[Federal Register Volume 79, Number 157 (Thursday, August 14, 2014)]
[Proposed Rules]
[Pages 47594-47597]
[FR Doc No: 2014-19244]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2014-0567; Directorate Identifier 2014-NM-124-AD]
RIN 2120-AA64

Airworthiness Directives; Bombardier, Inc. Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for
certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 &
440) airplanes. This proposed AD was prompted by issuance of revised
certification maintenance requirements (CMR) for the horizontal
stabilizer trim actuator (HSTA). This proposed AD would require
revising the maintenance or inspection program. We are proposing this
AD to detect and correct premature wear and cracking of the HSTAs,
which could result in reduced structural integrity and reduced control
of the airplane due to the failure of system components.

DATES: We must receive comments on this proposed AD by September 29,
2014.

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 http://www.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: U.S. Department of Transportation, Docket
Operations, M-30, 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.
    For service information identified in this proposed AD, contact
Bombardier, Inc., 400 C[ocirc]te-Vertu Road West, Dorval, Qu[eacute]bec
H4S 1Y9, Canada; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>; email
<EMAIL_ADDRESS>Internet http://www.bombardier.com. You
may view this referenced service information at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information
on the availability of this material at the FAA, call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-
0567; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this proposed AD, the regulatory evaluation, any comments
received, and other information. The street address for the Docket
Operations office (telephone<PHONE_NUMBER>) is in the ADDRESSES section.
Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Cesar Gomez, Aerospace Engineer,
Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft
Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New
York 11590; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2014-0567;
Directorate Identifier 2014-NM-124-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD based on those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    Transport Canada Civil Aviation (TCCA), which is the aviation
authority for Canada, has issued Canadian Airworthiness Directive CF-
2014-13, dated April 17, 2014 (referred to after this as the Mandatory
Continuing Airworthiness Information, or ``the MCAI''), to correct an
unsafe condition for certain Bombardier, Inc. Model CL-600-2B19
(Regional Jet Series 100 & 440) airplanes. The MCAI states:

    A revision has been made to Part 2 of the Canadair Regional Jet
Maintenance Requirements Manual (MRM), Appendix A--Certification
Maintenance Requirements which introduces a new task for the HSTA.
Failure to comply with the CMR task could lead to an unsafe
condition.
    This [Canadian] AD is issued to ensure that premature wear and
cracking of the affected components are detected and corrected.
[This condition could result in reduced structural integrity and
reduced control of the airplane due to the failure of system
components.]

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-
0567.

Relevant Service Information

    Bombardier has issued Temporary Revision 2A-58, dated January 31,
2014, to Appendix A--Certification Maintenance Requirements, of Part 2,
of Bombardier CL-600-2B19 Maintenance Requirements Manual. The actions
described in this service information are intended to correct the
unsafe condition identified in the MCAI.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of the same
type design.

``Contacting the Manufacturer'' Paragraph in This Proposed AD

    Since late 2006, we have included a standard paragraph titled
``Airworthy Product'' in all MCAI ADs in which the FAA develops an AD
based on a foreign authority's AD.
    The MCAI or referenced service information in an FAA AD often
directs the owner/operator to contact the manufacturer for corrective
actions, such as a repair. Briefly, the Airworthy Product paragraph
allowed owners/operators to use corrective actions provided by the
manufacturer if those actions were FAA-approved. In addition, the
paragraph stated that any actions approved by the State of Design
Authority (or its delegated agent) are considered to be FAA-approved.
    In an NPRM having Directorate Identifier 2012-NM-101-AD (78 FR
78285, December 26, 2013), we proposed to prevent the use of repairs
that were not specifically developed to correct the unsafe condition,
by requiring that the repair approval provided by the State of Design
Authority or its delegated agent specifically refer to the FAA AD. This
change was intended to clarify the method of compliance and to provide
operators with better visibility of repairs that are specifically
developed and approved to correct the unsafe condition. In addition, we
proposed to change the phrase ``its delegated agent'' to include a
design approval holder (DAH) with State of Design Authority design
organization approval (DOA), as applicable, to refer to a DAH
authorized to approve required repairs for the proposed AD.
    One commenter to the NPRM having Directorate Identifier 2012-NM-
101-AD (78 FR 78285, December 26, 2013) stated the following: ``The
proposed wording, being specific to repairs, eliminates the
interpretation that Airbus messages are acceptable for approving minor
deviations (corrective actions) needed during accomplishment of an AD
mandated Airbus service bulletin.''
    This comment has made the FAA aware that some operators have
misunderstood or misinterpreted the Airworthy Product paragraph to
allow the owner/operator to use messages provided by the manufacturer
as approval of deviations during the accomplishment of an AD-mandated
action. The Airworthy Product paragraph does not approve messages or
other information provided by the manufacturer for deviations to the

requirements of the AD-mandated actions. The Airworthy Product
paragraph only addresses the requirement to contact the manufacturer
for corrective actions for the identified unsafe condition and does not
cover deviations from other AD requirements. However, deviations to AD-
required actions are addressed in 14 CFR 39.17, and anyone may request
the approval for an alternative method of compliance to the AD-required
actions using the procedures found in 14 CFR 39.19.
    To address this misunderstanding and misinterpretation of the
Airworthy Product paragraph, we have changed the paragraph and retitled
it ``Contacting the Manufacturer.'' This paragraph now clarifies that
for any requirement in this proposed AD to obtain corrective actions
from a manufacturer, the actions must be accomplished using a method
approved by the FAA, TCCA, or Bombardier, Inc.'s TCCA Design Approval
Organization (DAO).
    The Contacting the Manufacturer paragraph also clarifies that, if
approved by the DAO, the approval must include the DAO-authorized
signature. The DAO signature indicates that the data and information
contained in the document are TCCA-approved, which is also FAA-
approved. Messages and other information provided by the manufacturer
that do not contain the DAO-authorized signature approval are not TCCA-
approved, unless TCCA directly approves the manufacturer's message or
other information.
    This clarification does not remove flexibility previously afforded
by the Airworthy Product paragraph. Consistent with long-standing FAA
policy, such flexibility was never intended for required actions. This
is also consistent with the recommendation of the Airworthiness
Directive Implementation Aviation Rulemaking Committee to increase
flexibility in complying with ADs by identifying those actions in
manufacturers' service instructions that are ``Required for
Compliance'' with ADs. We continue to work with manufacturers to
implement this recommendation. But once we determine that an action is
required, any deviation from the requirement must be approved as an
alternative method of compliance.
    We also have decided not to include a generic reference to either
the ``delegated agent'' or ``design approval holder (DAH) with State of
Design Authority design organization approval,'' but instead we have
provided the specific delegation approval granted by the State of
Design Authority for the DAH throughout this proposed AD.

Costs of Compliance

    We estimate that this proposed AD affects 416 airplanes of U.S.
registry.
    We also estimate that it would take about 1 work-hour per product
to comply with the basic requirements of this proposed AD. The average
labor rate is $85 per work-hour. Required parts would cost about $0 per
product. Based on these figures, we estimate the cost of this proposed
AD on U.S. operators to be $35,360, or $85 per product.

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.
    We are 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

    We 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. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will 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 (AD):

Bombardier, Inc.: Docket No. FAA-2014-0567; Directorate Identifier
2014-NM-124-AD.

(a) Comments Due Date

    We must receive comments by September 29, 2014.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Bombardier, Inc. Model CL-600-2B19 (Regional
Jet Series 100 & 440) airplanes, certificated in any category,
equipped with horizontal stabilizer trim actuator (HSTA) part number
(P/N) 601R92305-7 (vendor P/N 8396-5).

(d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

(e) Reason

    This AD was prompted by issuance of revised certification
maintenance requirements (CMR) for the horizontal stabilizer trim
actuator (HSTA). We are issuing this AD to detect and correct
premature wear and cracking of certain HSTAs, which could result in
reduced structural integrity and reduced control of the airplane due
to the failure of system components.

(f) Compliance

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

(g) Maintenance or Inspection Program Revision

    Within 30 days after the effective date of this AD, revise the
maintenance or inspection program, as applicable, to incorporate the
information specified in Task C27-40-103-05 of Bombardier Temporary
Revision (TR) 2A-58, dated January 31, 2014, into Appendix A--CMR,
of Part 2, of Bombardier CL-600-2B19 MRM. The initial compliance
time for accomplishing CMR Task C27-40-103-05 is at the applicable
phase-in time

specified in Bombardier TR 2A-58, dated January 31, 2014, or within
30 days after the effective date of this AD, whichever occurs later.
The revision required by paragraph (g) of this AD may be done by
inserting a copy of Bombardier TR 2A-58, dated January 31, 2014,
into Appendix A--CMR, of Part 2, of Bombardier CL-600-2B19 MRM. When
TR 2A-58, dated January 31, 2014, has been included in general
revisions of the MRM, the general revisions may be inserted in the
MRM, provided the relevant information in the general revision is
identical to that in TR 2A-58, dated January 31, 2014.

(h) No Alternative Actions and Intervals

    After accomplishing the revision required by paragraph (g) of
this AD, no alternative actions (e.g., inspections) or intervals may
be used unless the actions or intervals are approved as an
alternative method of compliance (AMOC) in accordance with the
procedures specified in paragraph (i)(1) of this AD.

(i) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager, New
York Aircraft Certification Office (ACO), ANE-170, 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 local Flight
Standards District Office, as appropriate. If sending information
directly to the ACO, send it to Program Manager, Continuing
Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite
410, Westbury, NY 11590; telephone<PHONE_NUMBER>; fax (516) 794-
5531. Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office. The AMOC approval letter must specifically
reference this AD.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain corrective actions from a manufacturer, the action must be
accomplished using a method approved by the Manager, New York ACO,
ANE-170, Engine and Propeller Directorate, FAA; or Transport Canada
Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval
Organization (DAO). If approved by the DAO, the approval must
include the DAO-authorized signature.

(j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information
(MCAI) Canadian Airworthiness Directive CF-2014-13, dated April 17,
2014, for related information. This MCAI may be found in the AD
docket on the Internet at http://www.regulations.gov by searching
for and locating Docket No. FAA-2014-0567.
    (2) For service information identified in this AD, contact
Bombardier, Inc., 400 C[ocirc]te-Vertu Road West, Dorval,
Qu[eacute]bec H4S 1Y9, Canada; telephone<PHONE_NUMBER>; fax 514-855-
7401; email<EMAIL_ADDRESS>Internet http://www.bombardier.com. You may view this service information at the
FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton,
WA. For information on the availability of this material at the FAA,
call<PHONE_NUMBER>.

    Issued in Renton, Washington, on August 7, 2014.
Victor Wicklund,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2014-19244 Filed 8-13-14; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 78, Number 225 (Thursday, November 21, 2013)]
[Proposed Rules]
[Pages 69789-69793]
[FR Doc No: 2013-27860]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2013-0988]

Policy and Procedures Concerning the Use of Airport Revenue;
Proceeds From Taxes on Aviation Fuel

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Proposed Clarification of Policy; Request for
Comments.

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

SUMMARY: This action proposes to amend the Federal Aviation
Administration (``FAA'') Policy and Procedures Concerning the Use of
Airport Revenue published in the Federal Register on February 16, 1999
(``Revenue Use Policy'') to clarify FAA's policy on Federal
requirements for the use of proceeds from taxes on aviation fuel. Under
Federal law, airport operators that have accepted Federal assistance
generally may use airport revenues only for airport-related purposes.
The revenue use requirements apply to certain state and local
government taxes on aviation fuel as well as to revenues received
directly by an airport operator. This notice publishes a proposed
clarification of FAA's understanding of the Federal requirements for
use of revenues derived from taxes on aviation fuel. Briefly, an
airport operator or state government submitting an application under
the Airport Improvement Program must provide assurance that revenues
from state and local government taxes on aviation fuel are used for
certain aviation-related purposes. These purposes include airport
capital and operating costs, and state aviation programs. In view of
the interests of sellers and consumers of aviation fuel, and of state
and local government taxing authorities in limits on use of proceeds
from taxes touching aviation fuel, this notice solicits public comment
on the proposed policy clarification. This notice also solicits
comments about whether there are other reasonable interpretations
regarding local taxes that are not enumerated here and should be
considered by the FAA. Finally, this proposed policy clarification, if
finalized, would apply prospectively to use of proceeds from both new
taxes and to existing taxes that do not qualify for grandfathering from
revenue use requirements.

DATES: Comments must be received by January 21, 2014. Comments that are
received after that date will be considered only to the extent
possible.

ADDRESSES: To read background documents or comments received, go to
http://www.regulations.gov at any time or to Room W12-140 on the ground
floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
    You may also send written comments by any of the following methods.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your
comments electronically. Docket Number: FAA 2013-0988.
     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: Deliver to mail address above between 9:00
a.m. and 5 p.m. EST, Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Identify all transmissions with ``Docket Number FAA 2013-0988'' at
the beginning of the document.

FOR FURTHER INFORMATION CONTACT: Randall S. Fiertz, Director, Office of
Airport Compliance and Management Analysis, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591,
telephone<PHONE_NUMBER>; facsimile<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for the Proposed Policy Clarification

    This notice is published under the authority described in Subtitle
VII, part B, chapter 471, section 47122, and the Federal Aviation
Administration Authorization Act of 1994, section 112(a), Public Law
103-305, 49 U.S.C. 47107(l)(1) (Aug. 23, 1994).

Background

    The Airport and Airway Improvement Act of 1982, now codified at 49
U.S.C. 47101 et seq. (AAIA), establishes the Airport Improvement
Program (AIP) for awarding Federal grants to airports in the United
States. The AAIA requires that an airport sponsor accepting a grant
under the AIP give assurances that any revenues received by the airport
will be used for the capital and operating

expenses of the airport, the local airport system, or other local
facilities owned or operated by the airport owner or operator and
directly and substantially related to air transportation. The purposes
of the revenue use requirements are to prevent a ``hidden tax'' on air
transportation, and to ensure that Federal airport grants are used to
supplement funding for airport projects and are not simply used to
substitute funds diverted to support local non-airport programs.
    In the years following the 1982 enactment of the AAIA, there were
several instances of new state taxes being imposed on the sale of
aviation fuel at AIP-funded airports. The application of the AAIA
revenue use requirements to these new taxes was not entirely clear.\1\
In response, Congress adopted an amendment to the AAIA in 1987 to bring
state and local taxes on aviation fuel within the scope of the airport
revenue use requirements of the AAIA. The amendment also provided that
revenues from a state fuel tax could be used for state aviation
programs, in addition to the uses permitted for revenue received by the
airport sponsor.
---------------------------------------------------------------------------

    \1\ Title 49 of the U.S.C., section 40116(e), permits states and
political subdivisions to levy or collect certain taxes, including
property taxes, net income taxes, franchise taxes, and sales or use
taxes on the sale of goods or services. Title 49 U.S.C. 40116(b),
states and political subdivisions may not levy or collect a tax on
(1) an individual traveling in air commerce; (2) the transportation
of an individual traveling in air commerce; (3) the sale of air
transportation; or (4) the gross receipts from that air commerce or
transportation. The FAA Authorization Act of 1994 Section 112(e),
amended the Anti-Head Tax Act, 49 U.S.C. 40116(d)(2)(A) to prohibit
State, political subdivision, or an authority acting for a State or
political subdivision from collecting a new tax, fee, or charge
which is imposed exclusively upon any business located at a
commercial service airport or operating as a permittee of the
airport, other than a tax, fee, or charge utilized for airport or
aeronautical purposes.
---------------------------------------------------------------------------

    Specifically, 49 U.S.C. 47107(b), as amended in 1987, requires that
recipients of airport grants under the Airport Improvement Program
provide the FAA with written assurances on use of revenue that local
taxes on aviation fuel (except taxes in effect on December 30, 1987)
and the revenues generated by a public airport will be expended for the
capital or operating costs of the airport; the local airport system; or
other local facilities owned or operated by the airport owner or
operator and directly and substantially related to the air
transportation of passengers or property.
    This revenue use limitation does not apply if a provision enacted
not later than September 2, 1982, in a law controlling financing by the
airport owner or operator, or a covenant or assurance in a debt
obligation issued not later than September 2, 1982, by the owner or
operator, provides that the revenues, including local taxes on aviation
fuel at public airports, from any of the facilities of the owner or
operator, including the airport, be used to support not only the
airport but also the general debt obligations or other facilities of
the owner or operator. The statute does not prevent the use of a State
tax on aviation fuel to support a State aviation program or the use of
airport revenue on or off the airport for a noise mitigation purpose.
    However, the 1987 amendment itself was open to interpretation on
the application of use requirements to different taxes on aviation
fuel. The conference report on the 1987 amendment to the AAIA did not
clearly resolve all of these issues. The report stated:

    The assurance requiring that local taxes on aviation fuel must
be spent on the airport is intended to apply to local fuel taxes
only, and not to other taxes imposed by local governments, or to
state taxes. Similarly, this provision is not intended to modify
subsequent provisions in the bill which clarify that a state may
commit the proceeds from state aviation fuel taxes to state aviation
agencies and that an airport may apply airport revenues for airport
noise abatement on or off the airport.

(1987 U.S.C.C.A.N. vol. 5, pp. 2613-2614 (H.R. Rep. No. 100-123(II));
2638-2639 (H.R. Rep. No. 100-484))
    In 1996, Congress enacted 49 U.S.C. 47133 to extend substantially
the of 49 U.S.C. 47107(b) identical requirements for use of airport
revenue and state and local taxes on aviation fuel to all airports that
have been the subject of Federal assistance, regardless of whether the
airport is currently subject to an FAA grant agreement.
    The conference report for the FAA Reauthorization Act of 1996,
which added section 47133, noted that ``revenue diversion burdens
interstate commerce even if the airport is no longer receiving
grants,'' and that the new Sec.  47133 would remove the ``perverse
incentive'' for airports to refuse AIP grants in order to avoid Federal
policies on use of airport revenue.
    The FAA Reauthorization Act of 1994, Section 112(a), codified at
section 47107(l) directed FAA to establish policies and procedures to
assure the prompt and effective enforcement of illegal diversion of
airport revenue. Accordingly, to implement Sections 47107(b) and 47133,
FAA has issued a comprehensive Revenue Use Policy on the use of
revenues received by an airport sponsor. The Revenue Use Policy, at
Section II.b.2., includes state or local taxes on aviation fuel in the
definition of airport revenue:

    2. State or local taxes on aviation fuel (except taxes in effect
on December 30, 1987) are considered to be airport revenue subject
to the revenue-use requirement. However, revenues from state taxes
on aviation fuel may be used to support state aviation programs or
for noise mitigation purposes, on or off the airport.

    On the subject of noise mitigation, section 47133(c) states: ``Rule
of construction.--Nothing in this section may be construed to prevent
the use of a state tax on aviation fuel to support a state aviation
program or the use of airport revenue on or off the airport for a noise
mitigation purpose.'' While the statute does not expressly state that
aviation fuel tax proceeds can be used for noise mitigation, those
proceeds could be used for any purpose for which an airport operator's
revenue could be used, and that expressly includes noise mitigation.

Aviation Fuel

    As background, aviation fuel includes two general categories of
fuel used in aircraft: aviation gasoline, or ``avgas,'' used in
reciprocating engines; and kerosene jet fuel used in turbine engines.
The American Society for Testing and Materials (ASTM) has issued
separate standards for aviation fuel: ASTM D910 and D6227 for avgas and
ASTM D1655-13 and D6615-11a for civil jet fuel. Both avgas and jet fuel
are high-quality petroleum products that are refined, delivered, and
stored separately from other fuels, such as vehicle gasoline, which can
be refined to lower standards. Since aviation fuel and other fuels are
distinct products, it should not be difficult for state and local
government to identify the tax revenues attributable solely to aviation
fuels.

The Case for Clarification

    The FAA believes that general clarification is needed of the
Revenue Use Policy and agency interpretation of Sections 47107(b) and
47133 for reference by all state and local taxing authorities.

Prior FAA Opinions

    The FAA has issued five opinions on particular state or local
aviation taxes on aviation fuel since 1987:
    In 1990, Senator Slade Gorton sought clarification on whether the
State of Washington or a locality within the state could impose a sales
tax on aviation fuel and use the proceeds for a non-aviation purpose.
FAA concluded that if the State and its localities imposed a direct tax
on aviation fuel and used it for non-

aviation purposes, it would be contrary to revenue use restrictions
under 49 U.S.C. 47107. The FAA advised that a local tax on aviation
fuel after December 1987 can only be expended for the capital and
operating costs of the airport. The FAA further advised that the state
tax on aviation fuel could only be spent on the local airport system or
a state aviation program or noise mitigation measures on or off the
airport. The opinion explained that Congress, by expressly permitting
specific uses of aviation fuel tax revenue, necessarily excluded other
non-airport related uses.
    In 1992, Senator Christopher Bond sought clarification on the
limitations on the imposition of a use tax on aviation fuel. The FAA
response acknowledged that states are permitted to impose a use tax on
aviation fuel, but that the AAIA limits the use that a state may
prescribe for taxes collected at Federally-funded airports. The FAA
concluded that the collection of the proposed tax at Federally-funded
airports in the state would be in conflict with Federal grant assurance
requirements, because the state's tax statute provided for unlimited
use of tax proceeds. The tax at issue in Missouri was a general sales
tax, not a specific tax on aviation fuel.
    In 2000, the Tennessee Legislature considered diverting funds
designated for the Tennessee Transportation Equity Fund (Equity Fund)
or allocating funds already in the Equity Fund to the state general
fund. The proceeds in the Equity Fund came from a 4 1/2% tax on the
sale of aviation fuel on Federally obligated airports. The FAA advised
that such action would be contrary to Federal law. In addition, FAA
explained that the State of Tennessee could not rely on the fact that
its 1986 state aviation fuel tax was grandfathered to enact new
measures to divert, directly or indirectly, revenue previously
allocated to aviation use. The FAA further advised that passage of the
legislation to permit general use of the proceeds from the aviation
fuel tax would place in jeopardy continued Federal funding of airport
and noise abatement projects at Federally-assisted airports throughout
the State of Tennessee.
    In 2009, the State of Nebraska had a statewide general sales tax
upon retail sales of products and services, but at some point had
exempted the sale of aircraft fuel from the sales tax. The Nebraska
Legislature considered repealing that exemption and proposed to make
the aircraft fuel tax proceeds payable to the state general fund. An
opinion was sought on whether the proposed sales tax upon aircraft fuel
would violate 49 U.S.C. 40116, 49 U.S.C. 47107, or other Federal
statutes, rules, or regulations. The FAA advised that if the State
Legislature imposed a sales tax on aviation fuel sold on an airport,
the use of the proceeds from the tax to support non-aviation activities
would be inconsistent with Federal law. Monies from such a tax would
have to be spent to support either (1) the capital or operating costs
of the airport, the local airport system, or other local facilities
owned or operated by the airport owner or operator and directly and
substantially related to the air transportation of passengers or
property; or (2) a state aviation program. The FAA advised that the
enactment of the legislation to permit general use of the proceeds from
the aviation fuel tax could jeopardize continued Federal funding of
airport and noise abatement projects at Federally-assisted airports
throughout the State of Nebraska.
    In 2010, a state senator from Hawaii wrote to the General Counsel
of the United States Department of Transportation and FAA Chief Counsel
requesting a legal opinion concerning a proposed broad state tax on
petroleum products that would have applied to aviation fuel as well as
to other fuels. The Hawaii Attorney General took the position that
because the tax law did not use the term ``aviation fuel'' and was not
limited to aviation fuel, the requirements of Sections 47107(b) and
47133 would not apply. The FAA, responding for both FAA and DOT General
Counsel, disagreed, and concluded that the proposed tax would be
invalid under Federal law unless the proceeds from the sale of aviation
fuel were used consistently with the revenue use statutes, or unless
aviation fuel was expressly exempted from the tax.

Interpretation of Sections 47107(b) and 47133

    In each of FAA's five opinions since 1987, the agency interpreted
the provisions of Sections 47107(b) and 47133 to apply to any state or
local tax on aviation fuel, whether the tax was specifically targeted
at aviation fuel or was a general sales tax on products that included
aviation fuel without exemption. Also, FAA interpreted these statutes
to make no distinction between taxes imposed by a local government or
state government agency. The FAA continues to see this interpretation
as the most reasonable construction of these statutes, in view of the
letter and intent of the statutes. At the same time, the agency also
understands that there can be alternate views of the interpretation of
a facially ambiguous statute. The agency is also aware that any
interpretation of this statute will have substantial practical
consequences both for state and local government agencies and for
industry consumers of aviation fuel.
    Any question of statutory interpretation begins with looking at the
plain language of the statute to discover its original intent. To
discover a statute's original intent, courts first look to the words of
the statute and apply their usual and ordinary meanings. ``[T]he
meaning of a statute must, in the first instance, be sought in the
language in which the act is framed, and if that is plain . . . the
sole function of the courts is to enforce it according to its terms.''
Caminetti v. U.S., 242 U.S. 470, 485 (1917). If the meaning is clear,
the agency must ``give effect to the unambiguously expressed intent of
Congress.'' Barnhart v. Walton, 535 U.S. 212, 217-218 (U.S. 2002),
citing Chevron v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-843 (1984). This principle is called `the plain meaning rule.'
The rule ``generally means when the language of the statute is clear
and not unreasonable or illogical in its operation, the court may not
go outside the statute to give it a different meaning.'' 2A Sutherland
Statutory Construction section 46:1 (7th ed.) (Nov. 2012).
    If after looking at the language of the statute the meaning of the
statute remains unclear (e.g., the statute is silent or ambiguous),
courts attempt to ascertain the intent of the legislature by looking at
legislative history. 3A Sutherland Statutory Construction section 66:3
(7th ed.) (Nov. 2012). ``Where, as here, resolution of a question of
Federal law turns on a statute and the intention of Congress, we look
first to the statutory language and then to the legislative history if
the statutory language is unclear.'' Blum v. Stenson, 465 U.S. 886,
896-897 (1984). When a Federal agency interprets a statute, the primary
focus is to determine the intent of Congress. Where different
interpretations are possible, a court must look to reasons for the
enactment of the statute and the purposes to be gained by it and
construe the statute in the manner which is consistent with the law's
purpose. Dole v. United Steelworkers of America, 494 U.S. 26, 35
(1990). Where a statute ``is silent or ambiguous with respect to the
specific issue,'' an agency's interpretation must be sustained if it is
``based on a permissible construction'' of the Act. Chevron, 476 U.S.
at 843. The U.S. Supreme Court has ``long recognized that considerable
weight should be accorded to an executive

department's construction of a statutory scheme it is entrusted to
administer . . . .'' Chevron at 844. ``[T]he well-reasoned views of the
agencies implementing a statute `constitute a body of experience and
informed judgment to which courts and litigants may properly resort for
guidance.' '' Bragdon v. Abbott, 524 U.S. 624, 642 (1998), citing
Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944).
    While the plain language of these statutes is not precise and could
be subject to alternate interpretations, FAA believes that there are
compelling reasons for the agency's past reading of the statutes.
Alternate interpretations, while possible, tend to be inconsistent with
the basic purposes of the legislation, including the need to avoid
``hidden taxation,'' and may not adequately account for language in
legislative history indicating intent for a broader reach of the
revenue use requirements.

    Statutory construction, however, is a holistic endeavor. A
provision that may seem ambiguous in isolation is often clarified by
the remainder of the statutory scheme because the same terminology
is used elsewhere in a context that makes its meaning clear . . . or
because only one of the permissible meanings produces a substantive
effect that is compatible with the rest of the law. United Savings
Association of Texas v. Timbers of Inwood Forest Associates, Ltd.,
484 U.S. 365, 371 (1988).

    Courts harmonize the various parts of a statute if possible,
reconciling them in the manner that best carries out the overriding
purpose of the legislation. 3B Sutherland Statutory Construction
section 75:2 (7th ed.) (Nov. 2012).
    Reasons for FAA's interpretation of Sections 47107(b) and 47133,
and for the clarification of policy on use of aviation fuel tax
proceeds proposed in this Notice, include:
    Local taxes. The term ``local taxes'' is reasonably interpreted to
include both local government and state government taxes. ``Local''
refers to the geographic locale where the tax is collected, not to
local government. This interpretation is supported both by the
statutory language and by legislative intent (see 1987 U.S.C.C.A.N.
vol. 5, pp. 2613-2614 (H.R. Rep. No. 100-123(II)); 2638-2639 (H.R. Rep.
No. 100-484)):
     The provisions permitting certain uses of a ``state tax''
in sections 47107(b)(3) and 47133(c) would be unnecessary and
meaningless unless state taxes were included in the requirements of
sections 47107(b)(1) and (2) and 47133(a), which refer only to
``local'' taxes.
     There is no apparent rationale for distinguishing between
local government and state government taxes for accomplishing the
purposes of the Federal airport revenue use requirements, i.e., the
prohibition on airport revenue diversion and avoidance of hidden taxes
on aviation. Under the statutory framework, state governments are
allowed slightly broader use of proceeds from aviation fuel taxes--
i.e., support of state aviation programs--but otherwise all state and
local government taxes on aviation fuel are treated identically.
     Requiring aviation use of local government proceeds but
not state proceeds from taxes on aviation fuel would substantially
undermine the purpose and effect of Sections 47107(b) and 47133, and
would be inconsistent with the congressional intent behind the 1987
amendment regarding taxation of aviation fuel.
     The AAIA uses the term ``political subdivisions of the
state'' elsewhere in the statute where the intent is to refer to local
government.
    The FAA seeks comment on whether there are other reasonable
interpretations regarding local taxes that are not enumerated here and
should be considered by the FAA.
    Taxes on aviation fuel. Given the basic purpose of the revenue use
statutes, the term ``taxes on aviation fuel'' cannot reasonably be
construed to mean only taxes specifically on aviation fuel, and not to
include taxes on petroleum products generally or general sales taxes on
all goods that touch on aviation fuel. It seems to us that the most
reasonable test is whether payment of the tax is required for sale of
aviation fuel, not what the tax is called or whether other products are
also subject to the tax. For a number of reasons, FAA has to date
interpreted sections 47107(b) and 47133 to apply to all taxes that
touch the sale of aviation fuel, regardless of whether the taxes are
specific or general. These reasons include:
     Limiting the application of sections 47107(b) and 47133
only to taxes specifically imposed solely on aviation fuel would
substantially defeat the legislative purpose of these statutes. If
revenues from taxes on aviation fuel could be used for any purpose
simply because the tax also applied to other products, then state and
local governments could easily structure taxes to circumvent the effect
of sections 47107(b) and 47133.
     The amendment as originally adopted by Congress in 1987
referred to ``any local taxes on aviation fuel.'' The word ``any'' was
removed in the 1994 recodification of the AAIA, but Congress made clear
in adopting the recodification that changes in wording would not make
any change in the meaning or construction of the statute. See Public
Law 103-272, section 1 (July 5, 1994). In our view, ``any'' connotes
broad applicability and without restriction.
     Legislation enacted in 1994 and 1996 adopted increasingly
stringent requirements for use of airport revenue and added sanctions
for violations of revenue use requirements, including civil penalty
authority for violations of 47107(b) and 47133. This indicates
congressional support for the most effective administration of the
revenue use requirements, and argues against an interpretation that
effectively leaves aviation fuel tax proceeds subject to potentially
unlimited state taxation.
    The FAA seeks comments on whether there are other reasonable
interpretations of the phrase ``taxes on aviation fuel'' that are not
enumerated here and should be considered by the FAA.
    Other taxes. The conference report on the 1987 amendment to the
AAIA states that:
    The assurance requiring that local taxes on aviation fuel must be
spent on the airport is intended to apply to local fuel taxes only, and
not to other taxes imposed by local governments, or to state taxes.
(1987 U.S.C.C.A.N. vol. 5, pp. 2613-2614 (H.R. Rep. No. 100-123(II));
2638-2639 (H.R. Rep. No. 100-484))
    While this could be read out of context to appear to exempt all
state taxes, including taxes on aviation fuel, from the statute, the
report states in the next sentence that:

    * * * a state may commit the proceeds from state aviation fuel
taxes to state aviation agencies * * * (H.R. Rep. No. 100-4844, p.
2638-2639)

    Because this second sentence expressly refers to a permitted but
still limited use of state aviation fuel tax revenues, it is clear that
Congress intended for the statute to apply to such revenues. In our
view, the reasonable reading of both provisions together is to take the
term ``other taxes imposed by local governments, or to state taxes'' to
mean taxes collected from sale of products other than aviation fuel. In
other words, simply because a general tax collects revenues from sales
of both aviation fuel and other products, the total revenues from the
tax are not considered airport revenue. Only the tax collections from
the sale of aviation fuel are subject to the statutory revenue use
requirements. ``Other taxes'' means tax revenues collected from sale of
products other than aviation fuel.
    Grandfathered taxes. Sections 47107(b) and 47133 both contain a

``grandfather'' exception for taxes in effect on December 30, 1987. By
itself the term ``in effect'' could mean enacted but not imposed, or
enacted and actually being collected. The conference report to the
Federal Aviation Reauthorization Act of 1996 clarifies congressional
intent toward the scope of this exception:

    The conferees want to clarify that if a local fuel tax was
enacted or adopted before December 30, 1987, but for which
collections were not made until some significant period of time
after December 30, 1987, it shall not be grandfathered pursuant to
this section and all proceeds of such a tax must be used for the
capital or operating costs of the airport, the local airport system,
or pursuant to paragraph (3) of subsection (a).

    Accordingly, the fact that an ordinance permitting taxes on
aviation fuel existed in 1987 is not sufficient to exempt the tax from
the revenue use requirements. A tax ordinance is grandfathered only if
collection of the tax revenues on the sale of aviation fuel was
initiated before December 30, 1987 or within a relatively short period
after that date. If tax collections begin later, then the proceeds must
be used for the purposes in sections 47107(b) and 47133.

Compliance

    Airport sponsors. An airport sponsor applying for an AIP grant
agrees to comply with a number of standard grant assurances, which are
published on FAA's Airports Web site. See http://www.faa.gov/airports/aip/grant_assurances/. Grant Assurance no. 25, Airport Revenues,
incorporates the provisions of 49 U.S.C. 47107(b) in each AIP grant
agreement. So, executing a grant application involves assuring FAA that
fuel taxes collected on aviation fuel will only be used for certain
aviation purposes. Neither section 47107(b) nor section 47133 limits
this requirement to taxes imposed by the airport sponsor; the assurance
applies to any state or local government tax on aviation fuel. As FAA
noted in a 2009 letter to the Hall County Airport Authority, Nebraska,
regarding proposed state legislation to tax aviation fuel:

    * * * enactment of the [state] legislation to permit general use
of the proceeds from the aviation fuel tax could jeopardize
continued federal funding of airport and noise abatement projects at
Federally-assisted airports throughout the [state].

    Non-sponsor state and local governments. Title 49 U.S.C. 47133
contains a prohibition on use of aviation fuel tax proceeds for general
purposes. This is a direct and self-implementing statutory requirement,
and does not rely on contract terms, as does section 47107(b). Congress
has provided two means for Federal enforcement of the terms of section
47133: Civil penalty authority in 49 U.S.C. 46301(a), and application
to U.S. district court for judicial enforcement pursuant to 49 U.S.C.
47111(f).
    Prospective application. In determining that a clarification of
agency policy on use of aviation fuel tax proceeds is warranted, FAA is
mindful that entities affected by this policy may not have fully
understood the scope of Federal requirements in the past. Accordingly,
it is FAA's intention to apply any final clarification of policy
adopted in this proceeding prospectively, and to allow affected parties
a reasonable time to bring state and local government taxes into
compliance.
    Request for comments. The clarification of policy proposed in this
notice is intended to clarify FAA's interpretation of statutory
requirements for use of airport revenue. In view of the potential
interests of aircraft operators, aviation service providers, the
aviation fuel industry, state and local taxing authorities and others
in the Federal requirements applicable to aviation fuel taxes, this
notice requests public comment on the proposed policy clarification.

Clarification of the Revenue Use Policy on Use of Proceeds From Taxes
on Aviation Fuel

    In consideration of the foregoing, FAA proposes to amend the Policy
and Procedures Concerning the Use of Airport Revenue, published in the
Federal Register at 64 FR 7696 on February 16, 1999, as follows:
    1. Section II, Definitions, paragraph B.2, is revised to read:

    State or local taxes on aviation fuel (except taxes in effect on
December 30, 1987) are considered to be airport revenue subject to
the revenue-use requirement. However, revenues from state taxes on
aviation fuel may be used to support state aviation programs, and as
airport revenue can be used for noise mitigation purposes, on or off
the airport.

    2. In Section IV, Statutory Requirements for the Use of Airport
Revenue, renumber paragraphs D and E as paragraphs E and F, and add a
new paragraph D to read as follows:

    D. Use of Proceeds From Taxes on Aviation Fuel.
    1. Federal law limits use of the proceeds from a state or local
government tax on aviation fuel to the purposes permitted in those
sections, as described in IV.A. of this Policy. Proceeds from tax on
aviation fuel may be used for any purpose for which other airport
revenues may be used, and may also be used for a state aviation
program.
    2. Airport sponsors that are subject to an AIP grant agreement
have agreed, as a condition of receiving a grant, that the proceeds
from a state or local government tax on aviation fuel will be used
only for the purposes listed in paragraph 1. This commitment is not
limited to taxes on aviation fuel imposed by the airport operator,
and includes taxes on aviation fuel imposed by state government and
other local jurisdictions.
    3. The Federal limits on use of aviation fuel tax proceeds apply
at an airport that is the subject of Federal assistance (as defined
in Section II.b.2 of this Policy), whether or not the airport is
currently subject to the terms of an AIP grant agreement, and
regardless of the state or local jurisdiction imposing the tax.
    4. The limits on use of aviation fuel tax revenues established
by section 47107(b) and section 47133:
    a. Apply to a tax imposed by either a state government or a
local government taxing authority;
    b. Apply to any tax on aviation fuel, whether the tax is imposed
only on aviation fuel or is imposed on other products as well as
aviation fuel. However, the limits on use of revenues apply only to
the amounts of tax collected specifically for the sale, purchase or
storage of aviation fuel, and not to the amounts collected for
transactions involving products other than aviation fuel under the
same general tax law;
    c. apply to taxes on all aviation fuel dispensed at an airport,
regardless of where the taxes on the sale of fuel at the airport are
collected; and
    d. apply to a new assessment or imposition of a tax on aviation
fuel, even if the tax could have been imposed earlier under a
statute enacted before December 30, 1987.

    Issued in Washington, DC on November 14, 2013.
Randall S. Fiertz,
Director, Office of Airport Compliance and Management Analysis.
[FR Doc. 2013-27860 Filed 11-19-13; 11:15 am]
BILLING CODE 4910-13-P


  SEQ CHAPTER \h \r 1

MEMORANDUM

SUBJECT:	Concurrence on Region’s approval of the State of
Tennessee’s (State) Long Term Enhanced Surface Water Treatment and
Stage 2 Disinfection By-Products Rules

FROM:	Wayne Lee

		Office of Water Law Support

THRU:	Carol Baschon, Acting Chief

		Office of Water Law Support

TO:		Mary J. Wilkes

		Regional Counsel and Director

		Office of Environmental Accountability (OEA)

	The purpose of this memorandum is to inform you that I recommend that
you concur with the Water Management Division’s recommendation to
approve the State’s revision of its Public Water System Supervision
Program (the State’s Safe Drinking Water Act primacy program) to
include the authority to implement and enforce the Long Term Enhanced
Surface Water Treatment (LT2 SWT) and Stage 2 Disinfection By-Products
(S2 DBP) Rules (Rules).  The State’s primacy revision applications
represent the first primacy packages submitted for review for both LT2
SWT and S2 DBP Rules in Region 4.  These packages were determined to be
complete and approvable and DWS granted Interim Primacy on September 13,
2006.  The DWS staff completed a review of both primacy application
packages, and addressed and corrected all comments with the State.  The
State’s primacy revision application for both Rules was deemed
complete and final in December 2006.

	My legal review of the State’s Rule applications included an
examination of EPA and State Rules, crosswalks, and comments that
resulted from the DWS’s staff review.  The LT2 SWTR and S2 DBPR
primacy revision packages are no less stringent.  Consequently, I
recommend concurrence on the approval of the State’s revision for LT2
SWTR and S2 DBPR.  On August 28, 2007, Region 4 received programmatic
concurrence from the Headquarters Office of Ground Water and Drinking
Water (OGWDW), and has delegated all future review and approvals for LT2
SWTR and S2 DBPR primacy revision applications to the Office of Regional
Counsel (ORC).

	Pursuant to authority as the Attorney General and Reporter for the
State, and in accordance with the Safe Drinking Water Act, as amended 42
U.S.C. § 300 et seq., and the guidelines promulgated thereunder (64
Fed, Reg. 5915 February 5, 1999) and 40 C.F.R. § 141.12(c)(1)(iii), the
Attorney General certifies that the laws of the State to carry out the
program set forth in the “Program Description” submitted by the
Tennessee Department of Environment and Conservation (TDEC) have been
duly adopted and enforceable.

  PAGE  2


[Federal Register Volume 86, Number 72 (Friday, April 16, 2021)]
[Notices]
[Page 20144]
[FR Doc No: 2021-07842]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 5124-022]

Washington Electric Cooperative, Inc.; Notice of Intent To
Prepare an Environmental Assessment

    On October 30, 2020, Washington Electric Cooperative, Inc. filed an
application for a subsequent minor license to continue operating the
existing 933-kilowatt North Branch No. 3 Hydroelectric Project No. 5124
(North Branch 3 Project or project). The project is located on the
North Branch Winooski River in Washington County, Vermont. The project
does not occupy federal land.
    In accordance with the Commission's regulations, on January 28,
2021, Commission staff issued a notice that the project was ready for
environmental analysis (REA notice). Based on the information in the
record, including comments filed on the REA notice, staff does not
anticipate that licensing the project would constitute a major federal
action significantly affecting the quality of the human environment.
Therefore, staff intends to prepare a draft and final Environmental
Assessment (EA) on the application to license the North Branch 3
Project.
    The EA will be issued and circulated for review by all interested
parties. All comments filed on the EA will be analyzed by staff and
considered in the Commission's final licensing decision.
    The application will be processed according to the following
schedule. Revisions to the schedule may be made as appropriate.

------------------------------------------------------------------------
                Milestone                           Target date
------------------------------------------------------------------------
Commission issues Draft EA..............  October 2021.
Comments on Draft EA....................  November 2021.
Commission issues Final EA..............  April 2022.\1\
------------------------------------------------------------------------
\1\ The Council on Environmental Quality's (CEQ) regulations under 40
  CFR 1501.10(b)(1) require that EAs be completed within 1 year of the
  federal action agency's decision to prepare an EA. This notice
  establishes the Commission's intent to prepare an EA for the North
  Branch 3 Project. Therefore, in accordance with CEQ's regulations, the
  Final EA must be issued within 1 year of the issuance date of this
  notice.

    Any questions regarding this notice may be directed to Michael Tust
at<PHONE_NUMBER> or<EMAIL_ADDRESS>
    Dated: April 12, 2021.
Kimberly D. Bose,
Secretary.
[FR Doc. 2021-07842 Filed 4-15-21; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: September 26, 2008 (Volume 73, Number 188)]
[Rules and Regulations]
[Page 55751-55752]
[DOCID:fr26se08-11]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2007-0011; FRL-8721-5]
RIN 2060-AN72

Standards of Performance for Petroleum Refineries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; reconsideration and stay of effective date.

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

SUMMARY: This action grants Petitioners' request for reconsideration
and Petitioners' request for a stay until December 25, 2008 for certain
specific provisions in the newly promulgated standards of performance
for new, modified, or reconstructed process units at petroleum
refineries. The effective date for the final rule promulgating
amendments to the current standards of performance for petroleum
refineries has not changed and remains June 24, 2008.

DATES: Effective September 26, 2008, in Title 40 CFR part 60, subpart
Ja, Sec.  60.100a(c), the definition of ``flare'' in Sec.  60.101a, and
Sec. Sec.  60.102a(g), 60.107a(d), and 60.107a(e) are stayed until
December 25, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Office of Air
Quality Planning and Standards, Sector Policies and Programs Division,
Coatings and Chemicals Group (E143-01), Environmental Protection
Agency, Research Triangle Park, NC 27711, telephone number: (919) 541-
0884; fax number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    The Environmental Protection Agency published a final rule on June
24, 2008 that contained the following: (1) Final amendments to the
existing refineries new source performance standards (NSPS) in 40 CFR
part 60, subpart J; and (2) a new refineries NSPS in 40 CFR part 60,
subpart Ja (73 FR 35838). The preamble to that rule contained an
incorrect effective date and contained an error in the Congressional
Review Act (CRA) statement in the Statutory and Executive Order Reviews
section. To address that error, the effective date of NSPS subpart Ja
was stayed for 60 days until September 26, 2008. The amendments in NSPS
subpart J were not affected and remained effective from June 24, 2008.
    On June 13, 2008, the American Petroleum Institute (API), the
National Petrochemical and Refiners Association (NPRA), and the Western
States Petroleum Association (WSPA) (collectively referred to as
``Industry Petitioners'') requested an administrative stay under Clean
Air Act (CAA) section 307(d)(7)(B) of certain provisions of 40 CFR part
60, subpart Ja. On July 25, 2008, the Industry Petitioners sought
reconsideration of the provisions of NSPS subpart Ja for which they had
previously requested a stay. Specifically, Industry Petitioners
requested that EPA reconsider the following provisions in NSPS subpart
Ja: (1) The definition of ``modification'' (40 CFR 60.100a(c)); (2) the
definition of ``flare'' (40 CFR 60.101a); (3) the fuel gas combustion
device sulfur limits as they relate to flares (40 CFR 60.102a(g)(1));
(4) the flow limit for flare systems (40 CFR 60.102a(g)(3)); (5) the
total reduced sulfur and flow monitoring requirements for flares (40
CFR 60.107a(d), (e)); and (6) the nitrogen oxide (NOX) limit
for process heaters (40 CFR 60.102a(g)(2)). Subsequently, on August 21,
2008, the Industry Petitioners identified additional issues for
reconsideration.
    On August 25, 2008, HOVENSA, LLC (``HOVENSA'') filed a petition for
reconsideration of the following provisions of 40 CFR part 60, subpart
Ja: (1) the NOX limit for process heaters (40 CFR
60.102a(g)(2)); (2) the flaring requirements, including the definitions
of ``flare'' and ``modification'' (40 CFR 60.100a(c), 60.101a,
60.102a(g)-(i), 60.103a(a)-(b)); and (3) the depressurization work
practice standard for delayed coking units (40 CFR 60.103a(c)). The
petition also requested that EPA stay the effectiveness of these
provisions during the reconsideration process.
    EPA received a third petition for reconsideration on August 25,
2008, from the Environmental Integrity Project, Sierra Club, and
Natural Resources Defense Council (``Environmental Petitioners'')
requesting EPA reconsider several aspects of 40 CFR part 60, subpart
Ja. The petition identifies the following issues for reconsideration:
(1) EPA's decision not to promulgate NSPS for carbon dioxide and
methane emissions from refineries; (2) the flaring requirements (40 CFR
60.100a(c), 60.101a, 60.102a(g)-(i), 60.103a(a)-(b)); (3) the
NOX limit for fluid catalytic cracking units (FCCU) (40 CFR
60.102a(b)(2)); and (4) the particulate matter limit for FCCU (40 CFR
60.102a(b)(1)). Unlike the other Petitioners, Environmental Petitioners
did not seek a stay of these provisions during reconsideration.
    EPA has begun reviewing all of these petitions and is addressing in
this notice only those issues for which Industry Petitioners and
HOVENSA sought reconsideration and a stay of those specific provisions
during reconsideration. EPA is taking no action on all of the other
issues raised in the petitions but will consider all of the outstanding
issues in a future notice.
    In this action, EPA is granting reconsideration with respect to the
following provisions: (1) The definition of ``modification;'' (2) the
definition of ``flare;'' (3) the fuel gas combustion device sulfur
limits as they apply to flares; (4) the flow limit for flare systems;
(5) the total reduced sulfur and flow monitoring requirements for
flares; and (6) the NOX limit for process heaters. We are
granting reconsideration on these specific issues because the grounds
for Petitioners' objections arose after the public comment period (but
within the time specified for judicial review) and the objections are
of central relevance to the outcome of the final rule pursuant to CAA
section 307(d)(7)(B).
    EPA is also granting Industry Petitioners and HOVENSA's request for
a 90-day stay of the following provisions that are under
reconsideration (see CAA section 307(d)(7)(B)): (1) The definition of
``modification;'' (2) the definition of ``flare;'' (3) the fuel gas
combustion device sulfur limits; (4) the flow limit for flare systems;
(5) the total reduced sulfur and flow monitoring requirements for
flares; and (6) the NOX limit for process heaters. We are
staying

the first five provisions listed above because the final approach to
regulating flare emissions was first introduced in the final rule and
represented significant changes from the proposal. Facilities had no
chance to comment on these new requirements in the final rule.
Accordingly, we have reason to believe that certain facilities may be
out of compliance with requirements for which they had no notice or
time to come into compliance. Moreover, a stay is appropriate because
in reconsidering these requirements both the affected universe and the
substantive requirements could change. It should be noted that as a
consequence of staying the fuel gas combustion device sulfur limits as
they apply to flares we are staying the requirement for all fuel gas
combustion devices. The effect of this action is to delay compliance
obligations for 90 days of the sulfur limits under NSPS subpart Ja for
fuel gas combustion devices other than flares such as process heaters
and boilers. Although this is not a preferred outcome, it is
unavoidable due to the structure of the rule and is an unintended
consequence of this action.
    We are staying the sixth provision listed above because information
provided by Industry Petitioners and HOVENSA has led the Agency to
question whether the emission limits in the final rule are achievable
and represent best demonstrated technology. The information provided
has convinced us that certain facilities may suffer undue hardship in
attempting compliance with this limit. Granting a stay of this
requirement while we reconsider this limit is, therefore, necessary to
prevent any possible harm that may occur.
    EPA is denying HOVENSA's request for a 90-day stay of the
depressurization work practice standard for delayed coking units.
HOVENSA provided no individual demonstration regarding its need for EPA
to stay this work practice standard. HOVENSA provided no specific
information or explanation of why staying this provision of a
nationally applicable rule is the appropriate recourse for protecting
its individual facility. HOVENSA's generalized assertions of incurring
compliance costs absent a stay are not enough reason for granting this
request for a stay. EPA, therefore, denies HOVENSA's request for a stay
of this provision.
    All other requirements promulgated in 40 CFR part 60, subpart Ja
become effective as of September 26, 2008.
    EPA will address the substantive aspects of this reconsideration in
a separate notice in the Federal Register.

II. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). In
addition, this action does not impose any enforceable duty or contain
any unfunded mandate as described in the Unfunded Mandates Reform Act
of 1995 (Pub. L.104-4), or require prior consultation with State
officials as specified by Executive Order 12875 (58 FR 58093, October
28, 1993), or involve special consideration of environmental justice
related issues as required by Executive Order 12898 (59 FR 7629,
February 16, 1994). Because this action is not subject to notice-and-
comment requirements under the Administrative Procedure Act or any
other statute, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).
This action also does not have tribal implications because it will not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action also is not subject to
Executive Order 13045 ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997). The
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action
does not impose an information collection burden under the provisions
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). EPA's
compliance with these statutes and Executive Orders for the underlying
rule is discussed in the June 24, 2008 Federal Register document.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
notice and other required information to the United States Senate, the
United States House of Representatives, and the Comptroller General of
the United States prior to publication of the rule in the Federal
Register. The stay of these particular provisions in NSPS subpart Ja is
not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure,
Air pollution control, Monitoring, reporting and recordkeeping.

    Dated: September 22, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Sec.  60.100a  [Amended]

    2. In Sec.  60.100a, paragraph (c) is stayed from September, 26,
2008, until December 25, 2008.

Sec.  60.101a  [Amended]

0
3. The definition of ``flare'' in Sec.  60.101a is stayed from
September, 26, 2008, until December 25, 2008.

Sec.  60.102a  [Amended]

0
4. In Sec.  60.102a, paragraph (g) is stayed from September, 26, 2008,
until December 25, 2008.

Sec.  60.107a  [Amended]

0
5. In Sec.  60.107a, paragraphs (d) and (e) are stayed from September,
26, 2008, until December 25, 2008.

[FR Doc. E8-22692 Filed 9-25-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 140 (Tuesday, July 22, 2014)]
[Notices]
[Pages 42619-42620]
[FR Doc No: 2014-17295]

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

SECURITIES AND EXCHANGE COMMISSION

[File No. 500-1]

mBeach Software, Inc.; Order of Suspension of Trading

July 18, 2014.
    mBeach Software, Inc. (CIK No. 1465856) is a Florida corporation
located in Tel Aviv, Israel with a class of securities registered with
the Securities and Exchange Commission (``Commission'') pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (``Exchange
Act''). mBeach Software, Inc. is delinquent in its periodic filings
with the Commission, having not filed any periodic reports since it
filed a Form 10-Q for the period ended September 30, 2010, which
reported a net loss of $118,018 for the prior nine months. As of June
30, 2014, the company's stock (symbol ``MBHS'') was quoted on OTC Link
(previously, ``Pink Sheets'') operated by OTC Markets Group, Inc., had
seven market makers, and was eligible for the ``piggyback'' exception
of Exchange Act Rule 15c2-11(f)(3).
    It appears to the Commission that there is a lack of current and
accurate information concerning the securities of

mBeach Software, Inc. because it has not filed any periodic reports
since its Form 10-Q for the period ended September 30, 2010. The
Commission is of the opinion that the public interest and the
protection of investors require a suspension of trading in the
securities of mBeach Software, Inc.
    Therefore, it is ordered, pursuant to Section 12(k) of the Exchange
Act, that trading in the securities of mBeach Software, Inc. is
suspended for the period from 9:30 a.m. EDT on July 18, 2014, through
11:59 p.m. EDT on July 31, 2014.

    By the Commission.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2014-17295 Filed 7-18-14; 4:15 pm]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 156 (Friday, August 12, 2016)]
[Notices]
[Pages 53524-53527]
[FR Doc No: 2016-19175]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78497; File No. SR-NYSEARCA-2016-110]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Amending Section 3
of NYSE Arca Equities Rule 8 To Extend the Effectiveness of the
Exchange Traded Product Incentive Program

August 8, 2016.
    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 July 28, 2016, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') 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 Substance
of the Proposed Rule Change

    The Exchange proposes to amend Section 3 of NYSE Arca Equities Rule
8 (Trading of Certain Equity Derivatives) to extend the effectiveness
of the Exchange Traded Product (``ETP'') Incentive Program until July
31, 2017. 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.

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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Section 3 of NYSE Arca Equities Rule
8 (Trading of Certain Equity Derivatives) to extend the effectiveness
of the ETP Incentive Program \4\ until July 31, 2017.\5\
---------------------------------------------------------------------------

    \4\ The Commission approved the ETP Incentive Program on a pilot
basis in Securities Exchange Act Release No. 69706 (June 6, 2013),
78 FR 35340 (June 12, 2013) (SR-NYSEArca-2013-34) (``ETP Incentive
Program Release''). The Exchange subsequently filed to extend the
original pilot program for the ETP Incentive Program until September
4, 2015. See Securities Exchange Act Release No. 72963 (September 3,
2014), 79 FR 53492 (September 9, 2014) (SR-NYSEArca-2014-99) (notice
of filing and immediate effectiveness of proposed rule change
extending effectiveness of the ETP Incentive Program until September
4, 2015). Most recently, the Exchange filed to extend the pilot
program for the ETP Incentive Program until September 4, 2016 (See
Securities Exchange Act Release No. 75846 (September 4, 2015), 80 FR
54646 (September 10, 2015) (SR-NYSEArca-2015-78) (notice of filing
and immediate effectiveness of proposed rule change extending
effectiveness of the ETP Incentive Program until September 4, 2016)
(``2015 Extension Notice''). In addition, the Exchange filed a
proposed rule change to amend Rules 7.25(c) and 8.800(b) to provide
that exchange-traded products (``ETPs'') already listed on the
Exchange can be admitted to the ETP Incentive Program on a monthly
basis rather than at the beginning of each quarter. See Securities
Exchange Act Release No. 75282 (June 24, 2015), 80 FR 37340 (June
30, 2015) (SR-NYSEArca-2015-52) (notice of filing and immediate
effectiveness of proposed rule change amending NYSE Arca Equities
Rules 7.25 and 8.800 to allow an issuer to elect for its ETP to
participate in the Crowd Participant Program or the ETP Incentive
Program monthly rather than quarterly and to extend the
effectiveness of the Crowd Participant Program until June 23, 2016).
In SR-NYSEArca-2015-52, the Exchange stated that the Exchange
anticipates that expanding the opportunity for issuers to enter the
ETP Incentive Program will facilitate the provision of extra
liquidity to lower-volume ETPs by incentivizing more Market Makers
to take Lead Market Maker (``LMM'') assignments in certain lower-
volume ETPs.
    \5\ The ETP Incentive Program is scheduled to end on September
4, 2016. For purposes of the ETP Incentive Program, ETPs include
securities listed on the Exchange under the following rules: NYSE
Arca Equities Rules 5.2(j)(3) (Investment Company Units), 5.2(j)(5)
(Equity Gold Shares), 8.100 (Portfolio Depositary Receipts), 8.200
(Trust Issued Receipts), 8.201 (Commodity-Based Trust Shares), 8.202
(Currency Trust Shares), 8.203 (Commodity Index Trust Shares), 8.204
(Commodity Futures Trust Shares), 8.300 (Partnership Units), 8.600
(Managed Fund Shares), and 8.700 (Managed Trust Securities).
---------------------------------------------------------------------------

    The ETP Incentive Program is a pilot program designed to
incentivize quoting and trading in ETPs and to add competition among
existing qualified Market Makers.\6\ In addition, the ETP Incentive
Program is designed to enhance the market quality for ETPs by
incentivizing Market Makers to take LMM \7\ assignments in certain
lower-volume ETPs by offering an alternative fee structure for such
LMMs that would be funded from the Exchange's general revenues. The ETP
Incentive Program is designed to improve the quality of market for
lower-volume ETPs, thereby incentivizing issuers to list them on the
Exchange. Moreover, as described in the ETP Incentive Program Release,
the Exchange believes that the ETP Incentive Program, which is entirely
voluntary, encourages competition among markets for issuers' listings
and among Market Makers for LMM assignments.
---------------------------------------------------------------------------

    \6\ A Market Maker is an Equity Trading Permit Holder that acts
as a Market Maker pursuant to NYSE Arca Equities Rule 7. See NYSE
Arca Equities Rule 1.1(v). An Equity Trading Permit Holder is a sole
proprietorship, partnership, corporation, limited liability company,
or other organization in good standing that has been issued an
Equity Trading Permit. See NYSE Arca Equities Rule 1.1(n).
    \7\ The LMM program is designed to incentivize firms to take on
the LMM designation and foster liquidity provision and stability in
the market. In order to accomplish this, the Exchange currently
provides LMMs with an opportunity to receive incrementally higher
transaction credits and incur incrementally lower transaction fees
(``LMM Rates'') compared to standard liquidity maker-taker rates
(``Standard Rates''). The Exchange generally employs a maker-taker
transactional fee structure, whereby an Equity Trading Permit Holder
that removes liquidity is charged a fee (``Take Rate''), and an
Equity Trading Permit Holder that provides liquidity receives a
credit (``Make Rate''). See Trading Fee Schedule, available at
https://www.nyse.com/publicdocs/nyse/markets/nyse-arca/NYSE_Arca_Marketplace_Fees.pdf.
---------------------------------------------------------------------------

    The Exchange proposes to extend the current operation of the ETP
Incentive Program until July 31, 2017 to allow the Commission, the
Exchange, LMMs, and issuers to further assess the impact of such
program before proposing to make it available to other securities and
implementing the program on a permanent basis.\8\ Issuers began
participating in the ETP Incentive Program following the extension of
the first pilot period. The Exchange believes that extending the ETP
Incentive Program pilot period for an additional approximately eleven
months will provide additional time to assess the impact of the program
for these issuers and to provide time for additional issuers to
participate in the ETP Incentive Program so that the Commission, the
Exchange, LMMs, and issuers may assess the impact of the program before
making it available to other securities or implementing it on a
permanent basis.\9\
---------------------------------------------------------------------------

    \8\ The Exchange notes that any proposed further continuance of
the ETP Incentive Program, a proposal to make the ETP Incentive
Program permanent, or a proposal to make such program available to
other securities would require a rule filing with the Commission
pursuant to Section 19(b) of the Act and Rule 19b-4 thereunder.
    \9\ The Exchange has provided to the Commission monthly market
quality reports relating to the ETP Incentive Program for the period
October 2014 through June 2016, which are posted to the Exchange's
Web site at https://www.nyse.com/products/etp-incentive-program.
---------------------------------------------------------------------------

    In accordance with the 2015 Extension Notice, the Exchange, on
April 4, 2016, posted on its Web site an ``Assessment Report''
regarding the ETP

Incentive Program.\10\ The Assessment Report examined the performance
of the ETPs in the Incentive Program during the entire period in which
they were in the program, and provided statistical analyses with
respect to the following factors: volume (consolidated average daily
volume (``CADV'') and NYSE Arca average daily volume); national best
bid and offer (``NBBO'') bid/ask spread differential; LMM participation
rates; NYSE Arca market share; LMM time spent at the inside; LMM time
spent within $0.03 of the inside; percentage of time NYSE Arca had the
best price with the best size; LMM quoted spread; and LMM quoted depth.
The Assessment Report assessed whether the ETP Incentive Program has
met its proposed goals to incentivize market makers to take LMM
assignments in certain lower-volume ETPs. The Assessment Report
concluded that, while the results in certain cases show strong evidence
of higher market quality in some ETPs based on participation in the ETP
Incentive Program, the data is less conclusive for other ETPs due, in
large part to the limited data available. In addition, a number of
variables impact the ability to assess the limited data described in
the Assessment Report, including market conditions, product
variability, and product inception date. Therefore, the Assessment
Report concluded that it is difficult to state conclusively whether the
Incentive Program has met its objectives. Consistent with the
conclusions of the Assessment Report, the Exchange believes that the
Incentive Program should continue as a pilot program for an additional
approximately eleven months in order to provide more time for
participation so that the Exchange, the Commission, and market
participants can meaningfully assess whether the Incentive Program will
meet its proposed goals.
---------------------------------------------------------------------------

    \10\ The Assessment Report is available at https://www.nyse.com/publicdocs/nyse/products/etp-funds/ETP_Incentive_Program_Assessment_Report.pdf.
---------------------------------------------------------------------------

    Prior to the end of the pilot period ending July 31, 2017, the
Exchange will post a report relating to the ETP Incentive Program (the
``Assessment Report'') on its Web site three months before the end of
the pilot period or at the time it files to terminate the pilot,
whichever comes first. The proposed Assessment Report would list the
program objectives that are the focus of the pilot and, for each,
provide (a) a statistical analysis that includes evidence that is
sufficient to inform a reader about whether the program has met those
objectives during the pilot period, along with (b) a narrative
explanation of whether and how the evidence indicates the pilot has met
the objective, including both strengths and weaknesses of the evidence
in this regard. The Assessment Report also would include a discussion
of (a) the procedures used in selecting any samples that are used in
constructing tables or statistics for inclusion in the Assessment
Report, (b) the definitions of any variables and statistics reported in
the tables, including test statistics, (c) the statistical significance
levels of any test statistics and (d) other statistical or qualitative
information that may enhance the usefulness of the Assessment Report as
a basis for evaluating the performance of the program. The Assessment
Report would present statistics on product performance relative to the
performance of comparable or other suitable benchmark products
(including test statistics that permit the reader to evaluate the
statistical significance of any differences reported or discussed in
the report), along with information on the procedures that were used to
identify those comparable or benchmark products, the characteristics of
each comparable or benchmark products, the characteristics of each
product that is the focus of the pilot, the procedures used in
selecting the time horizon of the sample and the sensitivity of
reported statistics to changes in the time horizon of the sample.
    This filing is not otherwise intended to address any other issues
and the Exchange is not aware of any problems that Equity Trading
Permit Holders or issuers would have in complying with the monthly
selection provision or the proposed extension of the pilot program.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Act,\11\ in general, and furthers the objectives of Section 6(b)(5) of
the Act,\12\ in particular, in that it is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the ETP Incentive Program is designed to
enhance the market quality for ETPs by incentivizing Market Makers to
take LMM assignments in certain lower volume ETPs by offering an
alternative fee structure for such LMMs that would be funded from the
Exchange's general revenues. The ETP Incentive Program is designed to
improve the quality of market for lower-volume ETPs, thereby
incentivizing them to list on the Exchange. Moreover, as described in
the ETP Incentive Program Release, the Exchange believes that the ETP
Incentive Program, which is entirely voluntary, encourages competition
among markets for issuers' listings and among Market Makers for LMM
assignments.
    The Exchange believes that, by providing additional time for
issuers to participate in the ETP Incentive Program, through an
extension of the pilot period until July 31, 2017, the ETP Incentive
Program would continue to provide an opportunity for rewarding
competitive liquidity-providing LMMs, with associated requirements for
quoting by LMMs at the National Best Bid or National Best Offer. The
ETP Incentive Program, therefore, has the potential to enhance
competition among liquidity providers and thereby improve execution
quality on the Exchange. An extension of such pilot period will permit
additional time to collect data on the ETP Incentive Program so that
the Commission, the Exchange, LMMs, and issuers may assess the impact
of the ETP Incentive Program before making it available to other
securities. The Exchange will continue to monitor the efficacy of the
ETP Incentive Program during the extended pilot period. Prior to the
end of the pilot period ending July 31, 2017, the Exchange proposes to
post an Assessment Report on its Web site three months before the end
of the pilot period or at the time it files to terminate the pilot,
whichever comes first. The proposed Assessment Report would list the
program objectives that are the focus of the pilot as well as
additional information described above.

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 proposed extension to the pilot period for the ETP Incentive
Program is not designed to address any competitive issues but rather to
program additional time for the Commission, the Exchange, LMMs and
issuers to assess the impact of such program.

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 Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \13\ and Rule 19b-4(f)(6) thereunder.\14\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \14\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \15\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\16\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest.
---------------------------------------------------------------------------

    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    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) \17\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \17\ 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-NYSEARCA-2016-110 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEARCA-2016-110. 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, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; 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-NYSEARCA-2016-110 and should
be submitted on or before September 2, 2016.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-19175 Filed 8-11-16; 8:45 am]
 BILLING CODE 8011-01-P