[Federal Register Volume 85, Number 58 (Wednesday, March 25, 2020)]
[Notices]
[Pages 16971-16974]
[FR Doc No: 2020-06189]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88425; File No. SR-FINRA-2020-009]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend FINRA Rule 6121.02 (Market-Wide Circuit
Breakers in NMS Stocks)

March 19, 2020.
    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 18, 2020, Financial Industry Regulatory Authority, Inc.
(``FINRA'') filed with the Securities and Exchange Commission (``SEC''
or ``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by FINRA. FINRA has designated
the proposed rule change as constituting a ``non-controversial'' rule
change under paragraph (f)(6) of Rule 19b-4 under the Act,\3\ which
renders the proposal effective upon receipt of this filing by the
Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA is proposing to amend FINRA Rule 6121.02 (Market-wide Circuit
Breakers in NMS Stocks) concerning the resumption of trading following
a Level 3 market-wide circuit breaker halt.
    The text of the proposed rule change is available on FINRA's
website at http://www.finra.org, at the principal office of FINRA and
at the Commission's Public Reference Room.

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

    In its filing with the Commission, FINRA 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 these statements may be examined at the places specified in
Item IV below. FINRA 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
    FINRA proposes to amend Rule 6121.02 concerning the resumption of
trading following a Level 3 market-wide circuit breaker halt. FINRA is
proposing this rule change in conjunction with other self-regulatory
organizations (``SROs'').
    Rule 6121.02 addresses the circumstances under which FINRA shall
halt, and subsequently resume, over-the-counter trading in all NMS
stocks due to extraordinary market volatility (i.e., market-wide
circuit breakers). The market-wide circuit breaker (``MWCB'') mechanism
under Rule 6121.02 was approved by the Commission to operate on a pilot
basis, the term of which was to coincide with the pilot period for the
Plan to Address Extraordinary Market Volatility Pursuant to Rule 608 of
Regulation NMS (the ``LULD Plan''),\4\ including any extensions to the
pilot period for the LULD Plan.\5\ Last year, the Commission approved
an amendment to the LULD Plan for it to operate on a permanent, rather
than pilot, basis.\6\ In light of the proposal to make the LULD Plan
permanent, FINRA amended Rule 6121.02 to untie the pilot's
effectiveness from that of the LULD Plan and to extend the pilot's
effectiveness to the close of business on October 18, 2019.\7\ FINRA
then filed a proposed rule change to extend the pilot for an additional
year to the close of business on October 18, 2020.\8\
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    \4\ See Securities Exchange Act Release No. 67091 (May 31,
2012), 77 FR 33498 (June 6, 2012) (the ``Limit Up-Limit Down
Release''). The LULD Plan provides a mechanism to address
extraordinary market volatility in individual securities.
    \5\ See Securities Exchange Act Release Nos. 67090 (May 31,
2012), 77 FR 33531 (June 6, 2012) (Order Approving File No. SR-
FINRA-2011-054); and 68778 (January 31, 2013), 78 FR 8668 (February
6, 2013) (Notice of Filing and Immediate Effectiveness of File No.
SR-FINRA-2013-011) (Proposed Rule Change to Delay the Operative Date
of FINRA Rule 6121.02).
    \6\ See Securities Exchange Act Release No. 85623 (April 11,
2019), 84 FR 16086 (April 17, 2019) (Order Approving the Eighteenth
Amendment to the National Market System Plan To Address
Extraordinary Market Volatility).
    \7\ See Securities Exchange Act Release No. 85547 (April 8,
2019), 84 FR 14981 (April 12, 2019) (Notice of Filing and Immediate
Effectiveness of File No. SR-FINRA-2019-010).
    \8\ See Securities Exchange Act Release No. 87078 (September 24,
2019), 84 FR 51669 (September 30, 2019) (Notice of Filing and
Immediate Effectiveness of File No. SR-FINRA- 2019-023).
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    The market-wide circuit breaker under Rule 6121.02 provides an
important, automatic mechanism that is invoked to promote stability and
investor confidence during a period of significant stress when
securities markets experience extreme broad-based declines. FINRA and
the U.S. equity exchanges adopted uniform rules on a pilot basis
relating to market-wide circuit breakers in 2012 (``MWCB Rules''),
which are designed to slow the effects of extreme price movement
through coordinated trading halts across securities markets when severe
price declines reach levels that may exhaust market liquidity.\9\
Market-wide circuit breakers provide for trading halts in all equities
and options markets during a severe market decline as measured by a
single-day decline in the S&P 500 Index.
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    \9\ See Securities Exchange Act Release No. 67090 (May 31,
2012), 77 FR 33531 (June 6, 2012) (SR-BATS-2011-038; SR-BYX-2011-
025; SR-BX-2011-068; SR-CBOE-2011-087; SR-C2-2011-024; SR-CHX-2011-
30; SR-EDGA-2011-31; SR-EDGX-2011-30; SR-FINRA-2011-054; SR-ISE-
2011-61; SR-NASDAQ-2011-131; SR-NSX-2011-11; SR-NYSE-2011-48; SR-
NYSEAmex-2011-73; SR-NYSEArca-2011-68; SR-Phlx-2011-129) (Notice of
Filing of Amendments No. 1 and Order Granting Accelerated Approval
of Proposed Rule Changes as Modified by Amendments No. 1, Relating
to Trading Halts Due to Extraordinary Market Volatility).
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    Pursuant to Rule 6121.02, a market-wide trading halt will be
triggered if the S&P 500 Index declines in price by specified
percentages from the prior day's closing price of that index.
Currently, the triggers are set at three circuit breaker thresholds: 7%
(Level 1), 13% (Level 2), and 20% (Level 3). A market decline that
triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25
p.m. ET would halt market-wide trading for 15 minutes, while a similar
market decline at or after 3:25 p.m. ET would not halt market-wide
trading. A market decline that triggers a Level 3 halt, at any time
during the trading day, would halt market-wide trading until the
primary listing market opens the next trading day.
    Today, in the event that a Level 3 market decline occurs, trading
in exchange-listed stocks would be halted until the primary listing
market opens the next trading day. Upon feedback from industry
participants, FINRA has been working with other SROs to establish a
standardized approach for resuming trading in all NMS stocks following
a Level 3 halt. The proposed approach would allow for the opening of
all NMS stocks the next trading day after a Level 3 halt as a regular
trading day, and is designed to ensure that Level 3 MWCB events are
handled in a more consistent manner that is transparent for market
participants.\10\
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    \10\ Of note, the U.S. futures markets, which have similar rules
for coordinated MWCB halts, normally begin their ``next day''
trading session at 6:00 p.m. ET (for CFE and CME) or at 8:00 p.m. ET
(for ICE). If the U.S. futures markets amend their MWCB rules, as
needed, to allow for normal course trading following a Level 3 halt,
the futures markets would resume trading in their normal course at
6:00 p.m. ET (CFE and CME) or 8:00 p.m. ET (ICE) the same day as the
Level 3 halt.
    Furthermore, there may be cross-market differences in how each
exchange currently opens the next day after a Level 3 MWCB halt. For
example, while some exchanges currently resume trading in listed
securities no differently from a regular trading day, other
exchanges may, for instance, conduct a halt auction process instead
of opening in the normal course under their respective rules. As
discussed later in this filing, the proposed changes will allow each
SRO to resume trading in all NMS stocks the next trading day
following a Level 3 halt no differently from a regular trading day.

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    As proposed, a Level 3 halt would end at the end of the trading day
on which it is declared. This proposed change would allow over-the-
counter trading in all NMS stocks to resume the next day no differently
from any other trading day. In other words, a member could resume
trading otherwise than on an exchange in any NMS stock on the day
following the Level 3 market wide circuit breaker, and would not need
to wait for the primary listing market to re-open trading in a security
before it could start trading such security, so long as the halt has
been lifted by the applicable securities information processor
(``SIP'').\11\
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    \11\ The SEC has approved a proposed rule change by NASDAQ to
permit NASDAQ to resume trading the day following a Level 3 market
decline as it would on any other trading day. See Securities
Exchange Act Release No. 88360 (March 11, 2020) (Order Approving
File No. SR-NASDAQ- 2020-003) (``Nasdaq Approval Order''). FINRA
anticipates that the other SROs also will file similar proposals to
amend their MWCB rules on the resumption of trading following Level
3 halts, and amend their rules, where required, to have their Level
3 next-day openings happen normally.
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    To effect this change, FINRA is amending Rule 6121.02 to delete the
language requiring that members wait until the primary listing exchange
opens the next trading day following a Level 3 market decline, and
specify that FINRA will halt trading otherwise than on an exchange in
all NMS stocks for the remainder of the trading day. The proposed rule
change would therefore allow each SRO to resume trading in all NMS
stocks the next trading day following a Level 3 halt as they normally
would. Members should ensure that they have policies and procedures in
place that address their resumption of over-the-counter trading in NMS
stocks following a Level 3 MWCB.
    FINRA expects that the primary listing exchanges will facilitate
this change by sending resume messages to the applicable SIP to lift
the Level 3 trading halt message in all NMS stocks. The resumption
messages will be disseminated after the SIP has started on the next
trading day and before the start of the earliest pre-market trading
session of all exchanges. If a security is separately subject to a
regulatory halt that has not ended, FINRA expects that the primary
listing exchanges would replace the Level 3 halt message with the
applicable regulatory halt message.
    Having a consistent approach for all NMS stocks will make the
opening process the day after a Level 3 halt more uniform and reduce
complexity, which FINRA believes is important after a significant
market event. Based on industry feedback, FINRA believes that opening
in the normal course for all NMS stocks will be more beneficial to the
marketplace. By allowing trading to resume after a Level 3 halt in all
NMS stocks no differently from any normal trading day under the
respective rules of each SRO, the proposed rule change would provide
greater certainty to the marketplace by ensuring a familiar experience
for all market participants that trade NMS stocks and balances out
potential concerns around volatility. While FINRA recognizes that the
impact of this proposal is to permit all NMS stocks to be traded during
time periods that do not have certain price protections for volatility
such as LULD Bands or MWCB protections, FINRA nonetheless believes that
this outcome is outweighed by the benefits provided by opening in a
manner that is more familiar to the marketplace. Moreover, allowing the
resumption of trading to occur as it would on any other trading day
will allow for price formation to occur earlier in the trading day,
which in turn allows market participants to react to news that has
developed. As such, trading at the beginning of regular hours may be
more orderly.
    FINRA has filed the proposed rule change for immediate
effectiveness and has requested that the SEC waive the requirement that
the proposed rule change not become operative for 30 days after the
date of the filing.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\12\ which requires, among
other things, that FINRA rules must be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest. The market-wide
circuit breaker mechanism under Rule 6121.02 is an important, automatic
mechanism that is invoked to promote stability and investor confidence
during a period of significant stress when securities markets
experience extreme broad-based declines. FINRA believes that the
proposed rule change promotes just and equitable principles of trade in
that it promotes transparency and uniformity across markets concerning
when and how to halt trading in all stocks as a result of extraordinary
market volatility, and how the markets will resume trading following a
Level 3 market decline.
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    \12\ 15 U.S.C. 78o-3(b)(6).
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    As described above, FINRA together with other SROs, is seeking to
adopt a standardized approach related to resuming trading in NMS stocks
after a Level 3 MWCB halt. In this regard, FINRA believes that the
proposal to resume trading in all NMS stocks following a Level 3 halt
in the same manner that these securities would open trading on a
regular trading day will benefit investors, the national market system,
and FINRA members by promoting a fair and orderly market and reducing
confusion during a significant cross-market event. By allowing trading
to resume after a Level 3 halt in all NMS stocks no differently from
any normal trading day under the respective rules of each exchange, the
proposed rule change would provide greater certainty to the marketplace
by ensuring a familiar experience for all market participants that
trade NMS stocks.
    Based on the foregoing, FINRA believes that the benefits to market
participants under the proposed revisions to Rule 6121.02 with the
proposed standardized process for resuming trading in all NMS stocks
following a Level 3 halt will promote fair and orderly markets, and
protect investors and the public interest.

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

    FINRA does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act because the proposed Level 3
rule change described above would standardize the opening process for
all NMS stocks, which would make the opening process the day after a
Level 3 halt more uniform and reduce complexity. Further, The Nasdaq
Stock Market LLC (``Nasdaq'') already amended its rules to adopt
amendments concerning the resumption of trading following a Level 3
MWCB to allow for the opening of all securities the next trading day
after a Level 3 halt

as a regular trading day.\13\ FINRA understands that the other SROs
will file similar proposals to adopt the proposed changes related to
resumptions following a Level 3 MWCB.
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    \13\ See Nasdaq Approval Order.
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Economic Impact Assessment

    FINRA has undertaken an economic impact assessment, as set forth
below, to analyze the potential economic impacts, including anticipated
costs, benefits, and distributional and competitive effects, relative
to the current baseline, and the alternatives FINRA considered in
assessing how to best meet its regulatory objectives.\14\
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    \14\ FINRA believes an abbreviated economic impact assessment is
appropriate to facilitate the expedient adoption of consistent rules
regarding the resumption of trading in all NMS stocks following a
Level 3 market-wide circuit breaker.
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Regulatory Objective

    FINRA proposes to amend Rule 6121.02 concerning the resumption of
trading following a Level 3 market-wide circuit breaker halt. The
proposed rule change would allow each SRO to resume trading in all NMS
stocks the next trading day following a Level 3 halt as they normally
would, without requiring the primary listing market to first re-open
trading in a security.

Economic Baseline

    The market-wide circuit breaker under Rule 6121.02 provides an
automatic mechanism that is invoked to promote stability and investor
confidence during a period of stress when securities markets experience
extreme broad-based declines. Market-wide circuit breakers provide for
trading halts in all equities and options markets during a severe
market decline as measured by a single-day decline in the S&P 500
Index.
    Pursuant to Rule 6121.02, a market-wide trading halt will be
triggered if the S&P 500 Index declines in price by specified
percentages from the prior day's closing price of that index. A market
decline that triggers a Level 3 halt, defined as a 20% decline in price
from the prior day's closing price of the S&P 500 Index, currently
would halt market-wide trading until the primary listing market opens
the next trading day.
    Over-the-counter trading in an NMS stock currently may start the
next trading day when its primary listing market opens the security.
Consequently, the opening process for NMS stocks after a Level 3 halt
is different from any other trading day that was not preceded by a
Level 3 MWCB. This adds to complexity the day after a Level 3 MWCB
halt.

Economic Impact

    Having a consistent approach for all NMS stocks will make the
opening process the day after a Level 3 halt more uniform and reduce
complexity. FINRA recognizes that the proposed rule change would permit
all NMS stocks to be traded during time periods when certain price
protections for volatility such as LULD Bands or MWCB protections are
not in force. The absence of these protections may be mitigated because
the resumption of trading would occur as it would on any other trading
day, which permits price formation to occur earlier in the trading day,
and should allow market participants to more quickly react to news
events. As a result, trading at the beginning of regular hours may be
less volatile.

Alternatives

    No further alternatives are under consideration.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \15\ and Rule 19b-4(f)(6) thereunder.\16\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\17\
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    \15\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \16\ 17 CFR 240.19b-4(f)(6).
    \17\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Commission has waived the pre-filing requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \18\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\19\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Commission notes that
it approved a substantively similarly proposed rule change submitted by
The Nasdaq Stock Market LLC.\20\ Waiver of the operative delay will
ensure consistency across the market centers and the timely
implementation of the proposed rule change. Accordingly, the Commission
waives the 30-day operative delay and designates the proposed rule
change operative upon filing.\21\
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    \18\ 17 CFR 240.19b-4(f)(6).
    \19\ 17 CFR 240.19b-4(f)(6)(iii).
    \20\ See Securities Exchange Act Release No. 88360 (March 11,
2020) (SR-NASDAQ-2020-03).
    \21\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \22\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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    \22\ 15 U.S.C. 78s(b)(2)(B).
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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-FINRA-2020-009 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 Number SR-FINRA-2020-009. 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 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 a.m. and 3
p.m. Copies of such filing also will be available for inspection and
copying at the principal office of FINRA. 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
available publicly. All submissions should refer to File Number SR-
FINRA-2020-009 and should be submitted on or before April 15, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-06189 Filed 3-24-20; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: August 25, 2008 (Volume 73, Number 165)]
[Rules and Regulations]
[Page 49949-49950]
[DOCID:fr25au08-8]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0257; FRL-8707-3]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Determination of Attainment of Fine Particle Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is determining that the Harrisburg-Lebanon-Carlisle,
Pennsylvania nonattainment area for the 1997 fine particle
(PM2.5) National Ambient Air Quality Standard (NAAQS) has
attained the 1997 PM2.5 NAAQS.

DATES: Effective Date: This final rule is effective on August 25, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2008-0257. All documents in the docket are listed in
the http://www.regulations.gov Web site. Although listed in the
electronic docket, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://
www.regulations.gov or in hard copy for public inspection during normal
business hours at the Air Protection Division, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103. Copies of the State submittal are available at the
Pennsylvania Department of Environmental Protection, Bureau of Air
Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg,
Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Rose Quinto,<PHONE_NUMBER>, or by e-
mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'',
``us'', or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to
aid in locating information in this preamble.

I. What Action Is EPA Taking?
II. What Is the Effect of This Action?
III. When Is This Action Effective?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is determining that the Harrisburg-Lebanon-Carlisle,
Pennsylvania nonattainment area (Harrisburg Nonattainment Area) for the
1997 PM2.5 NAAQS has attained the 1997 PM2.5
NAAQS. This determination is based upon quality assured, quality
controlled and certified ambient air monitoring data that show the area
has monitored attainment of the 1997 PM2.5 NAAQS since the
2004-2006 monitoring period, and monitoring data that continue to show
attainment of the 1997 PM2.5 NAAQS based on the 2005-2007
data. In addition, quality controlled and quality assured monitoring
data submitted during the calendar year 2008, which are available in
the EPA AQS database, but not yet certified, show this area continues
to attain the 1997 PM2.5 NAAQS.
    Other specific requirements of the determination and the rationale
for EPA's proposed action are explained in the notice of proposed
rulemaking (NPR) published on June 13, 2008 (73 FR 33755) and will not
be restated here. No public comments were received in response to the
NPR.

II. What Is the Effect of This Action?

    This final action, in accordance with 40 CFR 51.1004(c), suspends
the requirements for this area to submit attainment demonstrations and
associated reasonably available control measures, reasonable further
progress plans, contingency measures, and other planning state
implementation plans (SIPs) related to attainment of the 1997
PM2.5 NAAQS for so long as the area continues to attain the
1997 PM2.5 NAAQS.

III. When Is This Action Effective?

    EPA finds that there is good cause for this approval to become
effective on the date of publication of this action in the Federal
Register, because a delayed effective date is unnecessary due to the
nature of the approval. The expedited effective date for this action is
authorized under both 5 U.S.C. 553(d)(1), which provides that rule
actions may become effective less than 30 days after publication if the
rule ``grants or recognizes an exemption or relieves a restriction''
and 5 U.S.C. 553(d)(3), which allows an effective date less than 30
days after publication ``as otherwise provided by the agency for good
cause found and published with the rule.'' As noted above, this
determination of attainment suspends the requirements for the
Harrisburg nonattainment area to submit an attainment demonstration and
associated reasonably available measures, a reasonable further progress
plan, contingency measures, and any other planning SIPs related to
attainment of the standard for so long as the area continues to attain
the 1997 PM2.5 NAAQS. The suspension of these requirements
is sufficient reason to allow an expedited effective date of this rule
under 5 U.S.C. 553(d)(1). In addition, the Harrisburg nonattainment
area's suspension from these requirements provide good cause to make
this rule effective on the date of publication of this action in the
Federal Register, pursuant to 5 U.S.C. 553(d)(3). The purpose of the
30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected
parties a reasonable time to adjust their behavior and prepare before
the final rule takes effect. Where, as here, the final rule suspends
requirements rather than imposing obligations, affected parties, such
as the Commonwealth of Pennsylvania, do not need time to adjust and
prepare before the rule takes effect.

IV. Final Action

    EPA is determining that the Harrisburg nonattainment area for the
1997 PM2.5 NAAQS has attained the 1997 PM2.5
NAAQS. This determination is based upon quality assured, quality
controlled, and certified ambient air monitoring data that show that
the area has monitored attainment of the 1997 PM2.5 NAAQS
since the 2004-2006 monitoring period, and continues to monitor
attainment of the standard based on the 2005-2007 data. This final
action, in accordance with 40 CFR 51.1004(c), will suspend the
requirements for this area to submit attainment demonstrations and
associated reasonably available control measures, reasonable further
progress plans, contingency measures, and other planning SIPs related
to attainment of the 1997 PM2.5 NAAQS for so long as the
area continues to attain the 1997 PM2.5 NAAQS.

V. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001). This action makes a
determination based on air quality data, and would, if finalized,
result in the suspension of certain Federal requirements. Accordingly,
the Administrator certifies that this rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule
makes a determination based on air quality data, and results in the
suspension of certain Federal requirements, it 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).
    This rule also does not have tribal applications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999), because it merely makes a determination
based on air quality data and results in the suspension of certain
Federal requirements, and does not alter the relationship or the
distribution of power and responsibilities established in the CAA. This
rule also is not subject to Executive Order 13045 ``Protection of
Children from Environmental Health Risks'' (62 FR 19885, April 23,
1997) because it determines that air quality in the affected area is
meeting Federal standards.
    The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply
because it would be inconsistent with applicable law for EPA, when
determining the attainment status of an area, to use voluntary
consensus standards in place of promulgated air quality standards and
monitoring procedures otherwise satisfying the provisions of the CAA.
    This rule does not impose an information collection burden under
the provisions of the Paper Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
    Under Executive Order 12898, EPA finds that this rule involves a
determination of attainment based on air quality data and will not have
disproportionately high and adverse human health or environmental
effects on any communities in the area, including minority and low-
income communities.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this 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).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 24, 2008. 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, pertaining to the Harrisburg nonattainment area
clean data determination, may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter.

    Dated: August 12, 2008
W.T. Wisniewski,
Acting Regional Administrator, Region III.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart NN--Pennsylvania

0
2. Section 52.2059 is amended by adding paragraph (c) to read as
follows:

Sec.  52.2059  Control strategy: Particulate matter.

* * * * *
    (c) Determination of Attainment. EPA has determined, as of August
25, 2008, the Harrisburg-Lebanon-Carlisle, Pennsylvania nonattainment
area for the 1997 PM2.5 NAAQS has attained the 1997
PM2.5 NAAQS. This determination, in accordance with 40 CFR
52.1004(c), suspends the requirements for this area to submit an
attainment demonstration and associated reasonably available measures,
a reasonable further progress plan, contingency measures, and other
planning SIPs related to attainment of the standard for as long as the
area continues to attain the 1997 PM2.5 NAAQS.

[FR Doc. E8-19421 Filed 8-22-08; 8:45 am]

BILLING CODE 6560-50-P


        Examples of WQS Programmatic and Legal Challenges  -  May 2013

Designated Uses  -  Highest Attainable Use and criteria to protect that use
Codifying EPA's expectation that states adopt the highest attainable use and criteria to protect the revised use is important to ensure that EPA, state and public transactions are as efficient and effective as possible.  Below is an example of where having EPA's expectations transparently outlined in the regulation would have reduced transaction costs for states and for EPA, and would have led to timely review and approval by EPA.
> Between 2008 and 2012, Iowa submitted 26 UAAs to support removal of primary contact recreation (PCR) uses for many of their waters without adopting another recreation use in its place.
> While Iowa's UAAs explained how PCR was not attainable for these waters, they did not justify removing recreational uses completely and did not evaluate the attainability of other recreation uses.
> To date, EPA has not taken any action on these specific use revisions.  Whether and how the state intends to protect recreation uses in and on these waters is not transparent to EPA or the public.
> Despite discussions with the state, the state feels that it has sufficiently met the federal requirements by rebutting the presumption that PCR is attainable in these waters.  EPA, however, believes that although not explicit in the regulations, the state must still protect the attainable recreation uses, if any exist.  Thus far, EPA has tried to avoid disapproving the state's submission in hopes of a resolution.  However, the issue remains unresolved, the state must continue to write NPDES permits and assess water based on PCR.
> EPA is legally vulnerable to a mandatory duty lawsuit.  If one were to be filed, EPA's action would result in a disapproval of the revisions.
> EPA firmly believes that had the national WQS regulations transparently and clearly required the adoption of the highest attainable use and criteria to protect such revised use, Iowa would have provided either adequate UAAs justifying their use changes (i.e., no recreational use is attainable) or adopted the recreation uses that they intend to protect in each water body after a sufficient and constructive public process.  And EPA, in turn, would have been able to approve the State's WQS revision within the 60 day statutory requirement.

Antidegradation Implementation  -  Adoption of Antidegradation Implementation Methods
Requiring that antidegradation implementation methods be adopted and approved by EPA is important to ensure that the state is fully transparent with the public and EPA on how it intends to implement its antidegradation program before actual implementation.  It is EPA's preference for states to develop their own antidegradation implementation methods and it is also important to allow EPA to work directly with states to ensure that state antidegradation implementation methods are fully consistent with EPA's regulations at 131.12 before those methods are being applied.   This proposed requirement would not only allow antidegradation implementation programs to run more efficiently, but also reduce litigation risks to EPA, states and permittees and avoids the possibility of large numbers of permit objections.  Below are some examples that highlight the need and value of having antidegradation implementation methods adopted by the states.
1. EPA has received the following three petitions to withdraw a State NPDES program due to the state's failure to adopt antidegradation implementation methods into regulation:
      a. Indiana (2009  -  Environmental Law and Policy Center, Sierra Club, et al)  -  petitioner alleged state has failed to adopt antidegradation implementation methods, and that the state's draft implementation methods were deficient and inappropriately addressed de minimis, social/economic findings, and general permits.
      b. Vermont (2008 - Conservation Law Foundation)  -  petitioner alleged that state has failed to adopt antidegradation implementation methods.
      c. Georgia (1997  -  Southern Environmental Law Center, Sierra club et al)  -  petitioner alleged state's use of "unpromulgated guidance" allows it to subvert the public participation process and to evade mandatory requirements of the Clean Water Act, and that the state has argued that it was not required to follow its antidegradation implementation methods because they were only guidance.
2. WQS Litigation - EPA has had 6 WQS lawsuits in the past 20 years (most in the last 10 years) that directly challenge a state's lack of antidegradation implementation methods or inadequate antidegradation implementation methods in guidance and assert that EPA has a duty to promulgate antidegradation implementation methods for a state. The time required to resolve each case ranged from between 1 and 15 years, with more than half taking 5+ years to conclude.  In addition to the state and EPA resources and time spent on the cases, environmental improvement was delayed and there was uncertainty for the states in the interim. Two of the most notable cases are summarized below.
      a. Oregon (2001- present)
         o In April 2001, Northwest Environmental Advocates (NWEA) filed a lawsuit (Northwest Environmental Advocates v. EPA, 268 F.Supp.2d 1255 (D. Oregon 2003)) claiming that Oregon never submitted an antidegradation implementation method to EPA or that, even if it did, it was significantly inadequate.  The Court found that the State had a "bare-bones implementation plan" and held that EPA had a mandatory duty to promulgate an antidegradation implementation method for Oregon's waters, which it failed to do.
         o Pursuant to the court order, EPA published a proposed rule establishing an implementation plan for the State, but it was never finalized because Oregon adopted and EPA approved the State's antidegradation implementation methods in 2004.
         o In 2004, NWEA filed another lawsuit concerning Oregon's antidegradation program  (Northwest Environmental Advocates v. EPA, Case No. 05-cv-01876 (D. Oregon)) claiming, in part, that EPA's approval of Oregon's antidegradation implementation methods was arbitrary and capricious because they don't provide a method to identify or protect existing uses.  EPA argued that, under current regulations, states need only "identify" methods and that it only approved those pages of the State's antidegradation implementation plan that were incorporated by reference into Oregon's regulations.
         o In 2012, the Court held "EPA was required to review [Oregon's antidegradation implementation methods, which exist in non-binding guidance,] to ensure that it describes the required elements and complies with federal regulations such that it does not circumvent the purpose of the [State's] antidegradation policy."  After the court issued its opinion, it ordered briefing with respect to remedy.  EPA's January 2013 brief states that there is no current requirement that EPA take a CWA section 303(c) approval/disapproval action on the state's antidegradation implementation guidance document, and the court should, therefore, not order EPA to take such an action.
      b. Puerto Rico (15 years, 1992-2007)
              o          In 1992, plaintiff, an environmental group, alleged that EPA failed to ensure that Puerto Rico had antidegradation implementation methods for its waters.  Puerto Rico worked with EPA to identify antidegradation implementation methods in guidance.
              o          In 2004, EPA sent a letter to Puerto Rico stating that their antidegradation implementation methods were consistent with the CWA.
              o          In 2007, the Court found that EPA had determined in 1992 that antidegradation implementation methods were needed for Puerto Rico.  CORALations v. EPA, 477 F. Supp. 2d 413 (D. Puerto Rico 2007)., Therefore, it held that EPA had failed to perform a mandatory duty to promulgate antidegradation implementation methods for Puerto Rico despite the fact that Puerto Rico had identified antidegradation implementation methods in guidance.
              o          EPA was ordered to prepare and publish proposed regulations setting forth new water quality standards (i.e., antidegradation implementation methods) for Puerto Rico, which were finalized in 2007.

      c. Additional state and EPA transaction and litigation costs were spent in the following relevant cases :
              o  Idaho Conservation League v. EPA, No. 10-cv-207 (D. Idaho)
              o Missouri Coalition for the Environment v. EPA, No. 03-4217 (W.D. Mo.)
              o Cook Inletkeeper v. EPA, No. 07-2420 (9[th] Cir.)

Antidegradation Implementation  -  The use of a waterbody-by-waterbody approach to identify High Quality waters for Tier 2 review
EPA's proposed regulatory language at §131.12(b), which would  allow states to identify high quality waters using a waterbody-by-waterbody approach with one narrow restriction, is important to preserve states' flexibility that some states desire to prioritize certain waters for Tier 2 protection, and address a legitimate concern that has been subject of concern by environmental groups (see the example below).  To date, the courts have upheld states' use of the water body-by-water body approach (see below), deferring to the Agency's long-standing interpretation of ambiguous regulations.  Explicitly providing for the waterbody-by-waterbody approach in regulation would reduce the risk that a court might find that EPA's regulations prohibit that approach, in the event environmental groups continue to litigate based on their position that states only identify high quality waters using a parameter-by-parameter approach.  In addition to adding clarity, EPA's proposed rule is crafted to address an important environmental issue and the main concern potential litigants have with a water body-by-water body approach.
1. Petition for EPA to do a rulemaking prohibiting the waterbody-by-waterbody approach
   * In February 2011, four environmental groups represented by Albert Ettinger, submitted a petition to EPA specifying that "EPA should amend 40 CFR 131.12(a)(2) to require use of the parameter-by-parameter approach by every state and tribe or, at least, amend the regulation to set clear and narrow limits on the nature of the water bodies which are subject to unnecessary new or increased pollution."
   * EPA responded to the petition in June 2011 stating that we considered their petition in the context of our proposed WQS Regulatory Revision.  We further stated that EPA's draft proposed regulations includes revisions to section 131.12 to address the challenges faced when implementing antidegradation requirements to protect high quality waters and the options available.
2. WQS Litigation:  Plaintiff filed a complaint against EPA regarding the lack of antidegradation implementation methods in KY, and the complaint was later amended to argue that EPA's approval of the state's antidegradation implementation methods was arbitrary and capricious.  Eventually, the court upheld EPA's approval of KY's water body-by-water body approach in identifying waters to receive Tier 2 protection, doing so by deferring to the Agency's longstanding interpretation of its ambiguous regulations.  EPA's proposal would clarify EPA's regulation regarding the propriety of water body-by-water body approaches.
      a. Kentucky (2001  -  2008)
              o          In 2001, Kentucky Waterways Alliance sent a Notice of Intent to Sue EPA, claiming an alleged failure to perform a mandatory duty under CWA to promulgate a federal standard implementing antidegradation requirements for Kentucky.
              o          In November 2002, EPA proposed federal antidegradation implementation method for Kentucky.
              o          Believing the method was inadequate, Plaintiffs filed an action in federal court in 2004 alleging that EPA failed to comply with the CWA.  During this time, KY adopted and EPA approved an implementation method for the State.  Plaintiffs then amended their complaint to argue that the approval was arbitrary and capricious.
              o          The district court issued a decision in 2006, in which EPA prevailed on all claims; the plaintiffs appealed to the Sixth Circuit Court of Appeals (Kentucky Waterways Alliance v. EPA, 540 F.3d 466 (6[th] Cir. 2008)) where EPA's approval of the majority of the state's provisions was upheld in 2008, including EPA's approval of Kentucky's water body-by-water body approach to designating Tier 2 waters, deferring to the Agency's longstanding interpretation of its ambiguous regulation.

Provisions Authorizing the Use of Permit-Based Compliance Schedules
EPA's proposed regulation at 131.15 regarding compliance schedule authorizing provisions (consistent with the EPA Administrator's 1990 Star-Kist decision) is intended to explicitly articulate (1) the discretion a state already has to adopt compliance schedule authorizing provisions if the state wishes to utilize permit compliance schedules and (2) that any such authorizing provisions is a water quality standards subject to EPA approval.  Despite the fact that Star-Kist is more than 20 years old, there has been some lingering confusion among the states, permittees, and general public about how states can  ensure that any permits issued with compliance schedules are consistent with the CWA and EPA's permitting regulations.
In response to questions raised, we'd like to provide the following additional information on our proposed regulation.
> In In the Matter of Star-Kist Caribe, Inc. (1990), the Administrator interpreted CWA section 301(b)(1)(C) to mean that, after July 1, 1977, NPDES permits must require immediate compliance with WQBELs based on pre-1977 WQS.  He also interpreted the statute to mean that compliance schedules are allowed for WQBELs based on post-1977 WQS only if the State has clearly indicated in its WQS or implementing regulations that it intends to allow them.
      o Attachment H - the Administrator's decision in In the Matter of Star-Kist Caribe, Inc. (1990).
> EPA's position on what is needed if a state wishes to allow permit compliance schedules has been consistent since 1990.  Please see the following references for examples:
      o In re Upper Blackstone Water Pollution Abatement District,  2010 EPA App. LEXIS 17 (May 28, 2010)(citing Star-Kist , 3 E.A.D. 172, 175 (EAB 1990)
      o In re City of Ames, Iowa, 6 E.A.D. 374, 380 (EAB 1996))
      o May 10, 2007 Memorandum from James A. Hanlon to Alexis Strauss titled "Compliance Schedules for Water Quality-Based Effluent limitations in NPDES Permits."
> At least four federal circuit courts of appeals have held that EAB decisions like Star-Kist are entitled to Chevron deference, meaning the courts would defer to a reasonable Agency interpretation of the statute.  See Resisting Environmental Destruction on Indigenous Lands, REDOIL v. EPA, 2012 U.S. App. LEXIS 26358 (9th Cir. 2012) which cited to similar decisions in the 8th, 3rd, and 4th Circuits.

WQS Variances
EPA's proposed regulations at 131.14 establishes clear rules for the use of WQS variances and the process to obtain one is important to provide. This much needed clarity codifies that WQS variances are a legitimate tool available to states when implementing their water standards program, articulates the flexibility available to the states when adopting variances, and provides sufficient accountability to ensure the public that variances will be used to foster environmental improvements.  Below is an example of where having variance regulations in place would have helped states and their stakeholders quickly agree on a constructive path forward.
> In the late 1990s, Delaware, New Jersey and Pennsylvania identified the Delaware Estuary as impaired on their respective CWA section 303(d) lists based on elevated levels of PCBs in fish tissue, making it unsafe for humans to consume the fish.  Thus, the primary designated use of "fishable waters" in the Delaware estuary was not attained.
> Source loadings of PCBs are both internal and external to the system, including atmospheric deposition, point sources, CSOs, storm water runoff from contaminated sites, and inputs from other waters.
> With the Delaware River Basin Commission (DRBC) taking the lead to coordinate amongst stakeholders, the parties desired a step-wise incremental approach to restoring the Estuary, which was initially constructed as a "Water Quality Standards Implementation Plan" to be adopted into water quality standard.
> Such an approach was akin to a waterbody variance or a multiple discharger variance.  However, due to misconceptions by the regulatory community that obtaining a variance is too burdensome and by the environmental community believing that variances are a "get out of jail free" card, the states rejected the approach.
> EPA's preamble and proposed rule heavily borrowed from the discussions on the WQS implementation Plan in the Delaware Estuary such that the rule incorporates and transparently lays out a mechanism that the parties desired.  If the proposed rules with the variance procedure had been in place clearly laying out EPA's expectations, it is likely the regulated community would have better understood what was needed to obtain a variance and the environmental community would have realized that such an approach can build in accountable measures to ensure reasonable progress.
Additionally, WQS variances are an underutilized tool nationally. Since tracking WQS variance submittals in 2004, EPA found that states/tribes in four regions have never submitted a variance as a WQS and states/tribes in 3 additional regions have not submitted a WQS variance since 2009. However, EPA has found that where states and tribes and their stakeholders have more specificity in regulation regarding expectations and accountability for variances, such as those states and tribes covered by the "Water Quality Guidance for the Great Lakes System" (i.e., Great Lakes Initiative) rulemaking at 40 C.F.R. Part 132, they are successfully adopting and submitting WQS variances.  For example, since 2004, 93 of the 135 WQS variances submitted to EPA were from states in Region 5 (which is covered by the GLI). EPA wants to provide similar regulatory specificity nationally.
A final programmatic and legal challenge related to variances is whether or not variances must adhere to all the same regulatory provisions as designated use changes, including whether or not a state must use the "attainability factors" to support a variance for uses not specified in CWA section 101(a)(2) (e.g., public water supply use, agricultural use, irrigation use).  EPA recently approved a WQS variance in Minnesota for an agricultural use. This variance is being challenged on several fronts, including whether one of the 131.10(g) factors was satisfied. The proposed preamble and rule would state EPA's interpretation regarding legal authority for WQS variances and provide the regulatory clarity needed to preserve a state/tribe's ability to submit a variance for uses not specified in CWA section 101(a)(2).


[Federal Register: April 7, 2010 (Volume 75, Number 66)]
[Notices]
[Page 17707]
[DOCID:fr07ap10-43]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. DI10-5-000]

Alaska Power & Telephone Company; Notice of Declaration of
Intention and Soliciting Comments, Protests, and/or Motions To
Intervene

March 30, 2010.
    Take notice that the following application has been filed with the
Commission and is available for public inspection:
    a. Application Type: Declaration of Intention.
    b. Docket No.: DI10-5-000.
    c. Date Filed: December 23, 2009, and supplemented on January 12,
February 4, February 24, March 16, and March 23, 2010.
    d. Applicant: Alaska Power & Telephone Company.
    e. Name of Project: Neck Lake Hydroelectric Project.
    f. Location: The proposed Neck Lake Hydroelectric Project will be
located on Neck Lake outlet stream, near the community of Whale Pass,
Alaska, (T. 66 S., R. 79 E., sec. 35, Copper River Meridian, Alaska).
    g. Filed Pursuant to: Section 23(b)(1) of the Federal Power Act, 16
U.S.C. 817(b).
    h. Applicant Contact: Glen D. Martin, 193 Otto Street, P.O. Box
3222, Port Townsend, WA 98368; telephone:<PHONE_NUMBER> x122; Fax:
(360) 385-7538; e-mail<EMAIL_ADDRESS>    i. FERC Contact: Any questions on this notice should be addressed
to Diane M. Murray,<PHONE_NUMBER>, or e-mail address:
<EMAIL_ADDRESS>    j. Deadline for filing comments, protests, and/or motions: April
30, 2010.
    Comments, Motions to Intervene, and Protests may be filed
electronically via the Internet. See 18 CFR 385.2001(a)(l)(iii) and the
instructions on the Commission's Web site under the ``eFiling'' link.
If unable to be filed electronically, documents may be paper-filed. To
paper-file, an original and eight copies should be mailed to:
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. For more information on how to submit these types
of filings, please go to the Commission's Web site located at http://
www.ferc.gov/filing-comments.asp.
    Please include the docket number (DI10-5-000) on any comments,
protests, and/or motions filed.
    k. Description of Project: The proposed Neck Lake Hydroelectric
Project would consist of: (1) A small reservoir; (2) a three-foot-high,
75-foot-long dam, located approximately 1,300 feet below the Neck Lake
outlet; (3) a 400-foot-long penstock; (4) a proposed powerhouse
containing a generator with a capacity of 124 kW-400 kW; (5) a
transmission line; (6) an access road; and (7) appurtenant facilities.
    When a Declaration of Intention is filed with the Federal Energy
Regulatory Commission, the Federal Power Act requires the Commission to
investigate and determine if the interests of interstate or foreign
commerce would be affected by the project. The Commission also
determines whether or not the project: (1) Would be located on a
navigable waterway; (2) would occupy or affect public lands or
reservations of the United States; (3) would utilize surplus water or
water power from a government dam; or (4) if applicable, has involved
or would involve any construction subsequent to 1935 that may have
increased or would increase the project's head or generating capacity,
or have otherwise significantly modified the project's pre-1935 design
or operation.
    l. Locations of the Application: Copies of this filing are on file
with the Commission and are available for public inspection. This
filing may be viewed on the Web at http://www.ferc.gov using the
``eLibrary'' link. Enter the Docket number excluding the last three
digits in the docket number field to access the document. You may also
register online at http://www.ferc.gov/docs-filing/esubscription.asp to
be notified via e-mail of new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is also
available for inspection and reproduction at the address in item (h)
above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene--Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Filing and Service of Responsive Documents--All filings must
bear in all capital letters the title ``COMMENTS'', ``PROTESTS'', AND/
OR ``MOTIONS TO INTERVENE'', as applicable, and the Docket Number of
the particular application to which the filing refers. A copy of any
Motion to Intervene must also be served upon each representative of the
Applicant specified in the particular application.
    p. Agency Comments--Federal, state, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2010-7824 Filed 4-6-10; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 198 (Monday, October 18, 2021)]
[Notices]
[Pages 57665-57667]
[FR Doc No: 2021-22582]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OGC-2021-0674; FRL-9130-01-OGC]

Proposed Stipulated Partial Settlement Agreement, Endangered
Species Act Claims

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed stipulated partial settlement agreement;
request for public comment.

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SUMMARY: In accordance with the Environmental Protection Agency (EPA)
Administrator's October 16, 2017, Directive Promoting Transparency and
Public Participation in Consent Decrees and Settlement Agreements,
notice is hereby given of a proposed stipulated partial settlement
agreement that resolves part of the Center for Environmental Health, et
al., v. Wheeler, et al., case in the United States District Court for
the Northern District of California (4:18-cv-03197) that alleges that
EPA and the United States Fish and Wildlife (FWS) failed to comply with
certain procedural and substantive duties under the Endangered Species
Act (ESA). Defendant-Intervenor joins this stipulated partial
settlement agreement.

DATES: Written comments on the proposed stipulated partial settlement
agreement must be received by November 17, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OGC-2021-0674, online at https://www.regulations.gov (EPA's preferred
method). Follow the online instructions for submitting comments.

    Instructions: All submissions received must include the Docket ID
number for this action. Comments received may be posted without change
to https://www.regulations.gov, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Additional Information
about Commenting on the Proposed Settlement Agreement'' heading under
the SUPPLEMENTARY INFORMATION section of this document. Out of an
abundance of caution for members of the public and our staff, the EPA
Docket Center and Reading Room are closed to the public, with limited
exceptions, to reduce the risk of transmitting COVID-19. Our Docket
Center staff will continue to provide remote customer service via
email, phone, and webform. We encourage the public to submit comments
via https://www.regulations.gov, as there may be a delay in processing
mail and faxes. Hand-deliveries and couriers may be received by
scheduled appointment only. For further information on EPA Docket
Center services and the current status, please visit us online at
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information
from the CDC, local area health departments, and our federal partners
so that we can respond rapidly as conditions change regarding COVID-19.

FOR FURTHER INFORMATION CONTACT: Michele Knorr, Pesticides and Toxic
Substances Law Office MC-2333A, Office of General Counsel, U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460; telephone<PHONE_NUMBER>; email address
[email protected].

SUPPLEMENTARY INFORMATION:

I. Obtaining a Copy of the Proposed Settlement Agreement

    The official public docket for this action (identified by Docket ID
No. EPA-HQ-OGC-2021-0674) contains a copy of the proposed settlement
agreement.
    The electronic version of the public docket for this action
contains a copy of the proposed settlement agreement and is available
through https://www.regulations.gov. You may use https://www.regulations.gov to submit or view public comments, access the index
listing of the contents of the official public docket, and access those
documents in the public docket that are available electronically. Once
in the system, key in the appropriate docket identification number then
select ``search.''

II. Additional Information About the Proposed Settlement Agreement

    Prior to this lawsuit being filed, on January 18, 2017, EPA
submitted to FWS a nationwide biological evaluation regarding the
effects of malathion and two other active ingredients on species listed
as threatened or endangered under the ESA, 16 U.S.C. 1531 et seq., and
their designated critical habitats and requested initiation of
consultation pursuant to ESA section 7(a)(2), 16 U.S.C. 1536(a)(2) (the
Malathion Consultation). The Malathion Consultation has been ongoing
since that date.
    Plaintiffs filed their original case in May 2018. The Plaintiffs
amended the complaint on July 25, 2018, and on November 27, 2018
alleging that: (1) EPA violated its procedural duty under ESA section
7(a)(2) to complete consultation and its substantive duty under ESA
section 7(a)(2) to avoid jeopardy with respect to 21 malathion-
containing pesticide product registrations under the Federal
Insecticide Fungicide, and Rodenticide Act (FIFRA), and the FWS
violated its procedural duty to complete consultation under ESA section
7(a)(2); (2) these failures constitute unlawfully withheld or
unreasonably delayed agency action in violation of Section 706(1) of
the Administrative Procedure Act, 5 U.S.C. 706(1); and (3) EPA failed
to comply with ESA section 7(d) when it ``maintained the registrations
of these same pesticide products and continued to reregister and
register pesticide products containing malathion.''
    Unless one of the contingencies set forth in the proposed
stipulated partial settlement agreement occurs (which may result in an
extension of time), FWS will issue its Final Biological Opinion and
conclude the Malathion Consultation no later than February 28, 2022.
Court approval of this stipulated partial settlement agreement would
result in the dismissal with prejudice of portions of the claims in
Count 1 and Count 2 against Federal Defendants for violation of their
ESA section 7(a)(2) procedural duties to complete the Final Biological
Opinion. This agreement only resolves EPA's procedural duties under the
ESA section 7(a)(2); claims related to EPA's substantive ESA section
7(a)(2) duties are not covered. Additionally, claims against EPA for
its alleged failure to comply with the ESA section 7(d) requirements
are not covered by this agreement. Defendant-Intervenor joins this
stipulated partial settlement agreement.
    For a period of thirty (30) days following the date of publication
of this notice, the Agency will accept written comments relating to the
proposed stipulated partial settlement agreement from persons who are
not named as parties to the litigation in question. EPA or the
Department of Justice may withdraw or withhold consent to the proposed
stipulated partial settlement agreement if the comments disclose facts
or considerations that indicate that such consent is inappropriate,
improper, inadequate, or inconsistent with the requirements of the ESA
or FIFRA. Unless EPA or the Department of Justice determines that
consent should be withdrawn, the terms of the proposed stipulation and
stipulated notice of dismissal will be affirmed.

III. Additional Information About Commenting on the Proposed Settlement
Agreement

    Submit your comments, identified by Docket ID No. EPA-HQ-OGC-2021-
0674, via https://www.regulations.gov. Once submitted, comments cannot
be edited or removed from this docket. EPA may publish any comment
received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov 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. 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 https://www.epa.gov/dockets/commenting-epa-dockets. For additional information about submitting information
identified as CBI, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section of this document. Note that written
comments containing CBI and submitted by mail may be delayed and
deliveries or couriers will be received by scheduled appointment only.
    If you submit an electronic comment, EPA recommends that you
include your name, mailing address, and an email address or other
contact information in the body of your comment. This ensures that you
can be identified as the

submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. Any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket and
made available in EPA's electronic public docket. 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.
    Use of the https://www.regulations.gov website to submit comments
to EPA electronically is EPA's preferred method for receiving comments.
The electronic public docket system is an ``anonymous access'' system,
which means EPA will not know your identity, email address, or other
contact information unless you provide it in the body of your comment.
    Please ensure that your comments are submitted within the specified
comment period. Comments received after the close of the comment period
will be marked ``late.'' EPA is not required to consider these late
comments.

Christopher E. Kaczmarek,
Acting Associate General Counsel.
[FR Doc. 2021-22582 Filed 10-15-21; 8:45 am]
BILLING CODE 6560-50-P