[Federal Register Volume 77, Number 51 (Thursday, March 15, 2012)]
[Rules and Regulations]
[Pages 15273-15276]
[FR Doc No: 2012-6275]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R06-RCRA-2012-0054; FRL-9647-7]

Oklahoma: Final Authorization of State Hazardous Waste Management
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Oklahoma has applied to the EPA for Final authorization of the
changes to its hazardous waste program under the Resource Conservation
and Recovery Act (RCRA). EPA has determined that these changes satisfy
all requirements needed to qualify for Final authorization, and is
authorizing the State's changes through this immediate final action.
The EPA is publishing this rule to authorize the changes without a
prior proposal because we believe this action is not controversial and
do not expect comments that oppose it. Unless we receive written
comments which oppose this authorization during the comment period, the
decision to authorize Oklahoma's changes to its hazardous waste program
will take effect. If we receive comments that oppose this action, we
will publish a document in the Federal Register withdrawing this rule
before it takes effect, and a separate document in the proposed rules
section of this Federal Register will serve as a proposal to authorize
the changes.

DATES: This final authorization will become effective on May 14, 2012
unless the EPA receives adverse written comment by April 16, 2012. If
the EPA receives such comment, it will publish a timely withdrawal of
this immediate final rule in the Federal Register and inform the public
that this authorization will not take effect.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Mail: Alima Patterson, Region 6, Regional Authorization
Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia
Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue,
Dallas, Texas 75202-2733.
    4. Hand Delivery or Courier. Deliver your comments to Alima
Patterson, Region 6, Regional Authorization Coordinator, State/Tribal
Oversight Section (6PD-O), Multimedia Planning and Permitting Division,
EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
    Instructions: Do not submit information that you consider to be CBI
or otherwise protected through regulations.gov, or email. The Federal
regulations.gov Web site is an ``anonymous access'' system, which means
the EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to the EPA without going through regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, the EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If the EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, the EPA may not be able to consider your comment.
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
    You can view and copy Oklahoma's application and associated
publicly available materials from 8:30 a.m. to 4 p.m. Monday through
Friday at the following locations: Oklahoma Department of Environmental
Quality, 707 North Robinson, Oklahoma City, Oklahoma 73101-1677, (405)
702-7180 and EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733,
phone number<PHONE_NUMBER>. Interested persons wanting to examine
these documents should make an appointment with the office at least two
weeks in advance.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6, Regional
Authorization Coordinator, State/Tribal Oversight Section (6PD-O),
Multimedia Planning and Permitting Division,<PHONE_NUMBER>, EPA Region
6, 1445 Ross Avenue, Dallas, Texas 75202-2733, and Email address
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. Why are revisions to State programs necessary?

    States which have received final authorization from the EPA under
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous
waste program

that is equivalent to, consistent with, and no less stringent than the
Federal program. As the Federal program changes, States must change
their programs and ask the EPA to authorize the changes. Changes to
State programs may be necessary when Federal or State statutory or
regulatory authority is modified or when certain other changes occur.
Most commonly, States must change their programs because of changes to
the EPA's regulations in 40 Code of Federal Regulations (CFR) parts
124, 260 through 266, 268, 270, 273, and 279.

B. What decisions have we made in this rule?

    We conclude that Oklahoma's application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant Oklahoma Final authorization
to operate its hazardous waste program with the changes described in
the authorization application. Oklahoma has responsibility for
permitting treatment, storage, and disposal facilities within its
borders. Also section 10211(a) of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act of 2005 (``SAFETEA''), Public Law
109-59, 119 Statute 1144 (August 10, 2005) provides the State of
Oklahoma opportunity to request approval from EPA to administer RCRA
subtitle C in Indian Country and for carrying out the aspects of the
RCRA program described in its revised program application, subject to
the limitations of the Hazardous and Solid Waste Amendments of 1984
(HSWA). New Federal requirements and prohibitions imposed by Federal
regulations that the EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, the EPA will implement those requirements and
prohibitions in Oklahoma including issuing permits, until the State is
granted authorization to do so.

C. What is the effect of today's authorization decision?

    The effect of this decision is that a facility in Oklahoma subject
to RCRA will now have to comply with the authorized State requirements
instead of the equivalent Federal requirements in order to comply with
RCRA. Oklahoma has enforcement responsibilities under its State
hazardous waste program for violations of such program, but the EPA
retains its authority under RCRA sections 3007, 3008, 3013, and 7003,
which include, among others, authority to:
     Do inspections, and require monitoring, tests, analyses,
or reports;
     Enforce RCRA requirements and suspend or revoke permits;
and
     Take enforcement actions after notice to and consultation
with the State.
    This action does not impose additional requirements on the
regulated community because the regulations for which Oklahoma is being
authorized by today's action is already effective under State law, and
are not changed by today's action.

D. Why wasn't there a proposed rule before today's rule?

    The EPA did not publish a proposal before today's rule because we
view this as a routine program change and do not expect comments that
oppose this approval. We are providing an opportunity for public
comment now. In addition to this rule, in the proposed rules section of
today's Federal Register we are publishing a separate document that
proposes to authorize the State program changes.

E. What happens if the EPA receives comments that oppose this action?

    If the EPA receives comments that oppose this authorization, we
will withdraw this rule by publishing a document in the Federal
Register before the rule becomes effective. The EPA will base any
further decision on the authorization of the State program changes on
the proposal mentioned in the previous paragraph. We will then address
all public comments in a later final rule. You may not have another
opportunity to comment. If you want to comment on this authorization,
you must do so at this time. If we receive comments that oppose only
the authorization of a particular change to the State hazardous waste
program, we will withdraw only that part of this rule, but the
authorization of the program changes that the comments do not oppose
will become effective on the date specified in this document. The
Federal Register withdrawal document will specify which part of the
authorization will become effective, and which part is being withdrawn.

F. For what has Oklahoma previously been authorized?

    Oklahoma initially received final Authorization on January 10,
1985, (49 FR 50362-50363) published December 27, 1984 to implement its
base hazardous waste management program. We authorized the following
revisions: Oklahoma received authorization for revisions to its program
with publication dates: April 17, 1990 (55 FR 14280-14282), effective
June 18, 1990; September 26, 1990 (55 FR 39274) effective November 27,
1990; April 2, 1991 (56 FR 13411-13413) effective June 3, 1991;
September 20, 1991 (56 FR 47675-47677) effective November 19, 1991;
September 29, 1993 (58 FR 50854-50856) effective November 29, 1993;
October 12, 1993 (58 FR 52679-52682) effective December 13, 1993;
October 7, 1994 (59 FR 51116-51122) effective December 21, 1994;
January 11, 1995 (60 FR 2699-2702) effective April 27, 1995; October 9,
1996 (61 FR 52884-52886) effective December 23, 1996; Technical
Correction March 14, 1997 (62 FR 12100-12101) effective March 14, 1997;
September 22, 1998 (63 FR 50528-50531) effective November 23, 1998;
March 29, 2000 (65 FR 16528-16532) effective May 30, 2000; May 10, 2000
(65 FR 29981-29985) effective June 10, 2000; January 2, 2001 (66 FR 28-
33) effective March 5, 2001; April 9, 2003 (68 FR 17308-17311)
effective June 9, 2003 and February 4, 2009 (74 FR 5994-6001). The
authorized Oklahoma RCRA program was incorporated by reference into the
CFR published on December 9, 1998 (63 FR 67800-67834) effective
February 8, 1999, August 26, 1999 (64 FR 46567-46571) effective October
25, 1999, August 27, 2003 (68 FR 51488-51492) effective October 27,
2003, August 27, 2010 (75 FR 36546) June 28, 2010 and (66 FR 18927-
18930) effective June 6, 2011. On December 20, 2011, Oklahoma submitted
a final complete program revision application seeking authorization of
its program revision in accordance with 40 CFR 271.21.
    The Oklahoma Hazardous Waste Management Act (``OHWMA'') provides
the ODEQ with the authority to administer the State Program, including
the statutory and regulatory provisions necessary to administer the
provisions of RCRA Cluster XX, and designates the ODEQ as the State
agency to cooperate and share information with EPA for the purpose of
hazardous waste regulation. The Oklahoma Environmental Quality Code
(``Code''), at 27 A O.S. Section 2-7101 et seq. establishes the
statutory authority to administer the Hazardous waste management
program and subtitle C. The State regulations to manage the Hazardous
waste management program are at Oklahoma Administrative Code (OAC)
Title 252 Chapter 205.
    The DEQ adopted applicable Federal hazardous waste regulations as
amended through July 1, 2011. The provisions for which the State of
Oklahoma is seeking authorization are documented in the Regulatory
Documentation For Federal Provisions For Which The State Of Oklahoma Is

Seeking Authorization, Federal Final Rules Published Between July 1,
2009 Through June 30, 2010 RCRA Cluster XX, prepared on April 22, 2011.
    The DEQ incorporates the Federal regulations by reference and there
have been no changes in State or Federal laws or regulations that have
diminished the DEQ's ability to adopt the Federal regulations by
reference as set forth in the authorizations at 75 FR 1236-1262, 75 FR
12989-13009, 75 FR 31716-31717 and 75 FR 33712-33724 for RCRA Cluster
XX. The Federal Hazardous waste regulations are adopted by reference by
the DEQ at OAC 252:205, Subchapter 3. The DEQ does not adopt Federal
regulations prospectively.
    The State Hazardous waste management program (``State Program'')
now has in place the statutory authority and regulations for all
required components of Checklists 222, 223, and 224 in Cluster XX.
These statutory and regulatory provisions were developed to ensure the
State program is equivalent to, consistent with and no less stringent
than the Federal Hazardous waste management program.
    The Environmental Quality Act, at 27A O.S. Section 1-3-101(E),
grants the Oklahoma Corporation Commission (``OCC'') authority to
regulate certain aspects of the oil and gas production and
transportation industry in Oklahoma, including certain wastes generated
by pipelines, bulk fuel sales terminals and certain tank farms, as well
as underground storage tanks. To clarify areas of environmental
jurisdiction, the ODEQ and OCC developed an ODEQ/OCC Jurisdictional
Guidance Document to identify respective areas of jurisdiction. The
current ODEQ/OCC jurisdictional Guidance Document was amended and
signed on January 27, 1999. The revisions to the State Program
necessary to administer Cluster XX will not affect the jurisdictional
authorities of the ODEQ or OCC.
    The Board adopted RCRA Cluster XX amendments on November 16, 2010
and became effective on July 1, 2011. The rules were also codified at
OAC 252:205 et seq., Subchapter 3.
    Pursuant to OAC 252:205-3-2, the State's incorporation of Federal
regulations does not incorporate prospectively future changes to the
incorporated sections of the 40 CFR, and no other Oklahoma law or
regulation reduces the scope of coverage or otherwise affects the
authority provided by these incorporated-by-reference provisions.
Further, Oklahoma interprets these incorporated provisions to provide
identical authority to the Federal provisions. Thus, OAC Title 252,
Chapter 205 provides equivalent and no less stringent authority than
the Federal Subtitle C program in effect July 1, 2011. The State of
Oklahoma incorporate by reference the provisions of 40 Code of Federal
Regulations (CFR) parts 124 of 40 CFR that are required by 40 CFR
271.14 (with the addition of 40 CFR 124.19(a) through (c), 124.19(e),
124.31, 124.32, 124.33 and Subpart G); 40 CFR parts 260-268 [with the
exception of 260.21, 262 Subparts E and H, 264.1(f), 264.1(g)(12),
264.149, 264.150, 264.301(1), 264.1030(d), 264.1050(g), 264.1080(e),
264.1080(f), 264.1080(g), 265.1(c)(4), 265.1(g)(12), 265.149, 265.150,
265.1030(c), 265.1050(f) 265.1080(e), 265.1080(f), 265.1080(g), 268.5,
268.6, 268.13, 268.42(b), and 268.44(a) through (g)]; 40 CFR part 270
[with the exception of 270.1(c)(2) (ix and 270.14(b)(18)]; 40 CFR part
273; and 40 CFR part 279.
    The DEQ is the lead Department to cooperate and share information
with the EPA for purpose of hazardous waste regulation.
    Pursuant to 27A O.S. Section 2-7-104, the Executive Director has
created the Land Protection Division (LPD) to be responsible for
implementing the State Program. The LPD is staffed with personnel that
have the technical background and expertise to effectively implement
the provisions of the State program subtitle C Hazardous waste
management program.

G. What changes are we approving with today's action?

    On December 20, 2011, the State of Oklahoma submitted final
complete program applications, seeking authorization of their changes
in accordance with 40 CFR 271.21. We now make an immediate final
decision, subject to receipt of written comments that oppose this
action that the State of Oklahoma's hazardous waste program revision
satisfies all of the requirements necessary to qualify for final
authorization. The State of Oklahoma revisions consist of regulations
which specifically govern Federal Hazardous waste revisions promulgated
from July 1, 2009 through June 31, 2010 (RCRA Cluster XX). Oklahoma
requirements are included in a chart with this document.

------------------------------------------------------------------------
                                   Federal Register
     Description of federal       date and page (and/   Analogous state
 requirement (include checklist    or RCRA statutory       authority
      number, if relevant)             authority
------------------------------------------------------------------------
1. OECD Requirement; Export       75 FR 1236-1262     Oklahoma Statutes
 Shipments of Spend Lead-Acid      January 8, 2010.    Title 27A Section
 Batteries. (Checklist 222).                           2-7-101 et seq.;
                                                       Oklahoma
                                                       Administrative
                                                       Code amended
                                                       November 16,
                                                       2010. Oklahoma
                                                       Hazardous Waste
                                                       Management Act,
                                                       as amended
                                                       effective July 1,
                                                       2011.
2. Hazardous Waste Technical      75 FR 12989-13009,  Oklahoma Statutes
 Corrections and Clarification.    75 FR 31716-31717   Title 27A Section
 (Checklist 223).                  March 18, 2010,     2-7-101 et seq.;
                                   and June 4, 2010.   Oklahoma
                                                       Administrative
                                                       Code amended
                                                       November 16,
                                                       2010. Oklahoma
                                                       Hazardous Waste
                                                       Management Act,
                                                       as amended
                                                       effective July 1,
                                                       2011.
3. Withdrawal of the Emission     75 FR 33712-33724   Oklahoma Statutes
 Comparable Fuel Exclusion.        June 15, 2010.      Title 27A Section
 (Checklist 224).                                      2-7-101 et seq.;
                                                       Oklahoma
                                                       Administrative
                                                       Code amended
                                                       November 16,
                                                       2010. Oklahoma
                                                       Hazardous Waste
                                                       Management Act,
                                                       as amended
                                                       effective July 1,
                                                       2011.
------------------------------------------------------------------------

H. Where are the revised State rules different from the Federal rules?

    There are no State requirements that are more stringent or broader
in scope than the Federal requirements.

I. Who handles permits after the authorization takes effect?

    Oklahoma will issue permits for all the provisions for which it is
authorized and will administer the permits it issues. The EPA will
continue to administer any RCRA hazardous waste permits or portions of
permits which we issued prior to the effective date of this
authorization. We will not issue any more new permits or new portions
of permits for the provisions listed in the

Table in this document after the effective date of this authorization.
The EPA will continue to implement and issue permits for HSWA
requirements for which Oklahoma is not yet authorized.

J. How does today's action affect Indian Country (8 U.S.C. 1151) in
Oklahoma?

    Section 8 U.S.C. 1151 does not affect the State of Oklahoma because
under section 10211(a) of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act of 2005 (``SAFETEA''), Public Law 109-59, 119
Statute 1144 (August 10, 2005) provides the State of Oklahoma
opportunity to request approval from EPA to administer RCRA subtitle C
in Indian Country and for carrying out the aspects of the RCRA program
described in its revised program application, subject to the
limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA).

K. What is codification and is the EPA codifying Oklahoma's hazardous
waste program as authorized in this rule?

    Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart LL for this authorization of Oklahoma's program changes until a
later date. In this authorization application the EPA is not codifying
the rules documented in this Federal Register notice.

L. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993), and therefore this action is not subject to review by OMB. The
reference to Executive Order 13563 (76 FR 3821, January 21, 2011) is
also exempt from review under Executive orders 12866 (56 FR 51735,
October 4, 1993). This action authorizes State requirements for the
purpose of RCRA 3006 and imposes no additional requirements beyond
those imposed by State law. Accordingly, I certify that this action
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). Because this action authorizes preexisting requirements under
State law and does not impose any additional enforceable duty beyond
that required by State law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same
reason, this action also does not significantly or uniquely affect the
communities of Tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely authorizes State requirements as part of the State
RCRA hazardous waste program without altering the relationship or the
distribution of power and responsibilities established by RCRA. This
action also is not subject to Executive Order 13045 (62 FR 19885, April
23, 1997), because it is not economically significant and it does not
make decisions based on environmental health or safety risks. This rule
is not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355 (May 22, 2001)) because it is not a significant
regulatory action under Executive Order 12866.
    Under RCRA 3006(b), the EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a State authorization application to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the Executive
Order. This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The EPA will submit a report containing
this document and other required information to the U.S. Senate, the
U.S. House of Representatives, and the Comptroller General of the
United States prior to publication in the Federal Register. A major
rule cannot take effect until 60 days after it is published in the
Federal Register. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2). This action will be effective May 14, 2012.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.

    Authority:  This action is issued under the authority of
sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act
as amended 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: March 7, 2012.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2012-6275 Filed 3-14-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: September 15, 2009 (Volume 74, Number 177)]
[Notices]
[Page 47233-47234]
[DOCID:fr15se09-57]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 13570-000]

Warmsprings Irrigation District; Notice of Preliminary Permit
Application Accepted for Filing and Soliciting Comments, Motions To
Intervene, and Competing Applications

September 4, 2009.
    On August 14, 2009, Warmsprings Irrigation District filed an
application for a preliminary permit, pursuant to section 4(f) of the
Federal Power Act, proposing to study the feasibility of the Warm
Springs Hydroelectric Project located at the existing Bureau of
Reclamation's Warm Springs Dam on the Malheur River, Oregon. The sole
purpose of a preliminary permit, if issued, is to grant the permit
holder priority to file a license application during the permit term. A
preliminary permit does not authorize the permit holder to perform any
land disturbing activities or otherwise enter upon lands or waters
owned by others without the owners' express permission.
    The proposed project would utilize the existing facilities of the
U.S. Bureau of Reclamation's Warm Springs Dam including the reservoir;
and would consist of the following new facilities: (1) A proposed 60-
inch-diameter and 100-feet-long penstock; (2) a new powerhouse
containing one generating unit having an installed capacity of 2.5-
megawatts; (3) a proposed 100-feet-long, 15-kilovolt transmission line;
and (4) appurtenant facilities. The proposed project would have an
average annual generation of 6.6 gigawatt-hours.
    Applicant Contact: Randy Kinney, Warm Springs Irrigation District,
334

Main Street North, Vale, OR 97918; phone:<PHONE_NUMBER>.
    FERC Contact: Gina Krump,<PHONE_NUMBER><EMAIL_ADDRESS>    Deadline for filing comments, motions to intervene, competing
applications (without notices of intent), or notices of intent to file
competing applications: 60 days from the issuance of this notice.
Comments, motions to intervene, notices of intent, and competing
applications may be filed electronically via the Internet. See 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
(http://www.ferc.gov/docs-filing/ferconline.asp) under the ``eFiling''
link. For a simpler method of submitting text only comments, click on
``Quick Comment.'' For assistance, please contact FERC Online Support
at<EMAIL_ADDRESS>call toll-free at<PHONE_NUMBER>; or,
for TTY, contact<PHONE_NUMBER>. Although the Commission strongly
encourages electronic filing, documents may also be paper-filed. To
paper-file, mail an original and eight copies to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.
    More information about this project, including a copy of the
application, can be viewed or printed on the ``eLibrary'' link of
Commission's Web site at http:// www.ferc.gov/docs-filing/elibrary.asp.
Enter the docket number (P-13570) in the docket number field to access
the document. For assistance, contact FERC Online Support.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-22100 Filed 9-14-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 76, Number 43 (Friday, March 4, 2011)]
[Notices]
[Pages 12176-12178]
[FR Doc No: 2011-4904]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63988; File No. SR-EDGA-2011-05]

Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
EDGA Rules 11.5, 11.9, and 11.15 to Make Certain Changes Consistent
With the Upcoming Implementation of Amendments to Regulation SHO

February 28, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on February 25, 2011 the EDGA Exchange, Inc. (the ``Exchange'' or
the ``EDGA'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which items have been substantially prepared by the self-
regulatory organization. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to amend EDGA Rules 11.5, 11.9, and 11.15 to
make certain changes consistent with the upcoming implementation of
amendments to Regulation SHO.\3\ The text of the proposed rule change
is attached as Exhibit 5 and is available on the Exchange's Web site at
http://www.directedge.com, at the Exchange's principal office, and at
the Public Reference Room of the Commission.
---------------------------------------------------------------------------

    \3\ 17 CFR 242.200(g); 17 CFR 242.201.
---------------------------------------------------------------------------

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

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

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

1. Purpose
    On February 26, 2010, the Commission adopted amendments to
Regulation SHO under the Act in the form of Rule 201,\4\ pursuant to
which, among other things, short sale orders in covered securities \5\
generally cannot be executed or displayed by a trading center \6\ such
as EDGA at a price that is at or below the current national best bid
(``NBB'') \7\ when a short sale circuit breaker is in effect for the
covered security (the ``short sale price test restriction'').\8\ In
anticipation of the upcoming February 28, 2011 compliance date for Rule
201, the Exchange is proposing to amend certain EDGA rules to describe
the manner in

which the System \9\ will handle short sell orders when a short sale
price test restriction is triggered under Rule 201 of Regulation SHO.
These changes include establishing a definition for ``short sale price
sliding,'' which is a new form of price sliding \10\ the Exchange
proposes to offer when the amendments to Regulation SHO become
operative, modifying certain EDGA rules regarding order execution and
routing when a short sale price test restriction is in effect, and
modifying EDGA rules related to order marking requirements.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 61595 (February 26,
2010), 75 FR 11232 (March 10, 2010). In connection with the adoption
of Rule 201, Rule 200(g) of Regulation SHO was also amended to
include a ``short exempt'' marking requirement. The amendments to
Rule 201 and Rule 200(g) have a compliance date of February 28,
2011. See Securities Exchange Act Release No. 63247 (November 4,
2010), 75 FR 68702 (November 9, 2010). See also Division of Trading
& Markets: Responses to Frequently Asked Questions Concerning Rule
201 of Regulation SHO.
    \5\ Rule 201(a)(1) defines the term ``covered security'' to mean
any ``NMS stock'' as defined under Rule 600(b)(47) of Regulation
NMS. Rule 600(b)(47) of Regulation NMS defines an ``NMS stock'' as
``any NMS security other than an option.'' Rule 600(b)(46) of
Regulation NMS defines an ``NMS security'' as ``any security or
class of securities for which transaction reports are collected,
processed, and made available pursuant to an effective transaction
reporting plan, or an effective national market system plan for
reporting transactions in listed options.'' 17 CFR 242.201(a)(1); 17
CFR 242.600(b)(46); and 17 CFR 242.600(b)(47).
    \6\ Rule 201(a)(9) states that the term ``trading center'' shall
have the same meaning as in Rule 600(b)(78) of Regulation NMS. Rule
600(b)(78) defines a ``trading center'' as ``a national securities
exchange or national securities association that operates an SRO
trading facility, an alternative trading system, an exchange market
maker, an OTC market maker, or any other broker or dealer that
executes orders internally by trading as principal or crossing
orders as agent.'' 17 CFR 242.600(b)(78).
    \7\ Rules 201(a)(4) defines the term ``national best bid'' to
have the same meaning as in Rule 600(b)(42) of Regulation NMS. 17
CFR 242.600(b)(42).
    \8\ 17 CFR 242.201(b)(1). See also Division of Trading &
Markets: Responses to Frequently Asked Questions Concerning Rule 201
of Regulation SHO, Q&A Nos. 2.1 and 2.2 (concerning the duration of
a short sale price test restriction).
    \9\ The ``System'' is defined in EDGA Rule 1.5(aa) as ``the
electronic communications and trading facility designated by the
Board through which securities orders of Users are consolidated for
ranking, execution and, when applicable, routing away.''
    \10\ The Exchange currently offers a process called ``displayed
price sliding process,'' as defined in current EDGA Rule 11.5(c)(4),
which re-prices and/or displays orders at permissible prices when
such orders would lock or cross Protected Quotations in a manner
inconsistent with Rule 610(d) of Regulation NMS.
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    The Exchange proposes to offer a new form of price sliding, short
sale price sliding, which will be defined in EDGA Rule 11.5(c)(4). As a
default, the Exchange will subject a User's \11\ EDGA Only Orders to
the short sale price sliding in proposed Rule 11.5(c)(4)(B) unless they
affirmatively choose to opt-out of the process. As proposed, when a
User opts out of the short sale price sliding process, any short sale
order that could not be executed or displayed due to a short sale price
test restriction would be rejected or cancelled by the Exchange upon
entry or while resting on the order book, respectively. When a User's
EDGA Only Order is subject to the short sale price sliding process, as
proposed in Rule 11.5(c)(4)(B), if it cannot be executed or displayed
at the time of entry due to a short sale price test restriction, it
will be re-priced by the System to prevent execution or display at or
below the current NBB to comply with Rule 201(b)(1)(i).\12\ Any EDGA
Only Order subject to such re-pricing by the System will be re-priced
to display at one minimum price variation (``MPV'') above the current
NBB (``Permitted Price''). The order will receive a new timestamp when
it is re-priced. Following the initial adjustment provided for in
proposed Rule 11.5(c)(4)(B), the EDGA Only Order will, to reflect
declines in the NBB, continue to be re-priced at the lowest Permitted
Price down to the order's original limit price, or if a market order,
until the order is filled. The order will receive a new timestamp each
time it is re-priced. Alternatively, following the initial adjustment
provided for in Rule 11.5(c)(4)(B), the EDGA Only Order may, in
accordance with the User's instructions, provided that in all cases the
display of such lower prices does not violate Rule 201 of Regulation
SHO: (i) Be re-priced one additional time to a price that is above the
current NBB but equal to the NBB at the time the EDGA Only Order was
received and receive a new timestamp; or (ii) not be adjusted further.
In the event the NBB changes such that the price of a Non-Displayed
Order, as defined in EDGA Rule 11.5(c)(8), subject to short sale price
sliding would lock or cross the NBB, the Non-Displayed Order will
receive a new timestamp, and will be re-priced by the System to a
Permitted Price, again in compliance with Rule 201(b)(1)(i).\13\
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    \11\ A ``User'' is defined in EDGA Rule 1.5(cc) as any member or
sponsored participant of the Exchange who is authorized to obtain
access to the System.
    \12\ Any execution or display will also need to be in compliance
with applicable rules regarding minimum pricing increments. 17 CFR
242.612.
    \13\ See Division of Trading & Markets: Responses to Frequently
Asked Questions Concerning Rule 201 of Regulation SHO, Q&A No. 4.1
(concerning un-displayed orders).
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    As proposed, EDGA Only Orders marked ``short exempt'' will not be
subject to short sale price sliding. Certain displayed short sale
orders will not be re-priced by the System after entry because under
Rule 201(b)(1)(iii)(A) a trading center's policies and procedures must
be reasonably designed to permit the execution of short sale orders of
covered securities that were displayed at a price above the current NBB
at the time of initial display. ``Short exempt'' orders also will not
be re-priced by the System, but instead, the Exchange will execute,
display and/or route such orders without regard to whether the order is
at a price less than or equal to the NBB or any short sale price test
restriction in effect under Regulation SHO, as described below.
    The Exchange also proposes to amend its Rule 11.9 to make clear
that it will execute, display and route an order consistent with Rule
201 of Regulation SHO, and that if it cannot do so, orders will be
cancelled back to the applicable User. In addition, the Exchange
proposes to make clear that it will not route orders away from the
Exchange that are marked ``short'' if a short sale price test
restriction is in effect for the covered security. Instead, such
orders, if immediate-or-cancel (``IOC'') will be cancelled, and all
other orders will be posted to the EDGA Book,\14\ treated as if they
are EDGA Only Orders, as defined in Rule 11.5(c)(4), and subjected to
the short sale price sliding process.\15\
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    \14\ As defined in EDGA Rule 1.5(d).
    \15\ Like with an EDGA Only Order, a User can affirmatively
choose to opt-out of the short sale price sliding process.
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    Finally, current Rule 11.15 requires Users to identify short sale
orders as ``short'' when entered into the System. The Exchange proposes
to add the term ``short exempt'' to Rule 11.15 because pursuant to
amended Rule 200(g) of Regulation SHO, a broker-dealer can mark a short
sale order as either ``short'' or ``short exempt.'' \16\ The Exchange
also proposes to make clear in Rule 11.15 that if an order it received
is marked ``short exempt,'' the Exchange will execute, display and/or
route the order without regard to whether the order is at a price less
than or equal to the NBB or any short sale price test restriction in
effect under Regulation SHO.\17\ The Exchange also proposes to make
clear, as it does in Rule 11.5(d)(1) with respect to intermarket sweep
orders, that it relies on a Member's \18\ marking of an order, in this
case the ``short exempt'' marking, when handling such order.
Accordingly, proposed Rule 11.15 states that it is the entering
Member's responsibility, not the Exchange's responsibility, to comply
with the requirements of Regulation SHO relating to marking of orders
as ``short exempt.'' \19\
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    \16\ 17 CFR 242.200(g)(2). Under Rule 200(g)(2), an order may be
marked ``short exempt'' if the broker-dealer had a reasonable basis
for believing that the order meets one of the exceptions specified
in Rule 201(d) of Regulation SHO or if it is entered during a Short
Sale Period and meets the conditions specified in Rule 201(c) of
Regulation SHO. See 17 CFR 242.201(d); 17 CFR 242.201(c); See
Division of Trading & Markets: Responses to Frequently Asked
Questions Nos. 4.2, 5.4 and 5.5.
    \17\ 17 CFR 242.201(b)(1)(iii)(B).
    \18\ A Member is defined in EDGA Rule 1.5(l) as any registered
broker or dealer, or any person associated with a registered broker
or dealer, that has been admitted to membership in the Exchange.
    \19\ 17 CFR 242.200(g)(2). See also 17 CFR 242.201(c); 17 CFR
242.201(d). See also Division of Trading and Markets: Responses to
Frequently Asked Questions Concerning Rule 201 of Regulation SHO,
Q&A Nos. 4.2, 5.4, and 5.5.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with the
requirements of the Act and the rules and regulations thereunder that
are applicable to a national securities exchange, and, in particular,
with the requirements of Section 6(b) of the Act.\20\ In particular,
the proposed change is consistent with Section 6(b)(5) of the Act,\21\
because it would promote just and equitable principles of trade, and,
in general, protect investors and the public interest. The Exchange

believes that the proposed changes will provide clarity on the short
sale order handling procedures employed by the Exchange and certain
obligations of Members when sending short sale orders to the Exchange
consistent with Regulation SHO, as amended. The Exchange also believes
that the proposed short sale price sliding functionality will assist
Users in executing or displaying their orders consistent with
Regulation SHO, especially under fast moving conditions where the
national best bid/offer is quickly updating. In addition, as is
currently the case, the short sale price sliding process is optional to
Users. Specifically, Users can choose to opt-out of the short sale
price sliding process, and if they choose to do so, the Exchange will
cancel back their orders when such orders contradict the provisions of
Regulation SHO.
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    \20\ 15 U.S.C. 78f(b).
    \21\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate if consistent with
the protection of investors and the public interest, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \22\ and Rule 19b-
4(f)(6)(iii) thereunder.\23\
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    \22\ 15 U.S.C. 78s(b)(3)(A).
    \23\ 17 CFR 240.19b-4(f)(6)(iii).
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    A proposed rule change filed under Rule 19b-4(f)(6) \24\ normally
does not become operative prior to 30 days after the date of the
filing.\25\ However, pursuant to Rule 19-b4(f)(6)(iii),\26\ the
Commission may designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has asked the Commission to waive the 30-day operative delay so that it
may implement the change no later than February 28, 2011 to coincide
with the compliance date for the amendments to Rules 200(g) and 201 of
Regulation SHO. The Commission believes that waiving the 30-day
operative delay is consistent with the protection of the investors and
the public interest because such waiver would ensure compliance with
the Commission's amendments to Rules 200(g) and 201 of Regulation SHO.
For this reason, the Commission designates the proposed rule change to
be operative upon filing with the Commission.\27\
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    \24\ 17 CFR 240.19b-4(f)(6).
    \25\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to
the Commission written notice of its intent to file the proposed
rule change, along with a brief description and text of the proposed
rule change, at least five business days prior to the date of filing
of the proposed rule change, or such shorter time as designated by
the Commission. The Exchange has satisfied this requirement.
    \26\ 17 CFR 240.19b-4(f)(6)(iii).
    \27\ For the purposes only of waiving the 30-day operative
delay, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File No. SR-EDGA-2011-05 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-EDGA-2011-05. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549-1090, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange and on
its Internet Web site at http://www.directedge.com. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-EDGA-2011-05 and should be
submitted by March 25, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-4904 Filed 3-3-11; 8:45 am]
BILLING CODE 8011-01-P