[Federal Register Volume 88, Number 222 (Monday, November 20, 2023)]
[Notices]
[Pages 80793-80795]
[FR Doc No: 2023-25548]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98937; File Nos. SR-NYSE-2023-29, SR-NYSEAMER-2023-39,
SR-NYSEArca-2023-53, SR-NYSECHX-2023-16, SR-NYSENAT-2023-18]

Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE
American LLC; NYSEArca, Inc.; NYSE Chicago, Inc.; NYSE National, Inc.;
Order Approving Proposed Rule Changes To Establish Certain Alternative
Procedures for the Allocation of Power in Co-Location

November 14, 2023.

I. Introduction

    On August 3, 2023, New York Stock Exchange LLC, NYSE American LLC,
NYSEArca, Inc., and NYSE Chicago, Inc. (the ``Exchanges'') each filed
with the Securities and Exchange Commission (``Commission''), pursuant
to section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')
\1\ and Rule 19b-4 thereunder,\2\ a proposal to amend its connectivity
fee schedule to include an alternative procedure to allocate power in
the Mahwah Data Center based on deposit-guaranteed orders from
colocation Users in certain circumstances. On August 17, 2023, NYSE
National, Inc., filed with the Commission the same proposed amendments
to its connectivity fee schedule. The proposed rule changes were
published for comment in the Federal Register on August 22, 2023 \3\
and August 25, 2023.\4\ The Commission received no comments on the
proposed rule changes. This order grants approval of the proposed rule
changes.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release Nos. 98148 (August 16,
2023), 88 FR 57150 (SR-NYSE-2023-29); 98149 (August 16, 2023), 88 FR
57154 (SR-NYSEAMER-2023-39); 98150 (August 16, 2023), 88 FR 57142
(SR-NYSEArca-2023-53); 98151 (August 16, 2023), 88 FR 57159 (SR-
NYSECHX-2023-16).
    \4\ See Securities Exchange Act Release No. 98171 (August 21,
2023), 88 FR 58364 (SR-NYSENAT-2023-18). Each proposal is referred
to as the ``Notice'' and for ease of reference, page citations are
to the Notice for NYSE-2023-29.
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II. Description of the Proposed Rule Changes

A. Background

    As more fully set forth in the Notice, the Exchanges represent that
in recent years they have experienced ``unprecedented'' demand from
colocation Users for cabinet space and power at the Mahwah Data Center
(``MDC'').\5\ The Exchanges filed, and the

Commission approved, rules establishing purchasing limits and waitlists
for cabinet space and power orders when supply is limited.\6\ Pursuant
to these rules, if available cabinet inventory and/or power fall below
certain thresholds, certain purchasing limits on cabinets and power
apply (``Cabinet and Power Purchasing Limits''), including that a User
may not purchase more than 32 kW of power and four dedicated
cabinets.\7\ If the amount of available power is zero, or if a User
requests an amount of power that, if provided, would cause the amount
of available power to be zero, the Exchanges place orders on a waitlist
(``Combined Waitlist'').\8\ Orders on the Combined Waitlist are subject
to the Cabinet and Power Purchasing Limits.\9\ The Exchanges represent
that a Combined Waitlist is in effect.
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    \5\ Notice, supra note 3, at 57150. For purposes of each
Exchange's colocation services, a ``User'' means any market
participant that requests to receive colocation services directly
from the Exchange. Id. at 57150 n. 5.
    \6\ Id. See Securities Exchange Act Release No. 90732 (December
18, 2020), 85 FR 84443 (December 28, 2020) (SR-NYSE-2020-73, SR-
NYSEAMER-2020-66, SR-NYSEArca-2020-82, SR-NYSECHX-2020-26, and SR-
NYSENAT-2020-28) (Notice of Filings of Amendment No. 1 and Order
Granting Approval of Proposed Rule Changes, Each as Modified by
Amendment No. 1, Amending the Exchanges' Co-Location Services To
Establish Procedures for the Allocation of Cabinets to Co-Located
Users if Cabinet Inventory Falls Below Certain Thresholds). See
Securities Exchange Act Release No. 91515 (April 8, 2021), 86 FR
19674 (April 14, 2021) (SR-NYSE-2021-12, SR-NYSEAMER-2021-08, SR-
NYSEArca-2021-11, SR-NYSECHX-2021-02, SR-NYSENAT-2021-03) (Notice of
Filing of Amendment Nos. 1 and 2 and Order Granting Accelerated
Approval of Proposed Rule Changes, Each as Modified by Amendment
Nos. 1 and 2, to Establish Procedures for the Allocation of Power in
Co-Location When Availability Falls Below Certain Thresholds). See
Colocation Notes 6 and 7 in the Exchanges' Connectivity Fee
Schedule, available at https://www.nyse.com/publicdocs/Wireless_Connectivity_Fees_and_Charges.pdf.
    \7\ See Colocation Note 6b in each Exchange's Connectivity Fee
Schedule. Cabinet space is offered in the form of dedicated cabinet,
which come with 4 to 8 kW of power, and partial cabinets, available
in increments of eight-rack units of space, which may be allocated 1
or 2 kW of power.
    \8\ See Colocation Note 7b in each Exchange's Connectivity Fee
Schedule. If only the Cabinet Limit is reached, pursuant to
Colocation Note 7a, a Cabinet Waitlist is created. See Colocation
Note 7a in each Exchange's Connectivity Fee Schedule.
    \9\ See Colocation Note 7b in each Exchange's Connectivity Fee
Schedule.
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    The Exchanges represent that although they expanded the amount of
cabinet space and power available in the MDC in 2021 and 2022 by
opening new colocation Hall 4, User demand for power continues to
increase.\10\ The Exchanges are currently building a new colocation
hall (``Hall 5'') to satisfy this increased demand.\11\ The Exchanges
are also evaluating whether there is sufficient customer demand for
additional power for it to invest in additional expansion.\12\
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    \10\ Notice, supra note 3, at 57150. The Exchanges represent
that the Combined Waitlist includes 27 Users requesting in excess of
an additional 700 kW of power Id. at 57151.
    \11\ Id.
    \12\ Id.
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    The Exchanges state that the current Combined Waitlist is
inadequate to determine total demand for power because when the
Combined Waitlist is in effect, current rules permit the Exchanges to
accept one order at a time from a User and its Affiliates \13\ of at
most 32 kW of power.\14\ The Exchanges represent that the approximately
700 kW of demand on the current Combined Waitlist may represent a
``mere fraction of User's true power requirements.'' \15\ The Exchanges
state that several Users on the current Combined Waitlist have
expressed interest in purchasing more than 32 kW of power, specifically
additional power of ``several hundred kilowatts.'' \16\ The Exchanges
seek better knowledge of User demand for power, and also state that
their current rules regarding waitlist procedures are not well-tailored
to allocating large amounts of power that become available all at once
(e.g., a new colocation hall opens).\17\ Although there is a 32 kW
limit on orders when less than 350 kW of unallocated power is
available, any time that more than 350 kW of unallocated power is
available (i.e., the Combined Waitlist is not in effect), current rules
permit Users to place unlimited orders that the Exchanges must allocate
on a first-come, first-served basis.\18\ The Exchanges anticipate that
the availability of large amounts of power in Hall 5 in several
intervals may result in the largest Users placing early orders for many
hundreds of kilowatts of power that could effectively prevent Users
with more modest demand from receiving newly available power.\19\
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    \13\ An ``Affiliate'' of a User is defined as ``any other User
or Hosted Customer that is under 50% or greater common ownership or
control of the first User.'' See Connectivity Fee Schedule, at 1.
    \14\ Notice, supra note 3, at 57151.
    \15\ Id.
    \16\ Id.
    \17\ Id.
    \18\ Id.
    \19\ See Notice, supra note 3, at 57153.
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B. Proposed Alternative Power Allocation Procedures

    To address these concerns, the Exchanges propose to add as
Colocation Note 8 ``alternative'' procedures to assess power demand and
allocate power in the Mahwah Data Center in certain circumstances.\20\
Specifically, the Exchanges propose that they may announce, by customer
notice, a 90-day window (``Ordering Window'') during which the
Exchanges may accept unlimited deposit-guaranteed orders from
Users.\21\ If they announce an Ordering Window while the Cabinet and
Power Purchasing Limits and/or the Cabinet and Combined Waitlist
provisions are in effect, the terms of the Ordering Window would
temporarily supersede the Cabinet and Power Purchasing Limits and/or
the Cabinet and Combined Waitlist.\22\
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    \20\ Id. at 57152.
    \21\ Notice, supra note 3, at 57151.
    \22\ Id.
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    Under the proposal, Users may submit orders for their anticipated
needs, but each User (and its Affiliates) may finalize only one order
for power during the Ordering Window.\23\ During the Ordering Window,
the provision of the Cabinet and Combined Waitlists in Colocation Note
7 that prohibits the Exchanges from accepting orders for more than four
dedicated cabinets and/or 32 kW of power would not apply.\24\ During
the Ordering Window, a User may submit an order even if it already has
an order pending on a Cabinet or Combined Waitlist.\25\ While the
Ordering Window is open, the Exchanges would not accept new orders to
the Cabinet or Combined Waitlist established under Colocation Note 7,
and any order submitted by a User must meet the requirements of the
Ordering Window procedures as set forth in Colocation Note 8.\26\
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    \23\ Id.
    \24\ Id.
    \25\ Id.
    \26\ Id. at 57151 n.10.
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    Orders submitted during the Ordering Window are to be accompanied
by a deposit equal to two months' worth of the monthly recurring costs
of the amount of the new power ordered.\27\ This deposit will be
applied to the User's invoices for the first and subsequent months
after power is delivered until the deposit is depleted.\28\ The
Exchanges further propose to finalize a User's order upon receipt of a
User's signed order form and deposit, and to consider void any orders
not finalized before the Ordering Window

closes.\29\ A User may modify its order during the Ordering Window, but
such modification will not be finalized until the Exchange receives the
User's signed modified order form and any additional deposit.\30\ If
the User withdraws its order during the Ordering Window, the deposit
will be returned.\31\
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    \27\ Id. The Exchanges state that the required deposit would be
calculated as the number of kilowatts ordered by the User in its
Ordering Window order, multiplied by the appropriate ``Per kW
Monthly Fee'' as indicated in the Connectivity Fee Schedule. The Per
kW Monthly Fee is a factor of the total number of kilowatts
allocated to all of a User's dedicated cabinets and varies based on
the total kilowatts allocated to a User. See Notice, supra note 3,
at 57151 n.11.
    \28\ Notice, supra note 3, at 57152.
    \29\ Id. The Exchanges state that if User wishes to reduce an
order that it placed during the Ordering Window, the User's deposit
would not be reduced or returned, but instead would be applied
against the User's first and subsequent months' invoices after the
power is delivered until the deposit is depleted. Id. at 57152 n.12.
    \30\ Notice, supra note 3, at 57152.
    \31\ Id.
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    The Exchanges propose allocation procedures for power after the
Ordering Window ends. To prevent larger Users from placing large orders
for power and preventing allocation of power to Users with more modest
power needs, the Exchanges propose a multi-step allocation procedure.
In step one, the Exchanges will allocate power to fill orders in effect
on any waitlist in effect pursuant to Colocation Note 7 (e.g., the
current Combined Waitlist).\32\ In step two, the Exchanges will
allocate up to 32 kW of power to each User that finalized an order
during the Ordering Window based on whether sufficient power is
available.\33\ If sufficient power is available, the Exchanges will
allocate 32 kW of power to each User, except that orders for less than
32 kW would be filled only up to the number of kilowatts actually
ordered.\34\ If sufficient power is not available, the Exchanges will
allocate the available power equally among all Users (rounded to a
whole number of kilowatts), except the Exchanges will not allocate a
User more kilowatts than it actually ordered.\35\ If, after step two,
there is no power to allocate, all orders finalized during the Ordering
Window will be considered completed.\36\
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    \32\ Id.
    \33\ Id.
    \34\ Id.
    \35\ Id.
    \36\ Id. To illustrate, if a User finalized an order for 100 kW
during the Ordering Window and was allocated 32 kW of power during
step two and no further power remained to be allocated after step 2,
the User's order would be considered completed. The residual 68 kW
ordered would not be transferred to a waitlist. The User would be
free to submit a new order for additional power after the Ordering
Window (subject to the Purchasing Limits, if then in effect). Id. at
57152 n.13.
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    If any power remains to be allocated after step two, the Exchanges
will allocate power in step three to any orders that were not
completely filled during step two.\37\ If sufficient power is
available, the Exchanges will allocate power to completely fill all
remaining orders finalized during the Ordering Window.\38\ If
sufficient power is not available to completely fill all such orders,
the Exchanges will allocate power to fill an identical percentage of
each remaining order (rounded to a whole number of kilowatts).\39\ All
such orders will then be considered complete.\40\ Further, any orders
received after the end of the Ordering Window will not be included in
the Ordering Window allocation process but instead will be subject to
the terms of the Cabinet and Purchasing Power Limits and the associated
waitlists.\41\
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    \37\ Notice, supra note 3, at 57152.
    \38\ Id.
    \39\ Id.
    \40\ Id. To illustrate, if a User finalized an order for 100 kW
during the Ordering Window and was allocated a total of 90 kW of
power in steps two and three, the order would be considered
completed. The residual 10 kW ordered would not be transferred to a
waitlist. The User would be free to submit a new order for
additional power after the Ordering Window (subject to the
Purchasing Limits, if then in effect). Id. at 57152 n.14.
    \41\ See Notice, supra note 3, at 57152, and Colocation Notes 6
and 7 in each Exchange's Connectivity Fee Schedule.
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III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
changes are consistent with the requirements of the Act and the rules
and regulations thereunder applicable to a national securities
exchange.\42\ In particular, the Commission finds that the proposed
rule changes are consistent with section 6(b)(5) of the Act,\43\ which
requires that the rules of a national securities exchange be designed,
among other things, 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, and not be designed to permit unfair discrimination
between customers, issuers, brokers or dealers.
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    \42\ In approving this proposed rule change the Commission notes
that it has considered the proposed rule's impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
    \43\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the Exchanges' proposed Ordering
Window and associated procedures for allocating power requested during
the Ordering Window provide a rational objective means for the
Exchanges to assess power demand by Users prospectively and to fairly
allocate power requested by Users in circumstances where large amounts
of power become available at once (e.g., a new colocation hall opens).
The Exchanges will allocate power for orders received during the
Ordering Window pursuant to a three step process.\44\ In step one,
Users on the Combined Waitlist will have their orders filled first. In
step two, Users would be allocated power equally, each receiving up to
32 kW of power requested during the Ordering Window if supply is
sufficient (and each receiving power equally if power is not
sufficient), with no User allocated more kilowatts than it actually
ordered. In step three, if any power remains to be allocated, the
Exchanges will allocate power to any orders that were not completely
filled during step two if sufficient power is available (and will
allocate power to fill an identical percentage of each remaining order
if sufficient power is unavailable). The proposed allocation procedures
would provide that that each User who has placed an order for power
gets its order at least partially filled, and that larger Users do not
use the Ordering Window to prevent power allocation to smaller Users
with more modest power demands. Accordingly, the Commission believes
that the proposed Ordering Window and associated allocation procedures
are reasonably designed to facilitate an equitable allocation of
available power and are not designed to permit unfair discrimination
between customers, issuers, brokers or dealers. For the foregoing
reasons, Commission finds that the proposals are consistent with the
Act.
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    \44\ See text accompanying notes 32-41 supra.
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IV. Conclusion

    It is therefore ordered, pursuant to section 19(b)(2) of the
Act,\45\ that the proposed rule changes (SR-NYSE-2023-29, SR-NYSEAMER-
2023-39, SR-NYSEArca-2023-53, SR-NYSECHX-2023-16, SR-NYSENAT-2023-18)
be, and hereby are approved.
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    \45\ See id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\46\
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    \46\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-25548 Filed 11-17-23; 8:45 am]
BILLING CODE 8011-01-P


This zipped file contains the User's Guide for the AERMOD Terrain
Preprocessor - AERMAP (EPA-454/B-03-003, October 2004) and the AERMAP
User's Guide Addendum (December 2006).

The filename for the 2004 User's Guide has been changed to
AERMAP_USERGUIDE.PDF, replacing the file formerly called AERMAPUGB2.PDF,
but the contents have not been changed.


[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Notices]
[Page 68851]
[FR Doc No: 2023-21926]

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SECURITIES AND EXCHANGE COMMISSION

[SEC File No. 270-457, OMB Control No. 3235-0518]

Proposed Collection; Comment Request; Extension: Form CB, Tender
Offer/Rights Offering Notification Form

Upon Written Request Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736

    Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') is soliciting comments on the collection of
information summarized below. The Commission plans to submit this
existing collection of information to the Office of Management and
Budget for extension and approval.
    Form CB (17 CFR 239.800) is a Document filed in connection with a
tender offer for a foreign private issuer. This form is used to report
an issuer tender offer conducted in compliance with Exchange Act Rule
13e-4(h)(8) (17 CFR 240.13e-4(h)(8)) and a third-party tender offer
conducted in compliance with Exchange Act Rule 14d-1(c) (17 CFR
240.14d-1(c)). Form CB takes approximately 0.5 hours per response to
prepare and is filed by approximately 58 respondents annually. We
estimate that 25% of the 0.5 hours per response (0.125 hours) is
prepared by the respondent for an annual reporting burden of 7 hours
(0.125 hours per response x 58 responses).
    Written comments are invited on: (a) whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (b) the accuracy of the agency's estimate of
the burden imposed by the collection of information; (c) ways to
enhance the quality, utility, and clarity of the information collected;
and (d) ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted in writing within 60
days of this publication by December 4, 2023.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid control number.
    Please direct your written comment to David Bottom, Director/Chief
Information Officer, Securities and Exchange Commission, c/o John
Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
[email protected].

    Dated: September 28, 2023.
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-21926 Filed 10-3-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Rules and Regulations]
[Pages 69173-69178]
[FR Doc No: 2021-26471]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2020-0385; FRL-8826-02-R5]

Air Plan Approval; Michigan; Sulfur Dioxide Clean Data
Determination for St. Clair

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is making a
determination that the St. Clair sulfur dioxide (SO2)
nonattainment area has attained the 2010 primary SO2
National Ambient Air Quality Standard (2010 SO2 NAAQS). This
determination suspends certain planning requirements and sanctions for
the nonattainment area for as long as the area continues to attain the
2010 SO2 NAAQS. EPA proposed this action on August 17, 2021,
and received four supportive comments and one set of adverse comments.

DATES: This final rule is effective on December 7, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2020-0385. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
through www.regulations.gov or at the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding Federal holidays and facility
closures due to COVID-19. We recommend that you telephone Mary
Portanova, Environmental Engineer, at<PHONE_NUMBER> before visiting
the Region 5 office.

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

SUPPLEMENTARY INFORMATION: Throughout this document whenever

``we,'' ``us,'' or ``our'' is used, we mean EPA.

I. Background Information

    On August 17, 2021 (86 FR 45947), EPA proposed to determine that
the St. Clair SO2 nonattainment area (St. Clair area) has
attained the 2010 SO2 NAAQS. This determination, also known
as a Clean Data Determination (CDD), would suspend certain planning
requirements for the nonattainment area for as long as the area
continues to attain the 2010 SO2 NAAQS. EPA also proposed to
require the Michigan Department of Environment, Great Lakes, and Energy
(EGLE) to submit annual statements to address whether the St. Clair
area has continued to attain the 2010 SO2 NAAQS. A detailed
analysis of EPA's proposed decision was provided in the August 17,
2021, notice of proposed rulemaking (NPRM) and will not be restated
here. The public comment period for this NPRM ended on September 16,
2021. EPA received five comment submittals on the proposed action.

II. Response to Comments

    EPA received two anonymous comments and two comments from citizens,
all in support of EPA's action. EPA acknowledges these supportive
comments. EPA also received a detailed comment document from the Sierra
Club (``the commenter''), which includes adverse comments on EPA's
proposed action. EPA is addressing these comments below. EPA notes that
the commenter frequently refers to information given in an EGLE
document which was not part of EGLE's July 24, 2020, CDD submittal. The
document is entitled ``Proposed Sulfur Dioxide One-Hour National
Ambient Air Quality Standard State Implementation Plan (SIP) for St.
Clair County Nonattainment Area,'' dated October 7, 2019. EPA will
refer to this document as the ``2019 draft.'' The commenter claimed
that this document was submitted to EPA in 2019 for approval and has
requested that if there is a final version of the document, that it be
added to the docket for this action, but in fact, neither the ``2019
draft'' nor any final version of the ``2019 draft'' document was
submitted to EPA as a SIP revision or as part of EGLE's CDD request.
EPA considers the ``2019 draft'' document and its contents to be a
draft State product which predated and has limited relevance to EGLE's
July 24, 2020, CDD request. EPA has no final version of the ``2019
draft'' to docket, but will retain the ``2019 draft'' in Docket ID No.
EPA-R05-OAR-2020-0385 as an exhibit attached to Sierra Club's comment.
    Comment A: At several places in the Sierra Club comment document,
the commenter suggests that certain emission reductions which have been
discussed or imposed in the time since the St. Clair area was
designated nonattainment should be evaluated for adequacy to provide
for full attainment or imposed quickly under a State or Federal plan to
provide for healthy air. The commenter additionally requests that EGLE
should perform various new modeling analyses either before the CDD is
finalized, or during the time that the CDD is in place. These requested
analyses would be used to show whether further State regulations are
needed to bring healthy air into the St. Clair area. The commenter also
states that EPA should not allow delays in achieving healthy air in the
St. Clair area.
    Response A: In its August 17, 2021, NPRM, EPA presented evidence
and proposed to find that the St. Clair area has attained the 1-hour
SO2 NAAQS as of 2017-2020. To the extent that the commenter
is asserting that additional measures must be adopted in order for the
area to attain the NAAQS, we do not agree. The CDD would cause no
delays, as the St. Clair area and surrounding communities have already
demonstrated air quality values that meet the health-based NAAQS.
Therefore, Clean Air Act (CAA) planning requirements for nonattainment
areas can be suspended under a CDD, and no further analyses or emission
reduction actions are required of EGLE at this time. As stated in the
proposal, EGLE will be required to provide demonstrations on an annual
basis that the area continues to attain the NAAQS, and if EPA
determines in the future that the area is no longer attaining the
NAAQS, the CDD would be rescinded.
    Comment B: The commenter asserted that EGLE's request for a CDD
relied on the assumption that the St. Clair plant's expected closure
will allow the State to formally demonstrate attainment, despite the
emissions from the Belle River plant and a new gas power plant. The
commenter stated that this assumption has not been tested and should be
tested before moving ahead with the CDD. The commenter stated that
nothing in the CAA allows EPA to suspend immediate action in
anticipation of emission reductions accompanying a plant retirement
that is still more than a year away.
    Response B: The plan to close the St. Clair plant in 2022 was not a
factor which EGLE or EPA relied upon to justify the determination of
attainment. EGLE's CDD request relied on actual emissions and
monitoring data, and a finding that the area is attaining the NAAQS
based on those emissions and monitoring data. In finalizing a CDD, EPA
is suspending the CAA obligation to submit attainment planning
requirements because the area is currently attaining the standard,
regardless of any anticipated future emission reductions, including the
planned plant retirement. EPA does not agree that additional modeling
analyses are required at this time for EPA to find that this area is
currently attaining and to finalize the CDD. Such analyses that the
commenter is requesting might instead be expected in a future
redesignation request or nonattainment SIP. It is worth noting that
although the St. Clair CDD is already fully supported by air quality
data, if a coal power plant were to permanently and enforceably close
in the St. Clair area, any actual SO2 emission decreases
that occur would only help the area stay in attainment under the CDD
and help provide a path forward to eventual redesignation of the area
to attainment.
    Comment C: The commenter stated that EPA should ensure it is not
delaying action that may be needed to demonstrate that the area is
meeting the NAAQS based not only on actual emissions, which can
increase, but on allowable emissions. The commenter stated that EPA
should determine if further action will be needed following St. Clair's
retirement, and if so, EGLE should be developing additional measures
now, rather than waiting until a monitoring violation occurs and the
CDD must be rescinded. Waiting to restart the process of developing
needed measures until after rescission of the CDD would cause delays.
    Response C: The St. Clair area is currently meeting the 2010
SO2 NAAQS and therefore, EPA may finalize this CDD.
Enforceable allowable emission limits would be expected in a subsequent
redesignation request. Again, however, EPA does not require additional
action from EGLE for the St. Clair area while the CDD is in place and
the area continues to attain the standards.
    Comment D: The commenter stated that EPA's NPRM does not explicitly
address whether the DTE monitors meet the criteria in 40 CFR part 58,
appendices A, C, and E; whether EGLE submitted relevant information for
EPA to make this assessment, and whether relying on this data is
consistent with other treatment of third-party monitoring.
    Response D: As stated in the NPRM, EPA reviewed monitoring data and
evidence that quality assurance activities had been performed. EPA

monitoring experts found that the third-party monitoring network and
the data quality at the St. Clair area monitors are consistent with EPA
requirements and are acceptable to rely upon to characterize air
quality in the St. Clair area. The NPRM inadvertently omitted specific
reference to a letter EGLE submitted to EPA on October 28, 2020, which
provides EGLE's confirmation that the two industrial SO2
monitoring sites operated by DTE meet the quality assurance and siting
requirements in 40 CFR part 58, appendix A and D, respectively. This
letter has been added to Docket ID No. EPA-R05-OAR-2020-0385.
Additionally, the SO2 monitoring methods used at these two
monitoring sites are reference or equivalent methods as defined in 40
CFR part 50.
    Comment E: The commenter expressed concern that the two DTE
monitors could be missing maximum concentrations of the SO2
plume. The commenter cited diagrams from modeling results shown in the
``2019 draft.'' The commenter stated that diagrams in this document
appear to indicate an additional area of high modeled concentrations in
the St. Clair area which does not currently contain a monitor. The
commenter asked EPA to consider how to obtain monitoring results from
that third location.
    Response E: As previously stated, EPA relied on the modeling
analysis in EGLE's July 24, 2020 CDD submittal, which used actual
facility SO2 emissions and an updated meteorological data
set from Pontiac, Michigan, 2017-2019. This meteorology was determined
to be more complete and more representative of the St. Clair area than
other available meteorological datasets which EGLE had considered or
used earlier in its other work for the St. Clair area. The CDD modeling
of 2017-2019 actual emissions which EGLE submitted indicated that the
highest modeled concentrations tended to occur most frequently near the
Remer monitor location. EPA's ``SO2 NAAQS Designations
Source-Oriented Monitoring Technical Assistance Document''
(SO2 Monitoring TAD) considers both high relative magnitude
of modeled results, and the frequency of a location experiencing
maximum values, in helping to choose appropriate monitoring sites. The
third location in the St. Clair area northwest of the plants, which the
commenter appears to refer to, does not appear as a location of higher
concentrations than the monitored locations in EGLE's CDD modeling
analysis. The CDD's modeled values in the northwest location are
similar to but lower than the CDD's modeled values in the area of
maximum concentration near the Remer monitor's location. EPA is
satisfied that the two DTE monitors provide a reasonable representation
of the maximum impacts from the two St. Clair sources and that the
imposition of a third monitor is not justified by current information.
    Comment F: The commenter noted that the Belle River plant had a 7-
month outage in 2019 and stated that EPA does not address how this
outage affects its assessment that the 2017-2019 monitoring data
represents three full years, particularly in the warmer months, or
whether the outage skewed the results of the modeling so that it is not
representative of maximum SO2 emissions observed during
typical operations.
    Response F: The Belle River plant did have outages at Unit 1 from
February 2019 to June 2019; from November 2019 to December 2019, and
from January 2020 to February 2020, which led to an overall emission
reduction of over 6,000 tons of SO2. These outages would not
affect most of the warmer months in the St. Clair area, so presumably
the ambient air concentrations measured at the DTE monitors during the
summer and early fall of 2019 would represent normal expected
conditions for that year.
    The monitoring data used to support the CDD represents actual
ambient air quality during 2017-2019. Air quality monitoring data can
reflect fluctuations in source operating conditions, meteorology, and
other factors. The Belle River plant Unit 1 outage does not invalidate
the monitoring data. The use of three years of data to calculate a
monitor's design value also helps balance variations in emissions and
other factors. In addition, the CDD is supported by modeling of actual
current facility emissions (in this case, 2017-2019), in order to
demonstrate that the NAAQS are attained. The analysis is not intended
to evaluate only maximum typical emissions. EPA believes it is
appropriate to model the true actual emissions for the modeling period,
which encompassed the most recent three years of data available when
the CDD was requested.
    Comment G: The commenter noted that EGLE had used a single
background value in its modeling for the initial nonattainment
designation recommendation for the St. Clair area, but later revised
the background concentration to a set of lower values for the ``2019
draft'' and another set of background values in the CDD submittal. The
commenter questioned EGLE's claim that approximately 90 hours of data
were considered in each season and asked that EPA explain the
appropriateness of the final background values EGLE used. The commenter
asked that EGLE's background spreadsheet be added to the CDD action's
docket record and inquired whether EPA limits the number of hours or
wind sectors that can be excluded from a background data set.
    Response G: Dispersion modeling analysis can be an iterative
process, in which initial conservative input data is later evaluated to
better reflect actual ambient air conditions within the modeling
domain, or more accurate emissions and facility configuration data at
the modeled sources. Such adjustments can provide for more appropriate
and accurate results. In its initial nonattainment recommendation
analysis of the St. Clair area's 2012-2014 SO2 emissions
submitted on September 18, 2015, Michigan chose a conservative Tier I
background value. Based in part on the results of the modeling
analysis, the State recommended to EPA that the St. Clair area be
designated nonattainment. These modeling results were also used to help
suggest boundaries for the St. Clair nonattainment area. Having made
its nonattainment recommendation, Michigan did not decide to further
refine its 2015 modeling or the background value it used.
    However, EPA concurs with EGLE that additional refinement of input
data such as background concentrations can be part of an acceptable
approach to support future planning, or to characterize an area's air
quality. The background analysis EGLE submitted with its July 24, 2020,
CDD submittal used monitored ambient air quality data from 2017-2019 at
the Port Huron monitor, selected by season and hour of day with wind
direction exclusions to avoid double-counting of the St. Clair plants'
impacts and to avoid overestimating SO2 impacts from
facilities closer to the background monitor which would not be expected
to actually impact the St. Clair area when winds came from their
locations. EPA accepted this approach, which is a commonly used method
of addressing background in SO2 modeling analyses, fully
supported by EPA's modeling guidance. The background values used in the
CDD submittal work come from a newer set of air quality data than the
background values in the ``2019 draft,'' which may help explain the
difference between the data sets cited by the commenter. The actual
number of acceptable background exclusions depends on the wind patterns
experienced at the Port Huron monitor, and is not specifically limited
by EPA guidance as long as the monitor meets

EPA's data completeness requirements, which Port Huron's monitor does.
EGLE may not have had 90 hours in every season due to exclusions, but
EPA finds that EGLE's background calculations are generally
conservative and acceptable in the modeled evaluation submitted with
EGLE's CDD request. EPA has added EGLE's background spreadsheet to
Docket ID No. EPA-R05-OAR-2020-0385.
    Additionally, EPA calculated a much more conservative Tier I
background calculation which used the first high concentration to
determine one background value for each year 2017-2019. This resulted
in the values 7.5 parts per billion (ppb), 6.5 ppb, and 14.4 ppb for
2017, 2018, and 2019, respectively, for a three-year averaged
background value of 9.5 ppb. Adding this Tier 1 background value of 9.5
ppb to the CDD modeled design concentration of 64.4 ppb (which already
included the season by hour of day values, embedded in the final
modeled result) gives a total, very conservative design value of 73.9
ppb, which double counts background but is still below the NAAQS. EPA
does not intend to impose this Tier I background value upon EGLE's
submitted analysis, but only finds that EGLE's analysis would still
show attainment, even if the submitted background values were rejected.
    Comment H: EGLE does not state what years the Port Huron data is
from on page 4 of its CDD submittal.
    Response H: EGLE's table on page 4 of its CDD submittal indicates
that the Port Huron background data was from 2017-2019.
    Comment I: The commenter noted that the NPRM appeared to reverse
the 2017-2019 monitor values which EPA cited as indicating that the
modeling and monitoring results matched well near the monitor
locations.
    Response I: EPA acknowledges that there is an error in the
narrative on page 45949 of the NPRM. The values in Table 1 and the
comparison of modeled to monitored design values at each monitor are
correct as given in the NPRM. The correct wording on page 45949 of the
NPRM should be ``The model's predicted design value at the Mills
monitor location was 47.7 ppb, compared to the monitored design value
of 45 ppb, and the model's predicted design value at the Remer monitor
location was 52.7 ppb, compared to the monitored design value of 54
ppb.''
    Comment J: The commenter stated that if EPA finds that the area is
not meeting the NAAQS after reviewing these comments, it should move
forward with a Federal Implementation Plan.
    Response J: EPA believes that EGLE has adequately demonstrated that
the St. Clair area is currently meeting the 2010 SO2 NAAQS.
If it is necessary to rescind the CDD in future, EPA will follow the
requirements of the CAA.
    Comment K: The commenter said that EPA should bolster its plan for
oversight of the area's continued compliance with the NAAQS with
requirements for data submittals on a more frequent basis than an
annual report, such as monthly or bimonthly. The commenter also
requested that EPA require the DTE monitors to run at least until the
area is redesignated, not just until the St. Clair plant closes.
    Response K: Areas may verify continued attainment of the NAAQS
using air quality monitoring data, which is certified on an annual
basis. EPA's inclusion of a requirement that EGLE submit an annual
report demonstrating the area's continued attainment permits the State
to provide relevant information to support such a finding, including
monitoring data, emissions data, or other information. This approach is
reasonable given the combination of monitoring and modeling data
supporting this final CDD. Moreover, the annual basis for the required
demonstration mirrors the certification schedule for air quality
monitoring data. We therefore think it represents a reasonable interval
for EGLE's reporting requirement. The NPRM (page 45948) proposed to
require EGLE to submit an annual statement to EPA addressing whether
the St. Clair area is continuing to attain the 2010 SO2
NAAQS. This is a new requirement intended to bolster and formalize the
continuing verification of the area's air quality. EPA does not believe
that it is necessary to further modify its proposed schedule for more
frequent formal reports from EGLE. EGLE uploads new monitoring data to
EPA's Air Quality System (AQS) database frequently. Nothing in the CDD
precludes EGLE from routinely reviewing its available air quality
information on a short-term basis.
    EPA will work with EGLE to ensure that the Mills and Remer monitors
continue to operate at least until a full redesignation of the St.
Clair area occurs.
    After careful consideration of public comments, EPA is finalizing
the August 17, 2021, proposed finding that the St. Clair area is
attaining the 2010 SO2 NAAQS. EPA is therefore also
finalizing the CDD for the St. Clair nonattainment area.

III. Final Action

    EPA is approving EGLE's request for a CDD for the St. Clair
nonattainment area in St. Clair County, Michigan. The nonattainment
area consists of a portion of southeastern St. Clair County, Michigan,
located northeast of Detroit. The nonattainment area shares a border
with Ontario, Canada along the St. Clair River. The area's complete
boundary description can be found at 40 CFR 81.323. EPA's final
determination suspends the requirements for EGLE to submit an
attainment demonstration and other associated nonattainment planning
requirements for the St. Clair nonattainment area so long as the St.
Clair area continues to attain the 2010 SO2 NAAQS.
Finalizing this action does not constitute a redesignation of the St.
Clair area to attainment of the 2010 SO2 NAAQS under section
107(d)(3) of the CAA. The St. Clair area will remain designated
nonattainment for the 2010 SO2 NAAQS until such time as EPA
determines that the area meets the CAA requirements for redesignation
to attainment and takes action to redesignate the area.
    As noted in the proposal on this action, sanctions clocks were
started on October 21, 2019, for the State's failure to submit all
components of the SO2 part D nonattainment area SIP,
including the emissions inventory, attainment demonstration, reasonably
available control measures (RACM) including reasonably available
control technology (RACT), enforceable emission limitations and control
measures, reasonable further progress (RFP) plan, nonattainment new
source review (NNSR), and contingency measures.
    With the approval of this CDD, only the emissions inventory and
NNSR--i.e., the non-planning requirements--need to be addressed. EPA
found EGLE's June 30, 2021, submittal of the St. Clair area's emissions
inventory and NNSR elements complete in a letter dated October 7, 2021.
On October 26, 2021, (86 FR 59073), EPA proposed to approve EGLE's June
30, 2021, submittal of the St. Clair area's emissions inventory and
NNSR elements. Therefore, a complete submittal has been made by the
State addressing the finding of failure to submit and, as a result,
both the NNSR 2:1 offset sanctions and highway funding sanctions that
were in place are now suspended as long as the area continues to
demonstrate it is attaining the NAAQS.
    In accordance with 5 U.S.C. 553(d) of the Administrative Procedure
Act (APA), EPA finds there is good cause for

these actions to become effective immediately upon publication. The
immediate effective date for this action is authorized under both 5
U.S.C. 553(d)(1) and U.S.C. 553(d)(3).
    Section 553(d)(1) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . a substantive rule which grants or recognizes
an exemption or relieves a restriction.'' The purpose of this provision
is to ``give affected parties a reasonable time to adjust their
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed.
Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United
States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting
legislative history). However, when the agency grants or recognizes an
exemption or relieves a restriction, affected parties do not need a
reasonable time to adjust because the effect is not adverse. EPA has
determined that this rule relieves a restriction because it relieves
the State of planning requirements. This action has no effect on the
sources in the nonattainment area, as the area will continue to be
nonattainment and therefore continue to be subject to NNSR permitting
requirements.
    Section 553(d)(3) of the APA provides that final rules shall not
become effective until 30 days after publication in the Federal
Register ``except . . . as otherwise provided by the agency for good
cause.'' The purpose of this provision is to ``give affected parties a
reasonable time to adjust their behavior before the final rule takes
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099,
1104 (8th Cir. 1977) (quoting legislative history). Thus, in
determining whether good cause exists to waive the 30-day delay, an
agency should ``balance the necessity for immediate implementation
against principles of fundamental fairness which require that all
affected persons be afforded a reasonable amount of time to prepare for
the effective date of its ruling.'' Gavrilovic, 551 F.2d at 1105. EPA
has determined that there is good cause for making this final rule
effective immediately because this rule does not create any new
regulatory requirements such that affected parties would need time to
prepare before the rule takes effect. For these reasons, EPA finds good
cause under both 5 U.S.C. 553(d)(1) and U.S.C. 553(d)(3) for this
action to become effective on the date of publication of this action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 7, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: December 1, 2021.
Debra Shore,
Regional Administrator, Region 5.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

0
2. In Sec.  52.1170, the table in paragraph (e) is amended by adding an
entry for ``2010 Sulfur Dioxide Clean Data Determination'' immediately
after the entry for ``List of permit applications; list of consent
order public notices; notice, opportunity for public comment

and public hearing required for certain permit actions'' to read as
follows:

Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
   Name of nonregulatory SIP        geographic or         State       EPA Approval date          Comments
           provision             nonattainment area  submittal date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
2010 Sulfur Dioxide Clean Data   St. Clair area....       7/24/2020  12/7/2021, [INSERT  EPA's final
 Determination.                                                       FEDERAL REGISTER    determination suspends
                                                                      CITATION].          the requirements for
                                                                                EGLE to submit an
                                                                                attainment
                                                                                demonstration and
                                                                                other associated
                                                                                nonattainment planning
                                                                                requirements for the
                                                                                St. Clair
                                                                                nonattainment area
                                                                                requirements for the
                                                                                nonattainment area for
                                                                                as long as the area
                                                                                continues to attain
                                                                                the 2010 SO2 NAAQS.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2021-26471 Filed 12-6-21; 8:45 am]
BILLING CODE 6560-50-P