[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 77004-77009]
[FR Doc No: 2023-24513]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 1074

[EPA-HQ-OAR-2022-0985; FRL-8952.1-01-OAR]
RIN 2060-AW12

Locomotives and Locomotive Engines; Preemption of State and Local
Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
revisions to its regulations addressing preemption of State and local
regulation of locomotives and engines used in locomotives. This rule
implements a policy change to no longer categorically preempt certain
State regulations of non-new locomotives and engines, aligning with the
plain text of the Clean Air Act (CAA), and better achieving the
legislative intent of providing for exclusive Federal regulation of new
locomotives and new locomotive engines while preserving the ability of
California and other States to adopt and enforce certain State
standards regulating non-new locomotives and engines.

DATES: This final rule is effective on December 8, 2023.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2022-0985. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
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 electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Brian Nelson, Assessment and Standards
Division, Office of Transportation and Air Quality, Environmental
Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105;
telephone number:<PHONE_NUMBER>; email address: [email protected].

SUPPLEMENTARY INFORMATION:

General Information

Does this action apply to me?

    This action does not directly apply to any regulated industry
classified by the North American Industry Classification System (NAICS)
Association.\1\ This action relates to State and local governments. The
revisions we are finalizing do not impose any requirements that State
and local governments must meet, but rather implement the Clean Air Act
preemption provisions for locomotives. To determine whether your entity
could be impacted by this action, you should carefully examine the
applicability criteria found in 40 CFR part 1074. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
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    \1\ NAICS Association. NAICS & SIC Identification Tools.
Available online: https://www.naics.com/search.
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What action is the Agency taking?

    The Environmental Protection Agency (EPA) is finalizing revisions
to its regulations addressing preemption of State regulation of new
locomotives and new engines used in locomotives, to align with language
in the Clean Air Act.

What is the Agency's authority for taking this action?

    Clean Air Act (CAA) section 209(e)(2)(B), 42 U.S.C. 7543(e)(2)(B),
requires EPA to promulgate regulations implementing section 209(e) of
the Act. CAA section 209(e)(1) addresses the prohibition of State
standards regarding certain classes of new nonroad engines or new
nonroad vehicles including new locomotives and new engines used in
locomotives.\2\ CAA section 209(e)(2)(A) specifies the criteria
relevant to EPA's evaluation of California authorization requests
(requests for a waiver of CAA preemption) for standards relating to the
control of emissions from nonroad engines or nonroad vehicles other
than those prohibited under section 209(e)(1). EPA's regulations
implementing these provisions for locomotives and locomotive engines
were first adopted in 1998 at 40 CFR part 85 and transcribed in 2008 at
40 CFR part 1074.\3\
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    \2\ Section 209(e) pertains to the inability of State and
political subdivisions to adopt and enforce standards and other
requirements for certain nonroad engines and nonroad vehicles. EPA's
reference to ``State'' herein includes political subdivisions unless
otherwise noted.
    \3\ See Emission Standards for Locomotives and Locomotive
Engines, Final Rule, 63 FR 18978, 18994 (April 16, 1998). See also,
Control of Emissions From Nonroad Spark-Ignition Engines and
Equipment, 73 FR 59034 (Oct. 8, 2008); See also Control of Air
Pollution: Emission Standards for New Nonroad Compression-Ignition
Engines at or Above 37 Kilowatts; Preemption of State Regulation for
Nonroad Engine and Vehicle Standards; Amendments to Rules, 62 FR
67733, 67734-67735 (December 30, 1997). See also Air Pollution
Control; Preemption of State Regulation for Nonroad Engine and
Vehicle Standards, July 20, 1994 (59 FR 36969).
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I. Summary

    As part of its 1998 rule finalizing Emission Standards for
Locomotives and Locomotive Engines at 40 CFR part 92, which applied to
new locomotives and new engines used in locomotives, EPA also adopted
regulations in 40 CFR part 85 defining a broad preemption of certain
State and local controls of new or other locomotives and engines used
in locomotives, which we determined to be appropriate based on our
understanding of the information available at the time. Recently, there
has been interest in obtaining greater emissions reductions from the
locomotive sector, including possibly adopting programs to achieve
greater emission reductions from non-new locomotives that are not
required by EPA's emission standards for new locomotives and engines
under CAA section 213(a)(5).\4\ On April 27, 2023, EPA published a
notice of proposed rulemaking which, among other things, proposed
revisions to our locomotive preemption regulations.\5\ Specifically, we
proposed to delete 40 CFR 1074.12(b), which preempted the State control
of non-new locomotives for certain categories of State control measures
for a period of 133 percent of the useful life of a new locomotive or
engine,\6\ along with conforming edits.

Because this proposal was included in EPA's larger Phase 3 Heavy-Duty
Greenhouse Gas notice of proposed rulemaking, it shared and continues
to share a docket ID number with that proposal. We have decided to
finalize this locomotive preemption portion of the proposal as a
separate final rule, while preserving our discretion to take separate
final action on all other aspects of the proposal at a future date.
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    \4\ Throughout this document, references to the regulation of
locomotives generally refer the regulation of both locomotives and
engines used in locomotives.
    \5\ See, Greenhouse Gas Emissions Standards for Heavy-Duty
Vehicles-Phase 3; Proposed Rule, April 27, 2023, 88 FR 25926.
    \6\ Including but not limited to emission standards, mandatory
fleet average standards, certification requirements, retrofit and
aftermarket equipment requirements, and non-Federal in-use testing
requirements.
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    In this final rule, EPA is adopting the revisions to part 1074 as
proposed and with no further adjustments. We received overwhelming
support from commenters, as well as a few adverse comments. In this
preamble, we have highlighted only a few of those comments to explain
the basis of EPA's final locomotive preemption regulation. EPA has
prepared a comprehensive Response to Comments document, in which we
respond to all significant comments we received during the public
comment period on the issues addressed in this rule.\7\
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    \7\ Response to Comments: Revisions to Preemption Regulations
for Locomotives and Locomotive Engines, EPA-420-R-23-032, available
at https://www.epa.gov/regulations-emissions-vehicles-and-engines/revisions-preemption-regulations-locomotives-and.
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II. Background

    The CAA Amendments of 1990 called on EPA to adopt emission
standards for new locomotives and new locomotive engines that achieve
the greatest degree of emission reduction achievable through the
application of technology which EPA determines will be available for
the locomotives or engines, giving appropriate consideration to the
cost of applying such technology within the period of time available to
manufacturers and to associated noise, energy, and safety factors. CAA
section 213(a)(5), 42 U.S.C. 7547(a)(5).\8\ These 1990 amendments also
added CAA section 209(e) which sets out provisions that prohibit States
or any political subdivision thereof from regulating certain nonroad
engines or vehicles, provisions that set forth the requirement that EPA
must authorize California standards and other requirements relating to
the control of emissions from other nonroad vehicles and engines unless
specified criteria are found by EPA, and provisions that set forth how
States other than California can adopt California nonroad vehicle or
engine standards if certain criteria are met. Section 209(e)(2)
directed the Administrator of EPA to issue regulations to implement
section 209(e).
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    \8\ EPA provides this discussion of the Federal locomotive
requirements under the CAA for background purposes only. In this
rulemaking, EPA did not reopen the Federal locomotive requirements,
and any comments on such are beyond the scope of the action and will
not be addressed here.
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    In April of 1998, EPA adopted its first-ever regulations addressing
air pollutant emissions from new locomotives and new locomotive engines
(including freshly built and remanufactured) under CAA section
213(a)(5), 42 U.S.C. 7547(a)(5).\9\ As part of the 1998 final rule, EPA
also promulgated regulations designed to codify the nonroad preemption
provisions of section 209(e)(1)(B) to clarify the prohibition of any
State standard or other requirement relating to the control of
emissions from new locomotives or new engines used in locomotives.\10\
EPA's rule included a provision that set a period equivalent in length
to 133 percent of the regulatory useful life of a new locomotive or
engine during which certain categories of control measures are
preempted, whether applicable to new or other locomotives or locomotive
engines.\11\ EPA also adopted regulations to implement the CAA
provisions allowing California to request authorization for other State
requirements on non-new locomotives and engines used in locomotives not
otherwise prohibited.\12\
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    \9\ Emission Standards for Locomotives and Locomotive Engines,
63 FR 18978 (April 16, 1998), codified at 40 CFR parts 85, 89 and
92. EPA's locomotive emission regulations were later moved to 40 CFR
part 1033. The preemption regulations were later transcribed at 40
CFR 1074.12; see 73 FR 59034 (Oct. 8, 2008).
    \10\ EPA had previously set out the other nonroad preemption
provisions (except for locomotives) in 1994 (59 FR 36969) and
revised them in 1997 (62 FR 67733).
    \11\ See Note 6.
    \12\ To avoid confusion of the term ``used'' sometimes meaning
``placed or mounted,'' we employ the term ``non-new'' to describe
engines that do not meet the definition of ``new'' in Sec.  1074.5.
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    As we explained in the April 27, 2023, proposed rule to amend part
1074, recent fleet profile data shows that the in-service locomotive
fleet continues to be dominated by Tier 2 and earlier locomotives
subject to EPA's less stringent emission standards.\13\ According to
data supporting EPA's 2020 National Emission Inventory, there are
16,787 locomotives in the Class I line-haul fleet.\14\ Of these, about
26 percent are Tier 3 or Tier 4 locomotives subject to more stringent
emission standards.\15\ The other 74 percent are Tier 2 or earlier
locomotives, broken down as follows: About 62 percent are
remanufactured to the revised remanufacture standards adopted in 2008;
11 percent have not been remanufactured and continue to have the higher
emissions of their original certification tier; and a small number,
about 1 percent, are unregulated (pre-1973) locomotives. The Class II
and III line-haul fleet consists of 3,447 locomotives. Of these, about
seven percent are Tier 3 or 4 locomotives. The other 93 percent are
Tier 2 or earlier, broken down as follows: About 39 percent of the
locomotives are unregulated (pre-1973); 48 percent are Tier 0; and the
other six percent are Tier 1 or Tier 2.
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    \13\ 2020 National Emissions Inventory Locomotive Methodology
Prepared for U.S. Environmental Protection Agency by Eastern
Research Group, Inc. (May 19, 2022). https://gaftp.epa.gov/air/nei/2020/doc/supporting_data/nonpoint/Rail/2020_NEI_Rail_062722.pdf.
    \14\ The current classification of railroads adopted by the
Surface Transportation Board (STB) in 2021 is based on annual
carrier operating revenue, as follows: Class I railroads, greater
than $943.9 million; Class II railroads, $42.4 to $943.9 million;
Class III railroads less than $42.4 million. See 49 CFR part 1201
(1-1 Classification of Carriers).
    \15\ EPA took action to set additional emission standards for
new locomotives and engines in 2008; see final rule published at 73
FR 37096 (June 30, 2008), codified at 40 CFR part 1033, Control of
Emissions of Air Pollution From Locomotive Engines and Marine
Compression-Ignition Engines Less Than 30 Liters per Cylinder.
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    In the April 27, 2023, proposal, we noted that there is interest
from entities who must develop State implementation plans (SIPs)
demonstrating attainment of national ambient air quality standards
(NAAQS) in obtaining greater emissions reductions from the locomotive
sector, including possibly adopting programs to achieve greater
emission reductions from non-new locomotives that are not required by
EPA's emissions standards for new locomotives and engines under CAA
section 213(a)(5). This interest is related to the large share of older
locomotives in the Class I, II, and III railroad fleets and their
emissions contribution to ambient concentrations of air pollution that
may violate the ozone and particulate matter NAAQS.
    Nevertheless, the action taken here to revise our locomotive
preemption regulations does not achieve reductions of such emissions.
Rather, by aligning with the CAA, it may provide latitude for the
development of State approaches to addressing emissions from non-new
locomotives and non-new engines used in locomotives that are not
required to be reduced by EPA's emissions standards for new locomotives
and engines under CAA section 213(a)(5). In enacting the 1990 CAA
amendments and section 209(e) for nonroad equipment including non-new
locomotives, Congress recognized the unique role and air quality
concerns of California and clearly envisioned the

potential for California to regulate non-new locomotives. This is
plainly shown by the combination of statutory provisions--at CAA
sections 213(a)(5), 209(e)(1)(B), and 209(e)(2)(A)--that clearly show
that although EPA has exclusive authority to regulate emissions from
new locomotives and engines and certain other new nonroad engines and
vehicles, California retained the ability to seek authorization to
regulate ``other nonroad engines or vehicles,'' including those that
are non-new locomotives and locomotive engines. The purpose of EPA's
revisions is to effectuate this Congressional intent and the language
of the CAA whereby control measures for non-new locomotives must be
able to obtain authorization so long as they satisfy the criteria in
section 209(e) of the Act.

III. Regulatory Changes in This Final Rule

    EPA is finalizing several revisions in 40 CFR part 1074, including
Sec. Sec.  1074.10, 1074.12, and 1074.101, to align EPA's regulations
with CAA section 209(e).
    In 40 CFR 1074.10, ``Scope of preemption,'' we are revising Sec.
1074.10(b) to contain text that is currently located in Sec.
1074.12(a) and shifting the current text of Sec.  1074.10(b) into a new
Sec.  1074.10(c). This is solely a housekeeping measure and does not
revise the text contained in current Sec.  1074.12(a); it is only a
transcription.
    We are deleting 40 CFR 1074.12, ``Scope of preemption-specific
provisions for locomotives and locomotive engines,'' in its entirety.
The previous text at 40 CFR 1074.12(b) preempted the State control of
non-new locomotives for certain categories of State control measures
for a period of 133 percent of useful life of a new locomotive or
engine.\16\ We believe the removal of the explicit period of preemption
in Sec.  1074.12(b) as well as the listed categories of State control
measures will reflect that not all State regulations addressing non-new
locomotives were intended by Congress to be preempted without the
possibility of obtaining a waiver of preemption and will align the
requirements and effects of the regulation with the plain language of
the CAA.
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    \16\ See Note 6.
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    In 40 CFR 1074.101, ``Procedures for California nonroad
authorization requests,'' we are finalizing a minor housekeeping edit
to paragraph (a) of this section, to refer to the relocated text in
Sec.  1074.10(b) that is being moved out of Sec.  1074.12.

IV. Comments Received and Responses

    We received several comments expressing concerns about emissions
from non-new locomotives and their impact on communities, especially
for areas located along high traffic rail lines and/or in communities
with environmental justice concerns. We acknowledge these concerns
about the harmful impacts of locomotive emissions on these communities.
We received many comments supporting the removal of Sec.  1074.12(b),
including from the Environmental Defense Fund, the Moving Forward
Network, and the National Association of Clean Air Agencies. We are
finalizing the revisions as proposed.
    Comments from industry on this topic include concerns from Wabtec
that EPA's proposed revisions could take away the stability and
predictability of a Federally-uniform regulatory program for new
locomotives and engines.\17\ We acknowledge the concern, but it is
misplaced. Only EPA has the authority to promulgate standards and
requirements that apply to new locomotives and new engines used in
locomotives, and this rule does nothing to change that exclusive
authority. California may not adopt and enforce standards or
requirements that apply to new locomotives or new engines used in
locomotives, as is plainly prohibited by section 209(e)(1)(B). As EPA
noted in the proposal, section 209(e)(2)(A) of the Act requires EPA to
authorize California's emission standards for certain nonroad engines
and vehicles, including for non-new locomotives and non-new engines
used in locomotives, so long as California meets the requirements of
that provision. Further, section 209(e)(2)(B) also allows certain
States to adopt California's standards so long as they meet the
statutory criteria. EPA's final rule aligns the regulation with these
clear statutory requirements.
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    \17\ See comment from Westinghouse Air Brake Technologies
Corporation at EPA-HQ-OAR-2022-0985-1580-A1, pp. 8-9.
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    In any case, we do not believe that our action improperly
diminishes the regulatory stability referred to by the commenter. The
underlying CAA preemption language protects manufacturers from having
to juggle compliance with conflicting State and Federal regulations of
new locomotives, and only EPA's regulations promulgated under CAA
section 213(a)(5) can impose compliance requirements on new locomotives
and new engines used in locomotives. There is no possibility, under
either the CAA or as a result of EPA's amended preemption regulations,
for California or any other State to adopt and enforce different
standards or other requirements that would apply to new locomotives or
new engines used in locomotives. In addition, EPA's authorization
process insulates manufacturers from State-level rules that could
significantly affect the design and manufacture of new locomotives or
new locomotive engines. Under this final rule, EPA remains obliged to
adhere to the statutory authorization criteria in CAA section
209(e)(2). EPA also intends to consider the reasoning of Allway Taxi in
reviewing any California rules submitted to EPA for authorization
pursuant to 40 CFR 1074.101 through 1074.105.\18\ A comment received
from the Association of American Railroads supports this point,
emphasizing that the removal of the categorical preemption of certain
types of State regulations that EPA has, to date, deemed likely to
significantly affect the design and manufacture of new locomotives or
new locomotive engines, does not change the underlying statutory
limitation against which EPA would evaluate a future request.\19\
Specifically, the statutory limitation referenced in that comment is
the one at CAA section 209(e)(2)(A), which requires the Administrator,
after notice and opportunity for public hearing, to authorize
California to adopt and enforce standards and other requirements
relating to the control of emissions from such nonroad vehicles or
engines not preempted by CAA section 209(e)(1) if California

determines that California standards will be, in the aggregate, at
least as protective of public health and welfare as applicable Federal
standards. Further, 209(e)(2)(A) states EPA shall not grant such
authorization if it finds that (1) the protectiveness determination of
California is arbitrary and capricious; (2) California does not need
such standards to meet compelling and extraordinary conditions; or (3)
California standards and accompanying enforcement procedures are not
consistent with CAA section 209.
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    \18\ EPA notes, as set out in the notice of proposed rulemaking,
that in implementing this authorization authority it also expects to
continue to consider the reasoning of Allway Taxi v. City of New
York, 340 F. Supp. 1120 (S.D.N.Y 1972), aff 'd, 468 F.2d 624 (2d
Cir. 1972): ``We do not say that a state or locality is free to
impose its own emission control standards the moment after a new car
is bought and registered. That would be an obvious circumvention of
the Clean Air Act and would defeat the congressional purpose of
preventing obstruction to interstate commerce. The preemption
sections, however, do not preclude a state or locality from imposing
its own exhaust emission control standards upon the resale or
reregistration of the automobile. Nor do they preclude a locality
from setting its own standards for the licensing of vehicles for
commercial use within that locality. Such regulations would cause
only minimal interference with interstate commerce, since they would
be directed primarily to intrastate activities and the burden of
compliance would be on individual owners and not on manufacturers
and distributors.'' See also, Engine Manufacturers Ass'n v. EPA, 88
F.3d 1075, 1086 & n. 39 (D.C. Cir. 1996) (endorsing Allway Taxi
rationale); Engine Manufacturers Ass'n v. South Coast Air Quality
Management Dist., 541 U.S. 246, 254 (2004) (holding that Section
209(a) preempts certain State rules that would pressure
manufacturers to change the design of new engines even when ``not
en-forced through manufacturer-directed regulation'').
    \19\ See comment from the Association of American Railroads &
American Short Line and Regional Railroad Association at EPA-HQ-OAR-
2022-0985-1492-A1, p. 4-5.
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    We also received an adverse comment on this topic from the American
Free Enterprise Chamber of Commerce, claiming that the proposal did not
provide a compelling policy reason for deviating from the previous
approach to Federal preemption of State regulation of locomotives and
engines, whether new or other locomotives and engines.\20\ While EPA is
making a policy change to no longer categorically preempt State
regulation of non-new locomotives and engines, this final rule aligns
with the plain text of the CAA, is well supported by the factual record
including developments since the 1998 final rule, and better achieves
the legislative intent of providing for exclusive Federal regulation of
new locomotives and new locomotive engines while preserving the ability
of obtaining a waiver of preemption for regulating non-new locomotives
and engines.\21\ As we explain in section II of this document, the
final rule aligns EPA's regulations with the clear text of sections
213(a)(5), 209(e)(1)(B) and 209(e)(2)(A) of the CAA. While the agency
has discretion to establish further criteria for authorizations by
regulation beyond what are specified in the statute, as we did in the
1998 rule, the statute does not require this result.\22\ Rather, the
statute at section 209(e)(2) establishes a process where EPA
authorizes, on a case-by-case basis, certain California nonroad engine
and vehicle standards, including those applicable to non-new
locomotives, so long as they satisfy the criteria in section
209(e)(2)(A). The final rule faithfully implements this statutory
process for non-new locomotives and engines.
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    \20\ See comment from the American Free Enterprise Chamber of
Commerce at EPA-HQ-OAR-2022-0985-1660-A1, p. 70.
    \21\ Under governing caselaw, an agency may change policies so
long as it recognizes the change and articulates a good reason for
it. To the extent the commenter believes that some heightened
standard applies, such that a ``compelling'' justification is
required, that argument has not been raised with reasonable
specificity as required by CAA section 307(d)(7)(B), and in any
event is inconsistent with the caselaw. See F.C.C. v. Fox Television
Stations, Inc., 556 U.S. 502, 514-15 (2009).
    \22\ NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974).
(``the choice between rulemaking and adjudication lies in the first
instance within the [agency's] discretion'').
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    Moreover, EPA is making new factual findings that support the
change in policy. As explained in the April 27, 2023, proposal and
further explained in the Response to Comments document, we have
identified certain developments that indicate that the categorical
exclusion of some of the specified standards and requirements for 133
percent of the useful life period of new locomotives or engines is no
longer in all cases appropriate. We identified illustrative emissions
control technologies which have been voluntarily applied to non-new
locomotives and prima facie would not appear to significantly affect
the design or manufacture of new locomotives.\23\ In light of the
changed factual record, we believe that the 1998 rule's categorical bar
on certain types of controls for non-new locomotives is no longer
appropriate, and that instead, the agency ought to evaluate on a case-
by-case basis whether to authorize standards involving such controls
for non-new locomotives.
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    \23\ 88 FR 26094-95.
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    Finally, as we explained in the proposal, this rule better achieves
Congress's intent to differentiate between Federal regulation of new
locomotives and possible State regulation of non-new locomotives.
Although it is clear from the plain language of CAA sections 213(a)(5)
and 209(e)(1)(B) that only EPA is to regulate new locomotives and
engines, section 209(e)(2) contemplates that California may adopt
certain standards for non-new locomotives to address its air quality
problems, and that other States may follow California's lead.
Throughout section 209, Congress contemplated that authorizing
California's ``pioneering'' regulatory efforts would create a State-
level laboratory for innovation, driving experimentation in ``new
control systems and designs'' that would benefit the nation as a
whole.\24\ Although Congress, in section 209(e)(1)(B), precluded
California's ability to regulate new locomotives and engines, the 1998
final rule's categorical bar on certain controls whether applicable to
new or other locomotives and engines may have also precluded California
and other States from exploring innovative local programs to address
pollution from non-new locomotives and in turn achieving the potential
emissions reductions of such programs--programs that EPA could not
include in its emission standards under section 213(a)(5) that apply
only to new locomotives and engines. This final rule ensures that such
programs for non-new locomotives and engines may be authorized so long
as they meet the statutory authorization criteria and in turn yield
benefits for public health and the environment.
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    \24\ S. Rep. No. 90-403, at 33.
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    This action does not change the scope of preemption of State
regulation of new locomotives and new engines used by locomotives,
which is established by CAA section 209(e)(1). EPA agrees with the
commenter that we are making a policy change with regard to whether to
evaluate State regulation of non-new locomotives and engines at all,
but we are not changing any of the criteria for evaluating
authorization requests. On review of the extension of the preemption
provisions adopted in 1998 as reaching ``other locomotives or
locomotive engines,'' in addition to those that are ``new,'' without
preserving the authority under CAA section 209(e)(2) to consider for
authorization State regulation of the types of standards or
requirements listed at Sec.  1074.12(b), we now view the provisions at
Sec.  1074.12(b) as unnecessarily restricting such consideration beyond
what the statute requires at CAA section 209(e)(1)(B). Moreover, as
explained in the April 27, 2023, proposal, we have identified certain
developments that indicate that the categorial exclusion of some of the
specified standards and requirements for the 133 percent of the useful
life period of new locomotives or engines is no longer in all cases
appropriate. Consequently, we believe it is important that our
regulations not unnecessarily constrain EPA's future evaluation of a
State request for authorization to regulate non-new locomotives and
non-new engines used in locomotives under Sec.  1074.101. Indeed, one
reason for this revision is to eliminate any such constraint that is
apparent in current 40 CFR 1074.12(b).
    EPA notes that concerns may exist related to authorization requests
that include forms of State controls that could significantly affect
the design or manufacture of a new locomotive or new engines used in
locomotives. As explained in the April 27, 2023, proposal, EPA
recognizes that significant advances in technology have occurred in the
intervening years since 1998, along with innovative forms of
regulations. Any State authorization application that includes
locomotive emission regulations would be subject to consideration of
whether such regulations significantly affect the design or manufacture
of a new

locomotive or new engine used in a locomotive to the extent such is
prohibited by section 209(e)(1)(B). EPA will evaluate any such
application on a case-by-case basis to determine if the controls may be
authorized under section 209(e)(2)(A) and 40 CFR 1074.101 through
1074.110.
    Our proposed rule to revise the preemption language did not reopen
any aspect of the Federal regulatory program for new locomotives and
new engines used in locomotives set forth at 40 CFR part 1033.
Consequently, none of the changes to our preemption regulations will
have any impact on EPA's regulation of new locomotives or engines used
in locomotives (including freshly built and remanufactured) under 40
CFR part 1033. There are no potential costs or benefits to regulated
entities of any size as a result of these amendments to our preemption
regulations. Although several commenters on our proposed rule urged EPA
to take steps toward more stringent Federal emissions standards for
locomotives, those comments are beyond the scope of this rulemaking as
EPA did not propose or seek comments on any amendments to EPA's Federal
regulations to reduce the air emissions from new locomotives or new
engines used in locomotives. EPA reserves its discretion to revisit the
part 1033 regulations separately.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review

    This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because it does not contain any information collection
activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This rule
simply revises EPA's regulations to align with section 209 of the Clean
Air Act and to preserve for separate future adjudications under CAA
section 209(e)(2) whether a State rule addressing non-new locomotives
or engines would impermissibly relate to the control of emissions from
new locomotives or engines under section 209(e)(1). As a result of this
action alone there are no potential impacts to railroads, of any size.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local, or Tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action has federalism implications because these revisions to
part 1074 involve existing regulations that preempt State law under CAA
section 209(e). In this rule, EPA is revising our locomotive preemption
regulations to align with language Congress provided in section
209(e)(1)(B) and the congressional directive to EPA to implement the
prohibition of State regulation of new locomotives and new engines used
in locomotives while ensuring that States are not impeded from adopting
standards and other requirements relating to the control of emissions
as allowed by the CAA to address the contribution of air pollutant
emissions from non-new locomotives and non-new engines used in
locomotives to their air quality issues. EPA consulted with
representatives of various State and local governments in developing
this rule. Our outreach to State and local governments has satisfied
Executive Order 13132. EPA solicited and received comments on this
revision from many State and local officials. Specifically, we received
a letter with strongly supportive comments signed by officials from 12
States, as well as supportive comments from the Ozone Transport
Commission, National Association of Clean Air Agencies (NACAA), and
Northeast States for Coordinated Air Use Management (NESCAUM).

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have Tribal implications as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action. This action does not have substantial direct effects 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. In
the development of the proposed Greenhouse Gas Emissions Standards for
Heavy-Duty Vehicles--Phase 3 and this final rule, EPA engaged with our
Tribal stakeholders. We did so primarily by offering government-to-
government consultation upon request but also offered information
sessions and presentations to Tribal audiences.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive order.
    This action is not subject to Executive Order 13045 because it does
not concern an environmental health risk or safety risk. Since the
action does not concern human health, EPA's Policy on Children's Health
also does not apply.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All

    EPA believes that this type of action does not concern human health
or environmental conditions and therefore cannot be evaluated with
respect to potentially disproportionate and adverse effects on
communities with environmental justice concerns. This rule does not
achieve reductions of locomotive emissions.
    Although this action does not concern human health or environmental
conditions, EPA recognizes that locomotive emissions are an
environmental justice concern, and we promoted meaningful involvement
in

several ways. For example, we contacted individuals in environmental
justice groups about the proposal and provided information about the
public hearings and the comment period; provided information on our
website in both Spanish and English; and provided Spanish translation
during the public hearings. We received and considered comments from
those with environmental justice concerns, as described in the Response
to Comments document.\25\
---------------------------------------------------------------------------

    \25\ See Note 7.
---------------------------------------------------------------------------

K. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

VI. Statutory Authority and Legal Provisions

    Statutory authority for these revisions to our preemption
regulations is found in CAA section 209(e)(2)(B), 42 U.S.C.
7543(e)(2)(B), which requires EPA to promulgate regulations
implementing CAA section 209(e), which in turn addresses the
prohibition of State standards regarding certain classes of new nonroad
engines or new nonroad vehicles including new locomotives and new
engines used in locomotives, as well as EPA's authorization criteria
for certain California standards for other nonroad engines or nonroad
vehicles.

VII. Judicial Review and Administrative Reconsideration

    Under CAA section 307(b)(1), judicial review of this final action
is available only by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit (the Court) by
January 8, 2024. Under CAA section 307(b)(2), the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings brought by the EPA to enforce the
requirements. Section 307(d)(7)(B) of the CAA further provides that
only an objection to a rule or procedure which was raised with
reasonable specificity during the period for public comment (including
any public hearing) may be raised during judicial review. This section
also provides a mechanism for the EPA to reconsider the rule if the
person raising an objection can demonstrate to the Administrator that
it was impracticable to raise such objection within the period for
public comment or if the grounds for such objection arose after the
period for public comment (but within the time specified for judicial
review) and if such objection is of central relevance to the outcome of
the rule. Any person seeking to make such a demonstration should submit
a Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW,
Washington, DC 20460. Under CAA section 307(b)(1), the filing of a
petition for reconsideration shall not affect the finality of the rule
for purposes of judicial review nor extend the time within which a
petition for judicial review may be filed, and shall not postpone the
effectiveness of the rule.

List of Subjects in 40 CFR Part 1074

    Environmental protection, Administrative practice and procedure,
Air pollution control, Locomotives, Nonroad engines, Scope of
preemption.

Michael S. Regan,
Administrator.

    For the reasons set out in the preamble, EPA amends title 40,
chapter I of the Code of Federal Regulations as set forth below.

PART 1074--PREEMPTION OF STATE STANDARDS AND PROCEDURES FOR WAIVER
OF FEDERAL PREEMPTION FOR NONROAD ENGINES AND NONROAD VEHICLES

0
1. The authority citation for part 1074 continues to read as follows:

    Authority:  42 U.S.C. 7401-7671q.

Subpart A--Applicability and General Provisions

0
2. Amend Sec.  1074.10 by revising paragraph (b) and adding paragraph
(c) to read as follows:

Sec.  1074.10  Scope of preemption.

* * * * *
    (b) States and localities are preempted from adopting or enforcing
standards or other requirements relating to the control of emissions
from new locomotives and new engines used in locomotives.
    (c) For nonroad engines or vehicles other than those described in
paragraphs (a) and (b) of this section, States and localities are
preempted from enforcing any standards or other requirements relating
to control of emissions from nonroad engines or vehicles except as
provided in subpart B of this part.

Sec.  1074.12   [Removed]

0
3. Remove Sec.  1074.12.

Subpart B--Procedures for Authorization

0
4. Amend Sec.  1074.101 by revising paragraph (a) to read as follows:

Sec.  1074.101   Procedures for California nonroad authorization
requests.

    (a) California must request authorization from the Administrator to
enforce its adopted standards and other requirements relating to
control of emissions from nonroad engines or vehicles that are not
preempted by Sec.  1074.10(a) or (b). The request must include the
record on which the State rulemaking was based.
* * * * *

[FR Doc. 2023-24513 Filed 11-7-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Proposed Rules]
[Pages 20751-20753]
[FR Doc No: 2018-09740]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2017-1124; Product Identifier 2017-SW-073-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Helicopters

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to adopt a new airworthiness directive (AD) for
Airbus Helicopters Model AS332C, AS332C1, AS332L, and AS332L1
helicopters. This proposed AD would require inspecting the jettisoning
mechanism of the left-hand (LH) and right-hand (RH) cabin sliding plug
doors. This proposed AD is prompted by a report that during a scheduled
inspection a cabin door failed to jettison. The actions of this
proposed AD are intended to correct an unsafe condition on these
products.

DATES: We must receive comments on this proposed AD by July 9, 2018.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your
comments electronically.
     Fax:<PHONE_NUMBER>.
     Mail: Send comments to the U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
     Hand Delivery: Deliver to the ``Mail'' address between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-
1124; or in person at Docket Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. The AD docket contains
this proposed AD, the European Aviation Safety Agency (EASA) AD, the
economic evaluation, any comments received, and other information. The
street address for Docket Operations (telephone<PHONE_NUMBER>) is in the
ADDRESSES section. Comments will be available in the AD docket shortly
after receipt.
    For service information identified in this proposed rule, contact
Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052;
telephone<PHONE_NUMBER> or<PHONE_NUMBER>; fax<PHONE_NUMBER>; or at
http://www.helicopters.airbus.com/website/en/ref/Technical-Support_73.html.
    You may review the referenced service information at the FAA,
Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy,
Room 6N-321, Fort Worth, TX 76177.

FOR FURTHER INFORMATION CONTACT: Matt Fuller, Senior Aviation Safety
Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA,
10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone<PHONE_NUMBER>;
email [email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to participate in this rulemaking by submitting
written comments, data, or views. We also invite comments relating to
the economic, environmental, energy, or federalism impacts that might
result from adopting the proposals in this document. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. To
ensure the docket does not contain duplicate comments, commenters
should send only one copy of written comments, or if comments are filed
electronically, commenters should submit only one time.
    We will file in the docket all comments that we receive, as well as
a report summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. Before acting on this proposal, we
will consider all comments we receive on or before the closing date for
comments. We will consider comments filed after the comment period has
closed if it is possible to do so without incurring expense or delay.
We may change this proposal in light of the comments we receive.

Discussion

    EASA, which is the Technical Agent for the Member States of the
European Union, has issued EASA AD No. 2017-0022, dated February 8,
2017, to correct an unsafe condition for Airbus Helicopters (previously
Eurocopter) Model AS332C, AS332C1, AS332L, and AS332L1 helicopters
equipped with a cabin sliding plug door modified in accordance with
Airbus Helicopters modification (MOD) 0722338. Helicopters with
Eurocopter MOD 0725366 are exempt from the EASA AD's requirements.
    EASA advises that the emergency jettison test of a cabin lateral
sliding plug door failed during a scheduled inspection and test of the
door's jettison mechanism. According to EASA, an investigation revealed
that the jettison handle cable interfered with the cable clamps. EASA
states that this condition could lead to jamming of the door
jettisoning mechanism, preventing jettisoning of the affected door
during an emergency, possibly obstructing evacuation of the occupants.
The EASA AD consequently requires repetitive inspections of the
jettisoning mechanism of the LH and RH door, followed by corrective
actions if needed.

FAA's Determination

    These helicopters have been approved by the aviation authority of
France and are approved for operation in the United States. Pursuant to
our bilateral agreement with France, EASA, its technical
representative, has notified us of the unsafe condition described in
its AD. We are proposing this AD because we evaluated all known
relevant information and determined that an unsafe condition is likely
to exist or develop on other products of the same type design.

Related Service Information Under 1 CFR Part 51

    We reviewed Airbus Helicopters Alert Service Bulletin No. AS332-
52.00.56, Revision 0, dated January 30, 2017, which specifies pulling
on the inner jettison handle to determine whether the cables come into
contact with the cable clamps. If there is contact, this service
information specifies changing the position of the cable clamps to
prevent interference.
    This service information is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

Other Related Service Information

    We also reviewed Eurocopter Service Bulletin No. 332-52.00.28,
Revision 1, dated April 29, 1998, which contains procedures to improve
the door jettison system. Eurocopter identifies compliance with this
service information as MOD 0725366.

Proposed AD Requirements

    This proposed AD would require before flight over water or within
110 hours time-in-service (TIS), whichever occurs first, inspecting the
jettisoning mechanism of the LH and RH cabin doors for correct
operation by pulling on the inner jettison handle to determine whether
the cable clamp contacts the top and bottom horizontal cables. If there
is contact between cable clamp and the horizontal cables, this proposed
AD would require changing the position of the cable clamps to remove
any contact.

Differences Between This Proposed AD and the EASA AD

    The EASA AD requires that the initial inspection occur during the
next jettisoning test of the doors or within 110 flight hours,
whichever occurs first, and thereafter during certain maintenance
tasks. This proposed AD would require a one-time inspection within 110
hours TIS or prior to flying over water.

Costs of Compliance

    We estimate that this proposed AD would affect 19 helicopters of
U.S. Registry and that labor costs average $85 per work-hour. Based on
these estimates, we expect that inspecting the jettisoning mechanism
and changing the orientation of the cable clamps, if necessary, would
require 4 work-hours. No parts would be required for a total cost of
$340 per helicopter and $6,460 for the U.S. fleet.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect 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.
    For the reasons discussed, I certify this proposed regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska to the extent that
it justifies making a regulatory distinction; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared an economic evaluation of the estimated costs to comply
with this proposed AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

Airbus Helicopters: Docket No. FAA-2017-1124; Product Identifier
2017-SW-073-AD.

(a) Applicability

    This AD applies to Airbus Helicopters Model AS332C, AS332C1,
AS332L, and AS332L1 helicopters, certificated in any category, with
a cabin sliding plug door installed in accordance with Airbus
Helicopters modification (MOD) 0722338, except helicopters with a
plug door jettison system installed in accordance with MOD 0725366.

(b) Unsafe Condition

    This AD defines the unsafe condition as failure of a cabin
sliding door to jettison, which could prevent helicopter occupants
from evacuating the helicopter during an emergency.

(c) Comments Due Date

    We must receive comments by July 9, 2018.

(d) Compliance

    You are responsible for performing each action required by this
AD within the specified compliance time unless it has already been
accomplished prior to that time.

(e) Required Actions

    Within 110 hours time-in-service (TIS) or before the next
operation over water, whichever occurs first, inspect the
jettisoning mechanism of the left-hand and right-hand cabin doors
for correct operation:
    (1) Pull the jettisoning handle and determine whether the cable
clamp contacts the top or bottom horizontal cables, using as a
reference the photographs under paragraph 3.B.2 of Airbus
Helicopters ASB No. AS332-52.00.56, Revision 0, dated January 30,
2017 (ASB).
    (2) If there is contact between a cable clamp and a horizontal
cable, before further flight, install both cable clamps as depicted
in the bottom photograph under paragraph 3.B.2 of the ASB.

(f) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Section, Rotorcraft Standards
Branch, FAA, may approve AMOCs for this AD. Send your proposal to:
Matt Fuller, Senior Aviation Safety Engineer, Safety Management
Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy.,
Fort Worth, TX 76177; telephone<PHONE_NUMBER>; email [email protected].
    (2) For operations conducted under a 14 CFR part 119 operating
certificate or under 14 CFR part 91, subpart K, we suggest that you
notify your principal inspector, or lacking a principal inspector,
the manager of the local flight standards district office or
certificate holding district office before operating any aircraft
complying with this AD through an AMOC.

(g) Additional Information

    (1) Eurocopter Service Bulletin No. 332-52.00.28, Revision 1,
dated April 29, 1998, which is not incorporated by reference,
contains additional information about the subject of this AD. For
service information identified in this AD, contact Airbus
Helicopters, 2701 N Forum Drive, Grand Prairie, TX 75052; telephone
(972) 641-0000 or<PHONE_NUMBER>; fax<PHONE_NUMBER>; or at http://www.helicopters.airbus.com/website/en/ref/Technical-Support_73.html.
You may review the referenced service information at the FAA, Office
of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy.,
Room 6N-321, Fort Worth, TX 76177.
    (2) The subject of this AD is addressed in European Aviation
Safety Agency (EASA) AD No. 2017-0022, dated February 8, 2017. You
may view the EASA AD on the internet at http://www.regulations.gov
in the AD Docket.

(h) Subject

    Joint Aircraft Service Component (JASC) Code: 5200, Doors.

    Issued in Fort Worth, Texas, on May 1, 2018.
Lance T. Gant,
Director, Compliance & Airworthiness Division, Aircraft Certification
Service.
[FR Doc. 2018-09740 Filed 5-7-18; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Proposed Rules]
[Page 58778]
[FR Doc No: 2017-26707]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 399

[Docket No. DOT-OST-2017-0007]
RIN 2105-AE56

Transparency of Airline Ancillary Service Fees

AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).

ACTION: Notice of withdrawal of proposed rulemaking.

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

SUMMARY: The Department is withdrawing the supplemental notice of
proposed rulemaking (SNPRM) on Transparency of Airline Ancillary
Service Fees issued on January 9, 2017. The SNPRM proposed to require
air carriers, foreign air carriers, and ticket agents to clearly
disclose to consumers at all points of sale customer-specific fee
information, or itinerary-specific information if a customer elects not
to provide customer-specific information, for a first checked bag, a
second checked bag, and one carry-on bag wherever fare and schedule
information is provided to consumers. The withdrawal of this rulemaking
corresponds with the Department's and Administration's priorities and
is consistent with Executive Order 13771, Reducing Regulation and
Controlling Regulatory Costs, January 30, 2017.

DATES: December 14, 2017.

ADDRESSES: You may send comments by sending an email to Kimberly Graber
([email protected]) or Blane A. Workie ([email protected]).
Please include RIN 2105-AE56 in the subject line of the message.

FOR FURTHER INFORMATION CONTACT: Kimberly Graber or Blane A. Workie,
Office of the Assistant General Counsel for Aviation Enforcement and
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave.
SE, Washington, DC 20590,<PHONE_NUMBER> (phone), [email protected]
or [email protected] (email).
    Electronic Access: Docket: For access to the docket to read
background documents and comments received, go to the street address
listed above or visit http://www.regulations.gov. Enter the docket
number DOT-OST-2017-0007 in the search field.

SUPPLEMENTARY INFORMATION: On January 9, 2017, the Department issued an
SNPRM that proposed to require air carriers, foreign air carriers, and
ticket agents to clearly disclose to consumers at all points of sale
customer-specific fee information, or itinerary-specific information if
a customer elects not to provide customer-specific information, for a
first checked bag, a second checked bag, and one carry-on bag wherever
fare and schedule information is provided to consumers (see 82 FR 7536,
Jan. 19, 2017). The SNPRM further proposed to require airlines to
provide useable, current, and accurate (but not transactable) baggage
fee information to all ticket agents that receive and distribute the
airline's fare and schedule information, including Global Distribution
Systems and metasearch entities. If an airline or ticket agent has a
website that markets to U.S. consumers, the SNPRM proposed to require
the baggage fee information to be disclosed at the first point in a
search process where a fare is listed in connection with a specific
flight itinerary, adjacent to the fare. The SNPRM also proposed to
permit airlines and ticket agents to allow customers to opt-out of
receiving the baggage fee information when using their websites.
    On March 2, 2017, the Department suspended the comment period,
which had been scheduled to close on March 20, 2017. The suspension of
the comment period was to allow the President's appointees the
opportunity to review and consider this action. After a careful review,
the Department has determined to withdraw the SNPRM. The Department is
committed to protecting consumers from hidden fees and to ensuring
transparency. However, we do not believe that Departmental action is
necessary to meet this objective at this time. The Department's
existing regulations already provide consumers some information
regarding fees for ancillary services. The withdrawal corresponds with
the Department's and Administration's priorities and is consistent with
the Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs, January 30, 2017.

    Issued on 5th day of December 2017 in Washington, DC.
Elaine L. Chao,
Secretary of Transportation.
[FR Doc. 2017-26707 Filed 12-13-17; 8:45 am]
 BILLING CODE 4910-9X-P


[Federal Register Volume 78, Number 183 (Friday, September 20, 2013)]
[Notices]
[Page 57852]
[FR Doc No: 2013-22928]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9901-24-Region 4; CERCLA-04-2013-3764]

Warrior Rosin Spill Superfund Site, Holt, Tuscaloosa County,
Alabama ; Notice of Settlement

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of settlement.

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SUMMARY: Under 122(h) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), the United States
Environmental Protection Agency has entered into a settlement with the
Warrior Asphalt Company of Alabama, Inc. addressing past costs
concerning the Warrior Rosin Spill Superfund Site located in Holt,
Tuscaloosa County, Alabama. The settlement addresses costs from a fund-
lead Removal Action taken by EPA at the Site.

DATES: The Agency will consider public comments on the settlement until
October 21, 2013. The Agency will consider all comments received and
may modify or withdraw its consent to the settlement if comments
received disclose facts or considerations which indicate that the
settlement is inappropriate, improper, or inadequate.

ADDRESSES: Copies of the settlement are available from the Agency by
contacting Ms. Paula V. Painter, Environmental Protection Specialist
using the contact information provided in this notice. Comments may
also be submitted by referencing the Site's name through one of the
following methods:
     Internet: www.epa.gov/region4/superfund/programs/enforcement/enforcement.html.
     U.S. Mail: U.S. Environmental Protection Agency, Superfund
Division, Attn: Paula V. Painter, 61 Forsyth Street SW., Atlanta,
Georgia 30303.
     Email<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Paula V. Painter at 404/562-8887.

    Dated: August 16, 2013.
Anita L. Davis,
Chief, Superfund Enforcement & Information Management Branch, Superfund
Division.
[FR Doc. 2013-22928 Filed 9-19-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 42 (Thursday, March 3, 2016)]
[Notices]
[Pages 11209-11212]
[FR Doc No: 2016-04756]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9943-23-Region 5]

Notice of Final Decision To Reissue the Ineos Nitriles USA LLC
Land-Ban Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final decision on a Request by Ineos Nitriles USA LLC
of Lima, Ohio to Reissue its Exemption from the Land Disposal
Restrictions under the Resource Conservation and Recovery Act.

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SUMMARY: Notice is hereby given by the U.S. Environmental Protection
Agency (U.S. EPA or Agency) that an exemption to the land disposal
restrictions under the 1984 Hazardous and Solid Waste Amendments to the
Resource Conservation and Recovery Act (RCRA) has been granted to Ineos
Nitriles USA LLC (formerly known as Ineos USA LLC) (Ineos) of Lima,
Ohio for four Class I injection wells located in Lima, Ohio.

As required by 40 CFR part 148, Ineos has demonstrated, to a reasonable
degree of certainty, that there will be no migration of hazardous
constituents out of the injection zone or into an underground source of
drinking water for at least 10,000 years. This final decision allows
the continued underground injection by Ineos of those hazardous wastes
designated by the codes in Table 1 through its four Class I hazardous
waste injection wells identified as #1, #2, #3, and #4. This decision
constitutes a final U.S. EPA action for which there is no
administrative appeal.

DATES: This action is effective as of March 3, 2016.

FOR FURTHER INFORMATION CONTACT: Stephen Roy, Lead Petition Reviewer,
U.S. EPA, Region 5, Underground Injection Control Branch, WU-16J, 77 W.
Jackson Blvd., Chicago, Illinois 60604-3590; telephone number: (312)
886-6556; fax number<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>Copies of the petition and all pertinent
information are on file and are part of the Administrative Record.
Please contact the lead reviewer to review the Administrative Record.

SUPPLEMENTARY INFORMATION: Ineos submitted a request for reissuance of
its existing exemption from the land disposal restrictions for
hazardous waste in August, 2005. U.S. EPA reviewed all data pertaining
to the petition including, but not limited to, well construction, well
operations, regional and local geology, seismic activity, penetrations
of the confining zone, and computational models of the injection zone.
U.S. EPA has determined that the hydrogeological and geochemical
conditions at the site and the nature of the waste streams are such
that injected fluids will not migrate out of the injection zone within
10,000 years, as set forth at 40 CFR part 148. The injection zone
includes the injection interval into which fluid is directly emplaced
and the overlying arrestment interval into which fluid may diffuse. The
injection interval for the Ineos facility is composed of the Lower Eau
Claire Formation, the Mt. Simon Sandstone and the Middle Run Formation
between 2,631 and 3,241 feet below ground level. The arrestment
interval is composed of the Lower Black River Group, the Wells Creek
Formation, the Knox Dolomite and the Upper Eau Claire Formation between
1,631 and 2,631 feet below ground level. The confining zone is composed
of the Upper Black River Group between 1,427 and 1,631 feet below
ground level. The confining zone is separated from the lowermost
underground source of drinking water (at a depth of approximately 400
feet below ground level) by a sequence of permeable and less permeable
sedimentary rocks. This sequence provides additional protection from
fluid migration into drinking water sources.
    U.S. EPA issued a draft decision, which described the reasons for
granting this exemption in more detail, a fact sheet, which summarized
these reasons, and a public notice on September 10, 2015, pursuant to
40 CFR 124.10. The public comment period ended on October 13, 2015.
U.S. EPA received comments from one citizen during the comment period.
U.S. EPA has prepared a response to these comments, which can be viewed
at the following URL: http:\\epa.gov\region5\water\uic\ineos-response-
to-comments. The response is part of the Administrative Record for this
decision. U.S. EPA is issuing the final exemption with no changes from
the draft decision.

Conditions

    This exemption is subject to the following conditions. Non-
compliance with any of these conditions is grounds for termination of
the exemption.
    (1) The exemption applies to the four existing hazardous waste
injection wells, #1, #2, #3, and #4, located at the Ineos facility at
1900 Fort Amanda Road, Lima, Ohio;
    (2) Injection of hazardous waste is limited to the parts of the
Lower Eau Claire Formation, the Mt. Simon Sandstone and the Middle Run
Formation at depths between 2,631 and 3,241 feet below ground level;
    (3) The only RCRA-restricted wastes that may be injected are those
designated by the RCRA waste codes found in Table 1;
    (4) Maximum concentrations of chemicals that are allowed to be
injected are listed in Table 2;
    (5) The average specific gravity of the injected waste stream must
be between 1.00 and 1.05 over a three month period;
    (6) Ineos may inject up to 175 gallons per minute through each of
its four wells, based on a monthly average;
    (7) This exemption is approved for the 20-year modeled injection
period, which ends on January 31, 2025. Ineos may petition U.S. EPA for
reissuance of the exemption beyond that date, provided that a new and
complete petition and no-migration demonstration is received at U.S.
EPA, Region 5, by June 30, 2024;
    (8) Ineos must submit a quarterly report containing the fluid
analyses of the injected waste and indicate the chemical and physical
properties, including the concentrations, of all the injected chemical
constituents listed in Table 2 to U.S. EPA;
    (9) Ineos must submit an annual report containing the results of a
bottom hole pressure survey (fall-off test) performed on one well each
year to U.S. EPA. The survey must be performed after shutting down the
well for sufficient time to conduct a valid observation of the pressure
fall-off curve under 40 CFR 146.68(e)(1). The annual report must
include a comparison of reservoir parameters determined from the fall-
off test with parameters used in the approved no-migration petition;
    (10) Ineos must submit the results of radioactive tracer surveys
and annulus pressure tests for its four wells to U.S. EPA annually;
    (11) Ineos must notify U.S. EPA in writing if any well loses
mechanical integrity and prior to any workover or plugging;
    (12) Ineos must fully comply with all requirements set forth in
Underground Injection Control Permits #UIC 03-02-003-PTO-1, UIC 03-02-
004-PTO-1, UIC 03-02-005-PTO-01 and 03-02-006-PTO-1 issued by the Ohio
Environmental Protection Agency;
    (13) Upon the expiration, cancellation, reissuance, or modification
of the permits referenced above, this exemption is subject to review by
U.S. EPA; and
    (14) Whenever U.S. EPA determines that the basis for approval of a
petition under 40 CFR 148.23 and 148.24 may no longer be valid, U.S.
EPA may terminate this exemption and will require a new demonstration
in accordance with 40 CFR 148.20.

                                                Table 1--List of RCRA Waste Codes Approved for Injection
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
     D001         D002         D003         D004         D005         D006         D007         D008         D009         D010         D011        D018
     D019         D035         D038         F039         K011         K013         K014         P003         P005         P030         P063        P069
     P098         P101         P106         P120         U001         U002         U003         U007         U008         U009         U019        U031
     U044         U053         U056         U057         U080         U112         U122         U123         U124         U125         U129        U140
     U147         U149         U151         U152         U154         U159         U161         U169         U188         U191         U196        U211

     U213         U219         U220         U239
--------------------------------------------------------------------------------------------------------------------------------------------------------

    These waste codes are identified in 40 CFR part 261, subpart C and
subpart D.

        Table 2--Concentration Limits of Chemical Contaminants That Are Hazardous at Less Than 0.001 Mg/L
----------------------------------------------------------------------------------------------------------------
                                                                             Concentration
                                                       Health based limit    limit at the       Concentration
      Chemical constituent           Waste code              (mg/L)         wellhead  (mg/    reduction  factor
                                                                             L)  (Note 2)          (C/C0)
----------------------------------------------------------------------------------------------------------------
Acetaldehyde...................  U001..............  0.11                            2,000  5.5 x 10-5
Acetamide......................  Note 2............  1.0 x 10-5                     10,000  1.0 x 10-9
Acetic acid....................  Note 2............  6.0 x 10-6                      6,000  1.0 x 10-9
Acetone........................  U002..............  3.5                             2,000  1.75 x 10-3
Acetone cyanohydrin............  P069..............  0.005                           6,000  8.33 x 10-7
Acetonitrile...................  K011, K013, K014,   0.21                          100,000  2.1 x 10-6
                                  U003.
Acrolein.......................  P003..............  0.005                           2,000  2.5 x 10-6
Acrylamide.....................  K011, K013, K014,   8 x 10-6                        6,000  1.33 x 10-9
                                  U007.                                                     Note 1
Acrylic acid...................  U008..............  17.5                           60,000  2.92 x 10-4
Acrylonitrile..................  K011, K013, K014,   6.0 x 10-5                     24,000  2.5 x 10-9
                                  U009.
Allyl alcohol..................  P005..............  0.175                           2,000  8.75 x 10-5
Antimony.......................  F039..............  0.006                             100  6.0 x 10-5
Arsenic........................  D004..............  0.05                              100  5.0 x 10-4
Barium.........................  D005..............  2                                 100  2.0 x 10-2
Benzene........................  D018, K011, K013,   0.005                             400  1.25 x 10-5
                                  K014, U019.
1,3-Butanediol.................  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
1,4-Butanediol.................  Note 2............  1.4 x 10-5                     14,000  1.0 x 10-9
Butanetriol....................  Note 2............  4.0 x 10-6                      4,000  1.0 x 10-9
Butanol........................  U140..............  3.5                             4,000  8.75 x 10-4
Butyrolactone..................  Note 2............  5.0 x 10-6                      5,000  1.0 x 10-9
Cadmium........................  D006..............  0.005                             100  5.0 x 10-5
Carbon tetrachloride...........  D019, U211........  0.005                             100  5.0 x 10-5
Chloroform.....................  U044..............  0.006                             100  6.0 x 10-5
Chromium.......................  D007..............  0.1                               100  1.0 x 10-3
Cobalt.........................  Note..............  1.0 x 10-7                        100  1.0 x 10-9
Crotonaldehyde.................  U053..............  0.002                             200  1.0 x 10-5
Crotonitrile...................  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Cyclohexane....................  U056..............  9.0 x 10-5                        100  9.0 x 10-7
Cyclohexanone..................  U057..............  180                               100  1.8
Diethylenetriamine pentaacetic   Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
 acid.
Dimethylhydantoin..............  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Ethanol........................  Note 2............  2.0 x 10-6                      2,000  1.0 x 10-9
Ethyl acetate..................  U112..............  31.5                              100  3.15 x 10-1
Ethylenediamine                  Note 2............  4.0 x 10-6                      4,000  1.0 x 10-9
 tetracetonitrile.
Formic acid....................  U123..............  0.01                           20,000  5.0 x 10-7
Formaldehyde...................  U122..............  7                               4,000  1.75 x 10-3
Formamide......................  Note 2............  4.0 x 10-6                      4,000  1.0 x 10-9
Fumaronitrile..................  Note 2............  4.0 x 10-6                      4,000  1.0 x 10-9
Furan..........................  U124..............  3.5 x 10-3                        100  3.5 x 10-4
Furfural.......................  U125..............  0.11                              100  1.1 x 10-3
Glyconitrile...................  Note 2............  7.0 x 10-6                      7,000  1.0 x 10-9
HCN (Free).....................  K011, K013, K014,   0.2                             3,200  6.25 x 10-5
                                  P030, P063, P098,
                                  P106.
HCN (Total)....................  K011, K013, K014,   0.7                            21,200  3.3 x 10-5
                                  P030, P063, P098,
                                  P106.
Hexamethylenetetramine (or       Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
 acid).
Iminodiacetonitrile............  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Isobutanol.....................  U140..............  11                                200  5.5 x 10-2
Isopropyl alcohol..............  Note 2............  1.2 x 10-6                      1,200  1.0 x 10-9
Lead...........................  D008..............  0.001                             100  1.0 x 10-5
Lindane........................  U129..............  2.0 x 10-4                      1,000  2.0 x 10-7
Maleic anhydride...............  U147..............  3.5                               100  3.5 x 10-2
Maleonitrile...................  Note 2............  2.0 x 10-5                     20,000  1.0 x 10-9
Malonitrile....................  U149..............  0.005                           2,000  2.5 x 10-6
Mercury........................  D009, U151........  0.002                             100  2.0 x 10-5
Methanol.......................  U154..............  17.5                           40,000  4.38 x 10-4
Methyacrylonitrile.............  U152..............  0.0035                            400  8.75 x 10-6
Methylethylhydantoin...........  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Methylene chloride.............  U080..............  5.3 x 10-3                        100  5.0 x 10-5
Methyl ethyl ketone............  D035, U159........  21                              1,000  2.1 x 10-2
Methyl isobutyl ketone.........  U161..............  2.0 x 10-3                        100  2.0 x 10-5

2-Methylpyridine...............  U191..............  2.0 x 10-3                      1,000  2.0 x 10-6
3-Methylpyridine...............  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Nickel.........................  F006..............  0.001                             100  1.0 x 10-5
Nicotinonitrile................  Note 2............  6.0 x 10-6                      6,000  1.0 x 10-9
Nitrilotiracetonitrile.........  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Nitrobenzene...................  U169..............  1.8 x 10-2                        100  1.8 x 10-4
Oleic acid.....................  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Oleoylsarconsinate.............  Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
Phenol.........................  U188..............  21                                100  2.1 x 10-1
1,2-Propanediol................  Note 2............  6.0 x 10-8                         60  1.0 x 10-9
1,3-Propanediol................  Note 2............  2.0 x 10-6                      2,000  1.0 x 10-9
Propanol.......................  Note 2............  2,0 x 10-6                      2,000  1.0 x 10-9
Propionitrile..................  P101..............  0.005                           2,000  2.5 x 10-6
Propylenediamine                 Note 2............  1.0 x 10-6                      1,000  1.0 x 10-9
 tetracetonitrile.
Pyroazole......................  Note 2............  4.0 x 10-6                      4,000  1.0 x 10-9
Pyridine.......................  D038, U196........  0.035                           2,000  1.75 x 10-5
Selenium.......................  D010..............  0.05                              100  5.0 x 10-4
Silver.........................  D011..............  0.175                             100  1.75 x 10-3
Sodium cyanide.................  D003, K011, K013,   1.4                             1,200  1.17 x 10-3
                                  P030, P063, P106.
Strontium......................  Note 2............  1.0 x 10-7                        100  1.0 x 10-9
Succinic acid..................  Note 2............  8.0 x 10-7                        800  1.0 x 10-9
Succinotrile...................  Note 2............  6.0 x 10-6                      6,000  1.0 x 10-9
Tetrahydrofuran................  U213..............  0.002                           5,000  4.0 x 10-7
Thiourea.......................  U219..............  1.0 x 10-2                        100  1.0 x 10-4
Toluene........................  U220..............  1                                 100  1.0 x 10-2
Vanadium.......................  P120..............  0.004                             100  4.0 x 10-5
Vanadium pentoxide.............  P120..............  0.315                             400  7.88 x 10-4
Xylene.........................  U239..............  10                                100  1.0 x 10-1
Zinc...........................  Note 2............  10.5                              400  2.63 x 10-2
----------------------------------------------------------------------------------------------------------------

    Note 1--Worst-case constituent. Health Based Limit (HBL) contour
for no-migration boundary set at 1.0 x 10-9 for this
constituent. The HBL values are from the compilation by EPA Region 6,
revised 2005.
    Note 2--Constituents not associated with an EPA RCRA waste code or
listed in HBL guidelines are assigned the minimum C/C0 of
1.0 x 10-9. A provisional ``HBL'' for these constituents is
then derived from the product of C/C0 and the concentration
limit at the wellhead. If a RCRA waste code is promulgated for any of
these constituents, the HBL selected by EPA will be compared to the
provisional ``HBL'' on this table. If the EPA HBL is more stringent,
the Concentration Limit at the Wellhead will be reduced or migration of
the constituent will be reconsidered in detail.
    Electronic Access. You may access this Federal Register document
electronically from the Government Printing Office under the ``Federal
Register'' listings at FDSys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

    Dated: February 1, 2016.
Tinka G. Hyde,
Director, Water Division.
[FR Doc. 2016-04756 Filed 3-2-16; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: June 11, 2007 (Volume 72, Number 111)]
[Notices]
[Page 32152-32153]
[DOCID:fr11jn07-92]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55832; File No. SR-NASDAQ-2007-040]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order
Granting Approval to a Proposed Rule Change Relating to the Waiver of
Fees upon Relisting of Companies Removed for Late Filings

 May 31, 2007.
    On April 4, 2007, The NASDAQ Stock Market LLC (``Nasdaq'') filed
with the Securities and Exchange Commission (``Commission''), pursuant
to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act'')
\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to waive fees
upon the relisting of companies removed for late filings. The proposed
rule change was published for comment in the Federal Register on April
25, 2007.\3\ The Commission received no comments on the proposal. This
order approves the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 55645 (April 19,
2007), 72 FR 20572.
---------------------------------------------------------------------------

    In its filing, Nasdaq proposed to allow, in certain circumstances,
a company to relist without paying a new entry and application fee if
the company was delisted solely for the failure to file a required
periodic report with the Commission or other appropriate regulatory
authority. In addition, Nasdaq proposed to delete separate, duplicative
provisions in its rules.
    Nasdaq has proposed to waive the entry and application fee for any
company that was suspended \4\ and/or delisted from the Nasdaq Stock
Market solely for its failure to file a required periodic report with
the Commission or other appropriate regulatory authority, if the
company regains compliance with this requirement and applies to relist
on Nasdaq within one year of the date it was delisted from Nasdaq.\5\
In addition,

if such a company relists during the same calendar year that it has
previously paid an annual fee, the company will not be subject to a
second annual fee in that same year.
---------------------------------------------------------------------------

    \4\ Nasdaq Rule 4802(f) requires a security to meet the
requirements for initial listing (which include the requirement to
pay the applicable listing fees) if the security has been the
subject of a decision to delist by a Listing Qualifications Panel,
the Nasdaq Listing and Hearing Review Council or the Nasdaq Board.
    \5\ The Commission notes that Nasdaq has the authority under its
rules to waive fees on a case-by-case basis. See Securities Exchange
Release No. 28731 (January 2, 1991), 56 FR 906 (January 9, 1991)
(SR-NASD-90-61). The Commission notes that it is not, as a general
matter, appropriate to allow for the waiver of fees to one class of
non-members, while excluding other non-members from such class,
without first providing interested persons an opportunity to comment
on the proposed rule change pursuant to section 19(b)(2) under the
Act.
---------------------------------------------------------------------------

    Nasdaq believes that this waiver is appropriate given that, on
average, the review of such an issuer is likely to be simpler than the
typical application for several reasons. First, because these companies
were previously listed on Nasdaq and compliant with all requirements
except the filing requirement, Nasdaq believes it is more likely that
they will be compliant with all other quantitative and qualitative
requirements. Further, Nasdaq notes that relevant information about
these companies is already contained in Nasdaq's compliance systems.
Finally, in its filing, Nasdaq states that it anticipates there would
be fewer questions concerning the company's financial statements given
that these companies will often have undergone extensive review by
their auditors and, in some cases, by independent investigators and the
Commission or other regulatory entities, in order to resolve the issues
that caused the late filings.\6\
---------------------------------------------------------------------------

    \6\ The Commission notes that the timely filing of accurate
financial reports under the Act is critical to investors and out
national market and assures that investors receive up to date
financial information about listed companies.
---------------------------------------------------------------------------

    Nasdaq is implementing these waivers as an incentive for companies
to re-list on Nasdaq upon regaining compliance with the periodic filing
requirement. Nasdaq believes that this waiver is appropriate since
Nasdaq's rules governing the delisting of companies that are delinquent
in periodic reports are generally stricter than those of other markets.
Nasdaq believes that the proposed waivers will promote competition
between Nasdaq and other exchange markets.
    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange.\7\
In particular, the Commission finds that the proposal is consistent
with Section 6(b)(4) of the Act,\8\ which requires that an exchange
have rules that provide for the equitable allocation of reasonable
dues, fees, and other charges among its members and other persons using
its facilities. The Commission also finds that the proposal is
consistent with Section 6(b)(5) of the Act,\9\ which requires, inter
alia, that the rules of a national securities exchange be designed to
remove impediments to and perfect the mechanism of a free and open
market and a national market system and not designed to permit unfair
discrimination between issuers.
---------------------------------------------------------------------------

    \7\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \8\ 15 U.S.C. 78f(b)(4).
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission notes that Nasdaq has represented that the waiver of
listing fees should not have a material financial impact on the
exchange, or impact Nasdaq's resource commitment to its regulatory
oversight of the listing process or its regulatory programs.
    In addition, the proposal does not have any impact on whether a
company is actually eligible to list on Nasdaq. Nasdaq has represented
that a complete review of compliance with listing standards will be
conducted for any company seeking to take advantage of the fee waiver,
just as for any company that applies for listing on Nasdaq. Nasdaq has
also represented that any fee waiver granted under this rule is
predicated upon the company successfully completing the review process
and demonstrating compliance with the initial listing standards.
    Finally, the Commission notes that companies eligible for the fee
waiver have previously paid entry and annual fees to Nasdaq. Under the
fee waiver, companies must reapply within one year of delisting and are
eligible for the wavier of the annual fee only if they relist during
the same year for which the annual fee had previously been paid. The
Commission believes it reasonable for Nasdaq to conclude that eligible
companies should not be charged duplicate fees if they relist within
such time periods.
    Based on the above, the Commission agrees that the proposed waiver
does not constitute an inequitable allocation of reasonable dues, fees,
and other charges, does not permit unfair discrimination between
issuers, and is generally consistent with the Act.
    It Is Therefore Ordered, pursuant to Section 19(b)(2) of the
Act,\10\ that the proposed rule change (File No. SR-NASDAQ-2007-040)
be, and it hereby is, approved.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-11157 Filed 6-8-07; 8:45 am]

BILLING CODE 8010-01-P