[Federal Register Volume 86, Number 90 (Wednesday, May 12, 2021)]
[Notices]
[Pages 26082-26084]
[FR Doc No: 2021-09971]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91785; File Nos. SR-NYSE-2021-05, SR-NYSEAMER-2021-04,
SR-NYSEArca-2021-07, SR-NYSECHX-2021-01, SR-NYSENAT-2021-01]

Self-Regulatory Organizations; New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE National,
Inc.; Order Instituting Proceedings To Determine Whether To Approve or
Disapprove Proposed Rule Changes To Amend the Exchange's Price List
Related to Co-Location To Establish Two Additional Partial Cabinet
Solution Bundles

May 6, 2021.

I. Introduction

    On January 19, 2021, New York Stock Exchange LLC (``NYSE''), NYSE
American LLC (``NYSE American''), NYSE Arca, Inc. (``NYSE Arca''), NYSE
Chicago, Inc. (``NYSE Chicago''), and NYSE National, Inc. (``NYSE
National'') (collectively, the ``Exchanges'') each filed with the
Securities and Exchange Commission (``Commission''), pursuant to
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Exchange
Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule
change to amend the Exchanges' fee schedules related to co-location to
add two Partial Cabinet Solution bundles. The proposed rule changes
were published for comment in the Federal Register on February 5, 2021
or February 8, 2021, as applicable.\3\ On March 18, 2021, pursuant to
Section 19(b)(2) of the Act,\4\ the Commission designated a longer
period within which to either approve the proposed rule changes,
disapprove the proposed rule changes, or institute proceedings to
determine whether to disapprove the proposed rule changes.\5\ The
Commission received no comments on the proposed rule changes.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release Nos. 91034 (February 1,
2021), 86 FR 8443 (February 5, 2021) (SR-NYSE-2021-05); 91035
(February 1, 2021), 86 FR 8449 (February 5, 2021) (SR-NYSEAMER-2021-
04); 91036 (February 1, 2021), 86 FR 8440 (February 5, 2021) (SR-
NYSECHX-2021-01); and 91037 (February 1, 2021), 86 FR 8424 (February
5, 2021) (SR-NYSENAT-2021-01); 91044 (February 2, 2021), 86 FR 8662
(February 8, 2021) (SR-NYSEArca-2020-08) (each, a ``Notice''). For
ease of reference, page citations are to the Notice for NYSE-2021-
05.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release Nos. 91357 (March 18,
2021), 86 FR 15732 (March 24, 2021) (SR-NYSE-2021-05); 91358 (March
18, 2021), 86 FR 15732 (March 24, 2021) (SR-NYSEAMER-2021-04); 91362
(March 18, 2021), 86 FR 15765 (March 24, 2021) (SR-NYSECHX-2021-01);
and 91363 (March 18, 2021), 86 FR 15763 (March 24, 2021) (SR-
NYSENAT-2021-01). The Commission designated May 6, 2021, as the date
by which it should approve, disapprove, or institute proceedings to
determine whether to disapprove the proposed rule changes.
     See Securities Exchange Act Release No. 91360 (March 18, 2021),
86 FR 15764 (March 24, 2021) (SR-NYSEArca-2020-08). The Commission
designated May 9, 2021, as the date by which it should approve,
disapprove, or institute proceedings to determine whether to
disapprove the proposed rule change.
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    This order institutes proceedings under Section 19(b)(2)(B) of the
Exchange Act \6\ to determine whether to approve or disapprove the
proposed rule changes.
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    \6\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Changes

    The Exchanges, as part of their co-location services, currently
offer Users \7\ four Partial Cabinet Solutions bundles, labeled Options
A, B, C, and D. Options A and B include a partial cabinet powered to
either one or two kilowatts (``kW''); a 1 Gb connection to the
liquidity center network (``LCN'') and a 1 Gb connection to the
internet protocol (``IP'') network, two fiber cross connections, and
connectivity to one of two time feeds.\8\ Options C and D include a 10
Gb connection to the LCN Network and a 10 GB connection to the IP
network and are otherwise the same as Options A and B.\9\ The Exchanges
state that the Partial Cabinet Solution bundles are designed to attract
smaller Users, including those with minimal power or cabinet space
demands or those for which the costs of having a dedicated cabinet are
too burdensome.\10\ To purchase a bundle, Users must pay an initial
charge and a monthly charge per bundle.\11\
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    \7\ For purposes of the Exchanges' co-location services, a
``User'' means any market participant that requests to receive co-
location services directly from one or more of the Exchanges.
    \8\ See Notice, supra note 3, at 8444. See Securities Exchange
Act Release Nos. 77072 (February 5, 2016), 81 FR 7394 (February 11,
2016) (SR-NYSE-2015-53); 77070 (February 5, 2016), 81 FR 7401
(February 11, 2016) (SR-NYSEArca-2015-102); 77072 (February 5,
2016), 81 FR 7382 (February 11, 2016) (SR-NYSEMKT-2015-89); 83351
(May 31, 2018), 83 FR 26314, 26315 (June 6, 2018) (SR-NYSENAT-2018-
07); 87408 (October 28, 2019), 84 FR 58778, 58779-80 (November 1,
2019) (SR-NYSECHX-2019-12).
    \9\ Id.
    \10\ See id. at 8444.
    \11\ Id. In addition, Users must satisfy the following
conditions to qualify for a Partial Cabinet Solution bundle: (1) A
User and its Affiliates are limited to one Partial Cabinet Solution
bundle at a time, and (2) after the purchase of the Partial Cabinet
Solution bundle, the User, together with its Affiliates, must have
an aggregate cabinet footprint of no more than 2 kW. See General
Note 2 of the Price List. The Exchanges also propose that General
Note 2 apply to the Option E and F bundles, without alteration. Id.
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    The Exchanges recently amended Options C and D, which offer 10 Gb
connections to the LCN and IP networks, to also offer, at no additional
cost, two 10 Gb connections to the NMS Network, an alternate dedicated
network connection that Users could use to access the NMS feeds for
which the Securities Industry Automation Corporation is engaged as the
securities information processor.\12\ The Exchanges now propose to add
two new Partial Cabinet Solution bundles: Proposed Options E and F
would offer a 40 Gb connection to the LCN network and a 40 Gb
connection to the IP network, and two 40 Gb connections to the NMS
Network. Otherwise, proposed Options E and F would be the same as the
Options C and D bundles, offering a 1 kW (Option E) or 2 kW (Option F)
partial cabinet, two fiber cross connects, and either the Network Time
Protocol Feed or the Precision Timing Protocol.\13\ The Exchanges state
that, currently, Users who are interested in Partial Cabinet Solution
bundles, either because they have minimal power and cabinet space
demands or because the costs attendant with having a dedicated cabinet
are too burdensome, cannot access 40 Gb connections and are limited to
the 10 Gb connections offered as part of the Option C and D
bundles.\14\ According to the Exchanges, Users and potential customers
requested that the Exchange offer Partial Cabinet Solution bundles that
include 40 Gb connections, enabling them to connect to more of the
Included Data Products and Third Party Data Feeds or have the same size
connection in co-location that they have everywhere.\15\
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    \12\ See Securities Exchange Act Release Nos. 88837 (May 7,
2020), 85 FR 28671 (May 13, 2020) (SR-NYSE-2019-46, SR-NYSEAMER-
2019-34, SR-NYSEArca-2019-61, SR-NYSENAT-2019-19) and 88972 (May 29,
2020), 85 FR 34472 (June 4, 2020) (SR-NYSECHX-2020-18).
    \13\ See Notice, supra note 3, at 8444.
    \14\ Id.
    \15\ Id. The list of Included Data Products and Third Party Data
Feeds are set forth in the Exchanges' fee schedules.
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    The Exchanges propose to offer each new bundle for an initial
charge of $10,000, and, following an initial promotional period, a
charge of $18,000 per month for Option E, and $19,000 per month for
Option F.\16\ In support of the proposed fees, the Exchanges state that
the proposed $10,000 initial charge for a new Option E or F bundle is
reasonable because it is the same as that assessed for Users choosing
the currently available Options C or D, and

setting up each of the four options involves a similar amount of work
for the Exchanges. The Exchanges also state that proposed monthly
charges of $18,000 and $19,000 for Options E and F, respectively, each
of which reflects a $4,000 increase over Options C and D, respectively,
are reasonable because the Exchanges will have to supply multiple 40 Gb
connections to offer the proposed new options.\17\
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    \16\ Users who order before December 31, 2021 would be charged
$9,000 per month for Option E or $9,500 per month for Option F for
the first 12 months of service.
    \17\ Id.
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    The Exchanges state that the proposed fees are equitably allocated
and not unfairly discriminatory, and will not impose any burden on
competition that is not necessary or appropriate because they would
apply to all Users equally, the purchases would be completely
voluntary, and the Exchanges are subject to significant competitive
forces.\18\ Regarding the competitive environment, the Exchanges state
that offering Options E and F to potential Users would expand the range
of options available, possibly making the proposed bundles more
attractive to potential Users who might otherwise seek similar services
from Hosting Users.\19\ According to the Exchanges, the proposal would
enhance the competitive environment for potential Users while also
allowing the Exchanges to attempt to maintain a more level playing
field with Hosting Users.\20\ The Exchanges further state that the fees
charged for co-location services are constrained by the active
competition for the order flow and other business from market
participants who believe that co-location enhances the efficiency of
their operations.\21\
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    \18\ See Notice, supra note 3, at 8446.
    \19\ Id. As the Exchanges acknowledge, a Hosting User is itself
a co-location User, allowed by the Exchanges to host other entities
in the data center for monthly fees charged by the Exchanges. See
Notice, supra note 3, at 8445 and n. 10. The Exchanges state that
they believe Hosting Users offer similar services to those proposed,
and that because Hosting Users' services are not regulated, they may
offer differentiated pricing and are not required to make their
pricing public. See Notice, supra note 3, at 8445 and n. 11.
    \20\ See Notice, supra note 3, at 8446.
    \21\ See id.
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III. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes

    The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act to determine whether the Exchanges' proposed
rule changes should be approved or disapproved.\22\ Institution of
proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, the
Commission seeks and encourages interested persons to provide
additional comment on the proposed rule changes to inform the
Commission's analysis of whether to approve or disapprove the proposed
rule changes.
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    \22\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\23\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
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    \23\ Id. Section 19(b)(2)(B) of the Act also provides that
proceedings to determine whether to disapprove a proposed rule
change must be concluded within 180 days of the date of publication
of notice of the filing of the proposed rule change. See id. The
time for conclusion of the proceedings may be extended for up to 60
days if the Commission finds good cause for such extension and
publishes its reasons for so finding, or if the exchange consents to
the longer period. See id.
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     Whether the Exchanges have demonstrated how the proposals
are consistent with Section 6(b)(4) of the Act, which requires that the
rules of a national securities exchange ``provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other persons using its facilities;'' \24\
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    \24\ 15 U.S.C. 78f(b)(4).
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     Whether the Exchanges have demonstrated how the proposals
are consistent with Section 6(b)(5) of the Act, which requires, among
other things, that the rules of a national securities exchange be
``designed to perfect the operation of a free and open market and a
national market system'' and ``protect investors and the public
interest,'' and not be ``designed to permit unfair discrimination
between customers, issuers, brokers, or dealers;'' \25\ and
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    \25\ 15 U.S.C. 78f(b)(5).
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     Whether the Exchanges have demonstrated how the proposals
are consistent with Section 6(b)(8) of the Act, which requires that the
rules of a national securities exchange ``not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of [the Act].'' \26\
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    \26\ 15 U.S.C. 78f(b)(8).
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    As discussed in Section II above, the Exchanges make various
arguments in support of the proposals, including that the proposed
initial charge and proposed monthly charge of $18,000 for Option E and
$19,000 for Option F are reasonable in relation to the fees charged for
Options C and D, based on the work entailed to provide the services and
supply the 40 Gb connections, and that the Exchanges are subject to
significant competitive forces. The Commission believes that there are
questions as to whether the Exchanges have provided sufficient
information to demonstrate that the proposals, including the proposed
fees, are consistent with the Act.
    Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the Exchange
Act and the rules and regulations issued thereunder . . . is on the
self-regulatory organization [`SRO'] that proposed the rule change.''
\27\ The description of a proposed rule change, its purpose and
operation, its effect, and a legal analysis of its consistency with
applicable requirements must all be sufficiently detailed and specific
to support an affirmative Commission finding.\28\ Any failure of an SRO
to provide this information may result in the Commission not having a
sufficient basis to make an affirmative finding that a proposed rule
change is consistent with the Act and the applicable rules and
regulations.\29\
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    \27\ 17 CFR 201.700(b)(3).
    \28\ See id.
    \29\ See id.
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    The Commission is instituting proceedings to allow for additional
consideration and comment on the issues raised herein, including as to
whether the proposals are consistent with the Act, specifically, with
its requirements that the rules of a national securities exchange
provide for the equitable allocation of reasonable dues, fees, and
other charges among its members, issuers, and other persons using its
facilities; are designed to perfect the operation of a free and open
market and a national market system, and to protect investors and the
public interest; are not designed to permit unfair discrimination
between customers, issuers, brokers, or dealers; and do not impose any
burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act; \30\ as well as any other
provision of the Act, or the rules and regulations thereunder.
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    \30\ See 15 U.S.C. 78f(b)(4), (5), and (8).
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IV. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by June 2, 2021. Rebuttal
comments should be submitted by June 16, 2021. Although there do not
appear to be any issues relevant to approval or disapproval that would
be facilitated by an oral presentation of views, data, and arguments,
the Commission will consider, pursuant to Rule 19b-4, any

request for an opportunity to make an oral presentation.\31\
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    \31\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by an SRO. See Securities
Acts Amendments of 1975, Report of the Senate Committee on Banking,
Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th
Cong., 1st Sess. 30 (1975).
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    The Commission asks that commenters address the sufficiency and
merit of the Exchanges' statements in support of the proposal, in
addition to any other comments they may wish to submit about the
proposed rule change.
    Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule changes, including whether the
proposed rule changes are 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 Nos. SR-NYSE-2021-05, SR-NYSEAMER-2021-04, SR-NYSEArca-2021-07,
SR-NYSECHX-2021-01, and SR-NYSENAT-2021-01 on the subject line.

Paper Comments

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

All submissions should refer to File Nos. SR-NYSE-2021-05, SR-NYSEAMER-
2021-04, SR-NYSEArca-2021-07, SR-NYSECHX-2021-01, and SR-NYSENAT-2021-
01. The file numbers 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 website (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 website
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 such filing also will be
available for inspection and copying at the principal office of the
Exchanges. All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Nos. SR-NYSE-2021-05, SR-NYSEAMER-
2021-04, SR-NYSEArca-2021-07, SR-NYSECHX-2021-01, and SR-NYSENAT-2021-
01and should be submitted on or before June 2, 2021. Rebuttal comments
should be submitted by June 16, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\32\
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    \32\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-09971 Filed 5-11-21; 8:45 am]
BILLING CODE 8011-01-P


Comment Info: =================

General Comment:Dear Mr. Zeller:

My name is David McDowell and I am writing as an individual consumer to request an extension of the comment period for the Food and Drug Administration's ("FDA") Proposed Rule Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking and Prevention and Tobacco Control Act (the "Proposed Rule") published at 79 Fed. Reg. 23,142 and Federal Register No. 2014-09491. On behalf of myself, I am requesting that the comment period for the Proposed Rule be extended by the FDA for an additional 105 days, from its current 75-day period, to 180 days.

The Proposed Rule raises a number of significant issues and questions that are important and relevant to me, as a consumer of products that are proposed for regulation under the Proposed Rule. The Proposed Rule asks about a hundred different questions I might want to respond to. I want to provide my thoughts and comments on many of these issues, but my time to devote to researching and providing thoughtful comments on these important questions is limited. I have already spent many hours researching and dissecting these issues, but they take time. I know that the FDA took many years to even come up with the Proposed Rule, so I do not think it is at all unreasonable to allow the public a mere six months to comment on it. This is our only opportunity, as consumers, to provide our feedback.

I feel very strongly about e-cigarettes as an alternative to combustible cigarettes. Quite simply, I firmly believe that they save lives. I wish to provide you with my personal story, as well as science- and evidence-based responses to your questions so that you can take my comment into account. I realize that the FDA has the authority under 21 CFR 10.40 to extend this time frame and that the FDA has exercised this authority on numerous occasions in the past. I would therefore ask that you do so here, so that all stakeholders have the opportunity to provide their comments on this proposed regulation.

I appreciate your consideration of my request and am happy to discuss this issue with you further.

Sincerely,

David E. McDowell


[Federal Register: May 12, 2006 (Volume 71, Number 92)]
[Notices]
[Page 27763-27764]
[DOCID:fr12my06-115]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53769; File No. SR-NASD-2006-041]

Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing and Immediate Effectiveness of Proposed
Rule Change, and Amendment No. 1 thereto, To Eliminate From The Nasdaq
Stock Market Inc.'s Corporate Organizational Documents Certain Series
of Preferred Stock

May 8, 2006.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 31, 2006, the National Association of Securities Dealers, Inc.
(``NASD''), through its subsidiary, The Nasdaq Stock Market, Inc.
(``Nasdaq''), filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by Nasdaq. On April 24,
2006, Nasdaq filed Amendment No. 1 to the proposed rule change.\3\
Nasdaq filed this proposal pursuant to section 19(b)(3)(A) of the Act
\4\ and Rule 19b-4(f)(3) thereunder \5\ as concerned solely with the
administration of the self-regulatory organization, and, therefore,
this proposal is effective immediately upon filing. The Commission is
publishing this notice to solicit comments on the proposed rule change,
as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, Nasdaq made clarifying changes to the
proposal and attached as Exhibit 5 to the filing a copy of the
Certificate of Elimination of the Series A Cumulative Preferred
Stock, Series B Preferred Stock and Series C Cumulative Preferred
Stock of The Nasdaq Stock Market, Inc.
    \4\ 15 U.S.C. 78s(b)(3)(A).
    \5\ 17 CFR 240.19b-4(f)(3).
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    Nasdaq proposes to proposal to eliminate from Nasdaq's corporate
organizational documents references to Series A Cumulative Preferred
Stock, Series B Preferred Stock, and Series C Cumulative Preferred
Stock, as there are no shares of any such series outstanding.

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

    In its filing with the Commission, Nasdaq included statements
concerning the purpose of and basis for the proposed rule change, as
amended, and discussed any comments it received on the proposed rule
change. The text of these statements may be examined at the places
specified in Item IV below. Nasdaq has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

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

1. Purpose
    Nasdaq wishes to eliminate its Certificate of Designations,
Preferences and Rights of Series A Cumulative Preferred Stock, its
Certificate of Designations, Preferences and Rights of Series B
Preferred Stock, its Certificate of Designations, Preferences and
Rights of Series C Cumulative Preferred Stock, and all matters set
forth therein. Nasdaq's Series A and Series B preferred stock were both
created in 2002; the Series C preferred stock was created in 2004. In
2004, all outstanding shares of the Series A preferred were exchanged
for the shares of Series C preferred. In 2005, the sole outstanding
share of Series B preferred was exchanged for a share of Nasdaq's
Series D preferred stock.\6\ Finally, in 2006, Nasdaq acquired all
outstanding shares of the Series C preferred stock. As a result, today
there remains only one share of Nasdaq's preferred stock outstanding--a
share of Series D preferred.
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    \6\ See Securities Exchange Act Release No. 53022 (December 23,
2005); 70 FR 77433 (December 30, 2005).
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    Under Delaware law, both a certificate of designations (designating
a series of preferred stock) and a certificate of elimination
(eliminating a previously adopted designation) are deemed to be
amendments to Nasdaq's Restated Certificate of Incorporation.
Therefore, Nasdaq is making this filing with the Commission. Nasdaq is
not, at this time, restating its Restated Certificate of
Incorporation.\7\
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    \7\ See Amendment No. 1.
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2. Statutory Basis
    Nasdaq believes that the proposed rule change, as amended, is
consistent with the provisions of section 15A of the Act,\8\ in general
and with section 15A(b)(6) of the Act,\9\ in particular. The proposal
is ministerial in nature and will not affect the rights of market
participants.
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    \8\ 15 U.S.C. 78o-3.
    \9\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Nasdaq does not believe that the proposed rule change, as amended,
will result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.

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

    Written comments were neither solicited nor received.

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

    This proposal, as amended, has become effective pursuant to section
19(b)(3)(A) of the Act \10\ and subparagraph (f)(3) of Rule 19b-4
thereunder \11\ because the proposal is concerned solely with the
administration of the self-regulatory organization.
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(3).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate 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, as amended, 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 e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NASD-2006-041 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASD-2006-041. This file
number should be included on the subject line if e-mail 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, as
amended, 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 inspection and copying in the Commission's Public
Reference Room. Copies of such filing also will be available for
inspection and copying at the principal office of the NASD. 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-NASD-2006-041 and
should be submitted on or before June 2, 2006.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-7269 Filed 5-11-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 77, Number 208 (Friday, October 26, 2012)]
[Proposed Rules]
[Pages 65341-65346]
[FR Doc No: 2012-26384]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2012-0537; FRL-9744-5]

Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Delaware County (Muncie), Indiana Ozone Maintenance Plan
Revision To Approved Motor Vehicle Emissions Budgets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve Indiana's request to revise the
Delaware County, Indiana 1997 8-hour ozone maintenance air quality
State Implementation Plan (SIP) by replacing the previously approved
motor vehicle emissions budgets (budgets) with budgets developed using
EPA's Motor Vehicle Emissions Simulator (MOVES) 2010a emissions model.
Indiana submitted this request to EPA for parallel processing with a
letter dated June 15, 2012, and followed up with a final submittal
after the State public comment period ended on July 18, 2012.

DATES: Comments must be received on or before November 26, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2012-0537, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: Pamela Blakley, Chief, Control Strategies Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: Pamela Blakley, Chief, Control Strategies
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2012-0537. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA

recommends that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses. For
additional instructions on submitting comments, go to section I of the
SUPPLEMENTARY INFORMATION section of this document.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Patricia Morris, Environmental
Scientist, at<PHONE_NUMBER> before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental
Scientist, Control Strategies Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. What action is EPA proposing to take?
III. What is the background for this action?
    a. SIP Budgets and Transportation Conformity
    b. Prior Approval of Budgets
    c. The MOVES Emissions Model and Regional Transportation
Conformity Grace Period
    d. Submission of New Budgets Based on MOVES2010a
IV. What are the criteria for approval?
V. What is EPA's analysis of the state's submittal?
    a. The Revised Inventories
    b. Approvability of the MOVES2010a-based Budgets
    c. Applicability of MOBILE6.2-based Budgets
VI. What action is EPA taking?
VII. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
    6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    8. Make sure to submit your comments by the comment period

II. What action is EPA proposing to take?

    EPA is proposing to approve new MOVES2010a-based budgets for the
Delaware County, Indiana 1997 8-hour ozone maintenance area. The
Delaware County, Indiana area was redesignated to attainment of the
1997 8-hour ozone standard effective January 3, 2006, (70 FR 69443) and
the MOBILE6.2-based budgets were approved in that action. If EPA
finalizes this proposed approval, the newly submitted MOVES2010a-based
budgets will replace the existing, MOBILE6.2-based budgets in the
State's 1997 8-hour ozone maintenance plan and must then be used in
future transportation conformity analyses for the area. At that time,
the previously approved MOBILE6 budgets would no longer be applicable
for transportation conformity purposes.
    If EPA approves the MOVES2010a-based budgets, the Delaware County
1997 8-hour ozone maintenance area must use the MOVES2010a-based
budgets starting on the effective date of the final approval. See the
official release of the MOVES2010 emissions model (75 FR 9411) for
background and section III. (c) below for details.

III. What is the background for this action?

a. SIP Budgets and Transportation Conformity

    Under the Clean Air Act (CAA), states are required to submit, at
various times, control strategy SIP revisions and maintenance plans for
nonattainment and maintenance areas for a given National Ambient Air
Quality Standard (NAAQS). These emission control strategy SIP revisions
(e.g., Reasonable Further Progress (RFP) and attainment demonstration
SIP revisions) and maintenance plans include budgets of on-road mobile
source emissions for criteria pollutants and/or their precursors to
address pollution from cars, trucks and other on-road vehicles. These
mobile source SIP budgets are the portions of the total emissions that
are allocated to on-road vehicle use that, together with emissions from
other sources in the area, will provide for attainment or maintenance
if they are not exceeded. The budget serves as a ceiling on emissions
from an area's planned transportation system. For more information
about budgets, see the preamble to the November 24, 1993,
transportation conformity rule (58 FR 62188).
    Under section 176(c) of the CAA, transportation plans,
Transportation Improvement Programs (TIPs), and transportation projects
must ``conform'' to (i.e., be consistent with) the SIP before they can
be adopted or approved. Conformity to the SIP means that transportation
activities will not cause new air quality violations, worsen existing
air quality violations, or delay timely attainment of the NAAQS or
delay an interim milestone. The transportation conformity regulations
can be found at 40 CFR parts 51, Subpart T, and 93.
    In general, before budgets can be used in conformity
determinations, EPA must affirmatively find the budgets adequate.
However, budgets that are replacing approved budgets must be found
adequate and approved before budgets can replace older budgets. If the
submitted SIP budgets are meant to replace budgets for the same
purpose, as is the case with Indiana's MOVES2010a 1997 8-hour ozone
maintenance plan budgets, EPA must approve the revised SIP and budgets,
and must affirm that they are adequate at the same time. Once EPA
approves revised budgets into the SIP, they must be used by state and
Federal agencies in determining whether transportation activities
conform to the SIP as required by section 176(c) of the CAA. EPA's
substantive criteria for determining the

adequacy of budgets are set out in 40 CFR 93.118(e)(4).

b. Prior Approval of Budgets

    EPA had previously approved budgets for the Delaware County, 8-hour
ozone maintenance area for volatile organic compounds (VOCs) and
nitrogen oxides (NOX) for the year 2015 on January 3, 2006
(70 FR 69443). These budgets were based on EPA's MOBILE6.2 emissions
model. The ozone maintenance plan established 2015 budgets for the
Delaware County, Indiana area of 3.50 tons per day (tpd) for VOCs and
4.82 tpd for NOX. These budgets demonstrated a reduction in
emissions from the monitored attainment year and included a margin of
safety.

c. The MOVES Emissions Model and Regional Transportation Conformity
Grace Period

    The MOVES model is EPA's state-of-the-art tool for estimating
highway emissions. The model is based on analyses of millions of
emission test results and considerable advances in the agency's
understanding of vehicle emissions. MOVES incorporates the latest
emissions data, more sophisticated calculation algorithms, increased
user flexibility, new software design, and significant new capabilities
relative to those reflected in MOBILE6.2.
    EPA announced the release of MOVES2010 in March 2010 (75 FR 9411).
EPA subsequently released two minor model revisions: MOVES2010a in
September 2010 and MOVES2010b in April 2012. Both of these minor
revisions enhance model performance and do not significantly affect the
criteria pollutant emissions results from MOVES2010.
    MOVES will be required for new regional emissions analyses for
transportation conformity determinations (``regional conformity
analyses'') outside of California that begin after March 2, 2013, or
when EPA approves MOVES-based budgets, whichever comes first.\1\ The
MOVES grace period for regional conformity analyses applies to both the
use of MOVES2010 and approved minor revisions (e.g., MOVES2010a and
MOVES2010b). For more information, see EPA's ``Policy Guidance on the
Use of MOVES2010 and Subsequent Minor Model Revisions for State
Implementation Plan Development, Transportation Conformity, and Other
Purposes'' (April 2012), available online at: www.epa.gov/otaq/stateresources/transconf/policy.htm#models.
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    \1\ Upon the release of MOVES2010, EPA established a two-year
grace period before MOVES is required to be used for regional
conformity analyses (75 FR 9411). EPA subsequently promulgated a
final rule on February 27, 2012 to provide an additional year before
MOVES is required for these analyses (77 FR 11394). In this case the
grace period ends on March 2, 2013.
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    EPA has encouraged areas to examine how MOVES would affect future
transportation plan and TIP conformity determinations so, if necessary,
SIPs and budgets could be revised with MOVES or transportation plans
and TIPs could be revised (as appropriate) prior to the end of the
regional transportation conformity grace period. EPA has also
encouraged state and local air agencies to consider how the release of
MOVES would affect analyses supporting SIP submissions under
development (77 FR 9411 and 77 FR 11394).
    The Delaware-Muncie Metropolitan Plan Commission (DMMPC), which is
the Metropolitan Planning Organization (MPO) for the Delaware County
area, has used MOVES2010a emission rates with the transportation
network information to estimate emissions in the years of the
transportation plan and also for the SIP. Indiana is revising the
budgets at this time using the latest planning assumptions including
population and employment updates. In addition, newer vehicle
registration data has been used to update the age distribution of the
vehicle fleet. Since MOVES2010 (or a minor model revision) will be
required for conformity analyses after the grace period ends, Indiana
has concluded that updating the budgets with MOVES2010a will prepare
the areas for the transition to using MOVES for conformity analyses and
determinations. The interagency consultation group has had extensive
consultation on the requirements and need for new budgets.

d. Submission of New Budgets Based on MOVES2010a

    On June 15, 2012, Indiana submitted for parallel processing
replacement budgets based on MOVES2010a for the Delaware County area.
Indiana provided public review and comment which ended on July 18,
2012. There were no comments. Indiana submitted the final SIP revision
request on August 17, 2012.
    The MOVES2010a budgets are proposed to replace the prior approved
MOBILE6.2 budgets and are for the same year and pollutants/precursors.
The new MOVES2010a budgets are for the year 2015 for both VOCs and
NOX and are detailed in a Table in section V(b) of this
notice. Indiana has also provided total emissions including mobile
emissions based on MOVES2010a, for the attainment year of 2002, the
interim year 2010 and the 2015 maintenance year. The total safety
margin available in 2015 for NOX is 15.36 tpd and for VOC is
4.76 tpd. This information is detailed in the submittal and provided in
the following table. The safety margin is defined as the reduction in
emissions from the base year (in this case the 2002 attainment year) to
the final year of the maintenance plan (in this case the 2015 year).
The total emissions include point, area, non-road and on-road mobile
sources.

                            Table of Total Emissions With MOVES2010a Mobile Emissions
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                      Year                             2002            2010            2015        Safety margin
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VOC.............................................           26.08           21.36           21.32            4.76
NOX.............................................           26.17           15.73           10.81           15.36
----------------------------------------------------------------------------------------------------------------

    Indiana has added only a small portion of the overall safety margin
available for NOX and VOCs to the budgets for 2015. The
submittal demonstrates how all emissions decline from the attainment
year of 2002. In 2002, the total estimated NOX emissions
from all sources (including mobile, point, area and non-road sources)
is 26.17 tpd and the total VOC emissions, for the 2002 attainment year,
from all sources is 26.08 tpd. The 2015 estimated emissions for total
NOX from all sources is 10.81 tpd and the total VOC
emissions from all sources is 21.32 tpd. This is further discussed in
section V of this notice and detailed in the table of total emissions
in section V. This reduction in emissions demonstrates that the area
will continue below the attainment level of emissions and maintain the
1997 8-hour ozone standard. The mobile source emissions, when included
with point, area, and

non-road sources continue to demonstrate maintenance of the attainment
level of emissions in the Delaware County area.
    No additional control measures were needed to maintain the 1997
ozone standard in the Delaware County area. An appropriate safety
margin for NOX and VOCs was decided by the interagency
consultation group (the interagency consultation group as required by
the state conformity agreement consists of representatives from the
Federal Highway Administration, the Indiana Department of
Transportation, the Indiana Department of Environmental Management
(IDEM), and EPA). The allocation of safety margin is included in Table
5.2-A of the Indiana submittal. The on-road MOVES2010a based budgets
are in Table 5.2-A of the submittal and are listed as 7.02 tpd for
NOX and 2.53 tpd for VOCs in the year 2015. These budgets
will continue to keep emissions in the Delaware County area below the
calculated attainment year of emissions.

IV. What are the criteria for approval?

    EPA requires that revisions to existing SIPs and budgets continue
to meet applicable requirements (e.g., RFP, attainment, or
maintenance). States that revise their existing SIPs to include MOVES
budgets must therefore show that the SIP continues to meet applicable
requirements with the new level of motor vehicle emissions contained in
the budgets. The SIP must also meet any applicable SIP requirements
under CAA section 110.
    In addition, the transportation conformity rule (at 40 CFR
93.118(e)(4)(iv)) requires that ``the budgets, when considered together
with all other emissions sources, is consistent with applicable
requirements for RFP, attainment, or maintenance (whichever is relevant
to the given implementation plan submission).'' This and the other
adequacy criteria found at 40 CFR 93.118(e)(4) must be satisfied before
EPA can find submitted budgets adequate and approve them for conformity
purposes.
    In addition, areas can revise their budgets and inventories using
MOVES without revising their entire SIP if (1) the SIP continues to
meet applicable requirements when the previous motor vehicle emissions
inventories are replaced with MOVES base year and milestone,
attainment, or maintenance year inventories, and (2) the state can
document that growth and control strategy assumptions for non-motor
vehicle sources continue to be valid and any minor updates do not
change the overall conclusions of the SIP. For example, the first
criterion could be satisfied by demonstrating that the emissions
reductions between the baseline/attainment year and maintenance year
are the same or greater using MOVES than they were previously. The
Indiana submittal meets this requirement as described below in section
V.
    For more information, see EPA's latest ``Policy Guidance on the Use
of MOVES2010 for SIP Development, Transportation Conformity, and Other
Purposes'' (April 2012), available online at: www.epa.gov/otaq/stateresources/transconf/policy.htm#models.

V. What is EPA's analysis of the State's submittal?

a. The Revised Inventories

    The Indiana SIP revision request for Delaware County 1997 ozone
maintenance seeks to revise only the on-road mobile source inventories
and not the non-road inventories, area source inventories or point
source inventories for the 2015 year for which the SIP revises the
budgets. IDEM has certified that the control strategies remain the same
as in the original SIP, and that no other control strategies are
necessary. This is confirmed by the monitoring data for Delaware
County, which continues to monitor attainment for the 1997 8-hour ozone
standard. The area is also monitoring attainment for the 2008 8-hour
ozone standard. Thus, the current control strategies are continuing to
keep the area in attainment of the NAAQS.
    EPA has reviewed the emission estimates for point, area and non-
road sources and concluded that no major changes to the projections
need to be made. Indiana finds that growth and control strategy
assumptions for non-mobile sources (i.e., area, non-road, and point)
have not changed significantly from the original submittal for the
years 2002, 2010, and 2015. As a result, the growth and control
strategy assumptions for the non-mobile sources for the years 2002,
2010, and 2015 continue to be valid and do not affect the overall
conclusions of the plan.
    Indiana's submission confirms that the SIP continues to demonstrate
its purpose of maintaining the 1997 ozone standard because the
emissions are continuing to decrease from the attainment year to the
final year of the maintenance plan. The total emissions in the revised
SIP (which includes MOVES2010a emissions from mobile sources) are 26.17
tpd for NOX and 26.08 tpd for VOCs in the 2002 attainment
year. The total emissions from all sources in the 2015 year are 10.81
tpd for NOX and 21.32 tpd for VOCs. These totals demonstrate
that emissions in the Delaware County area are continuing to decline
and remain below the attainment levels.
    Indiana has submitted MOVES2010a-based budgets for the Delaware
County area that are clearly identified in Table 5.2-A of the
submittal. The on-road budgets for 2015 are 7.02 tpd for NOX
and 2.53 tpd for VOCs. These are the budgets that are being proposed
for approval.

b. Approvability of the MOVES2010a-based Budgets

    EPA is proposing to approve the MOVES2010a-based budgets submitted
by the State for use in determining transportation conformity in the
Delaware County 1997 ozone maintenance area. EPA is making this
proposal based on our evaluation of these budgets using the adequacy
criteria found in 40 CFR 93.118(e)(4) and our in-depth evaluation of
the State's submittal and SIP requirements. EPA has determined, based
on its evaluation, that the area's maintenance plan would continue to
serve its intended purpose with the submitted MOVES2010a-based budgets
and that the budgets themselves meet the adequacy criteria in the
conformity rule at 40 CFR 93.118(e)(4).
    The adequacy criteria found in 40 CFR 93.118(e)(4) are as follows:
     The submitted SIP was endorsed by [the Governor/Governor's
designee] and was subject to a state public hearing (Sec.
93.118(e)(4)(i));
     Before the control strategy implementation plan was
submitted to EPA, consultation among Federal, state, and local agencies
occurred, and the state fully documented the submittal (Sec.
93.118(e)(4)(ii));
     The budgets are clearly identified and precisely
quantified (Sec.  93.118(e)(4)(iii));
     The budgets, when considered together with all other
emissions sources, are consistent with applicable requirements for RFP,
attainment, or maintenance (Sec.  93.118(e)(4)(iv));
     The budgets are consistent with and clearly related to the
emissions inventory and control measures in the control strategy
implementation plan (Sec.  93.118(e)(4)(v); and
     The revisions explain and document changes to the previous
budgets, impacts on point and area source emissions and changes to
established safety margins and reasons for the changes (including the
basis for any changes related to emission factors

or vehicle miles traveled) (Sec.  93.118(e)(4)(vi).
    We find that Indiana has met all of the adequacy criteria. The
final submittal is dated August 17, 2012, and signed by the governor's
designee. All public hearing materials were submitted with the formal
SIP revision request. The interagency consultation group, which is
composed of the state air agency, state Department of Transportation,
Federal Highway Administration, EPA, and the MPO for the area, has
discussed and reviewed the budgets developed with MOVES2010a and the
safety margin allocation. The budgets are clearly identified and
precisely quantified in the submittal in table 5.2-A. The budgets when
considered with other emissions sources (point, area, non-road) are
consistent with continued maintenance of the 1997 ozone standard. The
budgets are clearly related to the emissions inventory and control
measures in the SIP. The changes from the previous budgets are clearly
explained with the change in the model from MOBILE6.2 to MOVES2010a and
the revised and updated planning assumptions. The inputs to the model
are detailed in the Appendix to the submittal. EPA has reviewed the
inputs to the MOVES2010a modeling and participated in the consultation
process. The Federal Highway Administration--Indiana Division and the
Indiana Department of Transportation have taken a lead role in working
with the MPO and contractor to provide accurate, timely information and
inputs to the MOVES2010a model runs. The DMMPC network model provided
the vehicle miles of travel and other necessary data from the travel
demand network model.
    The CAA requires that revisions to existing SIPs and budgets
continue to meet applicable requirements (in this case, maintenance).
Therefore, states that revise existing SIPs with MOVES must show that
the SIP continues to meet applicable requirements with the new level of
motor vehicle emissions calculated by the new model.
    To that end, Indiana's submitted MOVES2010a budgets meet EPA's two
criteria for revising budgets without revising the entire SIP:
    (1) The SIP continues to meet applicable requirements when the
previous motor vehicle emissions inventories are replaced with
MOVES2010a base year and milestone, attainment, or maintenance year
inventories, and
    (2) The state can document that growth and control strategy
assumptions for non-motor vehicle sources continue to be valid and any
minor updates do not change the overall conclusions of the SIP.
    The State has documented that growth and control strategy
assumptions continue to be valid and do not change the overall
conclusions of the maintenance plan. The emission estimates for point,
area and non-road sources have not changed. Indiana finds that growth
and control strategy assumptions for non-mobile sources (i.e. area,
non-road, and point) from the original submittal for the years 2002,
2010, 2015 were developed before the down-turn in the economy over the
last several years. Because of this, the factors included in the
original submittal may project more growth than actual into the future.
As a result, the growth and control strategy assumptions for the non-
mobile sources for the years 2002, 2010, and 2015 continue to be valid
and do not affect the overall conclusions of the plan.
    Indiana's submission confirms that the SIP continues to demonstrate
its purpose of maintaining the 1997 ozone standard because the
emissions are continuing to decrease from the attainment year to the
final year of the maintenance plan. The total emissions in the revised
SIP (which includes MOVES2010a emissions for mobile sources) decrease
from the 2002 attainment year to the year 2015 (the last year of the
maintenance plan). These totals demonstrate that emissions in the
Delaware County area are continuing to decline and remain below the
attainment levels. The table below, displays total emissions in the
Delaware County area including point, area, non-road, and mobile
sources and demonstrates the declining emissions from the 2002
attainment year.

        Table of Total Emissions With MOVES2010a Mobile Emissions
------------------------------------------------------------------------
                     Year                        2002     2010     2015
------------------------------------------------------------------------
VOC..........................................    26.08    21.36    21.32
NOX..........................................    26.17    15.73    10.81
------------------------------------------------------------------------

    The following table displays the submitted budgets that are
proposed in the notice to be approved. The budgets include an
appropriate margin of safety while still maintaining total emissions
below the attainment level.

Table of Motor Vehicle Emission Budgets (MOVES) Delaware County, Indiana
                              for Year 2015
------------------------------------------------------------------------

------------------------------------------------------------------------
VOC (tpd).......................................................    2.53
NOX (tpd).......................................................    7.02
------------------------------------------------------------------------

    Based on our review of the SIP and the new budgets provided, EPA
has determined that the SIP will continue to meet its requirements if
the revised motor vehicle emissions inventories are replaced with
MOVES2010a inventories.

c. Applicability of MOBILE6.2-based Budgets

    Pursuant to the State's request, EPA is proposing that, if we
finalize the approval of the revised budgets, the State's existing
MOBILE6.2-based budgets will no longer be applicable for transportation
conformity purposes upon the effective date of that final approval.
    In addition, once EPA approves the MOVES2010a-based budgets, the
regional transportation conformity grace period for using MOBILE6
instead of MOVES2010 (and subsequent minor revisions) for the
pollutants included in these budgets will end for the Delaware County
ozone maintenance area on the effective date of that final approval.\2\
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    \2\ For more information, see EPA's ``Policy Guidance on the Use
of MOVES2010 and Subsequent Minor Revisions for State Implementation
Plan Development, Transportation Conformity, and Other Purposes''
(April 2012).
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VI. What action is EPA taking?

    EPA is proposing in this action that the Delaware County, Indiana
existing approved budgets for VOCs and NOX for 2015 for the
1997 8-hour ozone maintenance plan, that were based on the MOBILE6.2
emissions model, be replaced with new budgets based on the MOVES2010a
emissions model. Once this proposal is finalized, future transportation
conformity determinations would use the new, MOVES2010a-based budgets
and would no longer use the existing MOBILE6.2-based budgets. EPA is
also proposing to find that the Delaware County area's maintenance plan
would continue to meet its requirements as set forth under the CAA when
these new budgets are included.

VII. Statutory and Executive Order Reviews.

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond

those imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Volatile organic compounds.

    Dated: October 12, 2012.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2012-26384 Filed 10-25-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 82, Number 207 (Friday, October 27, 2017)]
[Notices]
[Pages 49924-49926]
[FR Doc No: 2017-23350]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2016-0394]

Agency Information Collection Activities; Approval of a New
Information Collection Request: Flexible Sleeper Berth Pilot Program

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

ACTION: Notice and request for comments.

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SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FMCSA
announces its plan to submit the Information Collection Request (ICR)
described below to the Office of Management and Budget (OMB) for review
and approval. The purpose of this notice is to allow for 30 days of
public comment.
    FMCSA proposes a pilot program to allow temporary regulatory relief
from the Agency's sleeper berth regulation for a limited number of
commercial drivers who have a valid commercial driver's license (CDL),
and who regularly use a sleeper berth to accumulate their required 10
hours of non-duty work status. During the pilot program, participating
drivers would have the option to split their sleeper berth time within
parameters specified by FMCSA. Driver metrics would be collected for
the duration of the study, and participants' safety performance and
fatigue levels would be analyzed. This pilot program seeks to produce
statistically reliable evidence on the question as to whether split
sleeper berth time affects driver safety performance and fatigue
levels.

DATES: Please send your comments by November 27, 2017. OMB must receive
your comments by this date in order to act quickly on the ICR.

ADDRESSES: All comments should reference Federal Docket Management
System (FDMS) Docket Number FMCSA-2016-0394. Interested persons are
invited to submit written comments on the proposed information
collection to the Office of Information and Regulatory Affairs, Office
of Management and Budget. Comments should be addressed to the attention
of the Desk Officer, Department of

Transportation/Federal Motor Carrier Safety Administration, and sent
via electronic mail to [email protected], or faxed to (202)
395-6974, or mailed to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Docket Library, Room 10102,
725 17th Street NW., Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Nicole Michel, Research Division,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue
SE., Washington, DC 20590-0001, by email at [email protected], or
by telephone at<PHONE_NUMBER>. Office hours are from 9 a.m. to 5 p.m.,
Monday through Friday, except Federal Holidays.

SUPPLEMENTARY INFORMATION: Title: Flexible Sleeper Berth Pilot Program.
    OMB Control Number: 2126-00XX.
    Type of Request: New information collection.
    Respondents: Large, medium, and small motor carriers; independent
owner-operators; and commercial motor vehicle (CMV) drivers who
regularly use a sleeper berth.
    Estimated Number of Respondents: 10 motor carrier responses; 1,000
CMV driver applications, with 240 drivers being accepted for
participation in the pilot program.
    Estimated Time per Response: Motor carriers: 1 hour (one-time
response). Drivers: Online application--15 minutes (one-time response);
background questionnaire and tax form--30 minutes (one-time response);
daily field study data collection--30 minutes (daily, for a maximum of
90 days); weekly phone briefings--10 minutes (once weekly, for a
maximum of 13 weeks); debriefing questionnaire--15 minutes (one-time
response).
    Expiration Date: N/A. This is a new information collection.
    Frequency of Response: Motor carriers: One-time response. Drivers:
One-time application; during the study, data collection occurs 3 to 4
times per day for a maximum of 90 days (see ``Estimated Time per
Response'' for more details).
    Estimated Total Annual Burden: 4,423 hours (7 hours for carrier
tasks and 4,416 hours for driver tasks). The total annual number of
carrier responses is seven. Reviewing the study materials and granting
permission for drivers to participate is estimated to take 1 hour per
carrier. Participating driver burden is associated with completing the
online application, background questionnaire, daily data collection
during the field study period, weekly phone briefings, and debriefing
questionnaire. The online application is estimated to take 15 minutes,
the background questionnaire and tax form (completed together) is
estimated to take 30 minutes, and the debriefing questionnaire is
estimated to take 15 minutes. Daily data collection during the field
study is estimated to take 30 minutes per day, for up to 90 days.
Weekly phone briefings are estimated to take 10 minutes per week. It is
estimated that 40 drivers will participate for 14 days, 75 drivers will
participate for 30 days, 75 drivers will participate for 60 days, and
50 drivers will participate for the maximum 90 days.

Background

I. Project Summary

    As described in 49 CFR 395.1(g)(1), a driver who operates a
property-carrying CMV equipped with a sleeper berth \1\ and who uses
the sleeper berth provision must take at least 8 consecutive hours in
the sleeper berth, plus a separate 2 consecutive hours either in the
sleeper berth, off duty, or any combination of the two, before
returning to on-duty status.
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    \1\ A ``sleeper berth'' is a sleeping compartment installed on a
CMV that complies with the specifications in 49 CFR 393.76.
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    During listening sessions for the hours-of-service (HOS)
rulemaking, the Agency heard from many drivers that they would like
some regulatory flexibility to be able to sleep when they get tired or
as a countermeasure to traffic congestion (i.e., an exemption from the
requirement for consolidated sleeper berth time). FMCSA has reviewed
the literature and conducted its own laboratory studies on the subject.
The majority of sleep studies to date demonstrate that well-timed split
sleep has either a positive or no effect on subsequent neurobehavioral
performance. To determine whether split sleeper berth time affects
driver safety performance and fatigue levels, FMCSA is introducing a
pilot program to allow temporary regulatory relief from 49 CFR
395.1(g)(1) (the sleeper berth provision) for a limited number of
commercial drivers who have valid commercial driver's licenses (CDLs)
and who regularly use sleeper berths.
    The Flexible Sleeper Berth Pilot Program requires that
participating drivers be provided relief from Part 395 concerning
consolidated sleeper berth time requirements. Participating drivers
will be asked if they have completed the Driver Education Module of the
North American Fatigue Management Program (NAFMP) prior to study
enrollment. If drivers have not completed the program, they will be
given information on the program and encouraged, but not required, to
complete these modules prior to participation in the study. During the
pilot program, participating drivers will have the option to split
their sleeper berth time, within parameters specified by FMCSA (i.e.,
participants will have exemption from the requirement for consolidated
sleeper berth time). Driver metrics will be collected for the duration
of the study, as discussed in Section III of this notice. Upon
completion of the program, participants' safety performance and fatigue
levels will be analyzed, according to provision use, using a ``within-
subject and between-subject'' study design. In this analysis, drivers
will be compared among themselves and against other participating
drivers. This pilot program seeks to produce statistically reliable
evidence of the relationship between the degree of HOS flexibility and
safety outcomes.

II. Data Collection Plan

    Details of the data collection plan for this pilot program are
subject to change based on comments to the docket and further review by
analysts. Participating drivers will drive an instrumented vehicle for
up to 3 consecutive months. At a minimum, FMCSA will gather the
following data during the study:
     Electronic logging device (ELD) data, to evaluate duty
hours and timing, driving hours and timing, rest breaks, off-duty time,
and restart breaks.
     Onboard monitoring system (OBMS) data, to evaluate driving
behaviors, safety-critical events (or SCEs, which include crashes,
near-crashes, and other safety-related events), reaction time, fatigue,
lane deviations, and traffic density, road curvature, and speed
variability.
     Roadside violation data (from carriers and drivers),
including vehicle, duty status, hazardous materials, and cargo-related
violations (contingent upon inspections).
     Wrist actigraphy data,\2\ to evaluate total sleep time,
time of day sleep was taken, sleep latency, and intermittent
wakefulness.
---------------------------------------------------------------------------

    \2\ Participants will wear wrist actigraphy devices (similar to
commercially available smart fitness watches) throughout their time
in the study. Actigraphy is a minimally obtrusive, validated
approach to assessing sleep/wake patterns.
---------------------------------------------------------------------------

     Psychomotor Vigilance Test (PVT) \3\ data, to evaluate
drivers' behavioral alertness based on reaction times.
---------------------------------------------------------------------------

    \3\ For this study, drivers will be required to complete daily
iterations of a brief PVT, a 3-minute behavioral alertness test
which measures drivers' alertness levels by timing their reactions
to visual stimuli.

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     Subjective sleepiness ratings, using the Karolinska
Sleepiness Scale (KSS),\4\ to measure drivers' perceptions of their
fatigue levels.
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    \4\ The KSS is a 9-point Likert-type scale ranging from
``extremely alert'' to ``extremely sleepy'' and has been widely used
in the literature as a subjective assessment of alertness.
---------------------------------------------------------------------------

     Sleep logs, in which drivers will document when they are
going to sleep, when they wake up, and whether they are using the
sleeper berth. For split-sleep days, drivers will record how and why
they chose to split their sleep.
    Other information that may be needed, such as vehicle miles
traveled (VMT), will also be collected through the participating
carrier. Every effort will be made to reduce the burden on the carrier
in collecting and reporting this data.

III. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520)
prohibits agencies from conducting information collection (IC)
activities until they analyze the need for the collection of
information and how the collected data will be managed. Agencies must
also analyze whether technology could be used to reduce the burden
imposed on those providing the data. The Agency must estimate the time
burden required to respond to the IC requirements, such as the time
required to complete a particular form. The Agency submits its IC
analysis and burden estimate to OMB as a formal ICR; the Agency cannot
conduct the information collection until OMB approves the ICR.

IV. Summary of Public Comments Received

    On June 27, 2017, FMCSA published a notice in the Federal Register
(82 FR 29145) with a 60-day public comment period to announce this
proposed information collection. As of the closing date of August 28,
2017, the agency received five comments in response to this notice.
    One comment questioned the need for a pilot program given that the
proposal is similar to the HOS rules prior to 2003. This commenter
expressed an opinion that the HOS rules should just be reverted to the
prior to 2003 HOS rules. While FMCSA understands the commenter's
frustration with the process, our commitment to public safety requires
us to conduct a pilot program to collect scientific data and achieve
statistically significant findings before considering any revision to
our current regulations.
    Another commenter expressed a similar opinion regarding the HOS
rules, which he felt should never have been changed in 2003. He felt
that the HOS needed to be changed and re-evaluated for every different
division of CMVs, but did express support of flexibility in sleeper
berth times. FMCSA appreciates this commenter taking the time to
provide feedback on the HOS rules, but felt that this comment went
beyond the scope of this pilot program; however, the Agency appreciates
his support of allowing a flexible sleeper berth pilot program to move
forward.
    The remaining three commenters were supportive of the proposed
Pilot Program and proposed information collection, and expressed an
opinion that this would make the roads safer and allow drivers to
manage their duty hours more efficiently and use common sense to not
drive when tired. FMCSA appreciates this support for the program, and
has not made any changes or revisions to the design of the study based
on these comments.
    Additionally, a Federal Register notice announcing the Pilot
Program was published on June 6, 2017, to allow for 60-days of public
comment regarding the proposed program. The comment period closed on
August 7, 2017, and has received 232 unique (233 total, one duplicate)
public comments to date. The vast majority (over 175) of these comments
were positive in nature. Several commenters expressed a desire to
participate in the study, and several wanted the study expanded to
incorporate other exemptions. While FMCSA understands the desire from
drivers to re-open the HOS rules, specifically the 14-hour rule, the
Pilot Program is designed to look at only Flexible Sleeper Berth times
in order to achieve statistically significant results without the
potential for introducing confounding variables into the study.
    Approximately 40 commenters responded in a negative manner to the
14-hour rule, or having too many regulations in place, but were not
specific to the Flexible Sleeper Berth Program. The majority of
commenters who responded agreed that the NAFMP should be recommended,
not mandatory. One commenter felt the NAFMP should be mandatory;
however, FMCSA felt that the majority of commenters agreeing with the
current study design showed that we should move forward without
changing the design. One commenter felt that the cameras in the vehicle
were too burdensome, however, several others expressed that the data
collection was reasonable for the scope of the study.
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including: (1) Whether the proposed
collection is necessary for the FMCSA to perform its functions; (2) the
accuracy of the estimated burden; (3) ways for the FMCSA to enhance the
quality, usefulness, and clarity of the collected information; and (4)
ways that the burden could be minimized without reducing the quality of
the collected information.

    Issued under the authority delegated in 49 CFR 1.87 on October
20, 2017.
G. Kelly Regal,
Associate Administrator for Office of Research and Information
Technology.
[FR Doc. 2017-23350 Filed 10-26-17; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 87, Number 240 (Thursday, December 15, 2022)]
[Notices]
[Pages 76616-76617]
[FR Doc No: 2022-27202]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 7590-016]

City of Nashua, New Hampshire; Notice of Availability of
Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969
and the Federal Energy Regulatory Commission's (Commission or FERC)
regulations, 18 Code of Federal Regulations (CFR) part 380, Commission
staff reviewed City of Nashua, New Hampshire's application for an
amendment to the exemption of the Jackson Mills Hydroelectric Project
No. 7590 and have prepared an Environmental Assessment (EA). The
licensee proposes to replace the aging turbine/generator. The riverbed
immediately downstream of the powerhouse will be recontoured to allow
for the proper placement of the new turbine/generator. The project is
located on the Nashua River in the Hillsborough County, New Hampshire.
The project does not occupy federal lands.
    The EA contains Commission staff's analysis of the potential
environmental effects of the proposed amendment to the exemptee, and
concludes that the proposed amendment, with appropriate environmental
protective measures, would not constitute a major federal action that
would significantly affect the quality of the human environment.
    A copy of the EA may be viewed on the Commission's website at
http://www.ferc.gov using the ``elibrary'' link. Enter the docket
number (P-7590) in the docket number field to access the document. For
assistance, contact FERC Online Support at [email protected]
or toll-free at 1-866-208-3372, or for TTY,<PHONE_NUMBER>.

    For further information, contact Jeffrey V. Ojala at<PHONE_NUMBER>
or [email protected].

    Dated: December 9, 2022.
Kimberly D. Bose,
Secretary.
[FR Doc. 2022-27202 Filed 12-14-22; 8:45 am]
BILLING CODE 6717-01-P