[Federal Register: September 28, 2009 (Volume 74, Number 186)]
[Rules and Regulations]
[Page 49323-49325]
[DOCID:fr28se09-7]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0202]
RIN 1625-AA09

Drawbridge Operation Regulations; Raritan River, Arthur Kill and
Their Tributaries, Staten Island, NY and Elizabeth, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard changed the drawbridge operating regulations
governing the operation of the Arthur Kill (AK) Railroad Bridge at mile
11.6, across Arthur Kill and the New Jersey Transit (NJTRO) Railroad
Bridge at mile 0.5, across the Raritan River. This final rule is
expected to better meet the present needs of navigation and enhanced
needs of rail traffic resulting from the resumption of rail traffic
across the Arthur Kill (AK) Bridge.

DATES: This rule is effective October 28, 2009.

ADDRESSES: Comments and related materials received from the public, as
well as documents mentioned in this preamble as being available in the
docket, are part of docket (USCG-2009-0202) and are available online by
going to http://www.regulations.gov, inserting USCG-2009-0202 in the
``Keyword'' box, and then clicking ``Search.'' This material is also
available for inspection or copying at the Docket Management Facility
(M-30), U.S. Department of Transportation, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, 20590-0001,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Mr. Gary Kassof, Project Officer, First Coast Guard
District, telephone<PHONE_NUMBER>,e-mail<EMAIL_ADDRESS>If you
have any questions on viewing the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On June 24, 2009, we published an interim rule entitled
``Drawbridge Operation Regulations''; Raritan River, Arthur Kill and
their tributaries, Staten Island and Elizabeth, New Jersey, in the
Federal Register (74 FR 29941). We received no comments on the interim
rule. No public meeting was requested, and none was held.

Background and Purpose

    The Arthur Kill (AK) Railroad Bridge at mile 11.6, across Arthur
Kill, has a vertical clearance of 31 feet at mean high water, and 35
feet at mean low water in the closed position. The New Jersey Transit
(NJTRO) Railroad Bridge at mile 0.5, across the Raritan River, has a
vertical clearance of 8 feet at mean high water and 13 feet at mean low
water in the closed position.
    The previous drawbridge operating regulations listed at 33 CFR
117.747, required the draws of all bridges across the Raritan River,
Arthur Kill and their tributaries to open on signal at all times;
except that, from 7:30 a.m. to 10 a.m. and from 5 p.m. to 7:30 p.m.,
the draws may be opened for the passage of vessels for periods no
longer than ten minutes or remain closed for the passage of land
traffic for no longer than ten minutes.
    The New Jersey Transit Railroad Bridge at mile 0.5, across the
Raritan River and the Arthur Kill (AK) Railroad Bridge at mile 11.6,
across Arthur Kill were the only drawbridges operating under this
regulation.
    Rail traffic was suspended for many years on the rail line that
crosses the Arthur Kill (AK) Bridge. During the time rail traffic was
suspended across Arthur Kill the Arthur Kill (AK) Railroad Bridge was
locked in the full open position.
    Several years ago the Arthur Kill (AK) Railroad Bridge was
mechanically and structurally rehabilitated as part of New York City
Economic Development Corporation's Full Freight Access Initiative, and
restored to good operating condition in 2007 enabling restoration of
rail freight service across the Arthur Kill (AK) Railroad Bridge to the
Staten Island Landfill facility and the New York Container Terminal,
formerly known as the Howland Hook Terminal. Rail traffic began
crossing the re-opened bridge in June of 2007.
    After a short period of time, it became apparent, that the then
existing drawbridge operation regulations, would no longer effectively
meet the present complex needs of navigation and the revitalized volume
of rail traffic that would be crossing the Arthur Kill (AK) Railroad
Bridge.
    The bridge owner, New York City Economic Development Corporation
(NYCEDC), requested a change to the drawbridge operation regulations to
help facilitate the resumption of rail traffic crossing the Arthur Kill
(AK) Railroad Bridge.
    As a result of the above described transition in the needs of
commerce, the Coast Guard conducted an evaluation, comprised of three
temporary test deviations and an interim rule, with public comment
periods, to help determine the best drawbridge operation regulations to
meet the present and future needs of marine and rail transportation.
    Each test deviation modified the previous test as a result of their
observed effectiveness and comments received from the public.
    After evaluating the results of our third temporary deviation the
Coast Guard concluded that the operating procedure tested in the third
deviation

was the most reasonable and effective drawbridge operation regulation
which best addressed the present and future needs of navigation and
rail traffic.
    We then implemented an interim rule with request for comment, in
order to allow the operating procedures tested by our third deviation
to become effective the day after that third deviation ended.

Discussion of Comments and Changes

    The Coast Guard received no comment letters in response to the
interim rule. As a result, no changes have been made to this final
rule.

Regulatory Analysis

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analysis
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3), of that Order. The Office of Management and Budget has not
reviewed it under that Order.
    This conclusion is based on the fact that this final rule is not a
significant regulatory action. This conclusion is based upon the fact
that vessel and rail traffic will both be able to transit over and
through the Arthur Kill (AK) Railroad Bridge under a balanced and
reasonable schedule.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b), that this rule
will not have a significant economic impact on a substantial number of
small entities.
    This conclusion is based on the fact that the commercial marine
traffic and rail traffic will both be able to transit over and through
the Arthur (AK) Railroad Bridge under a balanced and reasonable
schedule.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to
assist small entities in understanding the rule so that they could
better evaluate its effects on them and participate in the rulemaking
process.
    No small entities requested Coast Guard assistance and none was
given.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not concern an
environmental risk to health or risk to safety that may
disproportionately affect children.

Indian Tribal Governments

    This final rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have substantial direct effect on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.1D, which
guides the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of a category of actions which does not
individually or cumulatively have a significant effect on the human
environment. This rule is categorically excluded, under figure 2-1,
paragraph (32)(e), of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an
environmental analysis checklist and a categorical exclusion
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority:  33 U.S.C. 499; 33 CFR 1.05-1(g); Department of
Homeland Security Delegation No. 0170.1.

0
2. Add a new Sec.  117.702 to read as follows:

Sec.  117.702  Arthur Kill

    (a) The draw of the Arthur Kill (AK) Railroad Bridge shall be
maintained in the full open position for navigation at all times,
except during periods when it is closed for the passage of rail
traffic.
    (b) The bridge owner/operator shall maintain a dedicated telephone
hot line for vessel operators to call the bridge in advance to
coordinate anticipated bridge closures. The telephone hot line number
shall be posted on signs at the bridge clearly visible from both the up
and downstream sides of the bridge.
    (c) Tide restrained deep draft vessels shall notify the bridge
operator, daily, of their expected times of vessel transits through the
bridge, by calling the designated telephone hot line.
    (d) The bridge shall not be closed for the passage of rail traffic
during any predicted high tide period if a tide restrained deep draft
vessel has provided the bridge operator with an advance notice of their
intent to transit through the bridge. For the purposes of this
regulation, the predicted high tide period shall be considered to be
from two-hours before each predicted high tide to a half-hour after
each predicted high tide taken at the Battery, New York.
    (e) The bridge operator shall issue a manual broadcast notice to
mariners of the intent to close the bridge for a period of up to thirty
minutes for the passage of rail traffic, on VHF-FM channels 13 and 16
(minimum range of 15 miles) 90-minutes before and again at 75-minutes
before each bridge closure.
    (f) Beginning at 60 minutes prior to each bridge closure, automated
or manual broadcast notice to mariners must be repeated at 15 minute
intervals and again at 10 and 5 minutes prior to each bridge closure
and once again as the bridge begins to close and appropriate sound
signal given.
    (g) Two fifteen minute bridge closures may be provided each day for
the passage of multiple rail traffic movements across the bridge. Each
fifteen minute bridge closure shall be separated by at least a thirty
minute period when the bridge is returned to and remains in the full
open position. Notification of the two fifteen minute closures shall
follow the same procedures outlined in paragraphs e and f above.
    (h) A vessel operator may request up to a 30 minute delay for any
bridge closure in order to allow vessel traffic to meet tide or current
requirements; however, the request to delay the bridge closure must be
made within 30 minutes following the initial broadcast for the bridge
closure. Requests received after the initial 30 minute broadcast will
not be granted.
    (i) In the event of a bridge operational failure, the bridge
operator shall immediately notify the Coast Guard Captain of the Port
New York. The bridge owner/operator must provide and dispatch a bridge
repair crew to be on scene at the bridge no later than 45 minutes after
the bridge fails to operate. A repair crew must remain at the bridge at
all times until the bridge has been fully restored to normal operations
or the bridge must be raised and locked in the fully open position.

0
3. Section 117.747 is revised to read as follows:

Sec.  117.747  Raritan River

    (a) The draw of New Jersey Transit Rail Operations Railroad Bridge
at mile 0.5 shall open on signal; except that, from 6 a.m. to 9:30 a.m.
and 4:30 p.m. to 7:30 p.m., Monday through Friday, except holidays, the
bridge need not open.
    (b) The bridge owner shall provide and keep in good legible
condition two clearance gauges with figures not less than 12 inches
high designed, installed and maintained according to the provisions of
Sec.  118.160 of this chapter.
    (c) Trains and locomotives shall be controlled so that any delay in
opening the draw span shall not exceed ten minutes. However, if a train
moving toward the bridge has crossed the home signal for the bridge
before the signal requesting opening of the bridge is given, the train
may continue across the bridge and must clear the bridge interlocks
before the bridge may be opened.

    Dated: September 8, 2009.
Joseph L. Nimmich,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-23278 Filed 9-25-09; 8:45 am]


of excessive cost. As noted above, EPA has traditionally examined
whether the necessary technology exists today, and if not, what is the
cost of developing and implementing such technology. To the extent it
is appropriate for EPA to continue to examine the cost of implementing
ZEV technology, CARB estimates that by 2025 the incremental cost of a
ZEV or TZEV is expected to rapidly decline, yet remain approximately
$10,000 (high end estimate) higher than a conventional vehicle.\162\
The Manufacturers note that CARB's analysis provides an incremental
cost of $12,900 in MY 2020.\163\ Under EPA's traditional analysis of
cost in the waiver context, because such cost does not represent a
``doubling or tripling'' of the vehicle cost, such cost is not
excessive nor does it represent an infeasible standard.\164\ Moreover,
though EPA believes that it is not necessary or appropriate for EPA to
evaluate how manufacturers choose to

allocate the incremental costs of ZEVs over their respective California
fleets. CARB has identified one methodology of speeding the cost over
the entire fleet with a resulting incremental cost of approximately
$500, which is well within acceptable cost levels. EPA notes that
manufacturers and dealers have many possible strategies available to
spread the cost of the ZEV requirement beyond ZEV purchasers, but that
such strategies are within the market choices of the manufacturers and
dealers. Although EPA received comment that a manufacturer may have to
employ costly marketing strategies if consumers do not otherwise accept
ZEV vehicles, we do not believe such statements evidence standards that
are infeasible. EPA also notes the likely existence of additional
incentive programs that will further enable the marketability of ZEV
vehicles from a cost perspective.
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    \162\ CARB waiver request at 6.
    \163\ Manufacturers' comments at 16.
    \164\ MEMA I at 1118.
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Relevance of Section 177 States on Consistency Analysis
    The opponents of CARB's ZEV amendments, as they affect 2018 and
later MYs, rely upon the implications of the adoption of CARB's ZEV
amendments in section 177 states and resulting feasibility concerns.
EPA's longstanding interpretation of section 209(b) and its
relationship with section 177, is that it is not appropriate under
section 209(b)(1)(C) to review California regulations, submitted by
CARB, through the prism of adopted or potentially adopted regulations
by section 177 states. EPA believes the language of section 209(b) is
intended to apply solely to whether California's regulations can be
denied a waiver under the criteria of section 209(b). State regulations
promulgated under section 177, which are promulgated by separate state
agencies under their own authority, and which have not been submitted
to EPA for waiver review, are not a proper focus of review for our
determination regarding whether California's state regulations meet the
requirements under section 209(b). Section 177, and the state statutes
authorizing state action under section 177, is separate provisions with
their own requirements, and those opposed to state regulations
promulgated under section 177 would need to take action under those
provisions in those states.
    An issue that arose during EPA's consideration of California's
waiver request for its 1990 LEV standards was whether EPA could
consider in its waiver decision the impact and implications of other
states adopting the California standards under section 177. EPA
concluded that section 209(b) does not authorize the agency to consider
the impacts of actions or potential actions taken by other states under
section 177 in reviewing a waiver request by California for its state
standards.\165\ EPA also received comment, during a 1978 waiver review
that EPA must consider each of the criteria of section 209(b) of the
Act in light of the possibility that eligible States may impose the
emission control requirements, for which a waiver has been granted,
under section 177. A commenter further argued that EPA could not grant
a waiver unless and until we could make an affirmative finding that the
basic market demand could be satisfied in all States eligible to adopt
and enforce the California standards under section 177. We did not
agree with the commenters' interpretation of EPA's responsibilities
under section 209(b). ``That section authorizes me to deny California a
waiver only if I have determined that California does not meet the
given criteria; it does not require me in granting a waiver to consider
the impacts of actions taken by other States under section 177* * *''
EPA continued ``The legislative history behind the Clean Air Act
Amendments of 1977 [the amendments that added section 177] contains no
statement to the contrary.'' \166\ More significantly, the legislative
history behind the amendments to section 209(b) specifically states
that the intent of these amendments was * * * ``to ratify and
strengthen the California waiver provision and to affirm the underlying
intent of that provision, i.e. to afford California the broadest
possible discretion in selecting the best means to protect the health
of its citizens and the public welfare.'' \167\ EPA also determined
that Congress already had balanced the burdens on manufacturers by
selecting the language they did for section 177 and believed that such
authority should not place an undue burden on the vehicle
manufacturers. EPA is also guided by the District of Columbia Circuit's
discussion of section 177 and section 209: ``Rather than being faced
with 51 different standards, as they had feared, or with only one as
they had sought, manufacturers must cope with two regulatory standards
under the legislative compromise embodied in section 209(a).\168\
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    \165\ 58 FR 4166 (January 13, 1993), and LEV Decision Document
at pp. 185-186. See ``State and Federal Standards of Mobile Source
Emissions: Published by the National Research Council, 2006 at 81,
83. ``In contrast to section 209(b) in which Congress explicitly
assigned EPA the role of approving waiver of federal preemption for
California standards, in section 177, Congress did not assign EPA
any role in approving adoption of California by other states. As EPA
itself stated, `language requiring that other States request and
receive authorization from EPA is noticeable absent.''
    \166\ See H.R. Rep. No. 95-294, 95th Cong. 1st Sess. 14, 23, 26,
207-217, 301-302, 209-311 (1977); H.R. Rep. No. 95-564, 95th Cong.,
1st Sess. 156, 158, 170 (1977).
    \167\ 43 FR 1829 (January 12, 1978), citing H.R. Rep No. 95-294,
95th Cong., 1st Sess. 301-302 (1977).
    \168\ Engine Manufacturers Association v EPA, 88 F3d 1075, 1080
(DC Cir. 1996).
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    EPA also believes it important to clarify that the record and the
comments do not indicate that the CARB Board based its technological
feasibility analysis, in order to determine the ability of
manufacturers to meet CARB's standards within California, on the
existence of any travel provisions or other regulatory provisions which
may allow a manufacturer to take credit for certain ZEV sales outside
of California.
Manufacturer Contentions Regarding Cost-Effectiveness
    With regard to the Manufacturers' contention that CARB's ZEV
regulation is not cost-effective in terms of the cost per ton of
removing CO2, EPA agrees with California's argument that
case law clearly precludes EPA's consideration of this issue within the
waiver context. Consistent with the court in MEMA I, the Agency has
previously evaluated costs in the waiver context by looking at the
actual cost of compliance in the lead time provided by the regulation,
not the regulation's cost effectiveness.\169\ As noted previously, EPA
has clearly stated that ``The issue of whether a proposed California
requirement is likely to result in only marginal improvement in air
quality not commensurate with its cost or is otherwise an arguably
unwise exercise of regulatory power is not legally pertinent to my
decision under section 209 * * *.'' \170\ EPA has consistently afforded
deference to CARB's policy judgments and has recognized that ``The
structure and history of the California waiver provision clearly
indicate both a Congressional intent and an EPA practice of leaving the
decision on ambiguous and controversial matters of public policy to
California's judgment.'' \171\ To the extent the Manufacturers are
raising general concerns regarding the cost associated with the ZEV
technology and meeting applicable ZEV requirements, EPA has addressed
this above.
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    \169\ 36 FR 17158 (August 31, 1971). See also 74 FR 3232744,
32775 (July 8, 2009).
    \170\ Id.
    \171\ 40 FR 23102, 23104 (May 18, 1975). See also Decision
Document accompanying waiver determination in 58 FR 4166 (January
13, 1993).

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Consumer Demand
    With respect to the consumer demand issues raised, we note that the
record, based on comment from the Manufacturers and the Dealers, is
insufficient to meet the burden of proof to counter the current and
projected consumer demand evidence supplied by CARB and the other
commenters supporting the waiver. EPA did not receive any evidence or
data from commenters to refute the projections made by CARB or other
commenters. Although the Dealers maintain that CARB's point that BEV
and even FCVs are being marketed today is not sufficient to demonstrate
the demand for hundreds of thousands of ZEVs that will be required to
be produced by 2025, the Dealers only turn to the history of the ZEV
program. We believe such history is instructive. However, it does not
meet the burden of proof required to demonstrate that the ZEV
requirements are technologically infeasible looking forward, given the
substantial amount of lead time before the standards take effect and
the steps that manufacturers and dealers can take to facilitate
compliance with these standards (e.g. rebates and other incentives). In
addition, we note that PHEV and ZEV costs are projected to decrease as
demand increases and regulatory floors are established. EPA believes
CARB easily meets the historical test of whether their emission
standards result in ``doubling or tripling'' of costs as applied in
MEMA I noted above. EPA has heard directly from consumer groups that
express confidence that demand for advance technology vehicles exists
today and continues to grow. In addition to this evidence, EPA also
believes that the analyses of future ZEV market potential, noted above,
provide additional evidence that CARB's projections are supportable.
Moreover, while marketability is an important issue for Manufacturers
and Dealers, it is questionable how relevant it is to basic
technological feasibility. As discussed above, there is no real
question about the basic feasibility of this technology, and that the
cost of each vehicle, if carried across a Manufacturer's entire sales
line, is not as high as to implicate basic feasibility. That matter of
how Manufacturers and Dealers choose to market these vehicles is one of
market choice, as Manufacturers and Dealers attempt to maximize sales
at the expense of other Manufacturers and Dealers. That the industry as
a whole will experience increased costs, and that such increased costs
will create marketability issues, is clear. But these are not so
significant to implicate the technological feasibility of the vehicles
for purposes of a waiver determination.
Infrastructure
    The Manufacturers' recommendation that EPA deny a waiver for the
2018 and later ZEV amendments is based largely on an argument
surrounding lack of market demand (discussed above) and infrastructure
in the section 177 states. The comments state, ``* * * while
California's infrastructure and consumer market may be developing to
the point where at some time in the future the introduction of the
number of ZEVs required under the California regulations may be
feasible in that State, the same is not true of all the Section 177
States that have adopted ZEV.'' \172\
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    \172\ Manufacturers comment at 13.
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    However, as explained above, EPA has determined in previous waiver
actions that section 209(b) does not authorize the Agency to consider
the impacts of actions or potential actions taken by other states under
section 177 in reviewing a waiver request. CARB provided considerable
evidence of state and federal efforts and programs underway to ensure
that the infrastructure needed for the ZEV program in California is
available. The Manufacturers and Dealers do not take issue specifically
with CARB's assertions regarding the infrastructure that has been, and
will be, put in place to meet these requirements in California.
Therefore, based on the record before me those opposing the waiver on
this basis have not met their burden of proof.
Dealers' List of Feasibility Criteria
    Lastly, EPA responds to the laundry list of requirements that the
Dealers maintain is required in order for ZEVs to be marketable and
thus for the ZEV regulations to be technologically feasible. The
Dealers fail to provide any evidence to support their assertions nor do
they refute the legal arguments and evidence otherwise in the record.
For example, the Dealers fail to provide any evidence that ZEV vehicles
are not as safe as the conventionally-fueled (conventional) vehicles of
the same size. EPA agrees with CARB's statements that ZEV vehicles will
meet the same safety requirements that conventional vehicles must meet.
In any case, while EPA takes safety into consideration when examining
the feasibility of emission standards, this basic feasibility does not
require an examination of the relative safety of each vehicle.
    With regard to performance--many ZEVs already achieve acceleration
and power characteristics expected on conventional vehicles. In
addition, the Dealers provide no evidence that ZEVs lack performance
characteristics that are essential for basic feasibility of the
vehicle. ZEVs on the market today span a wide range of performance
capability. The Mitsubishi iMiEV is a small four seat electric city
car.\173\ Nissan's Leaf offers 5 seats and a size comparable to a
Nissan Versa.\174\ Tesla's Model S is a larger sedan with luxury and
performance comparable to other luxury sedans. Tesla's Roadster is a
high performance two-seater EV.\175\ Finally, Toyota's RAV4 EV is an
electric version of their popular RAV4 SUV.\176\ All these vehicles are
designed to compete favorably on a performance basis with conventional
cars in the same class.
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    \173\ http://www.mitsubishicars.com/MMNA/jsp/imiev/12/trims.do.
    \174\ http://www.nissanusa.com/leaf-electric-car/key-features.
    \175\ http://www.teslamotors.com/goelectric#.
    \176\ http://www.toyota.com/rav4ev/specs.html.
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    EPA has not historically taken into consideration the range and
refueling times. Moreover, NADA does not present any evidence or data
to suggest necessary ranges and refueling times deemed essential by
consumers. Nor do the Dealers provide evidence that BEVs are not now,
and cannot be in the lead time permitted, be manufactured in a manner
to be above these necessary ranges and times. Evidence in the record
suggests that many consumers average drive trips and refueling
expectations are well within the capacity of current ZEV technology.
EPRI analyzed a ``National Household Travel Survey'' that found: about
95% of daily driving is under 90 total miles; about 80% of daily
driving is under 40 total miles; about 65% of daily driving is under 20
miles; and, there seems to be little variation in daily driving habits
between many factors such as weekday/weekend, seasons, rural/urban,
income, etc.\177\
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    \177\ EPRI: Transportation Statistics Analysis for Electric
Transportation, Technical Update EPRI 1021848, Dec 2011.
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    EPA also notes that additional lead time is abundant, from nine to
twelve years for the 2022-2025 timeframe for further developments to
technology that can reasonably be expected.
c. Conclusion on Technological Feasibility
    After its review of the information in this proceeding, EPA has
determined that the industry opponents have not met the burden of
producing the evidence necessary for EPA to find that California's LEV
III/GHG standards and ZEV emission standards (as finalized on

December 6, 2012) are not consistent with Section 202(a).
5. Consistency of Certification Test Procedures
    CARB notes that the test procedures for certifying ZEVs, AT PZEVs,
and PZEVs are contained in the ZEV and LEV Standards and Test
Procedures incorporated by reference in section 1962.1(h) and 1962.2(h)
and are largely un-amended by the 2012 ZEV rulemaking. The federal Tier
2 regulations require manufacturers to measure emissions from ZEVs in
accordance with the California test procedures. Accordingly there are
no inconsistencies between the federal and California test procedures
that would preclude a manufacturer from conducting one set of tests to
demonstrate compliance with federal and California certification
requirements. EPA has received no adverse comment or evidence of test
procedure inconsistency and therefore we cannot deny the waiver on this
basis.
6. Relevance of the Energy Policy and Conservation Act (EPCA) to the
Waiver Decision
    EPA received comment from the Dealers that CARB's waiver request
for its GHG emission standards should be denied because CARB's
standards are in direct conflict with EPCA. The Dealers note ``EPCA
expressly preempts state GHG emission standards because such laws
relate to fuel economy standards.'' \178\
---------------------------------------------------------------------------

    \178\ Dealers at 10.
---------------------------------------------------------------------------

    As EPA has stated on numerous occasions, section 209(b) of the
Clean Air Act limits our authority to deny California's requests for
waivers to the three criteria therein, and EPA has refrained from
denying California's requests for waivers based on any other criteria.
Where the Court of Appeals for the District of Columbia Circuit has
reviewed EPA decisions declining to deny waiver requests based on
criteria not found in section 209(b), the court has upheld and agreed
with EPA's determination.\179\
---------------------------------------------------------------------------

    \179\ See Motor and Equipment Manufacturers Ass'n v. Nichols,
142 F.3d 449, 462-63, 466-67 (DC Cir. 1998), MEMA I at 1111, 1114-
20.
---------------------------------------------------------------------------

    Evaluation of whether California's GHG standards are preempted,
either explicitly or implicitly, under EPCA, is not among the criteria
listed under section 209(b). EPA may only deny waiver requests based on
the criteria in section 209(b), and inconsistency with EPCA is not one
of those criteria. In considering California's request for a waiver, I
therefore have not considered whether California's standards are
preempted under EPCA. As in previous waiver decisions, the decision on
whether to grant the waiver is based solely on the criteria in section
209(b) of the Clean Air Act and this decision does not attempt to
interpret or apply EPCA or any other statutory provision.

VI. Decision

    The Administrator has delegated the authority to grant California
section 209(b) waivers of preemption to the Assistant Administrator for
Air and Radiation. After review of the information submitted by CARB
and other parties to this Docket, I find that those opposing the waiver
request have not met the burden of demonstrating that California's
regulations do not satisfy one or more of the three statutory criteria
of section 209(b). For this reason, I am granting California's waiver
request to enforce its ACC emission regulations, including the ``deemed
to comply'' rule for GHG emissions. EPA also determines that CARB's
amendments to the ZEV program as they affect 2017 and prior MYs are
within the scope of previous waivers of preemption granted to
California for its ZEV regulations. In the alternative, EPA's waiver of
preemption for CARB's ACC regulations includes a waiver of preemption
for CARB's ZEV amendments as they affect all MYs, including 2017 and
prior MYs.
    My decision will affect not only persons in California but also
persons outside the State who would need to comply with California's
GHG emission regulations. For this reason, I hereby determine and find
that this is a final action of national applicability.
    Under section 307(b)(1) of the Act, judicial review of this final
action may be sought only in the United States Court of Appeals for the
District of Columbia Circuit. Petitions for review must be filed by
March 11, 2013. Under section 307(b)(2) of the Act, judicial review of
this final action may not be obtained in subsequent enforcement
proceedings.

VII. Statutory and Executive Order Reviews

    As with past waiver decisions, this action is not a rule as defined
by Executive Order 12866. Therefore, it is exempt from review by the
Office of Management and Budget as required for rules and regulations
by Executive Order 12866.
    In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a
supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.
    Further, the Congressional Review Act, 5 U.S.C. 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, does not apply because this action is not a rule, for purposes of
5 U.S.C. 804(3).

    Dated: December 27, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2013-00181 Filed 1-8-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 83 (Friday, April 29, 2016)]
[Rules and Regulations]
[Pages 25611-25613]
[FR Doc No: 2016-09862]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R02-OAR-2015-0755; FRL-9945-71-Region 2]

Approval and Promulgation of State Plans for Designated
Facilities; Commonwealth of Puerto Rico; Control of Emissions From
Existing Sewage Sludge Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the
State plan submitted by the Commonwealth of Puerto Rico to implement
and enforce the Emission Guidelines (EG) for existing sewage sludge
incineration (SSI) units. Puerto Rico's plan is consistent with the EG
promulgated by the EPA on March 21, 2011. Puerto Rico's plan
establishes emission limits and other requirements for the purpose of
reducing toxic air emissions and other air pollutants from existing SSI
units throughout the Commonwealth. At the request of Puerto Rico, the
EPA is not taking action on a provision of its SSI plan allowing for
affirmative defenses of Clean Air Act violations in the case of
malfunctions. Puerto Rico submitted its plan to fulfill the
requirements of sections 111(d) and 129 of the Clean Air Act.

DATES: This rule is effective on May 31, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2015-0755), to http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment

contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system).
    For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Air Programs
Branch, Environmental Protection Agency (EPA), Region 2, 290 Broadway,
25th Floor, New York, New York 10007-1866,<PHONE_NUMBER>, or by email
at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. What action is the EPA taking today?

    The EPA is approving Puerto Rico's State plan submitted to the EPA
on July 30, 2014, for the control of air emissions from existing sewage
sludge incineration (SSI) units throughout the Commonwealth. When the
EPA developed the New Source Performance Standards (NSPS) (subpart
LLLL) for SSI units on March 21, 2011, it concurrently promulgated
Emission Guidelines (EG) (subpart MMMM) to control air emissions from
existing SSI units. The Puerto Rico State SSI plan adopts and
implements the EG applicable to existing SSI units, and establishes
other requirements for SSI units constructed on or before October 14,
2010.
    The Puerto Rico Environmental Quality Board (PREQB) developed a
plan, as required by sections 111(d) and 129 of the Clean Air Act
(CAA), to adopt the EG into its body of regulations, and EPA is acting
today to approve Puerto Rico's plan.
    As explained below, Puerto Rico requested in its July 30, 2014
submittal, that the EPA not take any action on a provision of the
Puerto Rico State SSI plan allowing for affirmative defenses of CAA
violations in the case of malfunctions.
    Therefore, the EPA is not taking action on the affirmative defense
provision portion of Puerto Rico's State SSI plan.

II. What is the background for Puerto Rico's request that EPA not take
action on the affirmative defense provision?

    In an April 18, 2014 opinion, the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit Court) vacated an
affirmative defense in one of the EPA's Section 112 regulations.
Natural Resources Defense Council v. Environmental Protection Agency,
749 F.3d 1055 (D.C. Circuit, 2014) (vacating affirmative defense
provisions in the Section 112 rule establishing emission standards for
Portland cement kilns). The court found that the EPA lacked authority
to establish an affirmative defense for private civil suits and held
that under the CAA, the authority to determine civil penalty amounts in
such cases lies exclusively with the courts, not the EPA. The Office of
General Counsel determined that EPA policy should reflect the court's
decision. The vacated affirmative defense provision in the EPA's
Portland cement MACT rule is identical to the affirmative defense
provision in the EPA's SSI EG, promulgated on March 21, 2011, under
sections 111(d) and 129 of the CAA, at Sec.  60.5181 (``How do I
establish an affirmative defense for exceedance of an emission limit or
standard during a malfunction?''). Puerto Rico's State SSI plan adopted
all the applicable requirements of the EPA's SSI EG, including the
affirmative defense provisions at Sec.  60.5181, into its State plan at
Rule 405(d) of the Regulation for the Control of Atmospheric Pollution
(RCAP). Specifically, Puerto Rico requested that the EPA not include
the following affirmative defense provisions in Puerto Rico's Rule
405(d): (d)(2)(E), (d)(2)(E)(i) and (d)(2)(E)(ii) in Puerto Rico's
State plan.
    Because of the April 2014 D.C. Court vacatur referred to above,
Puerto Rico, in its July 30, 2014 submittal letter to the EPA,
requested that the EPA not take action on the affirmative defense
provision included in Puerto Rico's State SSI plan submitted to the EPA
for approval on July 30, 2014.\1\
---------------------------------------------------------------------------

    \1\ On April 13, 2016, the EPA Administrator signed the final
rule for the Federal SSI plan which would apply to SSI units that
are not covered by an approved and effective state plan. The Federal
plan does not include an affirmative defense to violations that
result from malfunctions. The reader is referred to section IV.B. on
page 82 of the prepublication version of the federal plan on EPA's
Web site at: https://www3.epa.gov/ttn/atw/129/ssi/SSI%20final%20Federal%20Plan.pdf.
---------------------------------------------------------------------------

    Consequently, the EPA is not taking any action on those particular
provisions of Puerto Rico's State SSI plan as discussed herein.

III. What are the details of EPA's action?

    On March 21, 2011, in accordance with sections 111(d) and 129 of
the CAA, EPA promulgated the SSI EG and compliance times for the
control of emissions from existing SSI units. See 76 FR 15371. EPA
codified these guidelines at 40 CFR part 60, subpart MMMM. They include
a model rule at 40 CFR 60.5085 through 62.5250 that States may use to
develop their own plans. Under that rule, EPA has defined an ``SSI
unit,'' in part, as any incineration unit that combusts sewage sludge
for the purpose of reducing the volume of the sewage sludge by removing
combustible matter. 40 CFR 60.5250.
    On July 30, 2014,\2\ the Puerto Rico Environmental Quality Board
submitted its section 111(d) State plan for implementing EPA's EG for
existing SSI units located in the Commonwealth of Puerto Rico.
---------------------------------------------------------------------------

    \2\ In emails dated 6/04/2015, 8/10/2015 and 11/10/2015, Puerto
Rico responded to EPA's requests to provide clarifying information
concerning Puerto Rico's State SSI plan. This clarifying information
also is available in EPA's docket at www.regulations.gov.
---------------------------------------------------------------------------

    Puerto Rico amended Rule 102, entitled ``Definitions of the
Regulation for the Control of Atmospheric Pollution (RCAP),'' and
incorporated Rule 405(d), entitled ``Emission Guidelines and Compliance
Times for Existing Sewage Sludge Incineration Units (SSI),'' to include
the requirements for implementing the SSI EG covered under Sections
111(d) and 129 of the CAA, and codified in 40 CFR part 60, subpart
MMMM. Revisions to Puerto Rico's Rules \3\ became effective on July 13,
2014.
---------------------------------------------------------------------------

    \3\ Puerto Rico's SSI regulation can be found at the Puerto Rico
Environmental Quality Board's Web page at: http://www2.pr.gov/agencias/jca/LeyesyReglamentos/Pages/Reglamentos.aspx. Then look for
RCAP Amendment Reg. 8485 for SSI units.
---------------------------------------------------------------------------

    For further details, the reader is referred to EPA's proposal
located in the EPA's electronic docket at www.regulations.gov.

IV. What comments were received on the proposed approval and how has
the EPA responded to them?

    There were no comments received on the EPA's proposed rulemaking
(80 FR 76894, December 11, 2015) regarding Puerto Rico's State plan for
existing SSI units. The 30-day public comment period on the EPA's
proposed approval ended on January 11, 2016.

V. What is the EPA's conclusion?

    For the reasons described in this rulemaking and in EPA's proposal,
the EPA is approving Puerto Rico's sections 111(d) and 129 plan for
existing SSI units. However, as described above, the EPA is not taking
any action on the affirmative defense provisions in Puerto Rico's Rule
405(d), as follows: (d)(2)(E), (d)(2)(E)(i) and (d)(2)(E)(ii) in Puerto
Rico's State plan.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/
129 plan submission that complies with the provisions of the Act and
applicable

Federal regulations. 40 CFR 62.04. Thus, in reviewing 111(d)/129 plan
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 Order
12866 (58 FR 51735, October 4, 1993);
     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 Clean Air Act; 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, this action does not have tribal implications as
specified by Executive Order 13175, because the section 111(d)/129 plan
is not approved to apply in Indian country located in the state, and
EPA notes that it will not impose substantial direct costs on tribal
governments or preempt tribal law. Thus, Executive Order 13175 does not
apply to this section.
    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. The 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 28, 2016. 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 62

    Environmental protection, Administrative practice and procedure,
Air pollution control, Aluminum, Fertilizers, Fluoride, Incorporation
by reference, Intergovernmental relations, Paper and products industry,
Phosphate, Reporting and recordkeeping requirements, Sulfur oxides,
Sulfuric acid plants, Waste treatment and disposal.

    Dated: April 18, 2016.
Judith A. Enck,
Regional Administrator, Region 2.

    40 CFR part 62 is amended as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart BBB--Puerto Rico

0
2. Add Sec.  62.13109 and an undesignated heading to subpart BBB to
read as follows:

Air Emissions From Existing Sewage Sludge Incineration Units

Sec.  62.13109  Identification of plan.

    (a) On July 30, 2014, the Puerto Rico Environmental Quality Board
(PREQB) submitted to the Environmental Protection Agency a section
111(d)/129 plan for implementation and enforcement of 40 CFR part 60,
subpart MMMM--Emission Guidelines and Compliance Times for Existing
Sewage Sludge Incineration Units. In emails dated June 4, 2015, August
10, 2015 and November 10, 2015, the PREQB submitted clarifying
information concerning Puerto Rico's plan. The State plan includes
revisions to Rule 102 and Rule 405 of the Puerto Rico Regulations for
the Control of Atmospheric Pollution, entitled, ``Definitions'' and
``Incineration,'' Respectively. The revisions to Rules 102 and 405
became effective on July 13, 2014. At the request of Puerto Rico, EPA
has not taken any action on a provision of its State plan allowing for
affirmative defenses of Clean Air Act violations in the case of
malfunctions.
    (b) Identification of sources: The plan applies to existing sewage
sludge incineration (SSI) units that:
    (1) Commenced construction on or before October 14, 2010; or
    (2) Commenced a modification on or before September 21, 2011
primarily to comply with Puerto Rico's plan; and
    (3) Meets the definition of a SSI unit defined in Puerto Rico's
plan.
    (c) The effective date of the plan for existing sewage sludge
incineration units is May 31, 2016.

[FR Doc. 2016-09862 Filed 4-28-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 80, Number 239 (Monday, December 14, 2015)]
[Notices]
[Page 77398]
[FR Doc No: 2015-31358]

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SECURITIES AND EXCHANGE COMMISSION

Submission for OMB Review; Comment Request

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

Extension:
    Form T-3; OMB Control No. 3235-0105, SEC File No. 270-123.

    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'') has submitted to the Office of Management and Budget
this request for extension of the previously approved collections of
information discussed below.
    Form T-3 (17 CFR 269.3) is an application for qualification of an
indenture under the Trust Indenture Act of 1939 (15 U.S.C. 77aaa et
seq.). The information provided under Form T-3 is used by the
Commission to determine whether to qualify an indenture relating to an
offering of debt securities that is not required to be registered under
the Securities Act of 1933 (15 U.S.C. 77a et seq.). Form T-3 is filed
on occasion. The information required by Form T-3 is mandatory. This
information is publicly available on EDGAR. Form T-3 takes
approximately 43 hours per response to prepare and is filed by
approximately 12 respondents. We estimate that 25% of the 43 hours per
response (11 hours) is prepared by the filer for a total annual
reporting burden of 132 hours (11 hours per response x 12 responses).
    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.
    The public may view the background documentation for this
information collection at the following Web site, www.reginfo.gov.
Comments should be directed to: (i) Desk Officer for the Securities and
Exchange Commission, Office of Information and Regulatory Affairs,
Office of Management and Budget, Room 10102, New Executive Office
Building, Washington, DC 20503, or by sending an email to:
<EMAIL_ADDRESS>and (ii) Pamela Dyson, Director/Chief
Information Officer, Securities and Exchange Commission, c/o Remi
Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email
to<EMAIL_ADDRESS>Comments must be submitted to OMB within 30
days of this notice.

    Dated: December 8, 2015.
Brent J. Fields,
Secretary.
[FR Doc. 2015-31358 Filed 12-11-15; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Notices]
[Pages 28411-28413]
[FR Doc No: 2012-11583]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66946; File No. SR-NYSEArca-2012-36]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change Amending the NYSE
Arca Equities Fee Schedule To Make Correction to the Tape A, Tape B,
and Tape C Step Up Tiers

May 8, 2012.
    Pursuant to Section 19(b)(1)\1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on April 27, 2012, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend the NYSE Arca Equities Fee Schedule
(``Fee Schedule'') to make a correction to the Tape A, Tape B, and Tape
C Step Up Tiers. The proposed change will be operative on May 1, 2012.
The text of the proposed rule change is available at the Exchange,
www.nyse.com, and the Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to amend the Fee Schedule to make a
correction to the Tape A, Tape B, and Tape C Step Up Tiers. These fees
were adopted as of March 1, 2012.\4\ As described in more detail below,
in certain provisions of the Fee Schedule, the Exchange inadvertently
made a reference to ``Baseline Month'' when it should have instead
referred to ``billing month.''
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 66568 (March 9,
2012), 77 FR 15819 (March 16, 2012) (SR-NYSEArca-2012-17) (the
``Release'').
---------------------------------------------------------------------------

Tape A Step Up Tier
    Currently, the Tape A Step Up Tier allows ETP Holders and Market
Makers that take liquidity from the Book to pay a reduced fee of
$0.0029 per share if they directly execute providing volume in Tape A
Securities during the billing month (``Tape A Adding ADV'') that is at
least the greater of (a) the ETP Holder's or Market Maker's January
2012 (``Baseline Month'') Tape A Adding ADV (``Tape A Baseline ADV'')
plus 0.075% of US Tape A Consolidated Average Daily Share Volume
(``CADV'') for the Baseline Month or (b) the ETP Holder's or Market
Maker's Tape A Baseline ADV plus 20%, subject to the ETP Holders' and
Market Makers' total providing liquidity in Tape A, Tape B, and Tape C
Securities increasing in an amount no less than 0.03% of US CADV over
their Baseline Month providing liquidity.
    Additionally, if a firm's ratio of Tape A Baseline ADV to its total
Tape A average daily volume (``ADV'') during the Baseline Month is less
than 30%, the $0.0029 rate would only apply to the ETP Holder's or
Market Maker's shares that are executed in an amount up to and
including 0.75% of the US Tape A CADV during the billing month. The
rate of $0.0030 per share would apply to the ETP Holder's or Market
Maker's remaining shares that are executed, unless the ETP Holder's or
Market Maker's Tape A Adding ADV is greater than its Tape A Baseline
ADV by at least 0.25% of the US Tape A CADV during the billing month.
Investor Tier ETP Holders or Investor Tier Market Makers cannot qualify
for the Tape A Step Up Tier.

    The Exchange proposes to amend the Fee Schedule so that ETP Holders
and Market Makers that take liquidity from the Book to pay a reduced
fee of $0.0029 per share if they directly execute providing volume in
Tape A Securities during the billing month (``Tape A Adding ADV'') that
is at least the greater of (a) the ETP Holder's or Market Maker's
Baseline Month Tape A Adding ADV (``Tape A Baseline ADV'') plus 0.075%
of US Tape A Consolidated Average Daily Share Volume (``CADV'') for the
billing month or (b) the ETP Holder's or Market Maker's Tape A Baseline
ADV plus 20%, subject to the ETP Holders' and Market Makers' total
providing liquidity in Tape A, Tape B, and Tape C Securities increasing
in an amount no less than 0.03% of US CADV over their Baseline Month
providing liquidity. The Exchange does not propose to make any
additional changes to the Tape A Step Up Tier.
Tape B Step Up Tier
    Currently, the Tape B Step Up Tier allows ETP Holders and Market
Makers that take liquidity from the Book to pay a reduced fee of
$0.0026 per share if they directly execute providing volume in Tape B
Securities during the billing month (``Tape B Adding ADV'') that is at
least the greater of (a) the ETP Holder's or Market Maker's Baseline
Month Tape B Adding ADV (``Tape B Baseline ADV'') plus 0.25% of US Tape
B CADV for the Baseline Month or (b) the ETP Holder's or Market Maker's
Tape B Baseline ADV plus 20%, subject to the ETP Holders' and Market
Makers' total providing liquidity in Tape A, Tape B, and Tape C
Securities increasing in an amount no less than 0.03% of US CADV over
their Baseline Month providing liquidity.
    Additionally, if a firm's ratio of Tape B Baseline ADV to its total
Tape B ADV during the Baseline Month is less than 30%, the $0.0026 rate
would only apply to the ETP Holder's or Market Maker's shares that are
executed in an amount up to and including 1.5% of the US Tape B CADV
during the billing month. The rate of $0.0028 or $0.0030 per share, as
applicable, would apply to the ETP Holder's or Market Maker's remaining
shares that are executed, unless the ETP Holder's or Market Maker's
Tape B Adding ADV is greater than its Tape B Baseline ADV by at least
0.45% of the US Tape B CADV during the billing month. Investor Tier ETP
Holders, Investor Tier Market Makers, and Lead Market Makers (``LMMs'')
cannot qualify for the Tape B Step Up Tier. In addition, LMM provide
volume cannot apply to the Tape B Step Up Tier volume requirements.
    The Exchange proposes to amend the Fee Schedule so that ETP Holders
and Market Makers that take liquidity from the Book to pay a reduced
fee of $0.0026 per share if they directly execute providing volume in
Tape B Securities during the billing month (``Tape B Adding ADV'') that
is at least the greater of (a) the ETP Holder's or Market Maker's
Baseline Month Tape B Adding ADV (``Tape B Baseline ADV'') plus 0.25%
of US Tape B CADV for the billing month or (b) the ETP Holder's or
Market Maker's Tape B Baseline ADV plus 20%, subject to the ETP
Holders' and Market Makers' total providing liquidity in Tape A, Tape
B, and Tape C Securities increasing in an amount no less than 0.03% of
US CADV over their Baseline Month providing liquidity. The Exchange
does not propose to make any additional changes to the Tape B Step Up
Tier.
Tape C Step Up Tier
    Currently, the Tape C Step Up Tier allows ETP Holders and Market
Makers that take liquidity from the Book to pay a reduced fee of
$0.0029 per share if they directly execute providing volume in Tape C
Securities during the billing month (``Tape C Adding ADV'') that is at
least the greater of (a) the ETP Holder's or Market Maker's Baseline
Month Tape C Adding ADV (``Tape C Baseline ADV'') plus 0.10% of US Tape
C CADV for the Baseline Month or (b) the ETP Holder's or Market Maker's
Tape C Baseline ADV plus 20%, subject to the ETP Holders' and Market
Makers' total providing liquidity in Tape A, Tape B, and Tape C
Securities increasing in an amount no less than 0.03% of US CADV over
their Baseline Month providing liquidity.
    Additionally, if a firm's ratio of Tape C Baseline ADV to its total
Tape C ADV during the Baseline Month is less than 30%, the $0.0029 rate
would only apply to the ETP Holder's or Market Maker's shares that are
executed in an amount up to and including 1.1% of the US Tape C CADV
during the billing month. The rate of $0.0030 per share would apply to
the ETP Holder's or Market Maker's remaining shares that are executed,
unless the ETP Holder's or Market Maker's Tape C Adding ADV is greater
than its Tape C Baseline ADV by at least 0.33% of the US Tape C CADV
during the billing month. Investor Tier ETP Holders or Investor Tier
Market Makers cannot qualify for the Tape C Step Up Tier.
    The Exchange proposes to amend the Fee Schedule so that ETP Holders
and Market Makers that take liquidity from the Book to pay a reduced
fee of $0.0029 per share if they directly execute providing volume in
Tape C Securities during the billing month (``Tape C Adding ADV'') that
is at least the greater of (a) the ETP Holder's or Market Maker's
Baseline Month Tape C Adding ADV (``Tape C Baseline ADV'') plus 0.10%
of US Tape C CADV for the billing month or (b) the ETP Holder's or
Market Maker's Tape C Baseline ADV plus 20%, subject to the ETP
Holders' and Market Makers' total providing liquidity in Tape A, Tape
B, and Tape C Securities increasing in an amount no less than 0.03% of
US CADV over their Baseline Month providing liquidity. The Exchange
does not propose to make any additional changes to the Tape C Step Up
Tier.
    The Exchange notes that the discrepancy did not have an adverse
effect on ETP Holders with respect to March and April 2012 billing
because the total market volume reported to the Consolidated Tape in
January 2012, March 2012, and April 2012 was not significantly
different.\5\ However, going forward, the Exchange believes that, as
intended in its original filing, the threshold should move in
proportion to volume in the billing month in order to properly
incentivize ETP Holders to post more volume on the Exchange. For
example, if overall volume doubles in the current billing month, ETP
Holders volume also may double in terms of shares, although their
volumes relative to the entire market remain unchanged. The Exchange
did not intend to offer the more favorable Step Up Tier rates in these
circumstances, and as such, the correction to the calculation to
reflect the billing month is necessary.
---------------------------------------------------------------------------

    \5\ The Exchange further notes that each of the examples in the
footnotes of the Release correctly reflected the Exchange's
intention to reference the billing month.
---------------------------------------------------------------------------

    The proposed change will be operative on May 1, 2012.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\6\ in general, and Section 6(b)(4) of the
Act,\7\ in particular, in that it is designed to provide for the
equitable allocation of reasonable dues, fees, and other charges among
its members and other persons using its facilities. The Exchange
further believes that the correction to the Fee Schedule is reasonable,
equitable and not unfairly discriminatory because all similarly
situated ETP Holders will be subject to the same fee structure. In
particular, the Exchange intended to provide an option to qualify for
the Step Up Tiers that would be based on a calculation of both

the ETP Holder's providing volume in the Baseline Month and the billing
month. The Exchange also believes the proposed amendments to the Tape
A, Tape B, and Tape C Step Up Tiers will continue to incentivize ETP
Holders to increase the orders sent directly to the Exchange and
therefore provide liquidity that supports the quality of price
discovery and promotes market transparency.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \8\ of the Act and subparagraph (f)(2) of Rule 19b-
4 \9\ thereunder, because it establishes a due, fee, or other charge
imposed by the NYSE Arca.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please
include File Number SR-NYSEArca-2012-36 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2012-36. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2012-36 and should
be submitted on or before June 4, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-11583 Filed 5-11-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 215 (Monday, November 7, 2011)]
[Notices]
[Page 68747]
[FR Doc No: 2011-28689]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL12-7-000]

Hess Corporation v. PJM Interconnection, L.L.C.; Notice of
Petition for Declaratory Order and Complaint

    Take notice that on October 26, 2011, pursuant to Rules 207(a)(2)
and 212 of the Rules of the Federal Energy Regulatory Commission's
(Commission) Rules of Practice and Procedures, 18 CFR 385.207(a)(2) and
385.212, Hess Corporation (Complainant) filed a Petition for
Declaratory Order requesting that the Commission determine that PJM
Interconnection, L.L.C.'s (Respondent) current Open Access Transmission
Tariff (OATT) permits the Respondent to make a minor adjustment to two
phase angle regulators (PAR) owned by Public Service Electric and Gas
Company for purposes of modeling Complainant's pending interconnection
request for a proposed 625 MW gas-fired electric generating facility to
be located in Newark, New Jersey. In the alternative, pursuant to
section 206 of the Federal Power Act, 16 U.S.C. 824e and Rule 206 of
the Commission's Rules of Practice and Procedure, 18 CFR 385.206,
Complainant filed a formal complaint, requesting that the Commission
revise the Respondent's Tariff and/or associated Manuals as necessary
to require the Complainant to adjust PARs to accommodate generator
interconnections, such as the interconnection of the Newark Energy
Center, when such adjustment would not harm the reliability of the
Respondent's system or impose costs on other customers.
    The Complainant certifies that copies of the complaint were served
on the contacts for the Respondent as listed on the Commission's list
of Corporate Officials.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. The Respondent's
answer and all interventions, or protests must be filed on or before
the comment date. The Respondent's answer, motions to intervene, and
protests must be served on the Complainants.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on November 25, 2011.

    Dated: October 28, 2011.
Kimberly D. Bose,
Secretary.
[FR Doc. 2011-28689 Filed 11-4-11; 8:45 am]
BILLING CODE 6717-01-P