[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Notices]
[Pages 22588-22591]
[FR Doc No: 2015-09264]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74745; File No. SR-NASDAQ-2015-035]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Establish Distributor and Managed Data Solution Distributor Fees for an
Optional Hardware-Based Version of NASDAQ ITCH to Trade Options

April 16, 2015.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 7, 2015, The NASDAQ Stock Market LLC (``NASDAQ'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I, II, and III below, which Items
have been prepared by NASDAQ. The Commission is publishing this notice
to solicit comments on the proposed rule change from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    NASDAQ proposes to amend Chapter XV, entitled ``Options Pricing,''
at Section 4 governing pricing for NASDAQ members using the NASDAQ
Options Market (``NOM''), NASDAQ's facility for executing and routing
standardized equity and index options. Specifically, the Exchange
proposes to establish Distributor and Managed Data Solution (``MDS'')
Distributor fees for an optional hardware-based version of NASDAQ ITCH
to Trade Options (``ITTO'') data and is not offering a new market data
product.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to amend Chapter XV,
entitled ``Options Pricing,'' at Section 4 governing pricing for NASDAQ
members using NOM. Specifically, the Exchange proposes to establish
Distributor and MDS Distributor fees for an optional hardware-based
version of ITTO. This is a data feed that provides quotation
information for individual orders on the NOM book, last sale
information for trades executed on NOM, and Order Imbalance Information
as set forth in NOM Rules Chapter VI, Section 8. ITTO is the options
equivalent of the NASDAQ TotalView/ITCH data feed that NASDAQ offers
under NASDAQ Rule 7023 with respect to equities traded on NASDAQ. As
with TotalView, Distributors use ITTO to ``build'' their view of the
NOM book by adding individual orders that appear on the data feed, and
subtracting individual orders that are executed, cancelled or removed.
    This hardware-delivery mechanism option of ITTO uses field-
programmable gate array (``FPGA'') technology. In offering an FPGA
hardware-delivery mechanism, NASDAQ is serving those customers
requiring a predictable latency profile throughout the trading day. By
taking advantage of hardware parallelism, FPGA technology is capable of
processing more data packets during peak market conditions without the
introduction of variable queuing latency.
    The proposed Distributor fee for utilizing the optional FPGA
hardware-based delivery of NASDAQ ITTO data is $10,000 for internal
only distribution, $1,000 for external only distribution and $11,000
for internal and external distribution. The FPGA fee is in addition to
any other fees for NASDAQ ITTO. There will be no change in NASDAQ ITTO
Subscriber fees as a result of the new product implementation.
    The proposed MDS Distributor fees for Distributors utilizing the
optional FPGA hardware-based delivery of NASDAQ ITTO data are tiered
based upon the number of MDS Subscribers, with fees starting at $1,000
for one MDS Subscriber, $1,250 for two MDS Subscribers, $1,500 for
three MDS Subscribers, and $250 for each additional MDS Subscriber. The
MDS Distributor fee is in addition to any other MDS fees.
    This new pricing option is available to all firms, regardless of
how they choose to access the FPGA hardware-based version of NASDAQ
ITTO, and is in response to industry demand, as well as due to changes
in the technology to distribute and consume market data. Distributors
opting to pay for the FPGA hardware-based delivery of NASDAQ ITTO data
would still be fee liable for the applicable market data fees, as
described in this rule.
    Competition for depth data is considerable and the Exchange
believes that this proposal clearly evidences such competition. The
Exchange is offering a new pricing model in order to keep pace with
changes in the industry and evolving customer needs as new technologies
emerge and products continue to develop and change. The FPGA hardware-
based version of NASDAQ ITTO is entirely optional and is geared towards
attracting new customers, as well as retaining existing customers.
    The proposed fees are based on pricing conventions and distinctions
that exist in NOM's current fee schedule, and the fee schedules of
other exchanges. These distinctions (e.g., internal versus external
distribution, as well as for MDS) for the proposed optional Distributor
and MDS Distributor fees for FPGA hardware-based delivery of NASDAQ
ITTO are based on a careful analysis of empirical data and the
application of time-tested pricing principles already accepted by the
Commission and discussed in greater depth in the Statutory Basis
section below. Also, the costs associated with the FPGA hardware-based
delivery system for NASDAQ ITTO data are higher than a software-based
solution since it involves the expense of creating and maintaining the
product, as well as creating, shipping, installing and maintaining the
new equipment and codebase. Because it uses a distinct technology, the
overall costs of creation and maintenance of the hardware-based version
of ITTO are higher than the software-based version. From a messaging
perspective, the data content and sequencing will be identical on both
the FPGA hardware- and software-based versions of the ITTO product.
    The proposed FPGA hardware-based delivery of NASDAQ ITTO data is
completely optional. NASDAQ is offering this FPGA hardware-based
delivery mechanism for the NASDAQ ITTO product that is designed to
deliver NASDAQ direct data content in a predictable manner throughout
the trading day.

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\3\ in general, and with
Section 6(b)(4) and 6(b)(5) of the Act,\4\ in particular, in that it
provides an equitable allocation of reasonable fees among Subscribers
and recipients of NASDAQ data and is not designed to permit unfair
discrimination between them. NASDAQ believes that its proposal to
establish Distributor and MDS Distributor fees for an optional FPGA
hardware-based version of NASDAQ ITTO reflects an equitable allocation
of reasonable fees.
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    \3\ 15 U.S.C. 78f.
    \4\ 15 U.S.C. 78f(b)(4) and (5).
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    In adopting Regulation NMS, the Commission granted self-regulatory
organizations (``SRO'') and broker-dealers increased authority and
flexibility to offer new and unique market data to the public.
    The Commission concluded that Regulation NMS--by deregulating the
market in proprietary data--would itself further the Act's goals of
facilitating efficiency and competition:

    [E]fficiency is promoted when broker-dealers who do not need the
data beyond the prices, sizes, market center identifications of the
NBBO and consolidated last sale information are not required to
receive (and pay for) such data. The Commission also believes that
efficiency is promoted when broker-dealers may choose to receive
(and pay for) additional market data based on their own internal
analysis of the need for such data.\5\
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    \5\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496 (June 29, 2005).

By removing ``unnecessary regulatory restrictions'' on the ability of
exchanges to sell their own data, Regulation NMS advanced the goals of
the Act and the principles reflected in its legislative history. If the
free market should determine whether proprietary data is sold to
broker-dealers at all, it follows that the price at which such data is
sold should be set by the market as well.
    On July 21, 2010, President Barack Obama signed into law H.R. 4173,
the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010
(``Dodd-Frank Act''), which amended Section 19 of the Act. Among other
things, Section 916 of the Dodd-Frank Act amended paragraph (A) of
Section 19(b)(3) of the Act by inserting the phrase ``on any person,
whether or not the person is a member of the self-regulatory
organization'' after ``due, fee or other charge imposed by the self-
regulatory organization.'' As a result, all SRO rule proposals
establishing or changing dues, fees, or other charges are immediately
effective upon filing regardless of whether such dues, fees, or other
charges are imposed on members of the SRO, non-members, or both.
Section 916 further amended paragraph (C) of Section 19(b)(3) of the
Act to read, in pertinent part, ``At any time within the 60-day period
beginning on the date of filing of such a proposed rule change in
accordance with the provisions of paragraph (1) [of Section 19(b)], the
Commission summarily may temporarily suspend the change in the rules of
the self-regulatory organization made thereby, 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 this title. If the Commission takes such action, the
Commission shall institute proceedings under paragraph (2)(B) [of
Section 19(b)] to determine whether the proposed rule should be
approved or disapproved.''
    The decision of the United States Court of Appeals for the District
of Columbia Circuit in NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir.
2010) (``NetCoalition I''), upheld the Commission's reliance upon
competitive markets to set reasonable and equitably allocated fees for
market data. ``In fact, the legislative history indicates that the
Congress intended that the market system `evolve through the interplay
of competitive forces as unnecessary regulatory restrictions are
removed' and that the SEC wield its regulatory power `in those
situations where competition may not be sufficient,' such as in the
creation of a `consolidated transactional reporting system.'
NetCoalition I, at 535 (quoting H.R. Rep. No. 94-229, at 92 (1975), as
reprinted in 1975 U.S.C.C.A.N. 321, 323).
    For the reasons stated above, NASDAQ believes that the allocation
of the proposed fee is fair and equitable in accordance with Section
6(b)(4) of the Act, and not unreasonably discriminatory in accordance
with Section 6(b)(5) of the Act. As described above, the proposed fee
is based on pricing conventions and distinctions that exist in NASDAQ's
current fee schedule. These distinctions are each based on principles
of fairness and equity that have helped for many years to maintain
fair, equitable, and not unreasonably discriminatory fees, and that
apply with equal or greater force to the current proposal.
    As described in greater detail below, if NASDAQ has calculated
improperly and the market deems the proposed fees to be unfair,
inequitable, or unreasonably discriminatory, firms can discontinue the
use of their data because the proposed product is entirely optional to
all parties. Firms are not required to purchase data and NASDAQ is not
required to make data available or to offer specific pricing
alternatives for potential purchases. NASDAQ can discontinue offering a
pricing alternative (as it has in the past) and firms can discontinue
their use at any time and for any reason (as they often do), including
due to their assessment of the reasonableness of fees charged. NASDAQ
continues to establish and revise pricing policies aimed at increasing
fairness and equitable allocation of fees among Subscribers. This also
reflects that the market for this Depth-of-Book information is highly
competitive and continually evolves as products develop and change.

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

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.
Notwithstanding its determination that the Commission may rely upon
competition to establish fair and equitably allocated fees for market
data, the NetCoalition court found that the Commission had not, in that
case, compiled a record that adequately supported its conclusion that
the market for the data at issue in the case was competitive. NASDAQ
believes that a record may readily be established to demonstrate the
competitive nature of the market in question.
    There is intense competition between trading platforms that provide
transaction execution and routing services and proprietary data
products. Transaction execution and proprietary data products are
complementary in that market data is both an input and a by-product of
the execution service. In fact, market data and trade execution are a
paradigmatic example of joint products with joint costs. Data products
are valuable to many end Subscribers only insofar as they provide
information that end Subscribers expect will assist them or their
customers in making trading decisions.
    The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's transaction execution
platform and the cost of regulating the exchange to ensure its fair
operation and maintain investor confidence. The total return that a
trading platform earns reflects both the revenues it receives from
products and

the joint costs it incurs. Moreover, an exchange's customers view the
costs of transaction executions and of data as a unified cost of doing
business with the exchange. A broker-dealer will direct orders to a
particular exchange only if the expected revenues from executing trades
on the exchange exceed net transaction execution costs and the cost of
data that the broker-dealer chooses to buy to support its trading
decisions (or those of its customers). The choice of data products is,
in turn, a product of the value of the products in making profitable
trading decisions. If the cost of the product exceeds its expected
value, the broker-dealer will choose not to buy it. Moreover, as a
broker-dealer chooses to direct fewer orders to a particular exchange,
the value of the product to that broker-dealer decreases, for two
reasons. First, the product will contain less information, because
executions of the broker-dealer's orders will not be reflected in it.
Second, and perhaps more important, the product will be less valuable
to that broker-dealer because it does not provide information about the
venue to which it is directing its orders. Data from the competing
venue to which the broker-dealer is directing orders will become
correspondingly more valuable.
    Thus, an increase in the fees charged for either transactions or
data has the potential to impair revenues from both products. ``No one
disputes that competition for order flow is `fierce'.'' NetCoalition at
24. However, the existence of fierce competition for order flow implies
a high degree of price sensitivity on the part of broker-dealers with
order flow, since they may readily reduce costs by directing orders
toward the lowest-cost trading venues. A broker-dealer that shifted its
order flow from one platform to another in response to order execution
price differentials would both reduce the value of that platform's
market data and reduce its own need to consume data from the disfavored
platform. Similarly, if a platform increases its market data fees, the
change will affect the overall cost of doing business with the
platform, and affected broker-dealers will assess whether they can
lower their trading costs by directing orders elsewhere and thereby
lessening the need for the more expensive data.
    Analyzing the cost of market data distribution in isolation from
the cost of all of the inputs supporting the creation of market data
will inevitably underestimate the cost of the data. Thus, because it is
impossible to create data without a fast, technologically robust, and
well-regulated execution system, system costs and regulatory costs
affect the price of market data. It would be equally misleading,
however, to attribute all of the exchange's costs to the market data
portion of an exchange's joint product. Rather, all of the exchange's
costs are incurred for the unified purposes of attracting order flow,
executing and/or routing orders, and generating and selling data about
market activity. The total return that an exchange earns reflects the
revenues it receives from the joint products and the total costs of the
joint products.
    Competition among trading platforms can be expected to constrain
the aggregate return each platform earns from the sale of its joint
products, but different platforms may choose from a range of possible,
and equally reasonable, pricing strategies as the means of recovering
total costs. For example, some platforms may choose to pay rebates to
attract orders, charge relatively low prices for market information (or
provide information free of charge) and charge relatively high prices
for accessing posted liquidity. Other platforms may choose a strategy
of paying lower rebates (or no rebates) to attract orders, setting
relatively high prices for market information, and setting relatively
low prices for accessing posted liquidity. In this environment, there
is no economic basis for regulating maximum prices for one of the joint
products in an industry in which suppliers face competitive constraints
with regard to the joint offering. This would be akin to strictly
regulating the price that an automobile manufacturer can charge for car
sound systems despite the existence of a highly competitive market for
cars and the availability of after-market alternatives to the
manufacturer-supplied system.
    The market for market data products is competitive and inherently
contestable because there is fierce competition for the inputs
necessary to the creation of proprietary data and strict pricing
discipline for the proprietary products themselves. Numerous exchanges
compete with each other for listings, trades, and market data itself,
providing virtually limitless opportunities for entrepreneurs who wish
to produce and distribute their own market data. This proprietary data
is produced by each individual exchange, as well as other entities, in
a vigorously competitive market.
    Broker-dealers currently have numerous alternative venues for their
order flow, including thirteen SRO markets, as well as internalizing
broker-dealers (``BDs'') and various forms of alternative trading
systems (``ATSs''), including dark pools and electronic communication
networks (``ECNs''). Each SRO market competes to produce transaction
reports via trade executions, and two FINRA-regulated Trade Reporting
Facilities (``TRFs'') compete to attract internalized transaction
reports. Competitive markets for order flow, executions, and
transaction reports provide pricing discipline for the inputs of
proprietary data products.
    The large number of SROs, TRFs, BDs, and ATSs that currently
produce proprietary data or are currently capable of producing it
provides further pricing discipline for proprietary data products. Each
SRO, TRF, ATS, and BD is currently permitted to produce proprietary
data products, and many currently do or have announced plans to do so,
including NASDAQ, New York Stock Exchange LLC (``NYSE''), NYSE MKT LLC,
NYSE Arca LLC (``ARCA''), and BATS Exchange, Inc. (``BATS'').
    Any ATS or BD can combine with any other ATS, BD, or multiple ATSs
or BDs to produce joint proprietary data products. Additionally, order
routers and market data vendors can facilitate single or multiple
broker-dealers' production of proprietary data products. The potential
sources of proprietary products are virtually limitless.
    The fact that proprietary data from ATSs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete
directly with SROs for the production and sale of proprietary data
products, as BATS and Arca did before registering as exchanges by
publishing data on the Internet. Second, because a single order or
transaction report can appear in an SRO proprietary product, a non-SRO
proprietary product, or both, the data available in proprietary
products is exponentially greater than the actual number of orders and
transaction reports that exist in the marketplace.
    Market data vendors provide another form of price discipline for
proprietary data products because they control the primary means of
access to end Subscribers. Vendors impose price restraints based upon
their business models. For example, vendors such as Bloomberg and
Thomson Reuters that assess a surcharge on data they sell may refuse to
offer proprietary products that end Subscribers will not purchase in
sufficient numbers. Internet portals, such as Google, impose a
discipline by providing only data that will enable them to attract
``eyeballs'' that contribute to their advertising revenue. Retail
broker-dealers, such as Schwab and Fidelity, offer their customers
proprietary data only if it promotes trading and generates sufficient
commission revenue. Although the business models may differ, these

vendors' pricing discipline is the same: They can simply refuse to
purchase any proprietary data product that fails to provide sufficient
value. NASDAQ and other producers of proprietary data products must
understand and respond to these varying business models and pricing
disciplines in order to market proprietary data products successfully.
    In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid, inexpensive, and profitable.
The history of electronic trading is replete with examples of entrants
that swiftly grew into some of the largest electronic trading platforms
and proprietary data producers: Archipelago, Bloomberg Tradebook,
Island, RediBook, Attain, TracECN and BATS Trading. A proliferation of
dark pools and other ATSs operate profitably with fragmentary shares of
consolidated market volume.
    Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While broker-dealers
have previously published their proprietary data individually,
Regulation NMS encourages market data vendors and broker-dealers to
produce proprietary products cooperatively in a manner never before
possible. Multiple market data vendors already have the capability to
aggregate data and disseminate it on a profitable scale, including
Bloomberg, and Thomson Reuters.
    The vigor of competition for information is significant. NASDAQ has
made a determination to adjust the fees associated with these products
in order to reflect more accurately the value of its products and the
investments made to enhance them, as well as to keep pace with changes
in the industry and evolving customer needs. These products are
entirely optional and are geared towards attracting new customers, as
well as retaining existing customers.
    In all cases, firms make decisions on how much and what types of
data to consume on the basis of the total cost of interacting with
NASDAQ or other exchanges. Of course, the explicit data fees are but
one factor in a total platform analysis. Some competitors have lower
transactions fees and higher data fees, and others are vice versa. For
example, NOM offers one distributor fee which allows firms to access
both the BONO and ITTO data feeds. The market for this information is
highly competitive and continually evolves as products develop and
change.

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\6\ 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. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
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    \6\ 15 U.S.C. 78s(b)(3)(A)(ii).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2015-035 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2015-035. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing will also be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly.
    All submissions should refer to File Number SR-NASDAQ-2015-035 and
should be submitted on or before May 13, 2015.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\7\
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    \7\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-09264 Filed 4-21-15; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: January 14, 2009 (Volume 74, Number 9)]
[Notices]
[Page 2147-2148]
[DOCID:fr14ja09-111]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59216; File No. SR-FINRA-2008-065]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of
Proposed Rule Change To Extend a TRACE Pilot Program

January 8, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 18, 2008, Financial Industry Regulatory Authority, Inc.
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc.
(``NASD'')) (``FINRA'' or ``Exchange'') filed with the Securities and
Exchange Commission (``Commission'') the proposed rule change as
described in Items I and II below, which Items have been prepared by
FINRA. FINRA has designated the proposed rule change as constituting a
``non-controversial'' rule change under paragraph (f)(6) of Rule 19b-4
under the Act,\3\ which renders the proposal effective upon receipt of
this filing by the Commission. The Commission is publishing this notice
to solicit comments on the proposed rule change from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA is proposing to extend the pilot program in FINRA Rule
6730(e)(4) (formerly NASD Rule 6230(e)(4)) to January 7, 2011, and
incorporate a reference to current New York Stock Exchange (``NYSE'')
Rule 86.\4\ The pilot program exempts from reporting to Trade Reporting
and Compliance Engine (``TRACE'') transactions in TRACE-eligible
securities that are executed on a facility of the NYSE in accordance
with NYSE Rules 1400 and 1401 and reported to NYSE in accordance with
NYSE's applicable trade reporting rules and disseminated publicly by
NYSE.
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    \4\ FINRA Rule 6730 became effective on December 15, 2008. See
Regulatory Notice 08-57 (October 2008).
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    Below is the text of the proposed rule change. Proposed new
language is in italics; proposed deletions are in brackets.
* * * * *

6700. TRADE REPORTING AND COMPLIANCE ENGINE (TRACE)

* * * * *

6730. Transaction Reporting

    (a) through (d) No Change.

(e) Transactions Exempt From Reporting

    The following types of transactions shall not be reported:
    (1) through (3) No Change.
    (4) [For the duration of a two-year pilot program, effective upon
the later of either: (1) approval of this Rule by the SEC, or (2)
execution by FINRA and the New York Stock Exchange (``NYSE'') of a data
sharing agreement addressing data related to transactions covered by
this Rule,]Provided that a data sharing agreement between FINRA and
NYSE related to transactions covered by this Rule remains in effect,
for a pilot program expiring on January 7, 2011, transactions in TRACE-
eligible securities that are executed on a facility of NYSE in
accordance with NYSE Rules 1400, [and]1401 and 86 and reported to NYSE
in accordance with NYSE's applicable trade reporting rules and
disseminated publicly by NYSE.
    (5) No Change.
    (f) No Change.
* * * * *

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

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

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

1. Purpose
    Pursuant to SR-NASD-2006-110, FINRA amended FINRA Rule 6730(e)
(then NASD Rule 6230(e)) to exempt from TRACE reporting requirements,
for a pilot period of two years, transactions in TRACE-eligible
securities that are executed on a facility of the NYSE in accordance
with NYSE Rules 1400 and 1401, reported to NYSE in accordance with
NYSE's applicable trade reporting rules and disseminated publicly by
NYSE. The exemption did not take effect until FINRA and NYSE entered
into a data sharing agreement addressing data related to the
transactions covered by FINRA Rule 6730(e)(4) (then NASD Rule
6230(e)(4)). The Commission approved SR-NASD-2006-110 on an accelerated
basis on November 16, 2006, and the two-year pilot period began on
January 9, 2007. The pilot program is scheduled to expire on January 9,
2009.
    FINRA is proposing to extend the pilot program for two years to
continue to exempt members that execute transactions in TRACE-eligible
securities on an NYSE facility (and as to which all the other
conditions of the exemption are met) from the TRACE reporting
requirements. The pilot will expire at 11:59:59 p.m. on January 7,
2011. FINRA believes that a two-year extension will provide additional
time to analyze the impact of the exemption. Without the extension,
members would be subject to both FINRA's and NYSE's trade reporting
requirements with respect to these securities.
    FINRA also proposes two technical changes to FINRA Rule 6730(e)(4).
FINRA proposes to incorporate a reference to amended NYSE Rule 86 in
FINRA Rule 6730(e)(4) to identify more clearly the scope of the pilot
program. FINRA believes this is necessary because the NYSE recently
established a new bond trading facility, which is not reflected in NYSE
Rules 1400 or 1401 (i.e., the rules currently referenced in FINRA Rule
6730(e)(4)). Rather, NYSE Rule 1400, which addresses eligibility
requirements for unlisted debt securities to be traded on the NYSE,
refers to ABS, the bond trading facility that is no longer in
existence.\5\ FINRA's proposal

to reference NYSE Rule 86 in FINRA Rule 6730(e)(4) would clarify the
scope of the pilot program currently in effect and proposed to be
extended. The proposed rule change would not expand or otherwise change
the pilot program.
---------------------------------------------------------------------------

    \5\ On January 9, 2007, when FINRA Rule 6730(e)(4) (then NASD
Rule 6230(e)(4)) became effective, the operation of NYSE's bond
trading system, the ``Automated Bond System'' or ``ABS,'' was
addressed in NYSE Rule 86 and identified by name in NYSE Rule 1400.
In 2007, the NYSE replaced the ABS with a new bond trading facility,
``New York Bonds.'' NYSE Rule 86 was amended to reflect the name and
operation of New York Bonds. However, NYSE Rule 1400 continues to
refer to ABS and does not reflect the establishment of New York
Bonds. See Securities Exchange Act Release No. 55496 (March 20,
2007); 72 FR 14631 (March 28, 2007) (SR-NYSE-2006-37) (Notice of
Filing of Amendment No. 3 and Order Granting Accelerated Approval of
Proposed Rule Change, as Amended, Relating to the Establishment of
NYSE Bonds). In addition, a bond trading facility, which is ``based
on NYSE Bonds,'' was recently established by an affiliate of the
NYSE, NYSE Alternext US LLC (``NYSE Alternext''). See Securities
Exchange Act Release No. 58839 (October 23, 2008); 73 FR 64645
(October 30, 2008) (SR-NYSEALTR-2008-003) (Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Regarding Relocation
of the Trading of Certain Debt Securities Conducted On or Through
the Exchange's Legacy Trading Systems and Facilities to an Automated
Bond Trading Platform Based on NYSE Bonds). FINRA's proposed
amendment makes explicit that the pilot program is intended to
include transactions executed on a facility of NYSE in accordance
with NYSE Rules 1400, 1401 and 86, but would not extend to any
transactions executed on the NYSE Alternext bond trading facility.
---------------------------------------------------------------------------

    Also, the proposed rule change would amend FINRA Rule 6730(e)(4) to
restate the requirement that the exemption is predicated on the data
agreement between FINRA and NYSE to share data related to the
transactions covered by the Rule remaining in effect. The success of
the pilot program remains dependent on FINRA's ability to effectively
continue to conduct surveillance on corporate debt trading in the over-
the-counter market.
    The effective date of the proposed rule change will be January 8,
2009.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\6\ which requires, among
other things, that FINRA rules must be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable
principles of trade, and, in general, to protect investors and the
public interest. FINRA believes that the extension of the exemptive
provision protects investors and the public because transactions will
be reported, price transparency will be maintained for these
transactions, and NYSE's agreement to share data with FINRA allows
FINRA to conduct surveillance in the corporate debt securities market.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

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

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

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

    Written comments were neither solicited nor received.

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

    FINRA represented that the proposed rule change qualifies for
immediate effectiveness pursuant to Section 19(b)(3)(A) of the Act \7\
and Rule 19b-4(f)(6) thereunder \8\ because it: (i) Does not
significantly affect the protection of investors or the public
interest; (ii) does not impose any significant burden on competition;
and (iii) by its terms, does not 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.\9\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A).
    \8\ 17 CFR 240.19b-4(f)(6).
    \9\ In addition, Rule 19b-4(f)(6)(iii) requires a self-
regulatory organization to give the Commission written notice of its
intent to file the proposed rule change at least five business days
prior to the date of filing of the proposed rule change, or such
shorter time as designated by the Commission. FINRA has satisfied
this requirement.
---------------------------------------------------------------------------

    The Exchange has requested that the Commission waive the 30-day
operative delay, so that the proposed rule change may become operative
upon filing. The Commission hereby grants the Exchange's request and
believes that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest.\10\ This will allow
the existing pilot program to continue without interruption and thereby
eliminate duplicative transaction reporting obligations of broker-
dealers engaging in transactions in TRACE-eligible debt securities on
NYSE.
---------------------------------------------------------------------------

    \10\ 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).
---------------------------------------------------------------------------

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2008-065 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-FINRA-2008-065. 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 inspection
and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of FINRA. 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-FINRA-2008-065 and should be
submitted on or before February 4, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-612 Filed 1-13-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: August 17, 2007 (Volume 72, Number 159)]
[Rules and Regulations]
[Page 46171-46175]
[DOCID:fr17au07-14]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[FRL-8456-1]

National Oil and Hazardous Substance Pollution Contingency Plan
National Priorities List Update

AGENCY: Environmental Protection Agency.

ACTION: Direct final notice for partial deletion of the RSR Corporation
Superfund Site, Operable Unit No. 4 and Subarea 1 of Operable Unit No.
5 from the National Priorities List.

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

SUMMARY: The United States Environmental Protection Agency (EPA) Region
6 is publishing a direct final notice for partial deletion of the RSR
Corporation Superfund Site (RSR Site), Operable Unit (OU) No. 4 and
Subarea 1 of Operable Unit (OU) No. 5, located in Dallas, Dallas
County, Texas, from the National Priorities List (NPL). This partial
deletion does not include OU No. 1, OU No. 2, OU No. 3 or Subareas 2,
3, and 4 of OU NO. 5. The partial deletion for OU No. 4 and Subarea 1
of OU No. 5 came at the request of a developer to help facilitate the
purchase of these properties. The EPA plans to delete the other
operable units and areas of the RSR Superfund Site in 2008. The NPL,
promulgated pursuant to Section 105 of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) of 1980, as amended,
is appendix B of 40 CFR Part 300, which is the National Oil and
Hazardous Substances Pollution Contingency Plan (NCP). This direct
final notice for partial deletion is being published by the EPA with
the concurrence of the State of Texas, through the Texas Commission on
Environmental Quality (TCEQ), because the EPA has determined that all
appropriate response actions under CERCLA have been completed and,
therefore, further remedial action pursuant to CERCLA is not
appropriate for OU No. 4 and Subarea 1 of OU No. 5.

DATES: This direct final notice for partial deletion will be effective
October 16, 2007 unless the EPA receives adverse comments by September
17, 2007. If adverse comments are received, the EPA will publish a
timely withdrawal of the direct final notice of partial deletion in the
Federal Register informing the public that the partial deletion will
not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
SFUND-1995-0005, Notice Phase-1, by one of the following methods:
    http://www.regulations.gov: Follow the on-line instruction for

submitting comments.
    E-mail: mail to<EMAIL_ADDRESS>    Fax:<PHONE_NUMBER>
    Mail: Janetta Coats, Community Involvement Coordinator, U.S. EPA
Region 6 (6SF-PO), 1445 Ross Avenue, Dallas, TX 75202-2733, (214) 665-
7308 or 1-800-533-3508.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-SFUND-
1995-0005, Notice Phase-1. The EPA's policy is that all comments
received will be included in the public docket without change and may
be available online at http://www.regulations.gov, including any

personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
http://www.regulations.gov or e-mail. The http://www.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 e-mail comment directly to the
EPA without going through http://www.regulations.gov, your e-mail

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.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the information

repositories.

    Information Repositories: Comprehensive information about the Site
is available for viewing and copying during central standard time at
the Site information repositories located at: U.S. EPA Region 6
Library, 7th Floor, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-
2733,<PHONE_NUMBER>, Monday through Friday 9 a.m. to 12 p.m. and 1
p.m. to 4 p.m.; Dallas West Branch Library, 2332 Singleton Boulevard,
Dallas, Texas 75212,<PHONE_NUMBER>, Monday, Tuesday, and Thursday 10
a.m. to 9 p.m.; Wednesday and Saturday 10 a.m. to 5 p.m.; Texas
Commission on Environmental Quality (TCEQ), Central File Room Customer
Service Center, Building E, 12100 Park 35 Circle, Austin, Texas 78753,
(512) 239-2900, Monday through Friday 8 a.m. to 5 p.m.

FOR FURTHER INFORMATION CONTACT: Carlos A. Sanchez, Remedial Project
Manager (RPM), U.S. EPA Region 6 (6SF-R), 1445 Ross Avenue, Dallas, TX
75202-2733,<PHONE_NUMBER> or 1-800-533-3508 (sanchez.carlos@epa.gov).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Partial Deletion
V. Partial Deletion Action

I. Introduction

    The EPA Region 6 office is publishing this direct final notice for
partial deletion of the RSR Corporation Superfund Site, OU No. 4 and
Subarea 1 of OU No. 5 from the NPL.
    The EPA identifies sites that appear to present a significant risk
to public health or the environment and maintains the NPL as the list
of those sites. As described in Sec.  300.425(e)(3) of the NCP, sites
deleted from the NPL remain eligible for remedial actions if conditions
at a deleted site warrant such action.
    Because the EPA considers this action to be noncontroversial and
routine for these RSR operable units, the EPA is taking it without
prior publication of a notice of intent to partial delete. This action
will be effective October 16, 2007 unless the EPA receives adverse
comments by September 17, 2007 on this document. If adverse comments
are received within the 30-day public comment period on this document,
the EPA will publish a timely withdrawal of this direct final notice
for partial deletion before the effective date of the partial deletion
and the partial deletion will not take effect. The EPA will, as
appropriate, prepare a response to comments and continue with the
partial deletion process on the basis of the notice of intent to
partial delete and the comments already received. There will be no
additional opportunity to comment.
    Section II of this document explains the criteria for deleting
sites from the NPL. Section III discusses procedures that the EPA is
using for this action. Section IV discusses the RSR Corporation
Superfund Site and demonstrates how it meets the deletion criteria.
Section V discusses the EPA's action to delete OU No. 4 and Subarea 1
of OU No. 5 from the NPL unless adverse comments are received during
the public comment period.

II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from
the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted
from the NPL where no further response is appropriate to protect human
health or the environment. In making such a determination pursuant to
Sec.  300.425(e), EPA will consider, in consultation with the State,
whether any of the following criteria have been met:
    i. Section 300.425(e)(1)(i). Responsible parties or other persons
have implemented all appropriate response actions required; or
    ii. Section 300.425(e)(1)(ii). All appropriate Fund-financed
(Hazardous Substance Superfund Response Trust Fund) response under
CERCLA has been implemented, and no further response action by
responsible parties is appropriate; or,
    iii. Section 300.425(e)(1)(iii). The remedial investigation has
shown that the release poses no significant threat to public health or
the environment and, therefore, the taking of remedial measures is not
appropriate.
    Deletion of a portion of a site from the NPL does not preclude
eligibility for subsequent Fund-financed actions at the area deleted if
future site conditions warrant such actions. Section 300.425(e)(3) of
the NCP provides that Fund-finances actions may be taken at sites that
have been deleted from the NPL. A partial deletion of a site from the
NPL does not affect or impede EPA's ability to conduct CERCLA response
activities at areas not deleted and remaining on the NPL. In addition,
deletion of a portion of site from the NPL does not affect the
liability of responsible parties or impede agency efforts to recover
costs associated with response efforts.

III. Deletion Procedures

    Deletion of a portion of a site from the NPL does not itself
create, alter, or revoke any person's rights or obligations. The NPL is
designed primarily for informational purposes and to assist Agency
management.
    The following procedures apply to deletion of OU No. 4 and Subarea
1 of OU No. 5:
    (1) The EPA has recommended the partial deletion and has prepared
the relevant documents.
    (2) The State of Texas through the Texas Commission on
Environmental Quality concurs with the partial deletion of the RSR Site
from the NPL.
    (3) Concurrently with the publication of this direct final notice
for partial deletion, a notice of the availability of the parallel
notice of intent for partial deletion published today in the ``Proposed
Rules'' section of the Federal Register is being published in a major
local newspaper of general circulation at or near the RSR Site and is
being distributed to appropriate federal, state, and local government
officials and other interested parties; the newspaper notice announces
the 30-day public comment period concerning the notice of intent for
partial deletion the RSR Site from the NPL.
    (4) The EPA placed copies of documents supporting the partial
deletion in the Site information repositories identified above.
    (5) If adverse comments are received within the 30-day public
comment period on this document, the EPA will publish a timely notice
of withdrawal of this direct final notice for partial deletion before
its effective date and will prepare a response to comments and continue
with the partial deletion process on the basis of the notice of intent
for partial deletion and the comments already received.

IV. Basis for Partial Deletion

    The following information provides the EPA's rationale for partial
deletion of the RSR Site from the NPL. This partial deletion only
includes OU No. 4 and Subarea 1 of OU No. 5. Figures, with coordinates,
of the areas to be deleted will be made available at the Site
information repositories and included with the deletion docket.
Deletion of these areas of the RSR Site was requested by a developer to
help facilitate the purchase of these properties. Cleanup activities
have been completed for the other operable units and areas of the RSR
Site. However, institutional controls are needed for OU No. 3 before
the rest of the RSR Site can be deleted from the NPL. Plans are to have
the institutional controls in place and to delete the other operable
units and areas of the RSR Site in 2008.

Site Location

    The RSR Site is located in west Dallas, Texas and encompasses an
area approximately 13.6 square miles in size. The RSR Site is very
diverse and includes large single and multi-family residential
neighborhoods, multi-family public housing areas and some industrial,
commercial and retail establishments. The population in this area is
more than 17,000. The RSR site consists of five operable units (OUs);
     OU No. 1--Residential Properties.
     OU No. 2--Dallas Housing Authority Property.
     OU No. 3--Landfills/Slag Piles.
     OU No. 4--Smelter Facility.
     OU No. 5--Battery Breaking Facility/Other Industrial
Property.

Site History

    For approximately 50 years from the 1930s to 1984, a secondary lead
smelting facility (OU No. 4), located at the southeast corner of the
intersection of Westmoreland Road and Singleton Boulevard, processed
used batteries and other lead-bearing materials into pure lead, lead
alloys, and other lead products. The basic inputs into the smelting
process were lead scrap and lead from used car batteries. In the first
step of the smelting process the batteries were disassembled at the
battery wrecking facility (OU No. 5) using hammer-mills to break the
batteries into small pieces (e.g., battery chips). The lead posts and
grids were then sent across the street to the smelter facility (OU No.
4) to produce soft pure lead or specialty alloys. In the refining
process alloy elements, such as antimony, arsenic, and cadmium, were
added as necessary to produce the desired product. Slag was generated
as part of the smelting process and is made up of oxidized impurities
and molten lead. Slag that was not reprocessed in the smelter furnace
and battery chips that were not reprocessed, were considered waste
material.
    Historical information indicates that from approximately 1934 until
1971 the lead smelting facility and associated battery wrecking
operations were operated by Murph Metals, Inc. or its predecessors. In
1971, RSR Corporation acquired the lead smelting operation and operated
under the name Murph Metals. RSR continued to operate the smelter and
associated battery wrecking operations until the acquisition of the
facility by Murmur Corporation (Murmur). In 1984, the City of Dallas
declined to renew the smelter's operating permit. The smelter and
associated battery wrecking facility have not been operated since 1984.
    During 1984 and 1985, the Texas Commission on Environmental Quality
(TCEQ) [formerly the Texas Natural Resource Conservation Commission
(TNRCC)] conducted inspections on the smelter and battery wrecking
facilities and identified several violations that involved the
treatment, storage or disposal of hazardous wastes. In 1986, TNRCC
approved a closure plan to be implemented by Murmur for portions of the
battery wrecking facility located at OU No. 5. However, Murmur was
unable to obtain certification by TNRCC of final closure, due to a
dispute between Murmur and its contractor. In June of 1991 the State of
Texas referred the case regarding the closure to the Superfund program
for assessment. Immediately following this referral, TNRCC began
receiving complaints from residents alleging that slag and battery
chips had been disposed of on their properties.
    In 1991, the EPA began soil sampling in west Dallas to determine
the presence of soil lead contamination. The results indicated that
contamination existed in some residential areas near the smelter (OU
No. 1) where fallout of contamination from the smelter stack had
occurred and where battery chips or slag was used as fill in
residential yards and driveways. As a result, the EPA initiated an
emergency removal action in the residential areas consisting of removal
and off-site disposal of contaminated soil and debris in excess of
removal action cleanup levels. This removal action in the residential
area (OU No. 1) was completed in June of 1994.
    On May 10, 1993, the EPA proposed the RSR Site to the National
Priorities List (NPL) of Superfund sites (58 FR 27507). On September
29, 1995, the EPA finalized listing of the RSR Corporation Superfund
Site on the NPL (60 FR 50435).

Remedial Investigation and Feasibility Study (RI/FS)

OU No. 4
    A comprehensive remedial investigation was conducted at the former
smelter facility from March through June 1994. Results of the
investigation indicated the following:
     Site building, structures, and equipment were in various
stages of deterioration. The process building, structures and equipment
were found to have very high concentration of lead, cadmium, and
arsenic.
     Surface soil results indicated widespread distribution of
site-related contaminants such as lead, arsenic, and cadmium at high
concentrations.
     Subsurface soil contamination was identified at variable
locations with no specific distribution of site contaminants.
     Ground water contamination was indicated in the shallow
ground water at the site. However, subsequent pump tests, conducted
during the remedial investigation for OU No. 5, indicated that the
shallow ground water does not meet the criteria as a potential drinking
water source. The City of Dallas provides drinking water to the west
Dallas community.
     Drums, waste piles, and debris and laboratory containers
were identified during the remedial investigation. These materials were
addressed under a non-time critical removal action conducted from May
through July 1995.
OU No. 5, Subarea 1
     Deficiencies were observed at the Former Battery Wrecking
Facility, including deteriorated concrete, and weakened column bases
and roof beams. The former Vehicle Maintenance Building was considered
to be structurally sound. Dust on the building surfaces was found to
have elevated concentrations of lead, cadmium, and arsenic.
     The former Surface Impoundment was used to collect and
neutralize wastewater and waste byproducts from the lead-acid battery
crushing operations. Samples drilled through the impoundment indicated
that contaminant concentrations decreased with depth. The maximum
contaminant concentrations were encountered at the 5 to 6 foot
interval.
     Field investigations for other site soils indicted the
presence of high contaminants levels in surface and subsurface soils.

Record of Decision

OU No. 4
    The major components of the selected remedy for OU No. 4 included:
     Demolition of site building and off-site disposal;
     Demolition of the smelter stack and off-site disposal;
     Excavation of the concrete foundations and contaminated
soil and off-site disposal;
     Cap and/or backfill the aerial extent of the site with two
(2) feet of clean soil.
OU No. 5, Subarea 1
    The major components of the selected remedy for Subarea 1 of OU No.
5 included:
     Decontamination of the former battery wrecking building
and the vehicle maintenance building;

     Demolition of the former battery wrecking building and
off-site disposal of debris;
     Evaluate existing cap on the former surface impoundment,
upgrade or replace as necessary, in order to complete RCRA closure;
     Cap the Slag Burial Area/other Soils Areas that exceed
Remedial Action Goals with two (2) feet of clean backfill and re-
vegetate with native grasses;
     No action is recommended for the shallow ground water. The
shallow ground water beneath OUs Nos. 4 and 5 is not considered to be a
potential drinking water supply.

Response Actions

OU No. 4 and OU No. 5 Removal Action
    Three areas of immediate concern were identified at OUs 4 and 5
during the field investigation conducted in May 1994. The areas of
concern included the presence of 500 waste drums, 73 uncontrolled
residual waste/debris piles and approximately 50 laboratory containers.
EPA Region 6 conducted a Non-Time Critical Removal Action from May 30,
1995 through July 14, 1995.
Remedial Action OU No. 4
    The remedial action for OU No. 4 started on September 26, 2000 and
the final field inspection conducted on November 6, 2001. Remedial
Action activities for OU No. 4 included:
     Demolition of the smelter facility, bag house building,
250-foot smelter stack, batch house, hog storage building, former cafe
building, office/laboratory complex, cafeteria (lunch room) building,
filter building, bath house, vehicle maintenance building, former gas
station, and miscellaneous structures.
     A total of 1,088 tons of steel from demolition activities
were recycled.
     Approximately 11,000 cubic yards of contaminated soil was
treated in-situ and disposed of at off-site permitted facilities.
     Approximately 915 cubic yards of debris were treated and
disposed at an off-site facility.
     A total of 2,137 cubic yards of construction debris were
also treated and disposed of at an off-site permitted facility.
     A total of 910 cubic yards of concrete materials were sent
off-site for recycling.
     The site was backfilled with imported clay fill materials
and topsoil to a maximum depth of two (2) feet.
     Seven (7) monitoring wells were closed.
Remedial Action OU No. 5, Subarea 1
    The Remedial Action activities for Subarea 1 of OU No. 5 began on
January 19, 2004, and the final field inspection was conducted on
August 3, 2004. Remedial Action activities included:
     Decontamination of site buildings followed by demolition
of the Battery Wrecking Building.
     Approximately 245 tons of steel and metal and 923 tons of
concrete were recycled at off-site facilities.
     Excess building debris was disposed of at an off-site
permitted landfill.
     Contaminated soils and slag materials from throughout the
site were consolidated in the Buried Slag Area and capped with a total
of two (2) feet of soil material.
     The former Surface Impoundment was cleared of vegetation,
re-graded, sloped, and soil added where needed to upgrade the soil cap.
     Two (2) underground storage tanks encountered during the
remedial action activities were removed and disposed of at off-site
permitted facilities.

Operation and Maintenance (O&M)

    The purpose of the O&M activities is to monitor the implemented
remedy and insure that the remedy remains protective of human health
and the environment. The Operation and Maintenance Plan for Subarea 1
of OU No. 5 was approved by EPA on September 27, 2004. The O&M Plan
includes site inspections for the former surface impoundment area, the
soil cover for the slag consolidated area, and ground water monitoring
of the former surface impoundment. The EPA will implement the O&M Plan
with PRP funding.

Institutional Controls

    The owner for OU No. 4 and Subarea 1 of OU No. 5 recorded
institutional controls in Dallas County on March 29, 2006. The recorded
restrictive covenant for OU No. 4 states that: ``Invasive digging,
unsafe site development or drilling that would disturb the capped areas
in place on the land, or any deterioration or damaging of any element
of the selected remedy or ROD is prohibited, unless approved by EPA in
writing.'' The recorded restrictive covenant for Subarea 1 of OU No. 5
states that: ``Invasive digging, unsafe site development or drilling
that would disturb the capped areas in place or shallow groundwater use
on the land, or any deterioration or damaging of any element of the
selected remedy or ROD is prohibited, unless approved by EPA in
writing.''

Five-Year Review

    Consistent with Section 121(c) of CERCLA and requirements of the
OSWER Directive 9355.7-03B-P (``Comprehensive Five-Year Review
Guidance'', June 2001), a five-year review is required at the RSR Site.
The Directive requires the EPA to conduct statutory five-year reviews
at sites where, upon attainment of ROD cleanup levels, hazardous
substances remaining within restricted areas onsite do not allow
unlimited use of the entire site.
    Since hazardous substances remain onsite, the RSR Site is subject
to five-year reviews to ensure the continued protectiveness of the
remedy. Based on the five-year results, the EPA will determine whether
human health and the environment continue to be adequately protected by
the implemented remedy. The first Five-Year Review was completed on
September 29, 2005. The reviews found that the remedy remains
protective of human health and the environment.

Community Involvement

    Public participation activities have been satisfied as required in
CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42
U.S.C. 9617. Documents in the partial deletion docket which the EPA
relied on for recommendation for the partial deletion from the NPL are
available to the public in the information repositories.

V. Partial Deletion Action

    The EPA, with concurrence of the State of Texas, has determined
that all appropriate responses under CERCLA have been completed, and
that no further response actions, under CERCLA, other than O&M and
five-year reviews, are necessary. Therefore, the EPA is deleting OU No.
4 and Subarea 1 of OU No. 5 from the NPL.
    Because the EPA considers this action to be noncontroversial and
routine for these operable units, the EPA is taking it without prior
publication. This action will be effective October 16, 2007 unless the
EPA receives adverse comments by September 17, 2007. If adverse
comments are received within the 30-day public comment period, the EPA
will publish a timely withdrawal of this direct final notice for
partial deletion before the effective date of the partial deletion and
it will not take effect. The EPA will prepare a response to comments
and continue with the partial deletion process on the basis of the
notice of intent for partial deletion and the comments already
received. There will be no additional opportunity to comment.

List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals,
Hazardous waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
Pollution control, Water supply.

    Dated: August 1, 2007.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.

0
For the reasons set out in this document, 40 CFR part 300 is amended as
follows:

PART 300--[AMENDED]

0
1. The authority citation for part 300 continues to read as follows:

    Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p. 193.

Appendix B--[Amended]

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2. Table 1 of Appendix B to Part 300 is amended by amending the
Superfund site entry for the ``RSR Corp, Dallas, TX'' by adding a note
``P''.
[FR Doc. E7-16062 Filed 8-16-07; 8:45 am]

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