Abbott Laboratories.               LEAP................  Leap Wireless International Inc.
AEM.................  Agnico-Eagle Mines Ltd.            LLY.................  Eli Lilly & Co.
AET.................  Aetna Inc.                         LO..................  Lorillard Inc.
AFL.................  Aflac Inc.                         LOW.................  Lowe's Cos Inc.
AKAM................  Akamai Technologies Inc.           M...................  Macy's Inc
AMAT................  Applied Materials Inc.             MCO.................  Moody's Corp.
AMR.................  AMR Corp.                          MET.................  MetLife Inc.
ANF.................  Abercrombie & Fitch Co.            MMM.................  3M Co.
APC.................  Anadarko Petroleum Corp.           MU..................  Micron Technology Inc.
ATVI................  Activision Blizzard Inc.           NUE.................  Nucor Corp.
BBD.................  Banco Bradesco SA.                 OXY.................  Occidental Petroleum Corp.
BCRX................  BioCryst Pharmaceuticals Inc.      PARD................  Poniard Pharmaceuticals Inc.
BK..................  Bank of New York Mellon Corp/The.  PEP.................  PepsiCo Inc/NC.
BRCM................  Broadcom Corp.                     PM..................  Philip Morris International Inc.
BTU.................  Peabody Energy Corp.               PNC.................  PNC Financial Services Group Inc.
BX..................  Blackstone Group LP.               QID.................  ProShares UltraShort QQQ.
CAL.................  Continental Airlines Inc.          SHLD................  Sears Holdings Corp.
CF..................  CF Industries Holdings Inc.        SLM.................  SLM Corp.
CMCSA...............  Comcast Corp.                      SLW.................  Silver Wheaton Corp.
CSX.................  CSX Corp.                          SQNM................  Sequenom Inc.
CVS.................  CVS Caremark Corp.                 STEC................  STEC Inc.
CX..................  Cemex SAB de CV.                   STX.................  Seagate Technology.
DD..................  EI du Pont de Nemours & Co.        SU..................  Suncor Energy Inc.
ERTS................  Electronic Arts Inc.               TCK.................  Teck Resources Ltd.
EWJ.................  iShares MSCI Japan Index Fund.     TEVA................  Teva Pharmaceutical Industries
                                                                                Ltd.
FDX.................  FedEx Corp.                        TLT.................  iShares Barclays 20+ Year
                                                                                Treasury Bond Fund.
FNM.................  Federal National Mortgage          TZA.................  Direxion Daily Small Cap Bear 3X
                       Association.                                             Shares.
FRE.................  Federal Home Loan Mortgage Corp.   UAUA................  UAL Corp.
GILD................  Gilead Sciences Inc.               URE.................  ProShares Ultra Real Estate.
GLW.................  Corning Inc.                       UTX.................  United Technologies Corp.
HBC.................  HSBC Holdings PLC.                 WFR.................  MEMC Electronic Materials Inc.
HES.................  Hess Corp.                         WFT.................  Weatherford International Ltd.
HL..................  Hecla Mining Co.                   WLP.................  WellPoint Inc.
HOG.................  Harley-Davidson Inc.               XLB.................  Materials Select Sector SPDR
                                                                                Fund.
HON.................  Honeywell International Inc.       XRX.................  Xerox Corp.
JOYG................  Joy Global Inc.                    XTO.................  XTO Energy Inc.
JWN.................  Nordstrom Inc.                     YRCW................  YRC Worldwide Inc.
KFT.................  Kraft Foods Inc.
----------------------------------------------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes the rule proposal is consistent with the
Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations under the Act applicable to a national securities exchange
and, in particular, the requirements of Section 6(b) of the Act.\8\
Specifically, the Exchange believes that the proposed rule change is
consistent with the Section 6(b)(5) Act \9\ requirements that the rules
of an exchange be designed to promote just and equitable principles of
trade, to prevent fraudulent and manipulative acts and, in general, to
protect investors and the public interest. In particular, the proposed
rule change allows for an expansion of the Penny Pilot Program for the
benefit of market participants and identifies the option classes to be
added to the Pilot Program in a manner consistent with CBOE's rule
filing SR-CBOE-2009-76 to extend and expand the Pilot Program. The
proposed rule change also allows for reductions in the minimum
increments in IWM and SPY, which has been shown to reduce spreads.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    CBOE does not believe that the proposed rule change will impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative prior to 30 days from the date on which it was filed,
or such shorter

time as the Commission may designate if consistent with the protection
of investors and the public interest, the proposed rule change has
become effective pursuant to Section 19(b)(3)(A) of the Act \10\ and
Rule 19b-4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of filing.\11\ However,
Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange requested that the Commission waive
the 30-day operative delay, as specified in Rule 19b-4(f)(6)(iii),\12\
which would make the rule change effective and operative upon filing.
---------------------------------------------------------------------------

    \11\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires the self-regulatory organization to give the
Commission notice of its intent to file the proposed rule change,
along with a brief description and text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. CBOE has satisfied this requirement.
    \12\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest
because the proposal is based on a recent Commission-approved proposal
submitted by another options exchange \13\ and therefore does not raise
any novel regulatory issues. Further, waiving the operative delay will
allow the Exchange to commence quoting all series of IWM and SPY in
increments of $0.01 effective February 1, 2010, contemporaneously with
other options exchanges. Accordingly, the Commission designates the
proposed rule change as operative upon filing with the Commission.\14\
---------------------------------------------------------------------------

    \13\ See supra note 5.
    \14\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2010-009 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CBOE-2010-009. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site 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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the self-regulatory
organization. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
CBOE-2010-009 and should be submitted on or before March 3, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-2865 Filed 2-9-10; 8:45 am]
BILLING CODE 8011-01-P