[Federal Register Volume 79, Number 10 (Wednesday, January 15, 2014)]
[Notices]
[Pages 2723-2725]
[FR Doc No: 2014-00583]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71275; File No. SR-NYSEMKT-2014-04]

Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Amending the NYSE Amex
Options Fee Schedule for Firms To Increase the Transaction Fee for
Certain Proprietary Electronic Executions of Standard Option Contracts
That Fall Within the First of the Volume-Based Tiers for Certain
Proprietary Electronic Executions of Standard Option Contracts

 January 9, 2014.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on January 8, 2014, NYSE MKT LLC (the ``Exchange'' or
``NYSE MKT'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. 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\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend the NYSE Amex Options Fee Schedule
(``Fee Schedule'') for Firms to increase the transaction fee for
certain proprietary electronic executions of standard option contracts
that fall within the first of the volume-based tiers for certain
proprietary electronic executions of standard option contracts. Firms
that achieve subsequent volume tiers will be charged a lower per
contract rate for all of their proprietary electronic executions of
standard option contracts that month. The proposed change will be
operative on January 8, 2014.\4\ The text of the proposed rule change
is available on the Exchange's Web site at www.nyse.com, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.
---------------------------------------------------------------------------

    \4\ The proposed filing replaces SR-NYSEMKT-2013-108, which
proposed the same fee changes effective January 2, 2014 (the
``January 2nd Fee Changes''), and which the Exchange shall withdraw.
Upon the withdrawal of SR-NYSEMKT-2013-108, the January 2nd Fee
Changes will be rendered ineffective, absent the present filing,
which renews the Exchange's proposal to amend its fee schedule.
---------------------------------------------------------------------------

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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to amend the Fee Schedule for Firms to
increase the transaction fee for certain proprietary electronic
executions of standard option contracts that fall within the first of
the volume-based tiers for certain proprietary electronic executions of
standard option contracts. Firms that achieve subsequent volume tiers
will be charged a lower per contract rate for all of their proprietary
electronic executions of standard option contracts

that month. The proposed change will be operative on January 8, 2014.
    Specifically, the Exchange proposes to increase the per contract
transaction fee for proprietary electronically executed orders for
Firms from $.25 to $.32 per contract, for volumes that fall under the
first of the three volume tiers, for volumes less than .21% of Total
Industry Customer equity and exchange-traded fund (``ETF'') option
average daily volume (``ADV''). The Exchange notes that the proposed
fee is within the range of Firm fees presently assessed in the
industry, which range from $.20 per contract for high volume (over
350,000 contracts per month) Firms in Multiply Listed Symbols on NASDAQ
OMX PHLX (``PHLX'') \5\ to $.89 per contract to take liquidity on The
NASDAQ Options Market (``NOM'') for non-Penny Pilot securities.\6\
---------------------------------------------------------------------------

    \5\ See PHLX Fee Schedule, available at http://www.nasdaqtrader.com/Micro.aspx?id=PHLXPricing
    \6\ See NOM Fee Schedule, available at http://www.nasdaqtrader.com/Micro.aspx?id=OptionsPricing
---------------------------------------------------------------------------

    At present and after the proposed change, upon achieving a higher
volume tier, a Firm will automatically become eligible for a lower per
contract rate on all of its electronic executions in that month. The
existing volume-based tiers are based on a percentage of the Total
Industry Customer equity and ETF option ADV.\7\ The existing tiers are
as follows and the only change will be the rate per contract associated
with the first tier for volumes less than .21% of Total Industry
Customer equity and ETF option ADV will have a rate of $.32 per
contract instead of $.25 per contract which is indicated below with
[brackets for deletions] and italics for additions:
---------------------------------------------------------------------------

    \7\ Total Industry Customer equity and ETF option ADV will be
that which is reported for the month by The Options Clearing
Corporation (``OCC'') in the month in which the discounted rate may
apply. For example, January 2014 Total Industry Customer equity and
ETF option ADV will be used in determining what, if any, discount a
Firm may be eligible for on its electronic Firm transactions based
on the amount of electronic Firm volume it executes in January 2014
relative to Total Industry Customer equity and ETF option ADV. Total
Industry Customer equity and ETF option ADV comprises those equity
and ETF contracts that clear in the customer account type at OCC and
does not include contracts that clear in either the firm or market
maker account type at OCC or contracts overlying a security other
than an equity or ETF security.

------------------------------------------------------------------------
                                                       Rate per contract
                                                         (retroactive to
                                                           the first
  Tiers for firm proprietary electronic transactions    contract  traded
                                                          during  the
                                                             month)
------------------------------------------------------------------------
Less than .21% of Total Industry Customer equity and         [$.25] $.32
 ETF option ADV......................................
.21% to .32% of Total Industry Customer equity and                   .20
 ETF option ADV......................................
Greater than .32% of Total Industry Customer equity                  .17
 and ETF option ADV..................................
------------------------------------------------------------------------

    In calculating the amount of Firm electronic volume that is counted
in the volume tier necessary to achieve the lower per contract rate,
the Exchange will continue to exclude qualified contingent cross
(``QCC'') volume because QCC volumes are already eligible for a
separate rebate.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b) \8\ of the Act, in general, and
Section 6(b)(4) and (5) \9\ of the Act, in particular, in that it is
designed to provide for the equitable allocation of reasonable dues,
fees, and other charges among its members and other persons using its
facilities and does not unfairly discriminate between customers,
issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed fees are reasonable because
they are within the range of similar fees on other exchanges.\10\ They
also are reasonable because they are designed to attract higher volumes
of Firm proprietary electronic equity and ETF volume to the Exchange,
which will benefit all participants by offering greater price
discovery, increased transparency, and an increased opportunity to
trade on the Exchange. Encouraging Firms to send higher volumes of
orders to the Exchange will contribute to the Exchange's depth of book
as well as to the top of book liquidity. As noted by the Exchange when
it adopted volume-based tiers for certain proprietary electronic
executions, the proposed fee increase for lower volume Firms is
reasonable and equitable because it will reasonably ensure that the
Exchange will derive sufficient revenue to continue to fund the fee
reductions at the higher volumes for the benefit of all
participants.\11\ Moreover, the Exchange believes that the proposed
volume-based fees are equitable and not unfairly discriminatory because
they will apply to all Firms that execute proprietary electronic equity
and ETF orders on the Exchange at each tier on an equal and non-
discriminatory basis. The sole basis for fee differentiation among the
tiers will be participant volume on the Exchange.
---------------------------------------------------------------------------

    \10\ See supra nn.5-6.
    \11\ See Securities Exchange Act Release No. 34-69488 (May 1,
2013), 78 FR 88 [sic] (May 7, 2013) (SR-NYSEMKT-2013-38).
---------------------------------------------------------------------------

    The Exchange believes that excluding the volumes attributable to
QCC executions is reasonable, equitable, and not unfairly
discriminatory. QCC volumes are already counted toward a separate
rebate that the Exchange pays to Floor Brokers who transact QCC
trades.\12\ If the Exchange were to count QCC volumes toward Firm
electronic volumes for discounted rates, the Exchange would have to
raise fees for all other participants. The Exchange does not believe
such a result would be reasonable or equitable. Because all Firms will
be treated equally with respect to QCC volume, the proposal to exclude
this volume from the tiers is not inequitable or unfairly
discriminatory.
---------------------------------------------------------------------------

    \12\ See Securities Exchange Act Release No. 65472 (Oct. 3,
2011), 76 FR 62887 (Oct. 11, 2011) (SR-NYSEAmex-2011-72).
---------------------------------------------------------------------------

    The Exchange further notes that non-Firm market participants pay
substantially more for the ability to trade on the Exchange, and as
such, the proposed amount of the increase for Firms that contribute
relatively lower levels of volume is reasonable. For example, Market
Makers have much higher fixed monthly costs as compared to Firms. A
Market Maker seeking to stream quotes in the entire universe of names
traded on the Exchange must pay $26,000 per month in Amex Trading
Permit (``ATP'') fees. In addition, a Market Maker acting as a
Specialist, e-Specialist, or Directed Order Market Maker incurs monthly
Rights Fees that range from $75 per option to $1,500 per option along
with Premium Product Fees that can be as high as $7,000 per month.
Firms pay only $1,000 per month in ATP fees and for that low monthly
cost are able to send orders in all issues traded on the Exchange.
Other participants have a much higher per contract cost to trade on the
Exchange, such as Non-NYSE Amex Options Market Makers, who pay $.43 per
contract to transact on the Exchange electronically.
    Firms also are free to change the manner in which they access the
Exchange. Firms may apply to become Market Makers to transact on a
proprietary basis as Market Makers. In light of the ability to access
the Exchange in a variety of ways, each of which is priced differently,
Firms and other participants may access the

Exchange in a manner that makes the most economic sense for them.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange believes that
the proposed change will encourage Firms to send higher volumes of
order flow to the Exchange to qualify for the lower transaction fees.
The Exchange notes that it operates in a highly competitive market in
which market participants can readily favor competing venues if they
deem fee levels at a particular venue to be excessive. In such an
environment, the Exchange must continually review, and consider
adjusting, its fees and credits to remain competitive with other
exchanges. For the reasons described above, the Exchange believes that
the proposed rule change reflects this competitive environment.

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \13\ of the Act and subparagraph (f)(2) of Rule
19b-4 \14\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend 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. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \15\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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 email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEMKT-2014-04 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-NYSEMKT-2014-04. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet 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 at 100 F Street NE.,
Washington, DC 20549-1090 on official business days between the hours
of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
NYSEMKT-2014-04, and should be submitted on or before February 5, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-00583 Filed 1-14-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 48 (Monday, March 15, 2021)]
[Proposed Rules]
[Pages 14295-14297]
[FR Doc No: 2021-05230]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2021-0081; Airspace Docket No. 20-AAL-61]
RIN 2120-AA66

Proposed Establishment of Class E Airspace; Craig, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: This action proposes to establish Class E airspace extending
upward from 700 feet above the surface of the earth at El Capitan
Lodge, Craig, AK. This action would accommodate a new area navigation
(RNAV) procedure and ensure the safety and management of instrument
flight rule (IFR) operations within the National Airspace System.

DATES: Comments must be received on or before April 29, 2021.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue SE, West
Building Ground Floor, Room W12-140, Washington, DC 20590; telephone:
1-800-647-5527, or<PHONE_NUMBER>. You must identify FAA Docket No.
FAA-2021-0081; Airspace Docket No. 20-AAL-61, at the beginning of your
comments. You may also submit comments through the internet at https://www.regulations.gov.
    FAA Order 7400.11E, Airspace Designations and Reporting Points, and
subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy 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 FAA Order 7400.11E at NARA, email:
<EMAIL_ADDRESS>or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT: Richard Roberts, Federal Aviation
Administration, Western Service Center, Operations Support Group, 2200
S 216th Street, Des Moines, WA 98198; 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 establish Class E airspace extending upward from 700 feet
above the surface of the earth to support IFR operations at El Capitan
Lodge, Craig, AK.

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. Persons 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-2021-0081;
Airspace Docket No. 20-AAL-61''. The postcard will be date/time stamped
and returned to the commenter.
    All communications received before the specified closing date for
comments will be considered before taking action on the proposed rule.
The proposal contained in this notice may be changed in light of the
comments received. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
internet at https://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at https://www.faa.gov/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 the ADDRESSES section for the 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 Northwest Mountain Regional Office of the Federal
Aviation Administration, Air Traffic Organization, Western Service
Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA
98198.

Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11E, Airspace
Designations and Reporting Points, dated July 21, 2020, and effective
September 15, 2020. FAA Order 7400.11E is publicly available as listed
in the ADDRESSES section of this document. FAA Order 7400.11E lists
Class A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Proposal

    The FAA is proposing an amendment to 14 CFR part 71 by establishing
Class E airspace extending upward from 700 feet above the surface of
the earth at El Capitan Lodge, Craig, AK.
    This action is associated with a sea plane base, and therefore, the
Class E airspace would be established extending upward from 700 feet
above ground level (AGL) within a 2-mile radius of the airport's sea
lane versus the Lodge. In addition, airspace extending upward from 700
feet AGL would be established 1.9 miles each side of the 353[deg]
bearing from a point-in-space, coordinates lat. 55[deg]58'6'' N, long.
133[deg]15'59'' W., extending from the 2-mile radius 8.5 miles north.
This area would provide controlled airspace for aircraft as they
descend below 1,500 feet AGL. The airspace extending upward from 700
feet would also include the area 2 miles each side of the 232[deg]
bearing from the point-in-space extending from the 2-mile radius 4
miles southwest. This area would provide controlled airspace for the
missed approach procedure.
    Class E airspace designations are published in paragraph 6005 of
FAA Order 7400.11E, dated July 21, 2020, and effective September 15,
2020, which is incorporated by reference in 14 CFR part 71.1. The Class
E airspace designations listed in this document will be published
subsequently in the Order.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current, is
non-controversial and unlikely to result in adverse or negative
comments. 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, would 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 1050.1F, ``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

    Accordingly, pursuant to the authority delegated to me, 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 14 CFR 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 Part 71.1 of FAA Order
7400.11E, Airspace Designations and Reporting Points, dated July 21,
2020, and effective September 15, 2020, is amended as follows:

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

AAL AK E5 Craig, AK [NEW]

El Capitan Lodge, AK
    (Lat. 55[deg]57'31'' N, long. 133[deg]15'12'' W)
El Capitan Lodge, Point In Space Coordinates
    (Lat. 55[deg]58'6'' N, long. 133[deg]15'59'' W)

    That airspace extending upward from 700 feet above the surface
within a 2-mile radius from a point in space lat. 55[deg]58'6'' N,
long. 133[deg]15'59'' W, and that airspace 1.9 miles each side of
the 353[deg] bearing from the point in space extending from the 2-
mile radius 8.5 miles north from the point in space and that
airspace 2 miles each side of the 232[deg] bearing from the point in
space extending from the 2-mile radius 4 miles southwest from the
point in space.

    Issued in Seattle, Washington, on March 9, 2021.
B.G. Chew,
Acting Group Manager, Operations Support Group, Western Service Center.
[FR Doc. 2021-05230 Filed 3-12-21; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: October 29, 2007 (Volume 72, Number 208)]
[Notices]
[Page 61125]
[DOCID:fr29oc07-44]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP07-398-001]

Gulf Crossing Pipeline Company LLC; Notice of Amended Application

October 22, 2007.
    Take notice that on October 16, 2007, Gulf Crossing Pipeline
Company LLC (Gulf Crossing), 9 East Greenway Plaza, Suite 2800,
Houston, Texas 77046, filed in Docket No. CP07-398-001, an amendment to
its pending application pursuant to section 7(c) of the Natural Gas Act
(NGA) in which it seeks authorization to site, construct, and operate
facilities proposed in Docket No. CP07-398-000 filed June 19, 2007. In
the amended application, Gulf Crossing proposes to decrease the amount
of compression at its proposed Sherman Compressor Station and increase
compression at its proposed Paris Compressor Station, all as more fully
set forth in the application which is on file with the Commission and
open to public inspection. The Commission staff will determine if this
amendment will have an effect on the schedule for the environmental
review of this project. If necessary, a revised Notice of Schedule for
Environmental Review will be issued within 90 days of this Notice. The
instant filing may be also viewed on the Web 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<PHONE_NUMBER> or TTY,<PHONE_NUMBER>.
    Any questions regarding this application may be directed to J. Kyle
Stephens, Vice President of Regulatory Affairs, Boardwalk Pipeline
Partners, LP, 9 Greenway Plaza, Houston, Texas 77046 or by telephone at
713-479-8033 or telecopy to<PHONE_NUMBER>.
    There are two ways to become involved in the Commission's review of
this project. First, any person wishing to obtain legal status by
becoming a party to the proceedings for this project should, on or
before the below listed comment date, file with the Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a
motion to intervene in accordance with the requirements of the
Commission's Rules of Practice and Procedure (18 CFR 385.214 or
385.211) and the Regulations under the NGA (18 CFR 157.10). A person
obtaining party status will be placed on the service list maintained by
the Secretary of the Commission and will receive copies of all
documents filed by the applicant and by all other parties. A party must
submit 14 copies of filings made with the Commission and must mail a
copy to the applicant and to every other party in the proceeding. Only
parties to the proceeding can ask for court review of Commission orders
in the proceeding.
    However, a person does not have to intervene in order to have
comments considered. The second way to participate is by filing with
the Secretary of the Commission, as soon as possible, an original and
two copies of comments in support of or in opposition to this project.
The Commission will consider these comments in determining the
appropriate action to be taken, but the filing of a comment alone will
not serve to make the filer a party to the proceeding. The Commission's
rules require that persons filing comments in opposition to the project
provide copies of their protests only to the party or parties directly
involved in the protest.
    Persons who wish to comment only on the environmental review of
this project should submit an original and two copies of their comments
to the Secretary of the Commission. Environmental commenters will be
placed on the Commission's environmental mailing list, will receive
copies of the environmental documents, and will be notified of meetings
associated with the Commission's environmental review process.
Environmental commenters will not be required to serve copies of filed
documents on all other parties. However, the non-party commenters will
not receive copies of all documents filed by other parties or issued by
the Commission (except for the mailing of environmental documents
issued by the Commission) and will not have the right to seek court
review of the Commission's final order.
    Motions to intervene, protests and comments 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.
    Comment Date: November 13, 2007.

Kimberly D. Bose,
Secretary.
[FR Doc. E7-21226 Filed 10-26-07; 8:45 am]

BILLING CODE 6717-01-P


234 RCRA permit or permit modification to include a new hazardous waste combustion unit) after promulgation of the Phase I Replacement standards and Phase II standards are not subject to certain specified RCRA permit requirements or performance standards. The approach we are proposing today is similar to the one we proposed in the July 3, 2001 proposed amendment rule ( see 66 FR 35146), but was not finalized. The amendment was not finalized due to several unresolved issues and thus, it was agreed ( during litigation settlement discussions), that we would revisit and address the issues in the Phase I Replacement standards and Phase II standards rulemaking. a. Why Is EPA Proposing a Different Permitting Approach for New Sources? In the September 1999 rule, we had amended language in 40 CFR § § 264.340, 265.340, 266.100, 270.19, 270.22, 270.62, and 270.66 to accommodate the permit transition from RCRA to the CAA. To summarize, the amended language in these sections says that once a source demonstrates compliance with the standards in 40 CFR part 63 subpart EEE, the requirements in specified part 264, 265, 266, and part 270 sections would no longer apply. However, the amended language neglected to specifically address if, how, or when new sources would make the transition from RCRA permitting requirements to CAA MACT requirements. As we discussed in the preamble to the July 3, 2001 proposed amendments, under RCRA, new sources must obtain a permit or a permit modification before they may start construction of a new source/ unit. The way the current part 270 language reads, new sources subject to the 1999 rule and the Interim Standards rule are not able to demonstrate compliance with the part 63 standards until after a RCRA permit is issued, the source is built, and they conduct performance testing. This means they would have to submit a trial burn plan with their RCRA permit application and also submit suggested conditions for the various phases of operation   startup shake down, trial burn, and post trial burn. Likewise, RCRA permitted facilities that are adding a new combustion source would have to provide the same information with their permit modification request. Whether the source is new or adding a new combustion source, the permit writer would have to review this information and write conditions into the RCRA permit governing all phases of combustor operations. This expenditure of resources, on the part of the source and the permitting agency, is unnecessary given that the conditions will become inactive or be removed from the RCRA permit upon compliance with the MACT standards. For new sources, compliance with the MACT standards is upon start up. Therefore, today we are proposing that new sources ( whether a new source or a new source at an existing permitted source) who will be subject to the Phase I Replacement standards and Phase II standards upon start up, not follow the RCRA permitting process for establishing combustor emissions and operating requirements ( i. e., submission of a trial burn plan with the RCRA permit application, submission of suggested conditions for the various phases of operation   start up/ shake down, trial burn, and post trial burn, and ultimately obtaining a permit with operating and emission standards). b. How Is EPA Proposing to Change the Current Requirements for New Sources? In the July 3, 2001 proposal, we developed regulatory language to clarify our intent not to require new sources to obtain a RCRA permit with respect to combustor operations and emissions. In response to that proposal, we received comments from the Sierra Club expressing concerns that * OMB Review Draft*

87 See memo from Michael Galbraith to Docket # RCRA 2003 0016 entitled " Summary of Conference Call with Sierra Club Relating to Implementation," dated August 14, 2003.

235 the increased opportunities for public participation established in the RCRA Expanded Public Participation Rule ( 60 FR 63417, December 11, 1995) would be lost. This rule involves communities earlier in the permitting process, provides more opportunities for participation, expands public access to information, and offers guidance on how facilities can improve public participation. In a follow up discussion with the Sierra Club, they specifically expressed interest in being able to influence decisions on the construction of hazardous waste combustors. 87 Upon consideration, we agree with the Sierra Club that in our previous effort to streamline the RCRA permitting process for new sources, we did not fully consider that important opportunities for public participation may be lost. Although we still believe that new sources, whether a new source or an existing source adding a new source, should not be required to follow the RCRA permitting process, we also believe that the Sierra Club's concerns have merit. It makes sense to afford the public the same ( or as close as possible) public participation opportunities for new units under the HWC MACT/ CAA framework that they had under the RCRA regulations. Therefore we are modifying our earlier proposal as discussed in the paragraphs below, to consider several options that will attempt to address these concerns, as well as provide a means to improve the existing regulatory requirements for new sources. The RCRA Expanded Public Participation Rule implemented four new requirements for facilities and permitting agencies that enable communities to become more active participants throughout the permitting process. They are: 1) permit applicants must hold an informal public meeting before applying for a permit; 2) permitting agencies must announce the submission of a permit application which will tell community members where they can view the application while the agency reviews it; 3) permitting agencies may require a facility to set up an information repository at any point during the permitting process if warranted; and 4) permitting agencies must notify the public prior to a trial ( or test) burn. 88 Consequently, we will focus on each of these and propose mechanisms that mirror or fulfill the RCRA public participation requirements. We stated earlier in this section that under RCRA, new sources must obtain a permit ( or a permit modification at an existing source) before they may start construction of a new source. This holds true regardless of whether we finalize an approach that does not require new sources to obtain a RCRA permit that contains the combustor operating and emissions standards ( i. e., a RCRA permit will still be required to address all other activities at the facility including corrective action, general facility standards, other combustor specific concerns such as material handling, risk based emission limits and operating requirements, and other hazardous waste management units). So, in applying for a RCRA permit, new hazardous waste facilities/ sources will still be required to meet the public participation requirements. However, the problem arises if new sources are not required to provide information relative to the combustor ( i. e., sources were * OMB Review Draft*

89 Note that new sources must have prepared and included their documentation of compliance in the operating record upon start up. New sources then have 6 months from the date of start up to begin their comprehensive performance test.

90 If necessary, concerns raised regarding the regulation of the combustor can be addressed through application of RCRA's omnibus provision ( RCRA Section 3005( c)( 3)).

236 formerly, at this point in the process, required to submit a trial burn plan), but only for the other proposed hazardous waste management activities at the source. Thus, the source would not be required to discuss the proposed combustor specific operations and emissions at the informal public meeting, nor would the permit application that is made available to the public to review, contain information regarding the combustor operations or emissions. In an effort to provide an opportunity for public participation equivalent to RCRA, we believe that the Notification of Intent to Comply ( NIC) requirements, as proposed in Part Two, Section XVI. B., serve in place of the first two RCRA public participation requirements. The primary functions of the NIC are to serve as a compliance planning tool and to promote early public involvement in the permitting process. In terms of compliance planning, the draft NIC must contain general information including the waste minimization, emission control, and emission monitoring techniques that are being considered and how the source intends to comply with the emission standards. With regard to early public involvement, a draft of the NIC must be made available to the public for review within 9 months of the effective date of the final Replacement Standards and Phase II Standards rule. One month later, the source must hold an informal public meeting to discuss the activities described in the NIC. The NIC requirements apply to new sources as well ( see § 63.1212( b)( 1) in today's Notice), but the timing will vary according to the date a new source begins burning hazardous waste. For example, if a new source begins burning 3 months after the rule's effective date, then it will have only 6 months before it must prepare and make a draft NIC available for public review. 89 More significantly, according to 40 CFR § 63.1212( b)( 2), as proposed in today's Notice, new sources that are to begin burning more than 9 months after the effective date of the final rule will be required to meet all of the NIC and Compliance progress report requirements in § § 63.1210( b) and ( c), 63.1211( c), and 63.1212( a) prior to burning hazardous waste. We feel that the NIC requirements are commensurate with the public participation requirements to hold an informal public meeting to inform the community of the proposed combustor operations and to make the compliance information available for public review and comment. On the other hand, we also recognize that there are a few gaps. For instance, the NIC requirements are not associated with a permit action and the regulatory agency is not required to be present at the NIC public meeting. We would, however, expect the source to consider any comments raised during the NIC process as it develops its final compliance strategy and final NIC. 90 Also, if a new source begins burning after the effective date of today's rule, but prior to 9 months after the effective date, the NIC is not required to be made available for public review before a new source begins burning. In other words, the public is not provided information * OMB Review Draft*

91 Since the public participation requirements of 40 CFR § § 124.31 and 124.32 only apply to initial RCRA permits and renewals with significant changes, a corresponding regulatory amendment would need to be made to the applicability paragraphs to include modifications to RCRA permits only for new combustion sources that will comply with Part 63, subpart EEE upon start up. Also, 63.1212( b) would need to be amended to reference § § 124.31 and 124.32.

92 40 CFR § 70.7( h)( 2) requires that information including the draft Title V permit, the application, all relevant supporting materials, and other materials available to the permitting authority that are relevant to the permit decision, be made available to interested persons.

237 relative to the combustor's operations, emissions, and compliance schedule prior to it beginning operations. Given these gaps, we are proposing a scenario in which the NIC requirements for new sources under MACT, could be crafted to achieve a comparable level of public participation as under RCRA. We are proposing to require that all new sources prepare a draft NIC and make it available to the public at the same time as their RCRA pre application meeting notice. We also propose that new sources submit their comprehensive performance test plan at this time. By submitting the NIC and CPT plan together, the public would be provided with compliance related information relevant to the combustor as well as the proposed combustor operations and emissions ( i. e., the public is provided testing information through the CPT that they would have received via the trial burn plan). Lastly, as part of this option we propose that the NIC public meeting coincide with the informal public meeting for the RCRA permit. By holding a simultaneous meeting, the public is given the opportunity to inquire and comment on both the source's proposed activities and the combustor's proposed operations with regulatory officials from both the Air and RCRA programs present. We request comment on this discussion. 91 With respect to the information repository regulations at 40 CFR § 124.33, the purpose of the information repository is to make information ( i. e., documents, reports, data, and information deemed necessary) available to the public during the permit issuance process and during the life of a permit. While the Title V permit procedures specify that information relevant to the permitting decision be made available to the public, 92 this information would not be accessible prior to construction or operation of the combustor. Under RCRA, the information repository would be established some time after submission of the permit application, but before construction and operation of the combustor. Even though an information repository is not a required component of the RCRA permit process, the regulations provide a permitting agency with the discretion to evaluate the need for and require a source to establish and maintain one. Therefore, so that the public is afforded the same opportunities to view and copy information such as the NIC, test plans, draft Title V permit and application, reports and so forth under MACT, we are considering two options. We could include a provision similar to § 124.33 in the NIC regulations for new sources. It would allow a regulatory agency, on a case by case basis, to require a source to establish an information repository specific to the combustor. We believe the NIC regulations are a suitable location to place such a provision, since the NIC is the first opportunity for the public to * OMB Review Draft*

93 This approach does not eliminate the possibility that some combustor specific requirements may be retained in the RCRA permit such as: risk based conditions, compliance with an alternative MACT standard, compliance with startup, shutdown and malfunction events under RCRA rather than the CAA, etc. See section XVII, D. 2. for a more complete discussion. Consequently, sources would be expected to include the applicable RCRA conditions in their RCRA permit application.

238 discuss the combustor operations and emissions. Alternatively, rather than incorporate provisions for an information repository in the NIC regulations, the applicability language in § 124.33 could be amended to include new combustion sources that will comply with Part 63, subpart EEE upon start up. We request comment on this discussion. The last RCRA public participation requirement requires the permitting agency to notify the public prior to a trial burn or test burn at a combustion facility. If new sources are not required to follow the RCRA permitting process with respect to combustor emissions and operations, they also would not be required to submit a trial burn plan with their permit application or conduct a trial burn. However, under MACT, new ( and existing) combustion sources are required to submit performance test and continuous monitoring system ( CMS) performance evaluation test plans for approval. The MACT performance test serves the same purpose as the RCRA trial burn test: to demonstrate compliance with the relevant emission standards and to collect data to determine at what levels the corresponding operating conditions should be set. Similar, but not identical to the RCRA requirements at 40 CFR § § 270.62 and 270.66 requiring the permitting agency to notify the public prior to a trial/ test burn, the MACT performance test regulations ( see § 63.1207( e)( 2)), specify that a source must issue a public notice announcing the approval of the test plans and provide a location where the public may view them. Although the timing of the public notices are slightly different, the regulations both provide notice to the public about testing. Under RCRA, notice is given to the public prior ( usually 30 days) to commencement of the trial burn, whereas under MACT, notice is given when the test plans are approved. The newly amended regulations of § 63.1207( e)( 2) proposed in this Notice, specify that sources must make the test plans available for review at least 60 days prior to commencement of the test and must provide the expected time period for commencing ( and completing) the test. Thus, the public is informed of the test and provided estimates of test dates through public notice of the approved test plan. Thus far, the approach we have proposed is intended to ensure that the public will have the same opportunities for participation and access to information as they would if new sources continued to be subject to the RCRA permit process to include the combustor emission and operating requirements. By proposing that new sources not be required to obtain a RCRA permit with combustor emission and operating requirements, it provides for the smoothest and most practical transition from RCRA requirements to MACT requirements. 93 Aside from the approach we have focused on, there are others that may be worthy of consideration. We can also look at the option of a transition point for new sources that would specify how far a new source would proceed down the RCRA permit path before it could * OMB Review Draft*

239 " transition" over to compliance with the MACT standards and CAA permitting. There are three additional options we can consider relative to a transition point: 1) after the RCRA Part B application is submitted; 2) after the RCRA permit is issued; and 3) after the source places its Documentation of Compliance ( DOC) in the operating record. Beginning with the first option, each successive one moves in the direction toward the way new sources currently make the transition from RCRA to MACT and includes modifications to the RCRA information requirements. We envision each of these options to be a variation of the current RCRA permit process. Under the first option, the transition point would occur after the source submits its RCRA Part B application. The key to this option is that the source would be subject to the public participation requirements of 40 CFR § § 124.31 and 124.32, to hold an informal public meeting and to have the submission of the permit application noticed. However, new sources would not be required to include the combustor's operation and emission information in the Part B application. Rather, the source would only be required to discuss the compliance related activities related to the combustor as part of the informal public meeting. For the second option, the transition point would be after the permitting agency issues the RCRA permit. The source would not only discuss the combustor's compliance related activities as part of the RCRA informal public meeting as in the first option, but it would also address the operations and emissions through development of a trial burn plan, or a CPT plan in lieu of the trial burn plan, or even a coordinated CPT/ RCRA trial burn plan, if it is likely that the source will require some RCRA permit conditions ( i. e., risk based conditions). With this option, even though all activities pre permit issuance must address the source and the combustor's operations and emissions, the approved permit would not contain the operating and emission requirements ( with the exception of risk based or alternative standards). For the third option, the transition point would be after the source places its DOC in the operating record, which indicates the source's compliance with the MACT standards. Basically, the source would proceed down the RCRA permit path as in option two by complying with the public participation requirements, submitting a trial burn plan/ CPT plan/ coordinated plan, suggesting conditions for the various phases of operation, and receiving a RCRA permit. However, in this option, the permit would need to address combustor operations and emissions to the extent that it would cover the construction and start up/ shakedown periods. With respect to the public participation requirements, all three options automatically factor in the first two RCRA public participation requirements ( by virtue of where the transition would be made). However, we did not discuss how we would account for the remaining two public participation requirements. We believe that the information repository and the notification of a trial burn requirements can be addressed in the same manner as we discussed in our proposed approach. So, for these options, we would incorporate an appropriate requirement, either through the NIC regulations or the public participation regulations, that would allow for an information repository to be established. Regarding the notice of a trial burn, we believe that the notice of the performance test is equivalent. In summary, our proposed approach involves modifying the NIC provisions to include RCRA public participation requirements. The second group of options consider a range of transition points that are also worthy of consideration. We invite comment on this discussion. * OMB Review Draft*

240 3. What Are the Proposed Changes to the RCRA Permitting Requirements that Will Facilitate the Transition to MACT? To alleviate potential conflicts between the RCRA permit requirements and MACT, we are proposing an additional streamlined permit modification provision, requiring prior Agency approval, which would allow an existing RCRA permit to be better aligned with specific provisions contained in the Subpart EEE requirements. The intent of this provision is to reduce potential burdens associated with compliance with overlapping RCRA and MACT requirements, while still maintaining the overall integrity of the RCRA permit. a. How Will the Overlap During Performance Testing Be Addressed? When we finalized the performance test requirements and the changes to the RCRA permitting requirements in the September 30, 1999 rule, we did not consider how sources would conduct their performance tests while at the same time, maintain compliance with their RCRA permit requirements. For instance, during the performance test, a source will likely want to conduct testing at the edge of the operating envelope or the worst case for certain parameters to ensure operating flexibility. This could conflict with established operating and emissions limits required in the source's RCRA permit and consequently, prevent the source from optimizing its testing range. Currently, sources have three options that would allow them to resolve any potential conflicts between their performance test and their RCRA permit requirements. One option would be for a source to submit a RCRA Class 2 or 3 permit modification request to temporarily change or waive specific RCRA permit requirements during the MACT performance test ( see § 270.42, Appendix I, L. 5). Another option would be for a source to request approval for such changes through its RCRA trial burn plan or coordinated MACT / RCRA test plan ( see § 270.42, Appendix I, L. 7. a. or d.). In this case, a source could include proposed test conditions in its plan to temporarily waive specific RCRA permit requirements during the test. The last option would be for a source to request a temporary authorization that would allow specific RCRA permit requirements to be waived for a period of 180 days ( see § 270.42( e)). We do not believe that any of the options discussed above provide an optimal solution to resolving conflicts between a source's performance test protocol and its RCRA permit operating and emissions limits. A Class 2 or 3 RCRA permit modification may not be an option for many sources due to the time typically involved in processing these requests. Sources that choose to modify their permits would need to do so well in advance of conducting their performance test to ensure that the modification would be processed in time to conduct the test on schedule. This may result in sources submitting modification requests prior to approval of their performance test plans. We believe that RCRA permit writers are unlikely to approve any modifications to RCRA permit requirements without the assurance that the source will be operating under an approved test plan. Resolving conflicts using a trial burn or coordinated test plan is not a viable option for a source that has already completed its trial burn/ risk burn testing. Lastly, while a temporary authorization is relatively streamlined, it is meant to be used in unique cases affecting an individual facility. We believe that it is most logical and easily implemented to propose a modification that can be used consistently to remedy a common problem affecting an entire group of facilities with similar operations ( e. g., hazardous waste burning combustors facing barriers to testing due to RCRA permit requirements). Therefore, in today's Notice, we are proposing to allow sources to * OMB Review Draft*

94 For subsequent performance tests, we anticipate that this modification would be useful for sources that may have risk based or alternative requirements in their RCRA permits.

241 waive specific RCRA permit operating and emissions limits during pretesting, initial, and subsequent performance testing through a new streamlined permit modification procedure. 94 We believe that a process for waiving specific RCRA permit requirements during performance testing is consistent with our objectives to streamline requirements and minimize conflicts between the RCRA and CAA programs without sacrificing the protections afforded by RCRA. Moreover, we view this new permit modification to be complementary to the provisions of § 63.1207( h) for waiving operating parameter limits ( OPLs) during performance testing. In the February 14, 2002 final amendments rule, we reiterated that OPLs in the Documentation of Compliance ( DOC) may be revised at any time to reflect testing parameters for the initial performance test prior to submission of the NOC and so, in effect, are automatically waived. Also, we revised the language in § 63.1207( h)( 1) and ( 2) to not require that subsequent performance test plans be approved in order to waive OPLs, but rather that sources only record the emission test results of the pretesting. b. Are There Other Instances Where the New Streamlined Permit Modification Can Be Used? In addition to our efforts today to minimize overlapping permit requirements during performance testing, we are also proposing to allow the new streamlined permit modification to address other potential conflicts. In implementing the 1999 rule, it has become clear that there are several other instances when conflicts may arise where RCRA permit requirements overlap with MACT requirements. For example, the required averaging period for an operating parameter might be slightly different between MACT and the RCRA permit, requiring two different data acquisition schemes during the interim period between submittal of the Documentation of Compliance ( DOC) and the final modification of the RCRA permit after receipt of the NOC. Or, if a RCRA permit requires periodic emissions testing, the specified test schedule in the permit might not be aligned with the required test schedule for MACT, causing a facility to perform duplicate testing instead of allowing a single coordinated RCRA/ MACT test event. Conflicts in operating limitations, monitoring and recordkeeping requirements, and scheduling provisions can be especially prevalent during this interim period. Consequently, we believe the new streamlined permit modification procedure would be appropriate to address these probable overlaps. c. Why Is a New Streamlined Permit Modification Procedure Being Proposed? This new streamlined modification differs from the one we finalized in the June 1998 " fast track" rule ( 63 FR 33782). In 1998, we provided for a streamlined RCRA permit modification process whereby you could request a Class 1 modification with prior Agency approval to address and incorporate any necessary MACT upgrades into your RCRA permit ( see 40 CFR § 270.42, Appendix I, L( 9)). The streamlined permit modification provision, which was intended solely for the purpose of implementing physical or operating upgrades, allowed sources that were already operating under RCRA combustion permits to modify their combustion systems' design and/ or operations in order to comply with the MACT standards without having to obtain a Class 2 or 3 RCRA permit modification. Thus, L( 9) was not intended to account for overlapping requirements. Further, to * OMB Review Draft*

95 Refer to the new section in the RCRA permit modification table in 40 CFR 270.42, Appendix I, L( 10) and new regulatory language in 270.42( k), that must be used to waive specified permit requirements.

96 See 40 CFR 63.1207( e)( 3) for performance test time extension requirements.

242 be eligible to use L( 9), you first must have complied with the NIC requirements, including those related to public involvement. Refer to Part Two, Section XVI for a discussion of the NIC. However, similar to the streamlined modification we finalized as L( 9), we feel that this new streamlined modification warrants a Class 1 modification with prior Agency approval. We feel that a Class 1 is appropriate considering that: we do not expect that there would be significant changes when requesting certain RCRA permit requirements to be waived; it would be applicable for a relatively short period of time; regulatory oversight is incorporated via approval of the modification request and; the intended goal of the modification is to achieve environmental improvement ultimately through implementation of more protective standards. d. How Will the New Streamlined Permit Modification Work? Our proposed approach allows for a waiver of specific RCRA permit requirements provided that you: 1) submit a Class 1 permit modification request specifying the requested changes to the RCRA permit, with an accompanying explanation of why the changes are necessary and how the revised provisions will be sufficiently protective, and 2) obtain Agency approval prior to implementing the changes. 95 When utilized to waive permit requirements during the performance test, you also must have an approved performance test plan prior to submitting your modification request. ( We believe that the Class 1 modification with prior Agency approval will ensure that your proposed test conditions are reasonable with respect to your existing permit limits ( i. e. that they are sufficiently protective); and that an approved performance test plan confirms that you have met the regulatory requirements for performance test plans.) We propose that you submit your streamlined modification request in sufficient time to allow the Director a minimum of 30 days ( with the option to extend the deadline for another 30 days) to review and approve your request. For purposes of performance testing, we propose that you submit your request at the time you receive approval of your performance test plan, which is 90 days in advance of the test and coincides with the time limitations imposed on the Director for approval. Additionally, we are requiring that the waiver of permit limits only be relevant during the actual testing events and during pretesting for an aggregate period of up to 720 hours of operation. In other words, it would not apply for the duration of time allotted to begin and complete the test ( i. e., the entire 60 days). As a side note, we realize that some sources may not have an approved performance test plan by the date their test is scheduled to begin because the Administrator failed to approve ( or deny) it within the specified time period, which could render this new streamlined modification impractical. However, we expect that sources would petition the Administrator to waive their performance test date for up to 6 months, with an additional 6 months possible, rather than to proceed with the performance test without the surety of an approved test plan. 96 * OMB Review Draft*

97 Some sources will receive extensions of up to one year to conduct their initial comprehensive performance test ( see 40 CFR 63.1207( e)( 3)). Therefore, their transition point will occur at a later time designated by the extension.

98 A streamlined permit modification was developed in the 1999 rule to allow the removal of duplicative conditions from RCRA permits ( see 270.42, Appendix I, Section A. 8).

99 Only major sources are required to reopen their title V permits when 3 or more years remain in the permit term. Even though area sources were subject to the same standards and title V permit requirements, they can wait until renewal regardless of the time remaining to incorporate new or revised standards. The reopening provisions of 40 CFR 70.7( f) and 71.7( f) only apply to major sources.

243 B. How Will the Replacement Standards Affect Permitting for Phase I Sources? 1. Where Will Phase I Sources Be in their Transition to MACT with Respect to Their RCRA Permits? We discussed earlier that by the time the Phase I Replacement standards and Phase II standards are finalized, most Phase I sources will have completed their initial comprehensive performance test and submitted their NOC documenting compliance with the MACT Interim Standards. 97 This marks the point at which sources will begin to transition from RCRA permitting requirements to CAA requirements and title V permitting. For sources with RCRA permits, they must continue to comply with the operating standards and emission limits in their permits until any duplicative requirements are either removed through a permit modification, expire, or are automatically inactivated via a sunset clause contained in the permit. For sources operating under interim status, they must comply with the RCRA interim status requirements until they demonstrate and document compliance with the MACT Interim Standards. We anticipate that sources who are in the process of renewing their RCRA permits would work with their permit writers to include sunset clauses to inactivate duplicative requirements upon compliance with the MACT Interim Standards. Given the permit actions taken during the transition period leading up to compliance with the Interim Standards, we believe that many sources will have had duplicative requirements removed from their permits by the time the Replacement Standards are promulgated. For sources that have not had their RCRA permits modified, we expect that they will proceed with a modification to remove duplicative requirements. 98 2. Where Will Phase I Sources Be in Their Transition to MACT with Respect to Their Title V Permits? With regard to title V permits, Phase I major and area sources were required to submit a title V permit application 12 months after the effective date of the 1999 rule  or were required to reopen existing title V permits with 3 or more years remaining in the permit term, 18 months after the effective date  to include the MACT standards. Sources with less than 3 years remaining could wait until renewal to incorporate the 1999 standards. 99 Upon promulgation of the Interim Standards on February 13, 2002, major sources were required to reopen their permits or could * OMB Review Draft*

244 wait until renewal to include the revised standards according to the same time frames mentioned above. Therefore, we expect that all Phase I sources would have title V permits containing the MACT Interim Standards and potentially, operating standards in accordance with their DOC, at the time the Replacement Standards rule is promulgated. Furthermore, most sources will have initiated a significant modification to their permits to include the revised operating requirements of their NOC. Regardless of these required compliance activities leading up to the promulgation date of the Replacement Standards rule, Phase I sources will again need to reopen within 18 months or wait until renewal to incorporate the MACT Replacement standards. 3. What Is Different with Respect to Permitting in Today's Notice of Proposed Rulemaking? Based upon our decision to utilize the same general permitting approach as in the 1999 and Interim Standards rules, we expect sources to follow the same transition scheme as it relates to RCRA permit requirements and the CAA requirements and title V permitting for the Replacement Standards rule. One aspect, however, that was not addressed in those rules was how the permitting of new sources would be affected. Hence, we discuss approaches in this Notice of Proposed Rulemaking ( see Section A. 1. above) that would require them to obtain RCRA permits only for corrective action, general facility standards, other combustor specific concerns such as material handling, risk based emission limits and operating requirements, and other hazardous waste management units at the source. Should the approach we are proposing be finalized, there may not be any operating requirements and emission standards to remove from their RCRA permits. We also discussed a new streamline permit modification procedure in section A. 2. " What Are the Proposed Changes to the RCRA Permitting Requirements that Will Facilitate the Transition to MACT?". This new procedure allows sources to waive specific RCRA permit operating and emission limits during pretesting, performance testing, and other instances where there may be conflicts during the interim period between submission of the Documentation of Compliance and final RCRA permit modification. Another important difference is our proposal to codify the authority for permit writers to evaluate the need for and, where appropriate, require SSRAs. We are also proposing to codify the authority for permit writers to add conditions to RCRA permits that they determine, based on the results of an SSRA, are necessary to protect human health and the environment. In doing so, our intent is to change the regulatory mechanism that is the basis for SSRAs, while retaining the same SSRA policy from a substantive standpoint. Under this approach, permitting authorities continue to have the responsibility to ensure the protectiveness of RCRA permits. Next, we have proposed to re institute the NIC ( see Part Two, Section XVI for a discussion of the NIC) for Phase I sources and to require the NIC for Phase II sources. While the NIC serves as a compliance planning tool and to promote early public involvement, it is also a requirement before the streamlined permit modification procedure in 40 CFR § 270.42( j) and 270.42, Appendix I, Section L. 9, can be utilized to make changes to either the combustor design or operations, in order to comply with the final Replacement Standards. Thus, sources who have not yet made the transition from their RCRA permits to title V permits must comply with the NIC requirements to take advantage of the streamlined permit modification. * OMB Review Draft*

245 Last, a subtle difference pertaining to the transition scheme stems from the time span between compliance with the Interim Standards and the effective date of the Replacement Standards relative to RCRA permits. Sources who received extensions to the date for commencing their initial comprehensive performance test, whether a 6 month or 12 month extension, will not be required to submit an NOC until either a few months before or just after the effective date of the final Replacement Standards rule. Therefore, these sources would be modifying their RCRA permits just before or after the effective date of the final rule. Nevertheless, we anticipate that sources will proceed with modification of their RCRA permits to remove duplicative requirements.


[Federal Register Volume 78, Number 3 (Friday, January 4, 2013)]
[Notices]
[Pages 798-800]
[FR Doc No: 2012-31696]

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-1998-3637; FMCSA-2000-8203; FMCSA-2002-12844; FMCSA-
2006-24015]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

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

SUMMARY: FMCSA announces its decision to renew the exemptions from the
vision requirement in the Federal Motor Carrier Safety Regulations for
3 individuals. FMCSA has statutory authority to exempt individuals from
the vision requirement if the exemptions granted will not compromise
safety. The Agency has concluded that granting these exemption renewals
will provide a level of safety that is equivalent to or greater than
the level of safety maintained without the exemptions for these
commercial motor vehicle (CMV) drivers.

DATES: This decision is effective February 7, 2013. Comments must be
received on or before February 4, 2013.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) numbers: Docket No. [FMCSA-1998-3637; FMCSA-
2000-8203; FMCSA-2002-12844; FMCSA-2006-24015], using any of the
following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the

on-line instructions for submitting comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket number for this notice. Note that DOT posts all comments
received without change to http://www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Federal Docket Management System (FDMS) is
available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the FDMS published in
the Federal Register on December 29, 2010 (75 FR 82132) at http://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the vision requirements in 49 CFR 391.41(b)(10), which applies to
drivers of CMVs in interstate commerce, for a two-year period if it
finds ``such exemption would likely achieve a level of safety that is
equivalent to or greater than the level that would be achieved absent
such exemption.'' The procedures for requesting an exemption (including
renewals) are set out in 49 CFR part 381.

Exemption Decision

    This notice addresses 3 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. FMCSA has
evaluated these 3 applications for renewal on their merits and decided
to extend each exemption for a renewable two-year period. They are:

Thomas J. Boss (IL)
Casey R. Johnson (MN)
Robert J. Johnson (MN)

    The exemptions are extended subject to the following conditions:
(1) That each individual has a physical examination every year (a) By
an ophthalmologist or optometrist who attests that the vision in the
better eye continues to meet the requirements in 49 CFR 391.41(b)(10),
and (b) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual provides a copy of the ophthalmologist's or optometrist's
report to the medical examiner at the time of the annual medical
examination; and (3) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file and retains a copy of the certification on his/her
person while driving for presentation to a duly authorized Federal,
State, or local enforcement official. Each exemption will be valid for
two years unless rescinded earlier by FMCSA. The exemption will be
rescinded if: (1) The person fails to comply with the terms and
conditions of the exemption; (2) the exemption has resulted in a lower
level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31136(e) and 31315.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. In accordance with 49
U.S.C. 31136(e) and 31315, each of the 3 applicants has satisfied the
entry conditions for obtaining an exemption from the vision
requirements (63 FR 30285; 63 FR 54519; 65 FR 66293; 67 FR 68719; 68 FR
1654; 68 FR 2629; 69 FR 71098; 69 FR 71100; 71 FR 14566; 71 FR 30227;
72 FR 1054; 74 FR 980; 76 FR 4414). Each of these 3 applicants has
requested renewal of the exemption and has submitted evidence showing
that the vision in the better eye continues to meet the requirement
specified at 49 CFR 391.41(b)(10) and that the vision impairment is
stable. In addition, a review of each record of safety while driving
with the respective vision deficiencies over the past two years
indicates each applicant continues to meet the vision exemption
requirements.
    These factors provide an adequate basis for predicting each
driver's ability to continue to drive safely in interstate commerce.
Therefore, FMCSA concludes that extending the exemption for each
renewal applicant for a period of two years is likely to achieve a
level of safety equal to that existing without the exemption.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by February 4, 2013.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 3 individuals from the vision
requirement in 49 CFR 391.41(b)(10). The final decision to grant an
exemption to each of these individuals was made on the merits of each
case and made only after careful consideration of the comments received
to its notices of applications. The notices of applications stated in
detail the qualifications, experience, and medical condition of each
applicant for an exemption from the vision requirements. That
information is available by consulting the above cited Federal Register
publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these

drivers are not currently achieving the statutory level of safety
should immediately notify FMCSA. The Agency will evaluate any adverse
evidence submitted and, if safety is being compromised or if
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take
immediate steps to revoke the exemption of a driver.

    Issued on: December 27, 2012.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2012-31696 Filed 1-3-13; 8:45 am]
BILLING CODE 4910-EX-P