[Federal Register Volume 84, Number 38 (Tuesday, February 26, 2019)]
[Rules and Regulations]
[Pages 6069-6076]
[FR Doc No: 2019-03326]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 33

[Docket No. RM19-4-000; Order No. 855]

Mergers or Consolidations by a Public Utility

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.

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SUMMARY: Pursuant to ``An Act to amend section 203 of the Federal Power
Act'' (Act), the Federal Energy Regulatory Commission (Commission)
revises its regulations relating to mergers or consolidations by a
public utility.

DATES: This rule will become effective March 27, 2019.

FOR FURTHER INFORMATION CONTACT: Eric Olesh (Technical Information),
Office of Energy Market Regulation, Federal Energy Regulatory
Commission, 888 First Street NE, Washington, DC 20426,<PHONE_NUMBER>,
<EMAIL_ADDRESS>    Regine Baus (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:  In this final rule, the Commission amends
its regulations to establish that a public utility must seek
authorization under amended section 203(a)(1)(B) of the Federal Power
Act (FPA) to merge or consolidate, directly or indirectly, its
facilities subject to the jurisdiction of the Commission, or any part
thereof, with the facilities of any other person, or any part thereof,
that are subject to the jurisdiction of the Commission and have a value
in excess of $10 million, by any means whatsoever. In addition, as
required by the Act, the Commission establishes a requirement to submit
a notification filing for mergers or consolidations by a public utility
if the facilities to be acquired have a value in excess of $1 million
and such public utility is not required to secure Commission
authorization under amended section 203(a)(1)(B).

I. Background

    1. On November 15, 2018, the Commission issued a notice of proposed
rulemaking (NOPR) \1\ implementing ``An Act to amend section 203 of the
Federal Power Act'' (Act), Public Law 115-247, 132 Stat. 3152. Section
1 of the Act amended section 203(a)(1)(B) to provide that no public
utility shall, without first having secured an order of the Commission
authorizing it to do so, merge or consolidate, directly or indirectly,
its facilities subject to the jurisdiction of the Commission, or any
part thereof, with the facilities of any other person, or any part
thereof, that are subject to the jurisdiction of the Commission and
have a value in excess of $10 million, by any means whatsoever. Section
3 of the Act provides that the amendment to section 203(a)(1)(B) shall
take effect 180 days after the date of enactment of the Act. The
primary effect of this amendment is to establish a $10 million
threshold on transactions that will be subject to the Commission's
review and authorization under section 203(a)(1)(B).
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    \1\ Implementation of Amended Section 203(a)(1)(B) of the
Federal Power Act, Notice of Proposed Rulemaking, 83 FR 61338 (Nov.
29, 2018), 165 FERC ] 61,091 (2018).
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    2. In section 2 of the Act, Congress amended section 203(a) to add
section 203(a)(7) to require notification for certain transactions.
Section 203(a)(7) provides that, not later than 180 days after the date
of the enactment of section 203(a)(7), the Commission shall promulgate
a rule requiring any public utility that is seeking to merge or
consolidate, directly or indirectly, its facilities subject to the
jurisdiction of the Commission, or any part thereof, with those of any
other person, to notify the Commission of such transactions not later
than 30 days after the date on which the transaction is consummated if:
(1) The facilities, or any part thereof, to be acquired are of a value
in excess of $1 million; and (2) such public utility is not required to
secure a Commission order under amended section 203(a)(1)(B).
    3. The Act also specifies that, not later than two years after the
date of enactment of this Act, the Commission shall submit to Congress
a report that assesses the effects of the amendment made by section 1
and that such report shall take into account any information collected
under section 203(a)(7). The Act also requires that the Commission
provide for public notice and comment with respect to the report.

II. Discussion

    4. As discussed below, commenters generally support the proposals
in the NOPR, including the proposed changes to implement amended
section 203(a)(1)(B) and to establish a notification filing requirement
pursuant to section 203(a)(7). Certain commenters request clarification
of the procedures associated with the notification filing while others
recommend that the Commission require additional information about the
transactions subject to the notification filing. In light of amended
section 203(a)(1)(B), commenters also request clarification on the
Commission's jurisdiction over acquisitions of facilities from non-
public utilities. Lastly, commenters request that the Commission
continue to consider and act on other pending Commission rulemakings.
We address these issues below.

A. Section 203(a)(1)(B) Dollar Threshold

1. NOPR
    5. In the NOPR, the Commission proposed two changes to part 33 of
its regulations to bring them into conformance with the Act. First, the
Commission proposed to revise Sec.  33.1(a)(1)(ii) to provide that part
33 will apply to any public utility seeking authorization under section
203 to merge or consolidate, directly or indirectly, its facilities
subject to the jurisdiction of the Commission, or any part thereof,
with the facilities of any other person, or any part thereof, that are
subject to the jurisdiction of the Commission and have a value in
excess of $10 million, by any means whatsoever.\2\
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    \2\ Id. P 3. In the NOPR, the Commission stated that public
utilities required to maintain their books of account in accordance
with the Commission's Uniform System of Accounts under 18 CFR part
101 must continue to file with the Commission proposed journal
entries for the purchase or sale of electric plant, consistent with
the instructions to Account 102, Electric Plant Purchased and Sold.
The Commission explained that the dollar threshold proposed in the
NOPR does not apply to this accounting filing requirement. Id. at
n.1.
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2. Comments
    6. American Public Power Association (APPA), Edison Electric
Institute (EEI), Idaho Power Company (Idaho Power), International
Transmission Company (ITC),\3\ National Rural Electric Cooperative
Association (NRECA), and Transmission Access Policy Study Group (TAPS)
support the proposed changes to part 33 of the Commission's regulations
to implement the $10 million dollar threshold in amended section
203(a)(1)(B). APPA, EEI, Idaho Power, NRECA, and TAPS add that the
change appropriately reflects the amended language of section 203, and
Idaho Power states that it will ensure the Commission focuses its time
and effort on larger, potentially more impactful transactions.\4\ EEI
and ITC explain that it will also reduce administrative burdens on
regulated entities and the Commission.\5\
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    \3\ ITC filed comments on behalf of itself, Michigan Electric
Transmission Company, LLC, ITC Midwest LLC, and ITC Great Plains,
LLC.
    \4\ See APPA Comments at 3; EEI Comments at 5; Idaho Power
Comments at 1; NRECA Comments at 3; TAPS Comments at 3.
    \5\ See ITC Comments at 1; EEI Comments at 6.
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3. Commission Determination
    7. We will revise the language in Sec.  33.1(a)(1)(ii) of the
Commission's regulations as proposed in the NOPR.

B. Notification Filing

1. NOPR
    8. The Commission also proposed to add Sec.  33.12 to its
regulations to require public utilities whose transactions are subject
to section 203(a)(7) to file notification of such transactions with the
Commission. In particular, the Commission proposed that any public
utility that is seeking to merge or consolidate, directly or
indirectly, its facilities subject to the jurisdiction of the
Commission, or any part thereof, with those of any other person must

notify the Commission of such transaction not later than 30 days after
the date on which the transaction is consummated if: (1) The
facilities, or any part thereof, to be acquired are of a value in
excess of $1 million; and (2) such public utility is not required to
secure an order of the Commission under section 203(a)(1)(B).\6\
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    \6\ NOPR, 165 FERC ] 61,091 at P 4.
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    9. The Commission proposed that public utilities subject to section
203(a)(7) file the following information in this notification filing:
(1) The exact name of the public utility and its principal business
address; and (2) a narrative description of the transaction, including
the identity of all parties involved in the transaction and all
jurisdictional facilities associated with or affected by the
transaction, the location of such jurisdictional facilities involved in
the transaction, the date on which the transaction was consummated, the
consideration for the transaction, and the effect of the transaction on
the ownership and control of such jurisdictional facilities.\7\
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    \7\ Id. P 5.
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    10. The Commission proposed that the notification filings be filed
in the first docket for section 203 filings for the fiscal year (FY).
For example, all notification filings made in FY2019 would be filed in
Docket No. EC19-1-000; all notification filings made in FY2020 would be
filed in Docket No. EC20-1-000, etc.\8\
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    \8\ Id. P 8.
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2. Comments
    11. Most commenters support the proposed notification filing.\9\
NRECA explains that proposed Sec.  33.12(a) implementing the
notification requirement tracks the statutory language.\10\ EEI
supports the Commission's proposal regarding the notification
requirement for transactions valued between $1 million but at or below
$10 million, which it states is consistent with the legislative goals
of reducing regulatory burden and paperwork burdens while still
providing transparency.\11\ Idaho Power also supports the proposal that
there be no filing requirement for transactions involving facilities
with a value of less than $1 million, which it states will streamline
the process for utilities and reduce the oversight burden on the
Commission.\12\
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    \9\ Idaho Power, EEI, APPA, ITC, and NRECA support the proposed
notification filing.
    \10\ NRECA Comments at 4.
    \11\ EEI Comments at 7.
    \12\ Idaho Power Comments at 2.
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    12. Some commenters request clarification on associated process and
service requirements and notice procedures. EEI requests clarification
on whether the notification filings can be filed in standard word-
document formats via eFiling. EEI and ITC also ask whether these
filings are purely informational. Specifically, they ask that the
Commission clarify that: (1) It will not notice these proceedings for
public comment; (2) other persons are not entitled to file responsive
comments; and (3) the Commission will not take any action on the
filings. EEI and ITC request clarification that persons are not
obligated to serve copies of these notification filings under 18 CFR
385.2010 (Rule 2010 of the Commission's Rules of Practice and
Procedure).\13\ In contrast, Public Citizen, Inc. requests that the
Commission clarify whether the proposed notification filing will be
subject to public notice so that the public can track transactions
valued between $1 million but at or below $10 million.\14\
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    \13\ See EEI Comments at 7-8; ITC Comments at 3-4. Rule 2010
requires, among other things, that participants in a proceeding must
serve copies of their documents according to specified guidelines.
18 CFR 385.2010.
    \14\ Public Citizen, Inc. Comments at 1-2.
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    13. Others contend that the information proposed to be collected in
the notification filing is insufficient. American Antitrust Institute
(AAI) suggests that more information should be included in the
notification filing to account for (1) small, successive horizontal or
vertical acquisitions that can result in accretion of market power over
time (serial transactions); (2) acquisitions of partial ownership
shares in strategic assets that can raise competitive concerns due to
common and cross-ownership issues; and (3) strategic acquisitions. AAI
explains that, through serial transactions, a utility may enhance its
ability and incentive to engage in unilateral economic withholding of
physical capacity or to strategically operate its transmission or fuel
transportation assets to frustrate rivals' access to or foreclose them
from wholesale markets.\15\ In addition, AAI states that cross-
ownership can facilitate the anticompetitive exchange of information
and common ownership can dampen incentives to compete because more
vigorous competition is less profitable than ``cooperation'' for
investors with partial shares in each of those rivals. AAI explains
that, for example, private equity firms, which are numerous and active
in electricity markets, can control or influence managerial decision-
making even with a partial or minority ownership share in an asset, and
such influence may be obtained with an investment of less than $10
million.\16\ Further, AAI states that, because electricity markets are
susceptible to the exercise of market power due to the inelasticity of
demand and supply during times when capacity is constrained. AAI also
states that even small, strategic acquisitions can incentivize capacity
withholding.\17\
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    \15\ AAI Comments at 3-4.
    \16\ Id. at 5-7.
    \17\ Id. at 7-8.
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    14. AAI therefore recommends that the notification filing include:
(1) The wholesale markets in which the jurisdictional facilities
associated with or affected by the transaction participate; (2) a
current, 10-year history of ownership changes involving the
jurisdictional facilities associated with the transaction; and (3) the
identity of all energy affiliates and energy subsidiaries owned by the
acquirer of the jurisdictional facilities that are the subject of the
transaction. AAI also encourages the Commission to undertake a
technical conference to review how the Commission will analyze these
transactions to monitor market changes, given that the Commission is
required to submit a report to Congress within two years regarding the
effects of amended section 203(a)(1)(B).\18\
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    \18\ Id. at 9.
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    15. APPA, NRECA, and TAPS also request that the notification filing
include a requirement to identify energy affiliates and energy
subsidiaries and to include pre- and post-transaction organizational
charts.\19\ APPA explains that the affiliate information is important
because it will allow the Commission and other stakeholders to monitor
whether a market participant is engaged in multiple accretive
transactions valued at less than $10 million, which APPA notes was a
concern of the Commission in a 2016 notice of inquiry on requirements
for section 203 transactions and section 205 market-based rate
applications.\20\ NRECA and TAPS explain that the information will be
useful because ownership structures and affiliate relationships are
growing more complex.\21\ APPA states that the affiliate information
and organizational charts will result in only an incremental burden to
paperwork, but that the

information will be useful to include in the Commission's report to
Congress.\22\ NRECA also requests that the Commission require
information on the wholesale and transmission tariffs on file with the
Commission that are related to the jurisdictional facilities involved
in the transaction, which it claims will be useful to monitor the rates
associated with those facilities.\23\ TAPS maintains that the proposed
notification filing includes little information compared to full
section 203 applications and, because Congress required these filings,
the information the Commission receives must be sufficient for consumer
protection purposes and to produce a meaningful report for
Congress.\24\
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    \19\ See APPA Comments at 3-4; NRECA Comments at 5-6; TAPS
Comments at 4.
    \20\ APPA Comments at 4-5 (citing Modifications to Commission
Requirements for Review of Transactions under Section 203 of the
Federal Power Act and Market-Based Rate Applications under Section
205 of the Federal Power Act, Notice of Inquiry, 81 FR 66649 (Sept.
28, 2016), 156 FERC ] 61,214 (2016) (Market Power NOI)).
    \21\ See NRECA Comments at 5-6; TAPS Comments at 5.
    \22\ APPA Comments at 5-6.
    \23\ NRECA Comments at 6-7.
    \24\ TAPS Comments at 4.
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3. Commission Determination
    16. We will add Sec.  33.12 to the Commission's regulations as
proposed in the NOPR to require that public utilities submit a
notification filing for transactions subject to section 203(a)(7). In
response to the comments, we first clarify filing requirements
associated with the notification filings. Each notification filing
should be filed in the first docket for section 203 filings of the FY.
For example, all notification filings made in FY2019 would be filed in
the Docket No. EC19-1-000; all notification filings for FY2020 would be
filed in Docket No. EC20-1-000, etc. The notification filings may be
filed in any format accepted in eLibrary as listed on the Commission's
website.\25\ In addition, we clarify that the notification filings are
intended to be informational. The Commission will not notice the
notification filings submitted into the placeholder docket (i.e.,
Docket No. EC19-1-000, etc.) and will not accept responsive comments
from any persons on the notification filings. The Commission will not
act on the notification filings that it receives. Because the
notification filings are informational in nature, there is no
requirement to serve copies of the notification filings under Rule 2010
of the Commission's Rules of Practice and Procedure.
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    \25\ FERC, Acceptable File Formats, http://www.ferc.gov/docs-filing/elibrary/accept-file-formats.asp (last updated Nov. 16,
2015).
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    17. With one exception, we decline to require additional
information as requested by certain commenters. Section 203(a)(7)
provides the Commission with limited authority to collect information
in the notification filings about transactions for which prior
Commission authorization under section 203(a)(1) is no longer required.
Because the Commission has limited authority to review these
transactions under section 203, we will not hold a technical conference
on how the Commission will analyze these transactions. Interested
persons may track these transactions as they are filed in the
placeholder dockets described above which provide a readily searchable
format for doing so.
    18. However, AAI, APPA, NRECA, and TAPS raise a compelling argument
regarding the transparency of information as to energy affiliates.
Therefore, in addition to the information that the NOPR proposed to be
collected, we will require notification filings to contain a statement
regarding whether the parties to the transaction are affiliates. This
will allow additional transparency as to whether these transactions are
negotiated at arm's length and whether these transactions could have an
effect on a public utility's rates. We will add a requirement for such
a statement in the description of the transaction in Sec.
33.12(b)(2)(i).
    19. As to the Commission's report to Congress that assesses the
effects of amended section 203(a)(1)(B), the Commission will provide
for public notice and comments on the report prior to submitting it to
Congress.

C. Clarification on Jurisdiction of the Commission Under Section
203(a)(1)(B)

1. NOPR
    20. In the NOPR, the Commission clarified that, except for mergers
or consolidations that are valued at $10 million or less, the
Commission will not change its interpretation of the transactions that
are subject to the jurisdiction of the Commission under the ``merge or
consolidate'' clause of section 203(a)(1)(B). The Commission further
explained that it interprets the amendment by Congress to section
203(a)(1)(B) as establishing a $10 million threshold, but not removing
the Commission's jurisdiction to review transactions with a higher
value that involve a public utility's acquisition of facilities from
non-public utilities \26\ if those facilities will be subject to the
Commission's jurisdiction after the transaction is consummated.\27\
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    \26\ Non-public utilities refers to entities described in
section 201(f) of the FPA. 16 U.S.C. 824(f).
    \27\ See Duke Power Co. v. FPC, 401 F.2d 930, 941 (DC Cir. 1968)
(Duke Power Co.) (``We have no doubt that any acquisition from [a
non-public utility] by a public utility of what would normally be a
jurisdictional facility, such as a transmission line conducting
interstate energy, would fall within the purview of the clause under
consideration.'').
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2. Comments
    21. Two commenters, EEI and ITC, take issue with the Commission's
clarification on its jurisdiction. Specifically, EEI claims that the
amended language of section 203(a)(1)(B) states that Commission
approval is required only if the facilities being acquired by the
public utility are subject to the Commission's jurisdiction, which is
``plainly read to mean that the facilities are jurisdictional before
consummation of the proposed transaction.'' \28\ EEI states that the
Commission should recognize that, as amended, the language of section
203(a)(1)(B) has materially changed from the language that preceded the
amendment. As a result, EEI explains that the Duke Power Co. v. FPC
case cited by the Commission does not squarely address the question
raised by the amendment. EEI requests that, for regulatory certainty,
the Commission reconsider and clarify its interpretation of the types
of facilities to which amended section 203(a)(1)(B) will apply.\29\
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    \28\ EEI Comments at 9.
    \29\ Id. at 8-9.
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    22. Similarly, ITC argues that the plain language of amended
section 203(a)(1)(B) does not grant the Commission authority to review
transactions that involve a public utility's acquisition of facilities
from non-public utilities. ITC asserts that, under amended section
203(a)(1)(B), a public utility must obtain Commission authorization
only when proposing to merge or consolidate its own Commission-
jurisdictional facilities with another person's Commission-
jurisdictional facilities. ITC contends that if the facilities would be
Commission-jurisdictional if owned by a jurisdictional entity, or will
become so after the transaction is approved by the Commission and
consummated, is immaterial because the statutory language requires that
the facilities ``are'' within the jurisdiction of the Commission, not
that they will be at some future time.\30\ ITC also maintains that the
Commission's reliance on Duke Power Co. is unavailing because the case
involved the interpretation of older, no-longer effective section
203(a)(1)(B) language, which conferred upon the Commission authority to
review a public utility's proposed merger or consolidation of its own
facilities with the facilities of ``any other person.'' \31\ In
addition, ITC claims that the court's observation about the
Commission's

jurisdiction in that case is dicta because the case concerned whether a
public utility's acquisition of unambiguously non-jurisdictional
distribution assets was within section 203(a)(1)(B)'s ambit.\32\
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    \30\ ITC Comments at 2-3.
    \31\ Id. at 3 (citing Duke Power Co., 401 F.2d at 933).
    \32\ Id.
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3. Commission Determination
    23. We disagree with EEI's and ITC's interpretation of the language
of amended section 203(a)(1)(B). Rather, we interpret the new statutory
language as codifying the D.C. Circuit's holding in Duke Power Co. that
the Commission has no jurisdiction over the acquisition of distribution
or other facilities that are non-jurisdictional even when owned by a
public utility. In amended section 203(a)(1)(B), the phrase ``subject
to the jurisdiction of the Commission'' was used twice.\33\ First, the
phrase was used to describe the facilities of a ``public utility'' that
must be involved in a transaction in order for the Commission to have
jurisdiction. By adding ``subject to the jurisdiction of the
Commission'' to describe the facilities of a ``public utility,'' we
conclude that Congress intended to exclude facilities, such as
distribution facilities, that are not otherwise subject to the
jurisdiction of the Commission when owned by a public utility. When
Congress again uses the phrase ``subject to the jurisdiction of the
Commission'' to modify the facilities of a ``person,'' we interpret the
phrase as having the same meaning, rather than removing the
Commission's jurisdiction over a public utility's acquisition of
transmission facilities previously owned by a non-public utility.
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    \33\ Amended section 203(a)(1)(B) provides that no public
utility shall, without first having secured an order of the
Commission authorizing it to do so, ``merge or consolidate, directly
or indirectly, its facilities subject to the jurisdiction of the
Commission, or any part thereof, with the facilities of any other
person, or any part thereof, that are subject to the jurisdiction of
the Commission and have a value in excess of $10 million, by any
means whatsoever.'' 16 U.S.C. 824b(a)(1)(B), amended by ``An Act to
amend section 203 of the Federal Power Act,'' Public Law 115-247,
132 Stat. 3152 (2018) (emphasis added).
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    24. That Congress did not intend to limit the Commission's
jurisdiction to the acquisition of transmission facilities subject to
the Commission's jurisdiction prior to the transaction is further
supported by the fact that Congress retained the language requiring
that the facilities being acquired be owned by a ``person,'' instead of
changing the language to require that the facilities be owned by a
``public utility.'' Under section 201(e), a ``public utility'' is ``any
person who owns or operates facilities subject to the jurisdiction of
the Commission under this part,'' \34\ which means that, if facilities
being acquired are subject to the Commission's jurisdiction prior to
the transaction, their owner by definition is a public utility. The use
of the word ``person,'' and not ``public utility,'' when describing the
facilities to be acquired suggests that Congress intended the
Commission to have jurisdiction over the acquisition of facilities
owned both by public utilities and non-public utilities, provided that
those facilities are subject to the Commission's jurisdiction after
their acquisition by the public utility.
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    \34\ 16 U.S.C. 824(e).
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    25. Our interpretation is reinforced by the legislative history of
the Act, which indicates that Congress intended amended section
203(a)(1)(B) only to establish a $10 million threshold for transactions
subject to the Commission's jurisdiction and not to alter any other
aspect of the Commission's jurisdiction over transactions. The House
Report described the purpose of the amendment as ``amend[ing] the
Federal Power Act to exempt facilities of a value of $10,000,000 or
less from this prohibition.'' \35\ The Senate Report similarly
describes the purpose of the amendment as to: ``reduce the compliance
burden of certain transactions valued under $10 million, including
significant legal and regulatory costs which are collected from
customers.'' \36\ Notably, as part of its background discussion, the
Senate Report also includes a discussion of the Duke Power Co. decision
and its holding regarding the Commission's jurisdiction to approve
transactions, but that report does not assert that the decision was
erroneous or otherwise suggest that the amendment was intended to
reverse the Commission's longstanding reliance on Duke Power Co. to
assert jurisdiction over a public utility's acquisition of transmission
facilities from a non-public utility.\37\ That neither the House Report
nor the Senate Report suggests that the amendment was intended to
remove the Commission's jurisdiction over the acquisition of facilities
from non-public utilities also supports the conclusion that the
amendment should not be read to have such an effect.
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    \35\ H.R. Rep. No. 115-167, at 1 (2018).
    \36\ S. Rep. No. 115-253, at 2 (2018).
    \37\ Id. at 3.
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D. Other Pending Proceedings

1. Comments
    26. AAI requests that the Commission carefully consider whether the
revised regulations for small transactions will have an effect on the
questions posed in outstanding rulemakings. AAI argues, among other
things, that if small transactions are excluded from Commission review
under section 203(a)(1)(B), the Commission should maintain close
oversight over the workings of regional transmission organization
markets and not relieve sellers with market-based rate authority from
filing a competitive analysis with the Commission, as was proposed in
the Notice of Proposed Rulemaking in Refinements to Horizontal Market
Power Analysis for Sellers in Certain Regional Transmission
Organization and Independent System Operator Markets.\38\ AAI further
notes that the Commission has not acted on two critical rulemakings and
requests that the Commission make these a high priority: Data
Collection for Analytics and Surveillance and Market-Based Rate
Purposes in Docket No. RM16-17-000 (Data Collection NOPR) \39\ and
Modifications to Commission Requirements for Review of Transactions
under Section 203 of the Federal Power Act and Market-Based Rate
Applications under Section 205 of the Federal Power Act in RM16-21-
000.\40\
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    \38\ AAI Comments at 9-10 (citing Refinements to Horizontal
Market Power Analysis for Sellers in Certain Regional Transmission
Organization and Independent System Operator Markets, Notice of
Proposed Rulemaking, 165 FERC ] 61,268 (2018)).
    \39\ Id. at 10.
    \40\ Id. (citing Market Power NOI, 81 FR 66649, 156 FERC ]
61,214).
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    27. APPA and TAPS request that, if the Commission does not expand
the information to be collected in the notification filing, it should
act on the Data Collection NOPR and proceed with the relational
database proposed therein.\41\
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    \41\ See APPA Comments at 6-7; TAPS Comments at 5-6.
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2. Commission Determination
    28. We acknowledge commenters' support and requests for action on
other pending rulemaking proceedings. However, we emphasize that this
proceeding is limited in scope and only implements the changes
specified in amended section 203. We will not address the status of
other proceedings here. In addition, as explained above, we find that
the information we will collect under Sec.  33.12 is sufficient to
satisfy the directive in the Act that the Commission establish a
notification requirement.

III. Information Collection Statement

    29. The Paperwork Reduction Act (PRA) \42\ requires each federal
agency to

seek and obtain Office of Management and Budget (OMB) approval before
undertaking a collection of information directed to 10 or more persons
or contained in a rule of general applicability. OMB's regulations \43\
require approval of certain information collection requirements imposed
by agency rules. Upon approval of a collection of information, OMB will
assign an OMB control number and an expiration date. Respondents
subject to the filing requirements of an agency rule will not be
penalized for failing to respond to the collection of information
unless the collection of information displays a valid OMB control
number.
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    \42\ 44 U.S.C. 3501-3520.
    \43\ 5 CFR part 1320.
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    30. The revisions to the Commission's regulations required in this
final rule will bring the regulations in conformance with the
amendments to section 203 enacted by Congress. The first revision would
implement Congress' amendment to section 203(a)(1)(B), which provides
that a public utility must seek authorization to merge or consolidate,
directly or indirectly, its facilities subject to the jurisdiction of
the Commission, or any part thereof, with the facilities of any other
person, or any part thereof, that are subject to the jurisdiction of
the Commission and have a value in excess of $10 million, by any means
whatsoever. In addition, this final rule adds Sec.  33.12 to the
Commission's regulations to implement the directive in new section
203(a)(7) that the Commission require a notification filing for mergers
or consolidations by a public utility if the facilities to be acquired
have a value in excess of $1 million and such public utility is not
required to secure Commission authorization under amended section
203(a)(1)(B). We anticipate that the revisions to the Commission's
regulations, once effective, would reduce regulatory burdens. The
Commission will submit the proposed reporting requirements to OMB for
its review and approval under section 3507(d) of the PRA.\44\
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    \44\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

    31. In the NOPR, the Commission solicited comments on the
Commission's need for this information, whether the information will
have practical utility, the accuracy of the burden estimates, ways to
enhance the quality, utility, and clarity of the information to be
collected or retained, and any suggested methods for minimizing
respondents' burden, including the use of automated information
techniques. Nonetheless, while we expect that the regulatory revisions
discussed herein will reduce the burdens on affected entities, we
solicit public comment regarding the accuracy of the burden and cost
estimates below.
    32. Internal Review: The Commission has reviewed the changes and
has determined that such changes are necessary.
    33. Burden Estimate \45\: The estimated burden and cost for the
requirements contained in this final rule follow.
---------------------------------------------------------------------------

    \45\ ``Burden'' is the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the information
collection burden, refer to 5 CFR 1320.3.
    \46\ Commission staff estimates that approximately 26 section
203 filings will change from full section 203 filings to the
notification filing described above and will take respondents one
burden hour to complete. The number of respondents and responses is
based on Commission staff's estimate that 13 percent of the
approximately 200 section 203 filings received will be affected by
the changes herein, which represents a significant reduction in
burden hours.

                        FERC-519, as Modified by This Final Rule in Docket No. RM19-4-000
----------------------------------------------------------------------------------------------------------------
                                 Number and       Number of                     Average burden     Total burden
         Requirements              type of      responses per   Total number   hours & cost per   hours & total
                                 respondents     respondent     of responses       response            cost
                                          (1)             (2)     (1) * (2) =  (4).............  (3) * (4)
                                                                          (3)
----------------------------------------------------------------------------------------------------------------
FERC-519 (FPA Section 203                  26               1              26  1 hr.; $79.00...  26 hrs.;
 Filings) \46\.                                                                                $2,054.00.
----------------------------------------------------------------------------------------------------------------

    Title: FERC-519, Application under Federal Power Act Section 203.
    OMB Control No.: 1902-0082.
    Action: Amendment to 18 CFR part 33.
    Respondents: Public utilities subject to Federal Power Act.
    Abstract: Pursuant to ``An Act to amend section 203 of the Federal
Power Act'', the Commission will revise part 33 of its regulations to
establish that mergers or consolidations by a public utility of
facilities subject to the jurisdiction of the Commission that have a
value in excess of $10 million are subject to Commission authorization.
In addition, the Commission will add Sec.  33.12 to its regulations to
establish a notification requirement for mergers or consolidations by a
public utility if the facilities to be acquired have a value in excess
of $1 million and such public utility is not required to secure
Commission authorization under amended section 203(a)(1)(B).
    Overview of the Data Collection: The FERC-519, ``Application under
Federal Power Act section 203,'' is necessary to enable the Commission
to carry out its responsibilities in implementing the statutory
provisions of section 203. Section 203 requires a public utility to
seek Commission authorization of transactions in which a public utility
disposes of jurisdictional facilities, merges such facilities with the
facilities owned by another person, or acquires the securities of
another public utility. The Commission must authorize these
transactions if it finds that they will be consistent with the public
interest.
    34. By entering into a certain transaction, a public utility may
gain an increased incentive and ability to exercise market power that
can be to the detriment of effective competition and customers. As a
result, the Commission must review all jurisdictional dispositions,
mergers, and acquisitions to evaluate that transaction's effect on
competition. The Commission also evaluates whether such transactions
have an effect on rates and regulation and whether they result in
cross-subsidization. The Commission implements the filing requirements
associated with this review in the Code of Federal Regulations (CFR)
under 18 CFR part 33.
    35. This final rule is limited to implementing amended FPA section
203(a)(1)(B) and proposing a notification requirement for certain
transactions, both of which together represent a reduction in the
filing requirements for public utilities under section 203. The
Commission implements these changes by mandate of Congress.

    36. Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen
Brown, Office of the Executive Director] Email<EMAIL_ADDRESS>
Phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>.
    37. Comments concerning the collection of information and the
associated burden estimate(s) may also be sent to: Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for
the Federal Energy Regulatory Commission]. Due to security concerns,
comments should be sent electronically to the following email address:
<EMAIL_ADDRESS>Please refer to FERC-519, OMB Control No.
1902-0082 in your submission.

IV. Environmental Analysis

    38. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\47\ We
conclude that neither an Environmental Assessment nor an Environmental
Impact Statement is required for this final rule under Sec.  380.4(a)
of the Commission's regulations, which provides a categorical exemption
for ``approval of actions under section[] . . . 203 . . . of the
Federal Power Act relating to . . . acquisition or disposition of
property . . . .'' \48\
---------------------------------------------------------------------------

    \47\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.
] 30,783 (1987).
    \48\ 18 CFR 380.4(a)(16).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act

    39. The Regulatory Flexibility Act of 1980 (RFA) \49\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The Small Business Administration's (SBA) Office of Size Standards
develops the numerical definition of a small entity. These standards
are provided in the SBA regulations at 13 CFR 121.201.\50\ The RFA does
not mandate any particular outcome in a rulemaking. It only requires
consideration of alternatives that are less burdensome to small
entities and an agency explanation of why alternatives were rejected.
---------------------------------------------------------------------------

    \49\ 5 U.S.C. 601-612.
    \50\ 13 CFR 121.201. See also U.S. Small Business
Administration, Table of Small Business Size Standards Matched to
North American Industry Classification System Codes (effective Feb.
26, 2016), https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
---------------------------------------------------------------------------

    40. The SBA size standards for electric utilities is based on the
number of employees, including affiliates. Under SBA's standards, some
transmission owners will fall under the following category and
associated size threshold: Electric bulk power transmission and
control, at 500 employees.\51\
---------------------------------------------------------------------------

    \51\ 13 CFR 121.201, Sector 22 (Utilities), NAICS code 221121
(Electric Bulk Power Transmission and Control).
---------------------------------------------------------------------------

    41. The Commission estimates that 26 respondents could file
notification filings over the course of a year, with an estimated
burden of 1 hour per response, at an estimated cost of $79.00 per
respondent. The Commission believes that none of the filers will be
small entities. Therefore, the Commission certifies that this final
rule will not have a significant economic impact on small entities.

VI. Document Availability

    42. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5:00
p.m. Eastern time) at 888 First Street NE, Room 2A, Washington DC
20426.
    43. From FERC's Home Page on the internet, this information is
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
    44. User assistance is available for eLibrary and the FERC's
website during normal business hours from FERC Online Support at 202-
502-6652 (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
VII. Effective Date and Congressional Notification

    45. These regulations are effective March 27, 2019. The Commission
has determined that this rule is not a ``major rule'' as defined in
section 351 of the Small Business Regulatory Enforcement Fairness Act
of 1996.

List of Subjects in 18 CFR Part 33

    Electric utilities, Reporting and recordkeeping requirements,
Securities.

    By the Commission.

    Issued: February 21, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends part 33,
chapter I, title 18, Code of Federal Regulations, as follows:

PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203

0
1. The authority citation for part 33 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.

0
2. Amend Sec.  33.1 by revising paragraph (a)(1)(ii) to read as
follows:

Sec.  33.1  Applicability, definitions, and blanket authorizations.

    (a) * * *
    (1) * * *
    (ii) Merge or consolidate, directly or indirectly, its facilities
subject to the jurisdiction of the Commission, or any part thereof,
with the facilities of any other person, or any part thereof, that are
subject to the jurisdiction of the Commission and have a value in
excess of $10 million, by any means whatsoever;
* * * * *

0
3. Add Sec.  33.12 to read as follows:

 Sec.  33.12   Notification requirement for certain transactions.

    (a) Any public utility that is seeking to merge or consolidate,
directly or indirectly, its facilities subject to the jurisdiction of
the Commission, or any part thereof, with those of any other person,
shall notify the Commission of such transaction not later than 30 days
after the date on which the transaction is consummated if:
    (1) The facilities, or any part thereof, to be acquired are of a
value in excess of $1 million; and
    (2) Such public utility is not required to secure an order of the
Commission under section 203(a)(1)(B) of the Federal Power Act.
    (b) Such notification shall consist of the following information:
    (1) The exact name of the public utility and its principal business
address; and
    (2) A narrative description of the transaction, including:
    (i) The identity of all parties involved in the transaction,
whether such parties are affiliates, and all jurisdictional facilities
associated with or affected by the transaction;

    (ii) The location of such jurisdictional facilities involved in the
transaction;
    (iii) The date on which the transaction was consummated;
    (iv) The consideration for the transaction; and
    (v) The effect of the transaction on the ownership and control of
such jurisdictional facilities.

[FR Doc. 2019-03326 Filed 2-25-19; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 87, Number 207 (Thursday, October 27, 2022)]
[Notices]
[Pages 65057-65058]
[FR Doc No: 2022-23374]

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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2017-0318; FRL-10370-01-OMS]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; Request for Contractor Access to Toxic
Substances Control Act Confidential Business Information (CBI)
(Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The Environmental Protection Agency (EPA) has submitted an
information collection request (ICR),Request for Contractor Access to
Toxic Substances Control Act Confidential Business Information (CBI)
(EPA ICR Number 1250.12; OMB Control Number 2070-0075) to the Office of
Management and Budget (OMB) for review and approval in accordance with
the Paperwork Reduction Act. This is a proposed extension of the ICR
which is currently approved through October 31, 2022. Public comments
were previously requested via the Federal Register on January 24, 2022
during a 60-day comment period. This notice allows for an additional 30
days for public comments. A fuller description of the ICR is given
below, including its estimated burden and cost to the public. 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 OMB
control number.

DATES: Additional comments may be submitted on or before November 28,
2022.

ADDRESSES: Submit your comments to EPA, referencing Docket ID No. EPA-
HQ-OPPT-2017-0318, online using www.regulations.gov (our preferred
method), by email to https://www.epa.gov/dockets, or by mail to: EPA
Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460. EPA's policy is that all
comments received will be included in the public docket without change
including any personal information provided, unless the comment
includes profanity, threats, information claimed to be Confidential
Business Information (CBI), or other information whose disclosure is
restricted by statute.
    Submit written comments and recommendations to OMB for the proposed
information collection within 30 days of publication of this notice to
www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function.

FOR FURTHER INFORMATION CONTACT: Katherine Sleasman, Regulatory Support
Branch (7101M), Office of Chemical Safety and Pollution Prevention,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460; telephone number:<PHONE_NUMBER>; email address:
[email protected].

SUPPLEMENTARY INFORMATION: Supporting documents, which explain in
detail the information that the EPA will be collecting, are available
in the public docket for this ICR. The docket can be viewed online at
www.regulations.gov or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's dockets, visit https://www.epa.gov/dockets.
    Abstract: EPA procures contract support to facilitate the
performance of certain duties. EPA may require contractors to handle
TSCA CBI. Each contractor employee who will use TSCA CBI in the
performance of his or her duties must be authorized for access to TSCA
CBI through a multi-step process. The TSCA CBI Protection Manual
provides Federal and contractor employees with guidelines and operating
procedures for handling TSCA CBI while performing their official
duties, as well as the procedures to obtain authorization for access to
TSCA CBI.
    Specifically, for purposes of this information collection,
contractor personnel must submit to EPA the EPA form titled ``TSCA CBI
Access Request, Agreement, and Approval'' (EPA Form 7740-6). The Agency
uses EPA Form 7740-6 to collect information about contractor personnel
so that the Agency can evaluate their suitability for access to TSCA
CBI.
    Form Numbers: 7740-6.
    Respondents/affected entities: Potentially affected entities may
include but are not limited to the following: NAICS codes 514
(Information Services) and 561 (Administrative and Support Services).
    Respondent's obligation to respond: Mandatory, 15 U.S.C. 2613.
    Estimated number of respondents: 241 (total).
    Frequency of response: On occasion.
    Total estimated burden: 341 hours (per year). Burden is defined at
5 CFR 1320.3(b).
    Total estimated cost: $19,740 (per year), includes $0 annualized
capital or operation & maintenance costs.
    Changes in the estimates: The estimated annual burden to
contractors is unchanged at 341 hours compared with that identified in
the ICR currently approved by OMB. Also, the costs to the industry
respondents increased by $435, reflecting increases in labor and
overhead costs over time.

Courtney Kerwin,
Director, Regulatory Support Division.
[FR Doc. 2022-23374 Filed 10-26-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 80, Number 240 (Tuesday, December 15, 2015)]
[Notices]
[Page 77650]
[FR Doc No: 2015-31536]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4192-DR; Docket ID FEMA-2015-0002]

American Samoa; Amendment No. 1 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: This notice amends the notice of a major disaster for the
Territory of American Samoa (FEMA-4192-DR), dated September 10, 2014,
and related determinations.

DATES: Effective Date: November 24, 2015.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that special cost
sharing arrangements are warranted regarding Federal funds provided
under the authority of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121-5206 (Stafford Act).
Therefore, consistent with 48 U.S.C. 1469a(d), pertaining to insular
areas, and the President's declaration letter dated September 10, 2014,
Federal funds for the Hazard Mitigation Grant Program are authorized at
100 percent of total eligible costs for the Territory of American
Samoa. This cost share is effective as of the date of the President's
major disaster declaration.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households In
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050 Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs; 97.036,
Disaster Grants--Public Assistance (Presidentially Declared
Disasters); 97.039, Hazard Mitigation Grant.)

W. Craig Fugate,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2015-31536 Filed 12-14-15; 8:45 am]
 BILLING CODE 9111-23-P


[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Proposed Rules]
[Pages 43610-43611]
[FR Doc No: 2011-18476]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2011-0431; Airspace Docket No. 11-AGL-11]

Proposed Amendment of Class E Airspace; Spearfish, SD

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: This action proposes to amend Class E airspace at Spearfish,
SD. Additional controlled airspace is necessary to accommodate new
Standard Instrument Approach Procedures (SIAP) at Black Hills Airport-
Clyde Ice Field. The geographic coordinates of the airport also would
be updated. The FAA is taking this action to enhance the safety and
management of Instrument Flight Rules (IFR) operations for SIAPs at the
airport.

DATES: 0901 UTC. Comments must be received on or before September 6,
2011.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You
must identify the docket number FAA-2011-0431/Airspace Docket No. 11-
AGL-11, at the beginning of your comments. You

may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the
proposal, any comments received, and any final disposition in person in
the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Docket Office (telephone 1-800-647-5527),
is on the ground floor of the building at the above address.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd, Fort Worth, TX 76137; telephone: (817) 321-
7716.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2011-0431/
Airspace Docket No. 11-AGL-11.'' The postcard will be date/time stamped
and returned to the commenter.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received and any final disposition in person in the Dockets
Office (see ADDRESSES section for address and phone number) between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. An
informal docket may also be examined during normal business hours at
the office of the Central Service Center, 2601 Meacham Blvd, Fort
Worth, TX 76137.
    Persons interested in being placed on a mailing list for future
NPRMs should contact the FAA's Office of Rulemaking<PHONE_NUMBER>, to
request a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    This action proposes to amend Title 14, Code of Federal Regulations
(14 CFR), Part 71 by amending Class E airspace extending upward from
700 feet above the surface to accommodate new standard instrument
approach procedures at Black Hills Airport-Clyde Ice Field, Spearfish,
SD. Controlled airspace is needed for the safety and management of IFR
operations at the airport. The geographic coordinates of the airport
would also be updated to coincide with the FAA's aeronautical database.
    Class E airspace areas are published in Paragraph 6005 of FAA Order
7400.9U, dated August 18, 2010 and effective September 15, 2010, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would amend controlled airspace at Black Hills Airport-Clyde Ice
Field, Spearfish, SD.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

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

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

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

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

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of FAA Order
7400.9U, Airspace Designations and Reporting Points, dated August 18,
2010, and effective September 15, 2010, is amended as follows:

Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

AGL SD E5 Spearfish, SD [Amended]

Black Hills Airport--Clyde Ice Field, SD
    (Lat. 44[deg]28'52'' N., long. 103[deg]47'09'' W.)

    That airspace extending upward from 700 feet above the surface
within a 7-mile radius of Black Hills Airport--Clyde Ice Field, and
within 2.1 miles each side of the 305[deg] bearing from the airport
extending from the 7-mile radius to 8.3 miles northwest of the
airport, and within 2 miles each side of the 135[deg] bearing from
the airport extending from the 7-mile radius to 18.3 miles southeast
of the airport; and that airspace extending upward from 1,200 feet
above the surface within an area bounded by a line beginning at lat.
44[deg]29'50'' N, long. 103[deg]56'17'' W; to lat. 44[deg]13'37'' N,
long. 104[deg]14'00'' W; to lat. 44[deg]18'41'' N, long.
104[deg]23'24'' W; to lat. 44[deg]44'11'' N, long. 103[deg]57'49''
W; to lat. 44[deg]50'13'' N, long. 103[deg]28'11'' W; to lat.
44[deg]47'27'' N, long. 102[deg]57'40'' W; to lat. 44[deg]39'31'' N,
long. 102[deg]56'34'' W; to lat. 44[deg]38'27'' N, long.
103[deg]12'26'' W; to lat. 44[deg]25'51'' N, long. 103[deg]37'45''
W; thence clockwise via the 7-mile radius of the airport to the
point of beginning.

    Issued in Fort Worth, TX, on July 13, 2011.
Walter L. Tweedy,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2011-18476 Filed 7-20-11; 8:45 am]
BILLING CODE 4901-13-P