Chapter 15
General Provisions
Contents
15.1	Co-located Non-emitting Sources	2
15.2	Codifying the Proposed Regulations	2
15.3	PCP Exclusion	3

CO-LOCATED NON-EMITTING SOURCES

Comment 15.1-1: Commenter 8952 states, the co-located non-emitting sources provision is highly convoluted. Commenter 8957 states, including co-located non-emitting sources of electricity in the calculation of the emission standard compliance provides an additional "efficiency" measure to allow EGUs to meet the emissions limitations by decreasing their lb/MWh CO2 emissions by increasing their net output. Commenter says, this provision will only provide marginal benefit to the affected sources.
Co-located units are not included in this final rule.
Commenter 0784 discusses United States CO2 emissions compared to emissions from other countries (China specifically). Commenter suggests that EPA, in partnership with the U.S. electric utilities and U.S. State Department, have a larger role in educating other nations on how to cost-effectively reduce carbon emissions from coal-burning plants.
This comment is beyond the scope of the present rulemaking.
Commenter 8957 disagrees with exempting net sales to the grid during a declared emergency for applicability purposes. Commenter states, this action would result in displacing well-regulated, well-controlled baseline power plants from the capacity market with uncontrolled distributed generation. Commenter says, baseline power plants that would normally be applicable under the proposed rule could evade applicability by only bidding one-third of their capacity to the market and selling the remaining two-thirds to the emergency demand response market.
The EPA disagrees with the commenter and is retaining the exclusion of sales for emergency which is discussed more in section IX.B.2 of the preamble
Codifying the Proposed Regulations

Commenter 8957 states, codifying the proposed regulations in their respective subparts would make referencing the appropriate NSPS easier for state and local air pollution control agencies and the owners and operators of the affected facilities and minimize confusion. Commenter says there would be no need to reproduce definitions that are already contained in the respective subparts and if future data supports changing an emissions limitation for one type of fuel or technology, it can be addressed without opening the entire regulation to comment. Commenter says, codifying the proposed regulations in a new subpart would not cause undue burden to the owner/operator or the permitting agencies.
As explained in section III.B of the final rule preamble, the EPA is combining the steam generator and combustion turbine categories into a single category of fossil fuel-fired electricity generating units for purposes of promulgating standards of performance for GHG emissions. The standards of performance for CO2 emissions will be codified in a new 40 CFR part 60, subpart TTTT.
Commenter 2864 states, the new rules must include flexibility for states and limitations on premature closings of EGUs. Commenter says the rule must include recognition of the significant investments in renewables, demand side management and natural gas EGUs already made by utilities, more time for new technologies to be developed and proven cost effective, and flexibility for utilities to look at system emissions versus plant by plant reductions.
 This comment is beyond the scope of the present rulemaking.

PCP Exclusion

Commenter 10660 states, EPA should maintain the pollution control project exclusion in its NSPS rulemaking. Commenter says, most environmental compliance projects would fall into this category and be deemed pollution control projects that are excluded from NSPS for modified units, allowing them to be regulated as existing units and therefore the current rulemaking should not affect this exclusion.
The EPA's action in the final rule does not change anything concerning what constitutes or does not constitute a modification under the CAA or the EPA's regulations.
Commenter 9666 agrees with the EPA's proposal to exempt Subpart TTTT from sections 60.8 (addressing performance tests, notice of performance tests, performance test reports, and audit sample requirements), 60.11 (including compliance requirements and opacity requirements), 60.14 (addressing modification), 60.15 (addressing reconstruction), 60.16 (priority list), 60.18 (addressing general control device requirements), 60.5570 and Table 2.
Commenter 9666 states that the EPA should include the duplicate reporting to the EPA Regional Offices and delegated states under section 60.4 on the list of general provisions that do not apply to Subpart TTTT, or to the proposed revisions to Subparts Da and KKKK.
Section 60.5570 and Table 3 of the final rule indicate which of the General Provisions in sections 60.1 through 60.19 are applicable to EGUs affected under subpart TTTT. Sections 60.8, 60.11, 60.13, 60.14, 60.15, 60.16, and 60.18 are not applicable to subpart TTTT. With regard to applicability of section 60.4 of the General Provisions, Table 3 to subpart TTTT specifies that section 60.4 does not apply to information reported electronically through ECMPS and that duplicate submittals are not required.
15.4	REGULATORY UNCERTAINTY

Commenter 10618 states this proposal will increase regulatory uncertainty because of its novel treatment of existing modified and reconstructed sources. As an example, EPA is relying on its purported authority to promulgate a "new source" standard that does not apply to "modified" units (notwithstanding the controlling definition of "new source" in Section 111(a)(2) of the CAA) during a period when other EPA regulatory initiatives will require existing coal plants to undertake physical and operational changes in order to achieve reductions in criteria pollutant emissions that are known to increase the hourly rate of CO2 emissions from coal-fired steam generators. EPA claims that such sources will be protected by the "pollution control project" exclusion in 40 CFR 60.14(e)(5). EPA acknowledges that this exclusion (dating to 1975 in the NSPS program) is similar to a provision subsequently promulgated under the new source review regulations in Part 51, and that the D.C. Circuit Court's decision in New York v. EPA, 413 F.3d 3, 40 (D.C. Cir. 2005), invalidated that similar provision in the new source review program. The questionable continuing validity of the pollution control exclusion may well force additional coal unit retirements, beyond the 38,000 MW already announced, even though EPA has acknowledged that it has insufficient information to develop standards that could apply to existing sources.
EPA disagrees that this rule will increase regulatory uncertainty. EPA disagrees with the contention that EPA does not have the authority to set different standards for newly constructed sources and for modified sources.   EPA's authority to issue regulations setting different standards for newly constructed sources and for modified sources comes from section 111(b)(2), which authorizes EPA to distinguish within categories of sources.   With respect to the commentors reference to the definition of "new source" in section 111(a)(2) and EPA's reading of the definition of not including all modified sources, the language of the definition in section 111(a)(2) is that "new source" only includes modified sources that modify "after the publication of regulations (or, if earlier, proposed regulations) prescribing a standard of performance under this section which will be applicable to such source. Finally, with respect to the portion of the comment concerning the pollution control project provision, EPA neither proposed nor is taking any final action with respect to that provision and therefore that portion of the comment is beyond the scope of this rule and requires no response.

Chapter 16
Rule Language
Contents
16.1	General	2
16.2	Definitions	2
16.3	Language Corrections	10

General
The EPA Must Correct Discrepancies between Subparts Da and TTTT
Commenter 10239 states, while the proposed alternative subpart TTTT is not intended to differ substantively from the proposed standards under Subpart Da, there are several discrepancies between the proposals that would produce materially different regulatory obligations. The commenter says, EPA appears to propose facility-level regulation of coal-fired EGUs under Subpart Da, but unit-level regulation under Subpart TTTT. The commenter also says, it appears that the operative language for an affirmative defense for malfunctions was only included in Subpart TTTT and that there were no changes in Subpart Da to incorporate the affirmative defense. The commenter says, EPA must correct these discrepancies and provide an opportunity for public comment on the revised provisions.

The EPA is finalizing provisions which only add the new subpart TTTT of part 60 in this rulemaking and so the coordination between CO2 standards between subpart Da and TTTT is not required. The emission standards in subpart TTTT are being finalized as unit level standards.
Definitions
The Rule Should Include Additional Guidelines for Calculating the Thermal Credit
Commenter 10682 states, while the definition of "Useful Thermal Output" in the proposed rule includes some additional detail that was not included in the April 2012 proposal, EPA should also provide guidelines to help facilities calculate their useful thermal output. The commenter notes that EPA has already generated these materials, and should reference them in the final rule. With these additional details, EPA can assuage concerns that regulated entities may take credit for thermal energy that is not put to good use.

The EPA has added detail and clarified in the final rule how to calculate useful thermal output by adding an equation in section 60.5540.
EPA Should Add a Definition of Industrial Unit to the Rule
Commenter 10682 notes EPA is seeking comment on whether it should exempt combustion turbines at industrial units from the emission limit under 111(b), while continuing to subject such units to other aspects of the standard of performance (i.e., monitoring, reporting and recordkeeping requirements). The commenter says that such units would apparently be treated as utility units and subject to the emissions limit whenever they meet the threshold applicability limits (i.e., whenever the facility supplies more than one-third of its potential electric output and more than 25 MW net electric output to the grid per year over a three-year rolling average).
Commenter 10682 states the language in the proposed rule is unclear because while the proposed rule distinguishes between "combustion turbine utility units" and "combustion turbine industrial units," these terms are not defined. The commenter recommends that EPA define these terms so that regulated entities can better understand the applicability requirements. The commenter further notes that monitoring and record-keeping is necessary to identify years in which these units trigger the applicability requirements.
The EPA has added detail in the applicability sections of the rule and clarified what applicable monitoring and recordkeeping EGUs have to do depending on what standard is applicable to them.  The final rule has an operational element for an EGU to determine what emission standard is applicable and for more discussion on this topic see sections VIII.C. and IX.A.3 of the preamble.
Clarify the definition of CHP
Commenter 1586 supported the "line-loss" credit proposed for "combined heat and power" (CHP) facilities but expressed concerns that the proposed definition may exclude facilities using hot oil heat exchangers and may also exclude "waste heat to power" (WHP) facilities; this commenter provided a draft definition for WHP facilities.  Commenter 1586 also stated that most CHP projects would not be subject to the proposed standard because CHP systems are often owned and operated by third-party developers and not by the thermal host. This commenter supported the proposed criteria that applicability is based on gross electric sales to the utility minus purchased power of the thermal host.
Commenter 10038 states EPA does not include a specific definition for CHP in the primary proposal to retain separate categories for steam generating units and combustion turbines, but instead relies on the current, yet inconsistent definitions of CHP in subparts Da and KKKK. The commenter recommends that EPA modify the definition of CHP in subpart KKKK regarding stationary combustion turbines to clarify that CHP includes units that produce useful thermal energy by any means.
Commenter 10038 states, EPA should include "bottoming-cycle units" in the definition of CHP and include a definition of "bottoming-cycling unit" consistent with that adopted in the Cross-State Air Pollution Rule.
 See section 60.5580 of the regulatory text for definitions.
Subparts KKKK and TTTT definitions
Several commenters (9381, 9425, 9427, 9591, 9665, 9666, and 10039) identified issues related to definitions in subparts KKKK and TTTT. Four commenters (9427, 9591, 9666, and 10039) recommended that EPA maintain the existing definition of stationary combustion turbine in subpart KKKK instead of using the proposed definition. If EPA chooses to use a new definition for stationary combustion turbine, commenters 9427 and 10039 recommend that EPA remove the steam turbine from the definition because it is not a necessary component of the combustion turbine and has no function relative to emissions. Commenter 10039 further noted the proposed definition also includes fuel heaters, other equipment, and control technology, but data used to establish performance standards for combustion turbines does not include emission data from these sources. The commenter (10039) also noted the definition of combustion turbine should not include this insignificant ancillary system where it could be interpreted that emissions from this system may need to be accounted for in compliance determinations under this proposed standard or for compliance by affected units subject to Subpart KKKK prior to this change.

Commenter 9591 presented conflicting definitions of stationary combustion turbines between the current 40 CFR 60.4420, the Proposed 40 CFR 60.4420 (2012 revisions), and the Proposed 40 CFR 60.4421 (2013 revisions) while commenter 9666 noted the proposed definitions in subparts KKKK and TTTT are slightly different. Commenter 9666 stated the proposed definition in subpart TTTT appears internally inconsistent in that it includes "control systems (except emissions control equipment)" but also includes "post-combustion emission control technology." Commenter 10039 also stated EPA has included post combustion emission control technology in the definition of stationary combustion turbine though no other emission source categories exist where EPA defines the source to include post combustion emission control devices.
Commenter 9427 stated EPA should ensure that definitions and uses of terms relating to stationary combustion turbines are clear and consistent. Specifically, the commenter (9427) noted that clear and unambiguous terms are needed for "Potential Electric Output," "Net-Electrical Output," "Net Electric Output," "Gross Electric Sales," "Gross Energy Output," "Utility Distribution System," "Utility Power Distribution System," "Electric Grid," and "Purchased Power".
Commenter 9427 states, similar to the "potential electric output" proposed definition, the "base load rating" definition should enable "at the election of the owner/operator of the facility" to use or revise the base load rating to reflect actual heat input capacity or to reflect changes in the heat input capacity over time. Commenter says, the use of a base load rating different than the manufacturer's design heat input capacity could be based on methods such as a manufacturer's thermal performance test procedure or an ASME Performance Test Code (PTC), such as PTC 22 for stationary combustion turbines, or another known industry standard, all at ISO conditions and using higher heating value of the fuel.
Commenter 9666 states, in Subparts TTTT and KKKK, EPA proposes a definition for combined heat and power facilities that uses "3 calendar year rolling average basis" to determine applicability but for Subpart Da, EPA does not propose any averaging period.
Commenter 9425 states, in Subpart KKKK EPA proposes to limit the definition of "base load rating" to combustion turbines and clarify that the definition does not include heat input from duct burners to heat recovery steam generating systems (HRSG). Commenter says, in Subpart TTTT EPA proposes to define "base load rating" for steam generating units as well as combustion turbines. Commenter says, if EPA intends the heat input to a steam generating unit to be included in determining "base load rating" for any unit (including a HRSG) under Subpart TTTT, then EPA should issue a proposal that explains why EPA has proposed to treat such units differently under Subparts KKKK and TTTT.
Commenters 9425 and 9666 state, the rationale for defining "combined cycle facility" in Subpart TTTT but not in Subpart Da should be clarified.
Commenter 9665 states, the current definition of IGCC in subpart TTTT does not include the "integrated equipment" addition. Commenter says, EPA should adopt the same revised definition of IGCC facility that it has proposed for Subpart Da. Commenter says, EPA should clarify that the definition encompasses the HRSG and any steam turbines used by the IGCC unit. Commenter says, the definition should specifically note that integrated equipment includes, but is not limited to, HRSGs. Commenter says, EPA should clarify that the definition extends to the output both to and from the steam turbine as well as any auxiliary equipment. Commenter says, EPA should also alter the definition to reference turbine engines in the plural.
Commenter 9666 states, EPA proposes to define "IGCC facility" in Subpart Da with respect to CO2 to include "any integrated equipment that provides electricity or useful thermal output to either the affected facility or auxiliary equipment, "and states that it has proposed to include such equipment in the other facility definitions." Commenter says, although EPA has included it in the proposed definitions of "steam generating unit" in Subpart Da, section 60.46Da and in Subpart TTTT, and in the proposed definition of "stationary combustion turbine" in Subparts KKKK and TTTT, EPA has not proposed to include it in the definition of IGCC in Subparts KKKK and TTTT.
Commenter 9665 supports EPA's proposed waiver of the 50 percent solid-derived fuel requirement during periods of construction, startup, shutdown, and repair. Commenter says, EPA should remove from the IGCC definition, ""The Administrator may waive" language, and include the following declarative sentence: "The 50 percent solid-derived fuel requirement does not apply during period of the gasification system construction, startup and commissioning, shutdown, or repair."

Commenter 9381 states, EPA should consider interactions between the proposed revisions intended for the criteria pollutant provisions or Subpart KKKK and the GHG provisions proposed under Subpart KKKK to avoid conflict with the rule's intended focus on entirely new units.

Commenter 9666 states, EPA should review its proposed definitions for consistency both between the proposed subparts and in other NSPS affecting EGUs. Commenter says, EPA proposes numerous definitions in Subpart TTTT, some of which are similar (but not identical) to definitions in the corresponding provisions in proposed revisions to Subparts Da and KKKK, and to definitions in other subparts affecting EGUs.

Commenter 9666 states, EPA proposes to add a definition of "base load rating" to Subpart KKKK or alternatively to Subpart TTTT. Commenter says, in Subpart KKKK, EPA proposes to limit the definition to combustion turbines and to make clear that the definition does not include heat input from duct burners to HRSG but in Subpart TTTT, EPA proposes to define "base load rating" for steam generating units as well as for combustion turbine. Commenter says, EPA must clarify why units are treated differently between Subpart KKKK and TTTT.

Commenter 9666 states, there is a difference in the definition of "coal" between Subpart TTTT and Subpart Da section 60.41Da. Commenter says, EPA should clarify the purpose of the different definitions between the two subparts.

Commenter 9666 states, EPA should clarify the purpose of the speciation for the "distillate oil" definition in Subpart TTTT which includes a limitation on the percent nitrogen by weight (0.05 weight percent).

Commenter 9666 states, EPA should clarify the reasoning for removing the references to SO2, NOx, and sulfur in fuel from the "excess emissions" definition in Subpart KKKK.

 See section 60.5580 of the regulatory text for definitions.
Gross Energy Output Definition
Commenter 10100 states, EPA should use the definition of "gross energy output" from 40 C.F.R. Section 72.2 to be consistent with what EGUs already report to EPA's Clean Air Markets Division pursuant to the Acid Rain Program.
Commenters 9425 and 9666 state, EPA proposes to define "gross energy output" differently for different EGUs. Commenter says, the definitions should be consistent and EPA should remove "minus any electricity used to power the feedwater pumps" from the definition of "gross energy output" and equations for calculating "gross energy output". Commenters say, EPA should not incentivize how feedwater pumps are powered at an affected facility. Commenters say, EPA should change the definitions of "gross energy output" to reflect the formulas for calculating an affected facility's gross energy output. Commenters say, the Subpart Da definition of "gross energy output" should be changed from the "electric or mechanical output" to "the electric energy output plus mechanical energy output." Commenters say, the Subpart KKKK definition of "gross energy output" should be changed from "electric or direct mechanical output" to "electric energy output plus mechanical energy output."
Commenter 9666 states, EPA should define "mechanical output" or "useful thermal output" in Subparts Da and KKKK.
Commenter 9425 states, EPA proposes to define "net-electric output" in Subparts TTTT, KKKK, and for CO2 in Subpart Da. Commenter says, in Subparts TTTT and KKKK, EPA proposes a definition for combined heat and power facilities that uses a "3 calendar year rolling average basis" to determine applicability but for Subpart Da, EPA does not propose any averaging period. Commenter says, the rationale for this inconsistency is not clear.
Commenter 10606 states, the definition of gross energy output is unclear with regard to the precise meaning of the phrase "that is not used to generate additional electrical or mechanical output or to enhance the performance of the unit." Commenter says, the Proposed Rule is confusing because it uses several different terms i.e., "useful thermal output", "steam delivered to an industrial process for a heating application", "thermal energy made available for use", and "the energy recovered in thermal output." Commenter says, "EGU" should be used instead of "unit" in the definition and it needs to be clear that the phrase "is not used to generate additional electrical or mechanical output" applies to the EGU.
Commenter 10606 states, the definition of "useful thermal output" appears to exclude electrical generation that may be inherent to an industrial process and not sold to a utility system, however the proposed rule and NSPS only apply to EGUs. Commenter says, a definition of useful thermal output should be included in the final rule stated as:
"Useful thermal output means the thermal energy made available for use in any industrial or commercial process, or used in any heating or cooling application (i.e., total thermal energy made available for processes and applications or to enhance the performance of the stationary combustion turbine). Thermal output for this subpart means the energy in recovered thermal output measured against the energy in the thermal output at ISO conditions."
Commenter 10870 states, EPA should not revise the definition of "gross energy output." Commenter says, the definition should be the same as the current definition in 40 CFR 60, Subpart Da. Commenter says, any standard should be based on gross energy output, not net energy output.
Commenter 10095 states, the definition should use "plus" instead of "or" in the phrase "the gross electric or mechanical output..." Commenter says, this change will reflect the proposal's gross energy output formulae used for compliance calculations. Commenter says, the phrase "minus any electricity used to power the feedwater pumps" should be removed from the gross energy output definition for steam generating units and steam generating unit CHP facilities.
Commenter 10095 states, the formulae for calculating gross energy output contains the variable "H" defined as "enthalpy of steam at measured temperature and pressure relative to ISO conditions in Joules per kilogram (J/kg)." Commenter interprets this definition of "H" as enthalpy steam at measured temperature and pressure minus enthalpy of water at ISO conditions. Commenter says, EPA needs to confirm that this interpretation is correct.
Commenter 9666 supports EPA's acknowledgement that supplying steam for amine regenerating in a CCS system is categorized as "useful energy" and can be applied to the gross energy output calculation for compliance with the proposal.
 See section 60.5580 of the regulatory text for definitions.
Annual Average Calculation
Commenter 10681 states, in 60.46Da(g)(1)(ii) and (iii) and 60.4374(a)(1)(ii) and (iii), the annual average calculation presented is based on the undefined term "operating hour". Commenter says, the procedure to convert from operating hours used to calculate the monthly update to the 12 (or 84) month rolling average emissions is not clearly stated here or in 60.46Da(c). Commenter says, EPA should show the calculation rather than utilize a narrative description of the calculation.
Commenter 10681 states, EPA should amend 60.41Da to include the necessary definitions to support this subsection such as operating hour, operating month, compliance period, everything in 60.46Da(k), etc.
Commenter 10681 states, the definitions proposed for 60.Da(k) should be moved to 60.41Da with the other definitions used in the subpart. Commenter says, the word formula given in 60.46Da(k) for "Potential electrical output" should be replaced with the actual calculation.
The EPA is only finalizing subpart TTTT in part 60.  The EPA is finalizing only the requirement to meet emission limits on a 12-operating month rolling average and in addition the EPA has added details in the final rule with respect to operating hours and months
Turbine Definitions
Commenter 10681 states, EPA should change how it defines the difference between large, frame type combustion turbines and small aeroderivative turbines. Commenter says, EPA should utilize the definitions of combined cycle and simple cycle combustion turbines already included in 40 CFR 60.4420 rather than develop of new criterion.

See section 60.5580 of the regulatory text for definitions.
Emergency Conditions
Commenter 10681 states, EPA should either explicitly define what constitutes an electrical emergency and what has to be documented by the RTO or ISO to allow operation in an emergency condition.
Commenter 9593 states support for the definition of emergency operations as proposed in the rule and the need for this provision to be included.
 The EPA is finalizing the definition of System Emergency in the final rule.
Definition of Affected Facility
Commenter 10681 states, the definition of affected facility differs between 60.40Da and proposed 60.46Da(a). Commenter says, the definition for affected facility for 60.46Da should be added to 60.40Da and clearly state that it is for use in implementing the requirements of 60.46Da.

 The EPA is not finalizing any requirements in subpart Da and has defined affected EGU in the new subpart TTTT of part 60.
Definition of EGUs
Commenter 8949 states, EPA generally refers to EGUs as fossil fuel-fired electric steam generating units (utility boilers and integrated gasification combined cycle units) and natural gas-fired stationary combustion turbines, focusing on coal-fired and natural gas-fired EGUs. Commenter says, although Subpart Da and the proposed EGU definition changes appear to apply to any "fossil fuel," it unclear whether or not the GHG thresholds would apply to recapture and combustion of byproduct off gas that is captured and combusted to generate electricity.
Commenter 8949 asks, under the Proposed Rule, would only those EGUs that meet all three of the Subpart Da criteria be subject to the GHG NSPS, or would EGUs that meet any one of the three Subpart Da criteria be subject to the GHG NSPS? For those fossil fuels that are not coal or natural gas, how will those EGUs be treated? Will EPA identify a separate threshold for other fossil fuels in the Final Rule? How is byproduct off gas that is indirectly produced through fossil fuel mineral processing, captured, and reused for power generation to be considered with regard to GHG NSPS? Is this byproduct off gas to be treated the same as fossil fuels that are used solely for base load power production (as opposed to an off gas treatment mechanism that produces power as a byproduct)? Commenter says, EPA should clearly define which EGUs are covered by the GHG NSPS, particularly those for which their feedstock is neither coal nor natural gas. Commenter says, coverage for EGUs that are constructed specifically for capture and processing of byproduct off gases, and whose purpose is not primarily for sale of electric power but rather primarily for coverage of parasitic loads with nominal excess production, be excluded from the GHG NSPS.
 Commenter 10554 states, the word "or" be included in the definition of EGUs so that the language would read "constructed for the purpose of supplying more than one-third of its potential electric output capacity to the grid or the unit actually supplies more than one-third of its potential electric output to the grid." Commenter says, this language would ensure that any unit that is either designed to supply more than one-third or actually sends more than one-third potential electric output to the grid are subject to the standards.
Commenter 9775 states, EPA does not justify the definition of EGUs which is a departure from the definition of EGU in 40 CFR 60.2.3. Commenter says, the proposed rule's EGU definition creates uncertainty about what facilities will be covered. Commenter says, it is unclear how the rule impacts other electric-generating systems. Commenter says, EPA should clarify what qualifies a facility to be an EGU, how fossil fuels will that are not traditional coal or natural gas power plants will be treated, and how the new rule will apply to product off-gas and other indirect power-production systems.
See section 60.5580 of the regulatory text for definitions.
The Florida Keys Should Be Included In the Proposed Rule's Definition of Non-Continental Areas and Excluded From the Proposed Standard
Commenter 9194 states, pipeline quality natural gas is not available in the Florida Keys and therefore should be included in the definition of non-continental areas and excluded from the proposed standard.

 See section 60.5580 of the regulatory text for definitions.
2/5 (40 percent) Capacity Definition
Commenter 8952 states, a full exemption of simple cycle turbines is the most defensible and best solution because it would provide grid reliability by not arbitrarily removing a subset of the generating capacity from availability.

The EPA disagrees with the commenter and is finalizing the rule with an applicability threshold of 25 MW with certain sales criteria thresholds.  The EPA points the commenter to section IX.A.3 of the preamble for more detail on this topic

Language Corrections
General Language Comments
Commenter 8955 states, that EPA should provide language in the final rule that incorporates an adaptive management approach to emerging/potentially applicable VCS technical standards that would appear after the rule is adopted.
Commenter 9597 supports EPA's restriction of the proposed standards to only the new construction of EGUs and calls attention of EEI's suggestions on language changes.
Commenter 10681 states, allowances in 502(b)(d)(B) of the CAA should be utilized to the fullest in amending the fee provisions in Part 70.
Commenter 9514 states, the proposed revision of Subpart Da omits reference to the source's design purpose while it is included in both Subparts KKKK and TTTT. Commenter says, EPA should retain the "constructed for the purpose" test for applicability under Subpart Da.
Commenter 7977 states, in 40 CFR 60.5509(a) the phrase "constructed for the purpose of" should be removed.
Commenter 3862 states, the rule language should replace the word "violation" with "prohibition" when discussing startup and shutdown.
Commenter 9514 states, EPA inadvertently omitted a third provision relating to the use of fuel consumption to estimate emissions. Commenter says, proposed 40 C.F.R. section 60.5535(c) refers to section 60.5525(c)(2) but the proposal does not contain a section 60.5525(c)(2).
This comment has been responded to elsewhere in this final rule.
Monitoring and Compliance Language
Commenter 10681 states, in 60.46Da(I)(2) the concept of an operating month is raised, but is not related to operating hour or boiler operating day. Commenter says, the rule text says different things on what is being averaged to demonstrate compliance with the emission standard between paragraphs.
Commenter 10681 states, the proposed language in Part 60, Subpart KKKK should be revised to better coordinate with the existing monitoring, reporting, recordkeeping requirements and the treatment of cogeneration in the existing rule language. Commenter says, much of the compliance and calculation methodology for gross electrical output in Subpart KKKK could be eliminated by using existing requirements supporting the NOx limitation.
Commenter 10681 states, there are specific elements in both Subpart KKKK and 60.46Da that could be revised and clarifications made to the Subpart KKKK language. Commenter says, the Subpart KKKK is still unclear on the status of simple cycle combustion turbines and suggests that the final language be explicit on the treatment of simple cycle units used for other than peaking capacity. Commenter says, the simple cycle combustion turbine in 60.4420 could be amended to include a maximum hours per year or capacity factor to limit when a simple cycle turbine might be required to comply with the CO2 limitation.
Commenter 10681 states, it is unclear whether the 60.46Da(c) emission limits are based on a 12 operating month, 12 calendar month, or 365 day rolling average. Commenter says, there is a missing connection in the language between the collection and calculation of hourly data in 60.46Da(f) and (g) to the monthly determination of compliance under 60.46Da(c).
The EPA is not finalizing changes to subpart Da and KKKK and the EPA has added information in the new subpart TTTT that addresses the commenters concerns.
Turbine Language
Commenter 9427 states, proposed rule section 60.4373(e) discusses apportioning gross load from a "common electric generator" and would require apportionment by "using a plan approved by the Administrator." Commenter says, EPA should revise the wording to read "serve a common electric generator or a common steam turbine with an electric generator."
Commenter 9427 states, regardless of whether there is a common steam turbine and steam turbine electric generator, EPA should revise the end of the first sentence in section 60.4373(d) by adding the words "and any associated steam turbine generator."
Commenter 10681 states, EPA should clarify the applicability status for combustion turbines that fire refinery gas, natural gas or a mixture of refinery and natural gas, recognizing that refinery gas and natural gas are both fossil fuels.
The EPA is not finalizing any changes to subpart KKKK of part 60 and is only including the addition of the new subpart TTTT of part 60.  Additionally, EGUs the EPA has finalized the definition of natural gas to include refinery gas thus EGUs that fire refinery gas are subject to the same applicability.
Carbon Utilization Language
Commenter 2741 states, EPA should include language that recognizes the viability and benefits of carbon utilization. Commenter suggests the following additions in Section 60.46Da: (h)(6) If your affected unit uses methods of carbon capture that convert carbon dioxide to other chemical forms to meet the applicable emission limit, you must demonstrate either one of the following fates of the carbon dioxide:(i) the carbon dioxide is permanently converted to other chemical forms and will not revert back to carbon dioxide under natural or typical conditions, or (ii) the carbon dioxide is converted to a carbon-sequestering product that will emit carbon dioxide only if used to supplant another product, such as a fossil fuel, the use of which would emit as much or more carbon dioxide as the carbon-sequestering product.
Commenter 2741 suggests the following additions to Section 60.46Da: (7) If your affected unit converts carbon dioxide emissions into other chemical forms and produces materials that supplant other commonly purchased products with a significant carbon footprint, you may calculate your carbon dioxide emissions for purposes of achieving the GHG emission standard by subtracting supplanted emissions from your actual emissions only if you demonstrate: (i) your carbon-sequestering product replaces a product the manufacture or processing of which emits carbon dioxide, such as cement manufacturing or petroleum refining, (ii) your carbon-sequestering product is introduced into commerce and thus actually supplants the purchase of a high-carbon product, (iii) the supplanted emission deduction from your actual emissions is calculated by multiplying the volume of carbon-sequestering product that you introduce into commerce by an accepted carbon dioxide emission factor for the manufacturing or processing of the supplanted product, and (iv) if the use or combustion of your carbon-sequestering product emits carbon dioxide at levels comparable to the emissions from the use or combustion of the supplanted product, the supplanted emission deduction for those products only includes emissions for the manufacture or processes of the supplanted product and not for the use or combustion of the supplanted product.
Commenter 2741 suggests the addition of the following language in Section 60.5555: (e) If your affected unit uses methods of carbon capture that convert carbon dioxide to other chemical forms in a way that are permanent under natural or typical conditions to meet the applicable emission limit, then you must report the volume of emissions that are permanently converted. (f) If your affected unit uses methods of carbon capture in which the carbon dioxide is converted to a carbon-sequestering products that will emit carbon dioxide only if used to supplant another product to meet the applicable emission limit, then you must report: (g) If your affected unit uses a deduction for supplanting the manufacture or processes of other products with your carbon sequestering products to meet the applicable emission limit, then you must report: (1) the carbon dioxide emission factor for the manufacture or processing of the supplanted product, and (2) the volume of carbon sequestering products that is introduced into commerce.
Commenter 2741 states, the purpose of the above language is enable an electricity generating facility to comply with the rule by calculating their actual emission reduction due to onsite capture.
 This comment has been responded to elsewhere in this final rule.
PSD Permitting Language
Commenter 9504 states, EPA's proposal on page 1488 of the Notice to continue to interpret 51.166(b)(49) as if the definition of a "regulated air pollutant" does not affect the Tailoring Rule major source definitions is inadequate. Commenter says, the language of the regulation causes the definition of "major source" to revert to 100 and 250 tons when GHG's are regulated under an NSPS. Commenter says that EPA must amend the terms "NSR Regulated Air Pollutant" to avoid triggering PSD for any increase in GHGs at any type of source before EPA finalizes a New Source Performance Standard. Commenter says, Section 52.21(b)(50) should add the phrase "other than GHG" to subparagraph (ii).
Commenter 9504 states, EPA should revise the regulation to prevent any future "misinterpretation" of the PSD regulation. Commenter says, currently is it unclear whether sources of GHGs that emit less than the 100,000 and 75,000 ton thresholds are adequately shielded from third party attacks or objections if the PSD regulations are not revised.
Commenter 9504 states, amending the PSD regulation by deleting the reference to "NSPS" in the PSD definition of "regulated air pollutant" would necessitate another round of SIP revisions. Commenter suggests as an alternative that EPA codify in the final EGU NSPS that the NSPS does not alter the definition of "major source" of GHGs in the GHG Tailoring Rule. Commenter says, EPA could also require each state to confirm that the NSPS for GHGs from EGUs does not affect the Tailoring Rule definition of "major source" for purposes of administering each State's Title V fees and budgets. Commenter says, EPA could require the EPA interpretation to be included in the source permit's Statement of Basis on issuance (for new major sources) and at the time of Title V permit renewal. Commenter says, each state and its EPA region could also enter into a Memorandum of Understanding on this issue either during review of permit fee program revisions or separately.
 See preamble section XII.B.
Useful Thermal Output Language
Commenter 10606 states, EPA should allow the useful thermal output to include 100 percent of the electrical energy generated, and 75 percent of the thermal energy made available for use, in any industrial or commercial process. Commenter presents text additions as follows:
(i) Except as provided under paragraph (ii) of this definition, for electric utility steam generating units, the gross electric or mechanical output from the affected facility (including, but not limited to, output from steam turbine(s), combustion turbine(s), and gas expanders) minus any electricity used to power the feedwater pumps, plus 100 percent of any electrical energy generated outside the EGU by steam generated from the EGU, plus 75 percent of the useful thermal output measured relative to ISO conditions that is not used to generate additional electric or mechanical output of the EGU, or to enhance the performance of the unit EGU (e.g., steam delivered to an industrial process for a heating application);
(ii) For electric utility steam generating unit combined heat and power facilities where at least 20.0 percent of the total gross energy output consists of electric or direct mechanical output and at least 20.0 percent of the total gross energy output consists of thermal output on a rolling 3 year basis, the gross electric or mechanical output from the affected facility (including, but not limited to, output from steam turbine(s), combustion turbine(s), and gas expanders) minus any electricity used to power the feedwater pumps, that difference divided by 0.95, plus 100 percent of any electrical energy generated outside the EGU by steam generated from the EGU, plus 75 percent of the useful thermal output measured relative to ISO conditions that is not used to generate additional electric or mechanical output or to enhance the performance of the unit EGU(e.g., steam delivered to an industrial process for a heating application any purpose)
Commenter 7990 states, the term "useful thermal output" (UTO) can be misinterpreted to allow all waste heat output to be reported as potentially useful. Commenter says, EPA should update the definition of UTO similar to the FERC definition to include the concept of productive and beneficial use for new CHP facilities. Commenter says, a wording change from "useful" to "used" could help clarify this issue. Commenter says, even if "useful" is retained, the definition of thermal output that is eligible for crediting toward the performance standard should include the requirement that the thermal energy output of a cogeneration facility is used in a productive and beneficial manner.
This comment has been responded to elsewhere in this final rule.
Emergency Exclusion Language
Commenter 9779 states, the proposed rule should be modified to broaden the grid emergency exclusion to include other extreme market conditions or reliability responses. Commenter suggests the following language additions to the rule: Emergency Conditions include: 1. Any emergency declared by the Regional Transmission Organization (RTO), Independent System Operators (ISO), control area Administrator, or state or local officials; 2. Periods during which the regional transmission authority or equivalent balancing authority and transmission operator has declared an Energy Emergency Alert Level 2; 3. Significant capacity and energy drops from unexpected transmission constraints or losses, plant trips or forced outages, Northwest Power Pool emergency reserve commitments, or unexpected gas reserve and storage constraints; 4. Periods where there is a deviation of voltage or frequency of 5 percent or more below standard voltage or frequency.

This comment has been responded to elsewhere in this final rule.
CHP Language
Commenter 9666 states, the proposed language for Subpart Da incorrectly refers to a "combined heat and power unit as defined in section 60.42Da." Commenter says, the definitions in Subpart Da are in section 60.41Da.

Commenter 10554 states, EPA should remove the following language "of the thermal host facility or facilities" from the definition of net-electric output for qualifying CHP facilities. Commenter says, the definition should be revised to "the gross electric sales to the utility power distributions system minus purchased power of facilities on a calendar year basis."

 The EPA is not finalizing any changes to subpart Da of this final rulemaking.  Additionally the EPA is not including the language the commenter asks to be removed in the definition of net-electric output in subpart TTTT of part 60 and believes the addition is not necessary in the definition that is finalized.
CO2 Provision Language
Commenter 10681 states, in 60.46DA(f)(iii) and 60.4373(b)(4), EPA is proposing to deviate from the procedures utilized in Part 75 to determine gas flow rate. Commenter says, EPA must acknowledge that this deviation and other proposed deviations from the Part 75 procedures will result in two different CO2 mass emission rates being reported for a source regulated under both Part 60 and Part 75. Commenter says, for consistency EPA should utilize the Part 75 flow measurement in their entirety.

Commenter 10681 states, in 60.46Da(g)(1)(i) and 60.4374(a)(1) EPA proposes to ignore significant number of hours of data every quarter, because the underlying hourly data do not meet the data completeness requirements of the CO2 provision, but do meet the criteria elsewhere in Part 60. Commenter says, EPA needs to better support its rationale for ignoring these emissions when the proposed, strict required data recovery requirements have not been met.  Commenter says, if EPA chooses to not utilize the Part 75 missing data procedures EPA should utilize the data recovery requirements in 60.13 instead of inventing new criteria for this rule proposal.

The EPA is finalizing requirements for monitoring and reporting that are consistent with part 75 where appropriate and is utilizing the part 75 flow measurements as appropriate to the part 60 program.  The EPA does not believe it is appropriate to include data substitution in the compliance calculations and is finalizing this view.  The EPA believes the long averaging periods will reflect the sources average normal operation with respect to CO2 emissions and thus it is appropriate to use.

Chapter 17
Incorporation by Reference
 17.1	 Incorporation by Reference
Comment 17.1-1:  Several commenters incorporated by reference their own comments on the April 13, 2012 proposal (77 FR 22392), and several commenters supported the comments submitted by others on the January 8, 2014 proposal (79 FR 1352).  The supporting commenters are identified here.
   * Commenters 8947 and 9675 supported the comments submitted by Commenter 10029 (Sapphire Energy, Inc.).
   * Commenters 9425, 9777, 10039, 10791 supported the comments submitted by Commenter 9780 (Edison Electric Institute).
   * Commenters 9777, 10552, 10607, 10880 supported the comments submitted by Commenter 9201, 9319 (National Mining Association).
   * Commenter 10552 supported the comments submitted by Commenter 2981, 10036 (Coal Utilization Research Council).
   * Commenter 10552 supported the comments submitted by Commenter 9472 (American Coalition for Clean Coal Electricity).
   * Commenters 10552 supported the comments submitted by Commenter 9196 (Electric Reliability Coordinating Council).
   * Commenters 9382, 9734, 10395, 10962 supported the comments submitted by Commenter 1959, 10952 (National Rural Electric Cooperative Association).
   * Commenters 8964, 8973, 8995, 10876 supported the comments submitted by Commenter (American Municipal Power Inc.).
   * Commenters 8964, 8973, 8995, 10876 supported the comments submitted by Commenter (Ohio Municipal Electric Association).
   * Commenters 8964, 8973, 8995, 10876 supported the comments submitted by Commenter 1902 (American Public Power Association).
   * Commenter 9664 supported the comments submitted by Commenter (EarthJustice).
   * Commenter 9664 supported the comments submitted by Commenter 9681, 10108 (Environmental Defense Fund).
   * Commenter 9664 supported the comments submitted by Commenter (Environmental Law and Policy Center).
   * Commenter 9664 supported the comments submitted by Commenter 10108 (Natural Resources Defense Council).
   * Commenter 9664 supported the comments submitted by Commenter 2228, 9513, 9514 (Sierra Club).
   * Commenter 9664 supported the comments submitted by Commenter 10953 (Southern Environmental Law Center).
   * Commenters 9425, 9777, 10242 supported the comments submitted by Commenter 8022, 9666 (Utility Air Regulatory Group).
   * Commenter 9734 supported the comments submitted by Commenter 7977 (Kentucky Energy and Environment Cabinet).
   * Commenter 9382, 10242 supported the comments submitted by Commenter 8925 (Electric Power Research Institute).
   * Commenter 9777 supported the comments submitted by Commenter 10556, 10615 (Gulf Coast Lignite Coalition).
   * Commenter 9777 supported the comments submitted by Commenter 10239, 10503 (National Association of Manufacturers).
   * Commenter 3179 supported the comments submitted by Commenter (Associated Governments of Northwest Colorado).
   * Commenters 3862 supported the comments submitted by Commenter 9423 (Texas Commission on Environmental Quality).
   * Commenter 10791 supported the comments submitted by Commenter 2470 (Florida Public Service Commission).
   * Commenter 10791 supported the comments submitted by Commenter 8958 (Florida Electric Power Coordinating Group Environmental Committee).
   * Commenter 10791 supported the comments submitted by Commenter 10100 (Class of '85 Regulatory Response Group).
   * Commenter 10607 supported the comments submitted by Commenter 5156, 9505 (Office of Attorney General, State of West Virginia, et.al.).
   * Commenter 10607 supported the comments submitted by Commenter 6948 (West Virginia Chamber of Commerce).
   * Commenter 10555 incorporates by reference their comments submitted on June 25, 2012 on EPA's April 13, 2012 proposal.
   * Commenter 10618 incorporates by reference their comments submitted on August 8, 2012 on the EPA's April 13, 2012 proposal.
Response 17.1-1: The EPA acknowledges the commenters' incorporation of comments by other parties and incorporating by reference of their own previous comments.


[Federal Register: June 15, 2009 (Volume 74, Number 113)]
[Notices]
[Page 28288-28290]
[DOCID:fr15jn09-135]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. IC-28763; File No. 812-13664]

Deutsche Bank Securities Inc., et al.; Notice of Application and
Temporary Order

June 9, 2009.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Temporary order and notice of application for a permanent order
under section 9(c) of the Investment Company Act of 1940 (``Act'').

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Summary of Application: Applicants have received a temporary order
exempting them from section 9(a) of the Act, with respect to an
injunction entered against Deutsche Bank Securities Inc. (``DBSI'') on
June 9, 2009 by the United States District Court for the Southern
District of New York (``Injunction''), until the Commission takes final
action on an application for a permanent order. Applicants also have
applied for a permanent order.

Applicants: DBSI, Deutsche Investment Management Americas, Inc.
(``DIMA''), Deutsche Asset Management (Hong Kong) Limited (``DeAM
(HK)''), Deutsche Asset Management International GmbH (``DeAMI''),
Deutsche Asset Management (Japan) Limited (``DeAMJ''), Deutsche
Investments Australia Limited (``DIAL''), RREEF America LLC
(``RREEF''), RREEF Global Advisors Limited (``RREEF (G)''), and DWS
Investments Distributors, Inc. (``DIDI'') (collectively, other than
DBSI, the ``Fund Servicing Applicants'' and together with DBSI, the
``Applicants'').\1\
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    \1\ Applicants request that any relief granted pursuant to the
application also apply to any other company of which DBSI is or may
become an affiliated person (together with the Applicants, the
``Covered Persons'').

---------------------------------------------------------------------------
DATES: Filing Date: The application was filed on June 9, 2009.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving Applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on July 6, 2009, and should be accompanied by proof of service on
Applicants, in the form of an affidavit, or for lawyers, a certificate
of service. Hearing requests should state the nature of the writer's
interest, the reason for the request, and the issues contested. Persons
who wish to be notified of a hearing may request notification by
writing to the Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090; Applicants: DBSI, 60 Wall
Street, New York, NY 10005; DIMA, 345 Park Avenue, New York, NY 10154;
DeAM (HK), 48/F Cheung Kong Centre, 2 Queen's Road Central, Hong Kong,
China; DeAMI, Mainzer Landstrasse 178-190, Frankfurt am Main, 60327;
DeAMJ, Sanno Park Tower, 2-11-1, Nagata-Cho, Chiyoda-Ku, Tokyo, 100-
6173; DIAL, Deutsche Bank Place, Level 16, CNR Hunter and Phillip
Streets, Sydney, NSW 2000; RREEF, 875 N. Michigan Avenue, 41st Floor,
Chicago, IL 60611; RREEF (G), Winchester House, 1 Great Winchester
Street, London, United Kingdom EC2N 2DB; and DIDI, 222 South Riverside
Plaza, Chicago, IL 60606.

FOR FURTHER INFORMATION CONTACT: Steven I. Amchan, Senior Counsel, at
(202) 551-6826, or Julia Kim Gilmer, Branch Chief, at<PHONE_NUMBER>,
(Division of Investment Management, Office of Investment Company
Regulation).

SUPPLEMENTARY INFORMATION: The following is a temporary order and a
summary of the application. The complete application may be obtained
via the Commission's Web site by searching for the file number, or an
applicant using the Company name box, at http://www.sec.gov/search/
search.htm or by calling<PHONE_NUMBER>.

Applicants' Representations

    1. Deutsche Bank AG (``DB'') is a stock corporation organized under
the laws of the Federal Republic of Germany. DBSI is an indirect
wholly-owned subsidiary of DB, and an affiliated person of each Fund
Servicing Applicant within the meaning of section 2(a)(3) of the Act
(by

virtue of being under common control with the Fund Servicing
Applicants). DBSI provides securities brokerage and investment advisory
services to private clients and institutions and correspondent clearing
services to broker-dealers. DBSI also provides a variety of capital
raising, market making, and brokerage services for its government,
financial institution, and corporate clients, including fixed income
and equity sales and trading, emerging markets activities, and equity
market research and investment banking.
    2. DIMA, DeAM (HK), DeAMI, DeAMJ, DIAL, RREEF, and RREEF (G) are
registered as investment advisers under the Investment Advisers Act of
1940, as amended (``Advisers Act'') and provide investment advisory or
subadvisory services to registered investment companies (``Funds'').
DIDI is a broker-dealer registered under the Securities Exchange Act of
1934 (``Exchange Act'') and serves as principal underwriter to Funds.
    3. On June 9, 2009, the United States District Court for the
Southern District of New York entered a judgment against DBSI
(``Judgment'') in a matter brought by the Commission.\2\ The Commission
alleged in the complaint (``Complaint'') that DBSI violated section
15(c) of the Exchange Act by marketing auction rate securities as
highly liquid investments comparable to cash or money market
instruments and by selling auction rate securities to its customers
without adequately disclosing the risks involved in purchasing such
securities. Without admitting or denying the allegations in the
Complaint, except as to jurisdiction, DBSI consented to the entry of
the Judgment that included, among other things, the entry of the
Injunction and other equitable relief including undertakings to take
various remedial actions for the benefit of purchasers of certain
auction rate securities.
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    \2\ Securities and Exchange Commission v. Deutsche Bank
Securities Inc., Judgment on Consent Against Defendant Deutsche Bank
Securities Inc., 09 Civ. 5174 (S.D.N.Y. June 9, 2009).
---------------------------------------------------------------------------

Applicants' Legal Analysis

    1. Section 9(a)(2) of the Act, in relevant part, prohibits a person
who has been enjoined from, among other things, engaging in or
continuing any conduct or practice in connection with the purchase or
sale of a security, or in connection with activities as an underwriter,
broker or dealer, from acting, among other things, as an investment
adviser or depositor of any registered investment company or a
principal underwriter for any registered open-end investment company,
registered unit investment trust or registered face-amount certificate
company. Section 9(a)(3) of the Act makes the prohibition in section
9(a)(2) applicable to a company, any affiliated person of which has
been disqualified under the provisions of section 9(a)(2). Section
2(a)(3) of the Act defines ``affiliated person'' to include, among
others, any person directly or indirectly controlling, controlled by,
or under common control with, the other person. Applicants state that
DBSI is an affiliated person of each of the other Applicants within the
meaning of section 2(a)(3) of the Act. Applicants state that the entry
of the Injunction results in Applicants being subject to the
disqualification provisions of section 9(a) of the Act.
    2. Section 9(c) of the Act provides that the Commission shall grant
an application for exemption from the disqualification provisions of
section 9(a) if it is established that these provisions, as applied to
the Applicants, are unduly or disproportionately severe or that the
Applicants' conduct has been such as not to make it against the public
interest or the protection of investors to grant the exemption.
Applicants have filed an application pursuant to section 9(c) seeking a
temporary and permanent order exempting them and Covered Persons from
the disqualification provisions of section 9(a) of the Act.
    3. Applicants believe they meet the standard for exemption
specified in section 9(c). Applicants state that the prohibitions of
section 9(a) as applied to them would be unduly and disproportionately
severe and that the conduct of the Applicants has been such as not to
make it against the public interest or the protection of investors to
grant the exemption from section 9(a).
    4. Applicants state that the alleged conduct giving rise to the
Injunction did not involve any of the Applicants acting in the capacity
of investment adviser, subadviser or depositor to any Fund or in the
capacity of principal underwriter for any open-end Fund, UIT, or
registered face-amount certificate company. Applicants also state that
none of the current or former directors, officers, or employees of the
Fund Servicing Applicants had any responsibility for, or had any
involvement in, the conduct alleged in the Complaint. Applicants
further state that the personnel at DBSI who were involved in the
violations alleged in the Complaint have had no and will not have any
future involvement in providing investment advisory, subadvisory,
depository or underwriting services to Funds.
    5. Applicants state that their inability to continue to provide
investment advisory, subadvisory and underwriting services to Funds
would result in potential hardship for the Funds and their
shareholders. Applicants state that they will, as soon as reasonably
practicable, distribute written materials, including an offer to meet
in person to discuss the materials, to the boards of directors
(``Boards'') of the Funds for which the Applicants serve as investment
adviser, investment subadviser or principal underwriter, including the
directors who are not ``interested persons,'' as defined in section
2(a)(19) of the Act, of such Funds, and their independent legal counsel
as defined in rule 0-1(a)(6) under the Act, relating to the
circumstances that led to the Injunction, any impact on the Funds, and
the application. Applicants state they will provide the Boards of the
Funds with all information concerning the Injunction and the
application that is necessary for the Funds to fulfill their disclosure
and other obligations under the Federal securities laws.
    6. Applicants also state that, if the Fund Servicing Applicants
were barred from providing services to the Funds, the effect on their
businesses and employees would be severe. Applicants state that they
have committed substantial resources to establish an expertise in
providing advisory and principal underwriting services to Funds.
Applicants further state that prohibiting the Fund Servicing Applicants
from providing such services would not only adversely affect their
businesses, but would also adversely affect over 500 employees who are
involved in those activities.
    7. Applicants previously have received exemptions under section
9(c) as the result of conduct that triggered section 9(a) as described
in greater detail in the application.

Applicants' Condition

    Applicants agree that any order granting the requested relief will
be subject to the following condition:
    Any temporary exemption granted pursuant to the application shall
be without prejudice to, and shall not limit the Commission's rights in
any manner with respect to, any Commission investigation of, or
administrative proceedings involving or against, Covered Persons,
including, without limitation, the consideration by the Commission of a
permanent exemption from section 9(a) of the Act requested pursuant to
the application or the revocation or removal of any temporary

exemptions granted under the Act in connection with the application.

Temporary Order

    The Commission has considered the matter and finds that Applicants
have made the necessary showing to justify granting a temporary
exemption.
    Accordingly,
    It is hereby ordered, pursuant to section 9(c) of the Act, that
Applicants and any other Covered Persons are granted a temporary
exemption from the provisions of section 9(a), solely with respect to
the Injunction, subject to the condition in the application, from June
9, 2009, until the Commission takes final action on their application
for a permanent order.

    By the Commission.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-13981 Filed 6-12-09; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 87, Number 202 (Thursday, October 20, 2022)]
[Proposed Rules]
[Pages 63704-63706]
[FR Doc No: 2022-21448]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 87, No. 202 / Thursday, October 20, 2022 /
Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2022-1246; Project Identifier MCAI-2022-00675-T]
RIN 2120-AA64

Airworthiness Directives; Embraer S.A. (Type Certificate
Previously Held by Yabor[atilde] Ind[uacute]stria Aeron[aacute]utica
S.A.; Embraer S.A.) Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to adopt a new airworthiness directive (AD)
for certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100
IGW, -200 STD, -200 LR, and -200 IGW airplanes. This proposed AD was
prompted by a report of uncommanded setting of the barometric reference
in both primary flight displays (PFDs) due to the architecture of data
communication of the Control I/O modules, which interconnect the
display controllers to the air data system. This proposed AD would
require installing updated Primus EPIC software, as specified in an
Ag[ecirc]ncia Nacional de Avia[ccedil][atilde]o Civil (ANAC) AD, which
is proposed for incorporation by reference. The FAA is proposing this
AD to address the unsafe condition on these products.

DATES: The FAA must receive comments on this proposed AD by December 5,
2022.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to regulations.gov. Follow
the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For material that will be incorporated by reference (IBR) in this
AD, contact National Civil Aviation Agency (ANAC), Aeronautical
Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho,
230--Centro Empresarial Aquarius--Torre B--Andares 14 a 18, Parque
Residencial Aquarius, CEP 12.246-190--S[atilde]o Jos[eacute] dos
Campos--SP, Brazil; telephone 55 (12) 3203-6600; email anac.gov.br">[email protected]anac.gov.br;
website anac.gov.br/en/. You may find this material on the ANAC website
at sistemas.anac.gov.br/certificacao/DA/DAE.asp. You may view this
material at the FAA, Airworthiness Products Section, Operational Safety
Branch, 2200 South 216th St., Des Moines, WA. For information on the
availability of this material at the FAA, call<PHONE_NUMBER>. It is also
available in the AD docket at regulations.gov by searching for and
locating Docket No. FAA-2022-1246.

Examining the AD Docket

    You may examine the AD docket at regulations.gov by searching for
and locating Docket No. FAA-2022-1246; or in person at Docket
Operations between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The AD docket contains this NPRM, the mandatory
continuing airworthiness information (MCAI), any comments received, and
other information. The street address for Docket Operations is listed
above.

FOR FURTHER INFORMATION CONTACT: Hassan Ibrahim, Aerospace Engineer,
Large Aircraft Section, FAA, International Validation Branch, 2200
South 216th St., Des Moines, WA 98198; telephone<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under ADDRESSES. Include ``Docket No. FAA-2022-1246; Project Identifier
MCAI-2022-00675-T'' at the beginning of your comments. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. The FAA
will consider all comments received by the closing date and may amend
this proposal because of those comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, to
regulations.gov, including any personal information you provide. The
agency will also post a report summarizing each substantive verbal
contact received about this NPRM.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to
Hassan Ibrahim, Aerospace Engineer, Large Aircraft Section, FAA,
International Validation Branch, 2200 South 216th St., Des Moines, WA
98198; telephone<PHONE_NUMBER>; email [email protected]. Any
commentary that the FAA receives which is not specifically designated
as CBI will be placed in the public docket for this rulemaking.

Background

    The ANAC, which is the aviation authority for Brazil, has issued
ANAC AD 2022-05-04, effective May 25, 2022 (ANAC AD 2022-05-04) (also
referred to as the MCAI), to correct an unsafe condition for certain
Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100 IGW, -100 SR, -200 STD,
-200 LR, -200 IGW, airplanes. Model ERJ 190-100 SR airplanes are not
certificated by the FAA

and are not included on the U.S. type certificate data sheet; this
proposed AD therefore does not include those airplanes in the
applicability.
    This proposed AD was prompted by a report of uncommanded setting of
the barometric reference in both PFDs due to the architecture of data
communication of the Control I/O modules, which interconnect the
display controllers to the air data system. The possibility of
erroneous indications for both pilots, combined with possible adverse
meteorological conditions could result in an increase of flightcrew
workload. The FAA is proposing this AD to address this condition, which
could interfere with the decisions taken by the flightcrew during
critical phases of flight, and possibly result in reduced
controllability of the airplane. See the MCAI for additional background
information.

Relationship Between This Proposed AD and AD 2020-05-21

    This NPRM would not supersede AD 2020-05-21, Amendment 39-19871 (85
FR 15940, March 20, 2020) (AD 2020-05-21). ANAC AD 2022-05-04 specifies
that accomplishment of that AD ``covers the accomplishment of
[terminates] ANAC AD 2019-10-01'' (which corresponds to FAA AD 2020-05-
21). Accomplishment of the proposed actions of this AD on an airplane
would then terminate all of the requirements of AD 2020-05-21 for that
airplane only. The FAA concurs with ANAC with issuing a stand-alone AD
to address the changes in the MCAI.

Related Service Information Under 1 CFR part 51

    ANAC AD 2022-05-04 specifies procedures for installing updated
Primus EPIC software. This material is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

FAA's Determination

    This product has been approved by the aviation authority of another
country and is approved for operation in the United States. Pursuant to
the FAA's bilateral agreement with the State of Design Authority, it
has notified the FAA of the unsafe condition described in the MCAI
referenced above. The FAA is issuing this NPRM after determining that
the unsafe condition described previously is likely to exist or develop
in other products of the same type design.

Proposed AD Requirements in This NPRM

    This proposed AD would require accomplishing the actions specified
in ANAC AD 2022-05-04 described previously, except for any differences
identified as exceptions in the regulatory text of this proposed AD.

Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD
process, the FAA developed a process to use some civil aviation
authority (CAA) ADs as the primary source of information for compliance
with requirements for corresponding FAA ADs. The FAA has been
coordinating this process with manufacturers and CAAs. As a result, the
FAA proposes to incorporate ANAC AD 2022-05-04 by reference in the FAA
final rule. This proposed AD would, therefore, require compliance with
ANAC AD 2022-05-04 in its entirety through that incorporation, except
for any differences identified as exceptions in the regulatory text of
this proposed AD. Service information required by ANAC AD 2022-05-04
for compliance will be available at regulations.gov by searching for
and locating Docket No. FAA-2022-1246 after the FAA final rule is
published.

Costs of Compliance

    The FAA estimates that this proposed AD would affect 121 airplanes
of U.S. registry. The FAA estimates the following costs to comply with
this proposed AD:

                                      Estimated Costs for Required Actions
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per       Cost on U.S.
                          Labor cost                              Parts cost        product         operators
----------------------------------------------------------------------------------------------------------------
8 work-hours x $85 per hour = $680...........................              $0             $680          $82,280
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. 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.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect 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.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Would not affect intrastate aviation in Alaska, and
    (3) Would not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive:

Embraer S.A. (Type Certificate Previously Held by Yabor[atilde]
Ind[uacute]stria Aeron[aacute]utica S.A.; Embraer S.A.): Docket No.
FAA-2022-1246; Project Identifier MCAI-2022-00675-T.

(a) Comments Due Date

    The FAA must receive comments on this airworthiness directive
(AD) by December 5, 2022.

(b) Affected ADs

    This AD affects AD 2020-05-21, Amendment 39-19871 (85 FR 15940,
March 20, 2022) (AD 2020-05-21).

(c) Applicability

    This AD applies to Embraer S.A. (Type Certificate previously
held by Yabor[atilde] Ind[uacute]stria Aeron[aacute]utica S.A.;
Embraer S.A.) Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100 IGW, -
200 STD, -200 LR, and -200 IGW airplanes, certificated in any
category, as identified in Ag[ecirc]ncia Nacional de
Avia[ccedil][atilde]o Civil (ANAC) AD 2022-05-04, effective May 25,
2022 (ANAC AD 2022-05-04).

(d) Subject

    Air Transport Association (ATA) of America Code 31, Instruments.

(e) Unsafe Condition

    This AD was prompted by a report of uncommanded setting of the
barometric reference in both primary flight displays due to the
architecture of data communication of the Control I/O modules, which
interconnect the display controllers to the air data system. The FAA
is issuing this AD to address this condition, which could interfere
with the decisions taken by the flightcrew during critical phases of
flight, and possibly result in reduced controllability of the
airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Requirements

    Except as specified in paragraph (h) of this AD: Comply with all
required actions and compliance times specified in, and in
accordance with, ANAC AD 2022-05-04.

(h) Exceptions to ANAC AD 2022-05-04

    (1) Where ANAC AD 2022-05-04 refers to its effective date, this
AD requires using the effective date of this AD.
    (2) The ``Alternative methods of compliance (AMOC)'' section of
ANAC AD 2022-05-04 does not apply to this AD.
    (3) Where paragraph (d) of ANAC AD 2022-05-04 states, ``You must
use the following service information for the installation of the
Primus EPIC software versions 25.9, 27.4 and <IP_ADDRESS> as required by
this AD,'' replace that text with ``You must use the following
service information for the installation of the Primus EPIC software
versions 25.9, 27.4 and <IP_ADDRESS>, as applicable, except as provided
in paragraphs (a)(1) through (6) of ANAC AD 2022-05-04.''

(i) Terminating Action for AD 2020-05-21

    Accomplishing the actions required by this AD on an airplane
terminates all requirements of AD 2020-05-21 for that airplane only.

(j) No Reporting Requirement

    Although the service information referenced in ANAC AD 2022-05-
04 specifies to submit certain information to the manufacturer, this
AD does not include that requirement.

(k) Additional AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Validation Branch, FAA, has the authority to approve
AMOCs for this AD, if requested using the procedures found in 14 CFR
39.19. In accordance with 14 CFR 39.19, send your request to your
principal inspector or responsible Flight Standards Office, as
appropriate. If sending information directly to the International
Validation Branch, send it to the attention of the person identified
in paragraph (l)(2) of this AD. Information may be emailed to: [email protected]. Before using any approved AMOC, notify
your appropriate principal inspector, or lacking a principal
inspector, the manager of the responsible Flight Standards Office.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain instructions from a manufacturer, the instructions must be
accomplished using a method approved by the Manager, International
Validation Branch, FAA; or ANAC; or ANAC's authorized Designee. If
approved by the ANAC Designee, the approval must include the
Designee's authorized signature.

(l) Additional Information

    (1) For ANAC AD 2022-05-04, contact National Civil Aviation
Agency (ANAC), Aeronautical Products Certification Branch (GGCP),
Rua Dr. Orlando Feirabend Filho, 230--Centro Empresarial Aquarius--
Torre B--Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-
190--S[atilde]o Jos[eacute] dos Campos--SP, Brazil; telephone 55
(12) 3203-6600; email anac.gov.br">[email protected]anac.gov.br; website anac.gov.br/en/. You
may find this ANAC AD on the ANAC website at sistemas.anac.gov.br/
certificacao/DA/DAE.asp. You may view this material at the FAA,
Airworthiness Products Section, Operational Safety Branch, 2200
South 216th St., Des Moines, WA. For information on the availability
of this material at the FAA, call<PHONE_NUMBER>. This material may be
found in the AD docket at regulations.gov by searching for and
locating Docket No. FAA-2022-1246.
    (2) For more information about this AD, contact Hassan Ibrahim,
Aerospace Engineer, Large Aircraft Section, FAA, International
Validation Branch, 2200 South 216th St., Des Moines, WA 98198;
telephone<PHONE_NUMBER>; email [email protected].

    Issued on September 26, 2022.
Christina Underwood,
Acting Director, Compliance & Airworthiness Division, Aircraft
Certification Service.
[FR Doc. 2022-21448 Filed 10-19-22; 8:45 am]
BILLING CODE 4910-13-P