[Federal Register Volume 75, Number 78 (Friday, April 23, 2010)]
[Notices]
[Pages 21378-21382]
[FR Doc No: 2010-9401]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61937; File No. SR-NYSEArca-2010-23]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change To Modify NYSE Arca Trades Fees, To Establish
the NYSE Arca BBO Service and Related Fees, and To Provide an
Alternative Unit-of-Count Methodology for Those Services

April 16, 2010.
    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 April 1, 2010, the NYSE Arca, Inc. (``NYSE Arca'' or
``Exchange''), 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 the Exchange. 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

    NYSE Arca proposes: (A) To modify the professional subscriber fees
for its NYSE Arca Trades Service; (B) to establish the NYSE Arca BBO
Service, a service that will make available the Exchange's best bids
and offers; (C) to establish fees for the NYSE Arca BBO Service; and
(D) to provide an alternative unit-of-count methodology for the NYSE
Arca Trades and BBO Services. The text of the proposed rule change is
available on the Exchange's Web site at http://www.nyse.com, on the
Commission's Web site at http://www.sec.gov, at NYSE Arca, and at the
Commission's Public Reference Room.

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

    In its filing with the Commission, the self-regulatory organization
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. The Exchange 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
a. NYSE Arca Trades Fees and Unit-of-Count Methodology
    On March 18, 2009, the Commission approved the NYSE Arca Trades
Service and its fees.\3\ NYSE Arca Trades is a NYSE Arca-only market
data service that allows a vendor to redistribute on a real-time basis
the same last sale information that the Exchange reports under the CTA
Plan and the ``Nasdaq/UTP Plan'' \4\ for inclusion in those plans'
consolidated data streams and certain other related data elements
(``NYSE Arca Last Sale Information'').
---------------------------------------------------------------------------

    \3\ See Release No. 34-59598; 74 FR 12919 (March 25, 2009); File
No. SR-NYSEArca-2009-05.
    \4\ Formally referred to as ``the Reporting Plan for Nasdaq/
National Market System Securities Traded on an Exchange on an
Unlisted or Listed Basis.''
---------------------------------------------------------------------------

    The Commission approved two professional subscriber fees for the
NYSE Arca Trades Service. It approved a fee of $5 per month per display
device

for the receipt and use of NYSE Arca Last Sale Information relating to
Network A and Network B Eligible Securities and $5 per month per
display device for the receipt and use of NYSE Arca Last Sale
Information relating to securities listed on Nasdaq.
    The Exchange proposes to make two changes to these fees. First, the
Exchange proposes to consolidate the two $5.00 fees into one $10.00
fee. That is, the Exchange proposes to set the professional subscriber
fee for the NYSE Arca Trades Service at $10.00. This fee would entitle
professional subscribers to receive NYSE Arca Last Sale Information
relating to all securities for which last sale information is reported
under the CTA Plan and the Nasdaq/UTP Plan. Consolidating the two fees
into one fee makes the NYSE Arca Trades professional subscriber fee
consistent with the professional subscriber fee that the Exchange
understands that NYSE Amex LLC (``NYSE Amex'') will propose for a
substantially similar last sale information service that NYSE Arca
expects NYSE Amex to file with the Commission in the near future.
    Second, the Exchange proposes to offer an alternative to the per-
device fee, the traditional means for calculating charges. Under the
alternative, a Vendor could elect to pay on the basis of the number of
``Subscriber Entitlements'' rather than the basis of the number of
devices. The ``Subscriber Entitlements'' methodology is the unit-of-
count methodology that the Commission approved earlier this year for
the proposed rule change that the New York Stock Exchange, LLC
(``NYSE'') submitted in respect of its NYSE OpenBook[supreg] service
(the ``Unit-of-Count Filing'').\5\
---------------------------------------------------------------------------

    \5\ See Release No. 34-59544; 74 FR 11162 (March 16, 2009); File
No. SR-NYSE-2008-131.
---------------------------------------------------------------------------

    Under that unit-of-count methodology, the Exchange does not define
the Vendor-subscriber relationship based on the manner in which a
datafeed recipient or subscriber receives data (i.e., through
controlled displays or through data feeds). Instead, the Exchange uses
more subjective billing criteria. Those criteria define ``Vendors,''
``Subscribers,'' ``Subscriber Entitlements'' and ``Subscriber
Entitlement Controls'' as the basis for setting professional subscriber
fees. The Exchange believes that these changes more closely align with
current data consumption and will reduce costs for the Exchange's
customers.
    The following basic principles underlie the ``Subscriber
Entitlement'' unit-of-count methodology.
    i. Vendors.
     ``Vendors'' are market data vendors, broker-dealers,
private network providers and other entities that control Subscribers'
access to data through Subscriber Entitlement Controls.
    ii. Subscribers.
     ``Subscribers'' are unique individual persons or devices
to which a Vendor provides data. Any person or device that receives
data from a Vendor is a Subscriber, whether the person or device works
for or belongs to the Vendor, or works for or belongs to an entity
other than the Vendor.
     Only a Vendor may control Subscriber access to data.
     Subscribers may not redistribute data in any manner.
    iii. Subscriber Entitlements.
     A Subscriber Entitlement is a Vendor's permissioning of a
Subscriber to receive access to data through an Exchange-approved
Subscriber Entitlement Control.
     A Vendor may not provide data access to a Subscriber
except through a unique Subscriber Entitlement.
     The Exchange will require each Vendor to provide a unique
Subscriber Entitlement to each unique Subscriber.
     At prescribed intervals (normally monthly), the Exchange
will require each Vendor to report each unique Subscriber Entitlement.
    iv. Subscriber Entitlement Controls.
     A Subscriber Entitlement Control is the Vendor's process
of permissioning Subscribers' access to data.
     Prior to using any Subscriber Entitlement Control or
changing a previously approved Subscriber Entitlement Control, a Vendor
must provide the Exchange with a demonstration and a detailed written
description of the control or change and the Exchange must have
approved it in writing.
     The Exchange will approve a Subscriber Entitlement Control
if it allows only authorized, unique end-users or devices to access
data or monitors access to data by each unique end-user or device.
     Vendors must design Subscriber Entitlement Controls to
produce an audit report and make each audit report available to the
Exchange upon request. The audit report must identify:
    A. Each entitlement update to the Subscriber Entitlement Control;
    B. The status of the Subscriber Entitlement Control; and
    C. Any other changes to the Subscriber Entitlement Control over a
given period.
     Only the Vendor may have access to Subscriber Entitlement
Controls.
    Subject to the rules set forth below, the Exchange will require
NYSE Arca-Only Vendors to count every Subscriber Entitlement, whether
it be a person or a device. This means that the Vendor must include in
the count every person and device that has access to the data,
regardless of the purposes for which the person or device uses the
data. The Exchange will require Vendors to report and count all
entitlements in accordance with the following rules.
    i. As explained below, the Exchange also proposes to adopt the
``Subscriber Entitlement'' unit-of-count methodology for the NYSE Arca
BBO Service. The count shall be separate for the NYSE Arca Trades and
NYSE Arca BBO Services. This means that a device that is entitled to
receive both NYSE Arca Last Sale Information and NYSE Arca BBO
Information would count as a Subscriber Entitlement for the purposes of
the NYSE Arca Trades Service and as a separate Subscriber Entitlement
for the purposes of the NYSE Arca BBO Service.
    ii. In connection with a Vendor's external distribution of either
type of NYSE Arca ``Market Data'' (i.e., NYSE Arca Last Sale
Information or NYSE Arca BBO Information), the Vendor should count as
one Subscriber Entitlement each unique Subscriber that the Vendor has
entitled to have access to that type of Market Data. However, where a
device is dedicated specifically to a single person, the Vendor should
count only the person and need not count the device.
    iii. In connection with a Vendor's internal distribution of a type
of NYSE Arca Market Data, the Vendor should count as one Subscriber
Entitlement each unique person (but not devices) that the Vendor has
entitled to have access to that type of Market Data.
    iv. The Vendor should identify and report each unique Subscriber.
If a Subscriber uses the same unique Subscriber Entitlement to receive
multiple services, the Vendor should count that as one Subscriber
Entitlement. However, if a unique Subscriber uses multiple Subscriber
Entitlements to gain access to one or more services (e.g., a single
Subscriber has multiple passwords and user identifications), the Vendor
should report all of those Subscriber Entitlements.
    v. The Vendor should report each Subscriber device serving multiple
users individually as well as each person who may access the device. As
an example, for a single device to which the Vendor has granted two
people access, the Vendor should report three Subscriber Entitlements.
Only a single, unique device that is dedicated to a single,

unique person may be counted as one Subscriber Entitlement.
    vi. Vendors should report each unique person who receives access
through multiple devices as one Subscriber Entitlement so long as each
device is dedicated specifically to that person.
    vii. The Vendor should include in the count as one Subscriber
Entitlement devices serving no users.
    By way of examples, if a Subscriber's device has no users or
multiple users, the Vendor should count that device as one Subscriber
Entitlement. If a Vendor entitles five individuals to use one of a
Subscriber's devices, the Vendor should count five individual
entitlements and one device entitlement, for a total of six Subscriber
Entitlements. If a Vendor entitles an individual to receive a type of
NYSE Arca Market Data over a Subscriber device that is dedicated to
that individual, the Vendor should count that as one Subscriber
Entitlement, not two.
b. The NYSE Arca BBO Service
    The NYSE Arca BBO Service is a new NYSE Arca-only market data
service that allows a vendor to redistribute on a real-time basis the
same best-bid-and-offer information that NYSE Arca reports under the CQ
Plan and the Nasdaq/UTP Plan for inclusion in the those Plans'
consolidated quotation information data streams (``NYSE Arca BBO
Information''). NYSE Arca BBO Information would include the best bids
and offers for all securities that are traded on the Exchange and for
which NYSE Arca reports quotes under the CQ Plan or the Nasdaq/UTP
Plan. NYSE Arca will make the NYSE Arca BBO service available over a
single datafeed, regardless of the markets on which the securities are
listed.
    The NYSE Arca BBO Service would allow vendors, broker-dealers,
private network providers and other entities (``NYSE Arca-Only
Vendors'') to make available NYSE Arca BBO Information on a real-time
basis. NYSE Arca-Only Vendors may distribute the NYSE Arca BBO Service
to both professional and nonprofessional subscribers.
    The Exchange would make NYSE Arca BBO Information available through
its new NYSE Arca BBO Service no earlier than it makes that information
available to the processor under the CQ Plan or the Nasdaq/UTP Plan, as
applicable.
c. NYSE Arca BBO Service Fees
i. Access Fee
    For the receipt of access to the NYSE Arca BBO datafeed, the
Exchange proposes to charge $750 per month. NYSE Arca also currently
charges $750 for access to the NYSE Arca Trades datafeed. However, one
$750 monthly access fee entitles an NYSE Arca-Only Vendor to receive
both the NYSE Arca BBO datafeed as well as the Exchange's NYSE Arca
Trades datafeed. The fee applies to receipt of NYSE Arca Market Data
within the Vendor's organization or outside of it.
ii. Professional Subscriber Fee
    For the receipt and use of NYSE Arca BBO Information, the Exchange
proposes to charge $10 per month per professional subscriber device.
    In addition, the Exchange proposes to offer an alternative
methodology to the traditional device fee. Instead of charging $10 per
month per device, it proposes to offer Vendors the option of paying $10
per month per ``Subscriber Entitlement''.
    The fee entitles the end-user to receive and use NYSE Arca BBO
Information relating to all securities traded on NYSE Arca, regardless
of the market on which a security is listed.
    For the purpose of calculating Subscriber Entitlements, the
Exchange proposes to adopt the unit-of-count methodology that the
Commission approved earlier this year in approving the Unit-of-Count
Filing and that the Exchange has proposed to adopt for the NYSE Arca
Trades Service, as described above.
iii. Nonprofessional Subscriber Fees
    The Exchange proposes to charge each NYSE Arca-Only Vendor $5.00
per month for each nonprofessional subscriber to whom it provides NYSE
Arca BBO Information. The Exchange proposes to impose the charge on the
NYSE Arca-Only Vendor, rather than on the nonprofessional Subscriber.
At this time, the Exchange does not propose to establish a
nonprofessional subscriber fee for NYSE Arca Last Sale Information
because the Exchange has recently submitted to the Commission an
inexpensive alternative to that product, the NYSE Arca Realtime
Reference Prices service.\6\
---------------------------------------------------------------------------

    \6\ See Release No. 34-61404; 75 FR 5363 (February 2, 2010);
File No. SR-NYSEArca-2009-85.
---------------------------------------------------------------------------

    In addition, the Exchange proposes to establish as an alternative
to the fixed $5.00 monthly fee a fee of $.005 for each response that a
NYSE Arca-Only Vendor disseminates to a nonprofessional Subscriber's
inquiry for a best bid or offer under the NYSE Arca BBO service. The
Exchange proposes to limit a NYSE Arca-Only Vendor's exposure under
this alternative fee. It proposes to set at $5.00 per month, the same
amount as the proposed fixed monthly nonprofessional Subscriber flat
fee, as the maximum fee that a NYSE Arca-Only Vendor would have to pay
in respect of each nonprofessional Subscriber for the receipt of the
NYSE Arca BBO service in any calendar month.
    In order to take advantage of the per-query fee, a NYSE Arca-Only
Vendor must document in its Exhibit A that it has the ability to
measure accurately the number of queries from each nonprofessional
Subscriber and must have the ability to report aggregate query
quantities on a monthly basis.
    The Exchange will impose the per-query fee only on the
dissemination of best bids and offers to nonprofessional Subscribers.
The per-query charge is imposed on NYSE Arca-Only Vendors, not end-
users, and is payable on a monthly basis. NYSE Arca-Only Vendors may
elect to disseminate the NYSE Arca BBO service pursuant to the per-
query fee rather than the fixed monthly fee.
    In establishing nonprofessional Subscriber fees for the NYSE Arca
BBO Service, the Exchange proposes to apply the same criteria for
qualification as a ``nonprofessional subscriber'' as the CTA and CQ
Plan Participants use. As is true under the CTA and CQ Plans,
classification as a nonprofessional subscriber is subject to Exchange
review and requires the subscriber to attest to his or her
nonprofessional subscriber status. A ``nonprofessional subscriber'' is
a natural person who uses the data solely for his personal, non-
business use and who is neither:
    A. Registered or qualified with the Securities and Exchange
Commission, (``SEC''), the Commodities Futures Trading Commission, any
State securities agency, any securities exchange or association, or any
commodities or futures contract market or association,
    B. Engaged as an ``investment adviser'' as that term is defined in
Section 202(a)(11) of the Investment Advisors Act of 1940 (whether or
not registered or qualified under that act), nor
    C. Employed by a bank or other organization exemption from
registration under Federal and/or State securities laws to perform
functions that would require him/her to be so registered or qualified
if he/she were to perform such function for an organization not so
exempt.
d. Justification of Fees
    The proposed monthly access fee, professional subscriber fee and
nonprofessional subscriber fees for the NYSE Arca BBO Service, and the

proposed combining of the fees for the NYSE Arca Trades Service, enable
NYSE Arca-Only Vendors and their subscribers to contribute to the
Exchange's operating costs in a manner that is appropriate for the
distribution of NYSE Arca Market Data in the form taken by the two
services.
    In setting the level of the proposed fees, the Exchange took into
consideration several factors, including:
    (i) NYSE Arca's expectation that the NYSE Arca Trades Service and
NYSE Arca BBO Services are likely to be premium services, taken by
investors most concerned with receiving NYSE Arca Market Data on a low
latency basis;
    (ii) The fees that Nasdaq, NYSE, NYSE Amex and the Participants in
the CTA, CQ and Nasdaq/UTP Plans are charging for similar services (or
that NYSE Arca anticipates they will soon propose to charge);
    (iii) Consultation with some of the entities that the Exchange
anticipates will be the most likely to take advantage of the proposed
service;
    (iv) The contribution of market data revenues that the Exchange
believes is appropriate for entities that are most likely to take
advantage of the proposed service;
    (v) The contribution that revenues accruing from the proposed fee
will make to meet the overall costs of the Exchange's operations;
    (vi) The savings in administrative and reporting costs that the
NYSE Arca Trades Service and NYSE Arca BBO Service will provide to NYSE
Arca-Only Vendors (relative to counterpart services under the CTA, CQ
and Nasdaq/UTP Plans); and
    (vii) The fact that the proposed fees provide alternatives to
existing fees under the CTA, CQ and Nasdaq/UTP Plans, alternatives that
vendors will purchase only if they determine that the perceived
benefits outweigh the cost.
    The Exchange believes that the levels of the fees are consistent
with the approach set forth in the order by which the Commission
approved ArcaBook fees for NYSE Arca.\7\ In the ArcaBook Approval
Order, the Commission stated that ``when possible, reliance on
competitive forces is the most appropriate and effective means to
assess whether the terms for the distribution of non-core data are
equitable, fair and reasonable, and not unreasonably discriminatory.''
\8\ It noted that if significant competitive forces apply to a
proposal, the Commission would approve it unless a substantial
countervailing basis exists.
---------------------------------------------------------------------------

    \7\ See Release No. 59039 (December 2, 2008), 73 FR 74770
(December 9, 2008) (SR-NYSE ArcaArca-2006-21) (the ``ArcaBook
Approval Order'').
    \8\ Id. at 74771.
---------------------------------------------------------------------------

    NYSE Arca BBO Information constitutes ``non-core data.'' The
Exchange does not require a central processor to consolidate and
distribute the product to the public pursuant to joint-SRO plans.
Rather, the Exchange distributes the product voluntarily.
    In the case of the NYSE Arca BBO Service and the NYSE Arca Trades
Service, both of the two types of competitive forces that the
Commission described in the ArcaBook Approval Order are present: The
Exchange has a compelling need to attract order flow and the product
competes with a number of alternative products.
    The Exchange must compete vigorously for order flow to maintain its
share of trading volume. This requires the Exchange to act reasonably
in setting market data fees for non-core products such as the NYSE Arca
BBO Service. The Exchange hopes that the proposed NYSE Arca BBO Service
will enable vendors to distribute NYSE Arca BBO Information widely
among investors, and thereby provide a means for promoting the
Exchange's visibility in the marketplace.
    In addition to the need to attract order flow, the availability of
alternatives to the NYSE Arca BBO Service and the NYSE Arca Trades
Service significantly constrain the prices at which the Exchange can
market those services. All national securities exchanges, the several
Trade Reporting Facilities of FINRA, ECNs that produce proprietary
data, as well as the core data feed under the CQ Plan, are all sources
of competition for the NYSE Arca BBO Service and the NYSE Arca Trades
Service. Currently:
    (i) Nasdaq offers its last sale information and best-bid-and-offer
information under services that would provide an alternative to the
proposed NYSE Arca services;
    (ii) NYSE offers last sale information in services that are
substantially similar to the NYSE Arca Trades Service and NYSE Arca
anticipates that NYSE Amex will soon do so too; and
    (iii) The Exchange anticipates that NYSE and NYSE Amex will soon
propose to provide best-bid-and-offer services that are substantially
similar to the NYSE Arca BBO Service.
    As an alternative, investors can receive NYSE Arca BBO Information
from ArcaBook. The information available in the NYSE Arca Trade Service
or the NYSE Arca BBO Service is also included in the calculation of the
consolidated last sale price information and best-bid-and-offer
calculations under the CTA, CQ and Nasdaq/UTP Plans, which comprise
core datafeeds. Investors may select the NYSE Arca Trade Service or the
NYSE Arca BBO Service as less expensive alternatives to the CTA, CQ and
Nasdaq/UTP Plans' consolidated data streams for certain purposes. (Rule
603(c) of Regulation NMS requires vendors to make the consolidated,
core datafeeds available to customers when trading and order-routing
decisions can be implemented.)
e. Administrative Requirements
    In regard to NYSE Arca BBO Information, the Exchange will require
each Vendor to enter into the form of ``vendor'' agreement into which
the CTA and CQ Plans require recipients of the Network A datafeeds to
enter (the ``Consolidated Vendor Form''). That agreement will authorize
the Vendor to provide NYSE Arca BBO Information to its customers or to
distribute the data internally.
    In addition, the Exchange will require each professional end-user
that receives NYSE Arca BBO Information from a vendor or broker-dealer
to enter into the form of professional subscriber agreement into which
the CTA and CQ Plans require end users of Network A data to enter. It
will also require Vendors to subject nonprofessional subscribers to the
same contract requirements as the CTA and CQ Plan Participants require
of Network A nonprofessional subscribers. The Network A Participants
submitted the Consolidated Vendor Form and the professional subscriber
form to the Commission for comment and notice.\9\
---------------------------------------------------------------------------

    \9\ See Securities Exchange Act Release Nos. 34-22851 (January
31, 1986), 34-28407 (September 10, 1990), 34-49185 (February 4,
2004), and 34-22851 (January 31, 1986).
---------------------------------------------------------------------------

2. Statutory Basis
    The bases under the Securities Exchange Act of 1934 (the ``Act'')
for the proposed rule change are the requirement under Section 6(b)(4)
\10\ that an exchange have rules that provide for the equitable
allocation of reasonable dues, fees and other charges among its members
and other persons using its facilities and the requirements under
Section 6(b)(5) \11\ that the rules of an exchange be designed to
promote just and equitable principles of trade and not to permit unfair
discrimination between customers, issuers, brokers or dealers.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b)(4).
    \11\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The proposed rule change would benefit investors by facilitating
their prompt access to real-time best-bid-and-offer information
contained in the NYSE Arca BBO Service and by providing a

modern methodology alternative for counting fee-liable units. In
addition, the Exchange believes that the proposed fee would allow
entities that are most likely to take advantage of the proposed service
to make an appropriate contribution towards meeting the overall costs
of the Exchange's operations.
    The Exchange notes that Nasdaq, NYSE and NYSE Amex already impose
charges for services that are similar to the NYSE Arca Trades service
and Nasdaq already imposes charges for services that are similar to the
NYSE Arca BBO service. NYSE Arca anticipates NYSE and NYSE Arca will
soon propose to establish fees for best-bid-and-offer services that are
substantially similar to the NYSE Arca BBO service. Thus, the
Exchange's proposed fees offer any vendor that wishes to provide its
customers with a single market's last sale information or best-bid-and-
offer information (as opposed to a more expensive consolidated last
sale or quotation information service) an alternative to Nasdaq, NYSE
and NYSE Amex.

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

    The NYSE Arca BBO Service proposes to provide an alternative to
existing services that the Participants make available under the CQ
Plan. The proposed fees do not alter or rescind any existing fees. In
addition, it amounts to a competitive response to the products that
Nasdaq, NYSE and NYSE Amex make available or will soon make available.
For those reasons, 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.

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

    The Exchange has discussed the proposed rules change with those
entities that the Exchange believes would be the most likely to take
advantage of the proposed NYSE Arca BBO Service by becoming NYSE Arca-
Only Vendors. While those entities have not submitted formal, written
comments on the proposal, the Exchange has incorporated some of their
ideas into the proposal and the proposed rule change reflects their
input. 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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.

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-NYSEArca-2010-23 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSEArca-2010-23. 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, 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. 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-
NYSEArca-2010-23 and should be submitted on or before May 14, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
---------------------------------------------------------------------------

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

Elizabeth M. Murphy,
Secretary.
[FR Doc. 2010-9401 Filed 4-22-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 63 (Tuesday, April 2, 2019)]
[Rules and Regulations]
[Pages 12511-12513]
[FR Doc No: 2019-06294]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2017-0094; FRL-9991-50-Region 2]

Approval and Promulgation of Implementation Plans: New York Ozone
Section 185

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency is finalizing approval of
the State of New York's Low Emissions Vehicle program as an alternative
program to fulfill the Clean Air Act section 185 requirement for the
New York portion of the New York-Northern New Jersey-Long Island, NY-
NJ-CT nonattainment area for the revoked 1979 1-hour ozone National
Ambient Air Quality Standard. Clean Air Act section 185 requires fees
to be paid by major sources located in ozone nonattainment areas
classified as Severe or Extreme that have failed to attain the National
Ambient Air Quality Standard by the required attainment date. The State
of New York's Low Emissions Vehicle program is being approved as an
alternate program because the reductions achieved by the program are at
least equivalent to the reductions associated with the Clean Air Act
section 185 fee program required for the New York portion of the NY-NJ-
CT nonattainment area.

DATES: This rule is effective on May 2, 2019.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R02-OAR-2017-0094. All documents in the docket are
listed on the www.regulations.gov website. Although listed in the
index, some information is not publicly available, e.g., confidential
business information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available through www.regulations.gov, or please contact the person
identified in the For Further Information Contact section for
additional availability information.

FOR FURTHER INFORMATION CONTACT: Gavin Lau, Environmental Protection
Agency, Air Programs Branch, 290 Broadway, 25th Floor, New York, NY
10007-1866,<PHONE_NUMBER>, or by email at [email protected].

SUPPLEMENTARY INFORMATION:
I. What action is the EPA taking?
II. What comments were received in response to the EPA's proposed
action?
III. What is the EPA's conclusion?
IV. Statutory and Executive Order Reviews

I. What action is the EPA taking?

    The Environmental Protection Agency (EPA) is approving the State of
New York's Low Emissions Vehicle (LEV II) program as an alternative
program to fulfill the Clean Air Act (CAA) section 185 requirement for
the New York portion of the New York-Northern New Jersey-Long Island,
NY-NJ-CT nonattainment area for the revoked 1979 1-hour ozone National
Ambient Air Quality Standard (NAAQS). The LEV II program will be
incorporated into the federally enforceable SIP as an alternative CAA
section 185 program. The reader is referred to the proposed rulemaking
on this action published in the Federal Register (FR) on December 6,
2018 (83 FR 62771) for additional details.

II. What comments were received in response to the EPA's proposed
action?

    The EPA received two comments in response to the EPA's December 6,
2018 proposed action. After reviewing the comments, the EPA has
determined that the comments are generally in support of the EPA's
proposed action. The comments also raise issues that are not germane to
the EPA's proposed action and do not explain or provide a legal basis
for how the proposed action should differ in any way. For this reason,
the EPA will not provide a specific response to the comments and we are
finalizing the action as proposed. The comments may be viewed under
Docket ID Number EPA-R02-OAR-2017-0094 on the http://www.regulations.gov website.

III. What is the EPA's conclusion?

    The EPA has determined that New York's LEV II program is an
approvable alternative program no less stringent than the program
required by CAA section 185, consistent with the principles of CAA
section 172(e). CAA section 172(e) provides that when the Administrator
relaxes a NAAQS, the EPA must ensure that all areas which have not
attained that NAAQS maintain ``controls which are not less stringent
than the controls applicable to areas designated nonattainment before
such relaxation.'' CAA section 185 fee program requirements apply to
ozone nonattainment areas classified as Severe or Extreme that fail to
attain by the required attainment date. The requirements of CAA section
185 were applicable to the NY-NJ-CT nonattainment area for 2008 and
2009 since the area failed to attain the 1-hour ozone NAAQS by its
attainment data. The NY-NJ-CT area later was determined to attain the
1-hour ozone NAAQS for 2008-2010 (77 FR 36163). Consistent with the
principles of CAA section 172(e), a state can meet the 1-hour ozone
section 185 obligation through either the fee program prescribed in
section 185 of the CAA or an equivalent alternative program, if the
state demonstrates that the alternative is not less stringent than the
otherwise applicable section 185 fee program. The EPA has determined
that the New York State Department of Environmental Conservation, on
behalf of the State of New York, demonstrated that New York's LEV II
program provided emission reductions no less stringent than a CAA
section 185 fee program for 2008 and 2009 and that it is an approvable
equivalent alternative program to fulfill the Clean Air Act section 185
requirement for the New York portion of the New York-Northern New
Jersey-Long Island, NY-NJ-CT nonattainment area for the revoked 1979 1-
hour ozone NAAQS. New York's LEV II emission standards continue to be
in place and achieve reductions in VOC and NOX emissions.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 3, 2019. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed

and shall not postpone the effectiveness of such rule or action. This
action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

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

    Dated: March 18, 2019.
Peter D. Lopez,
Regional Administrator, Region 2.

    Part 52 chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart HH--New York

0
2. In Sec.  52.1670, the table in paragraph (e) is amended by adding
the entry ``Section 185 fee program'' at the end of the table to read
as follows:

Sec.  52.1670   Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographic or         New York
       Action/SIP element          nonattainment      submittal date   EPA approval date        Explanation
                                        area
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Section 185 fee program........  State-wide.......  1/31/2014,         4/2/2019, [insert  Approval of the Low
                                                     supplemented on    Federal Register   Emissions Vehicle
                                                     4/7/2014, 10/13/   citation].         Program (LEV II) as
                                                     2016, and 4/3/                        an alternative
                                                     2018.                                 section 185 fee
                                                                                program
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  52.1683, add paragraph (r) to read as follows:

Sec.  52.1683   Control strategy: Ozone.

* * * * *
    (r) New York's Section 185 Equivalency Demonstration State
Implementation Plan revision submittal on January 31, 2014, and
supplemented on April 7, 2014, October 13, 2016, and April 3, 2018, for
the use of the State of New York's Low Emissions Vehicle (LEV II)
program as an alternative program to fulfill the Clean Air Act section
185 requirement for the New York portion of the New York-Northern New
Jersey-Long Island, NY-NJ-CT nonattainment area for the revoked 1979 1-
hour ozone National Ambient Air Quality Standard is approved.

[FR Doc. 2019-06294 Filed 4-1-19; 8:45 a.m.]
 BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 126 (Friday, July 1, 2022)]
[Notices]
[Pages 39511-39517]
[FR Doc No: 2022-14108]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2016-0743; FRL-9943-01-OCSPP]

n-Methylpyrrolidone (NMP); Draft Revision to Toxic Substances
Control Act (TSCA) Risk Determination; Notice of Availability and
Request for Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The Environmental Protection Agency (EPA) is announcing the
availability of and seeking public comment on a draft revision to the
risk determination for the n-methylpyrrolidone (NMP) risk evaluation
issued under TSCA. The draft revision to the NMP risk determination
reflects the announced policy changes to ensure the public is protected
from unreasonable risks from chemicals in a way that is supported by
science and the law. In this draft revision to the risk determination
EPA finds that NMP, as a whole chemical substance, presents an
unreasonable risk of injury to health when evaluated under its
conditions of use. In addition, this draft revised risk determination
does not reflect an assumption that all workers always appropriately
wear personal protective equipment (PPE). EPA understands that there
could be occupational safety protections in place at workplace
locations; however, not assuming use of PPE reflects EPA's recognition
that unreasonable risk may exist for subpopulations of workers that may
be highly exposed because they are not covered by OSHA standards, or
their employers are out of compliance with OSHA standards, or because
OSHA has not issued a permissible exposure limit (PEL) (as is the case
for NMP). This revision, when final, would supersede the condition of
use-specific no unreasonable risk determinations in the December 2020
NMP risk evaluation (and withdraw the associated order) and would make
a revised determination of unreasonable risk for NMP as a whole
chemical substance.

DATES: Comments must be received on or before August 1, 2022.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-EPA-HQ-OPPT-2016-0743, using the Federal eRulemaking
Portal at https://www.regulations.gov. Follow the online instructions
for submitting comments. Do not submit electronically any information
you consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Additional
instructions on commenting and visiting the docket, along with more
information about dockets generally, is available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:
    For technical information contact: Clara Hull, Office of Pollution
Prevention and Toxics (7404M), Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number:
(202) 564-3954; email address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Does this action apply to me?

    This action is directed to the public in general. This action may,
however, be of interest to those involved in the manufacture,
processing, distribution, use, disposal, and/or the assessment of risks
involving chemical substances and mixtures. You may be potentially
affected by this action if you manufacture (defined under TSCA to
include import), process (including recycling), distribute in commerce,
use or dispose of NMP, including NMP in products. Since other entities
may also be interested in this draft revision to the risk
determination, EPA has not attempted to describe all the specific
entities that may be affected by this action.

B. What is EPA's authority for taking this action?

    TSCA section 6, 15 U.S.C. 2605, requires EPA to conduct risk
evaluations to determine whether a chemical substance presents an
unreasonable risk of injury to health or the environment, without
consideration of costs or other non-risk factors, including an
unreasonable risk to a potentially exposed or susceptible subpopulation
(PESS) identified as relevant to the risk evaluation by the
Administrator, under the conditions of use. 15 U.S.C. 2605(b)(4)(A).
TSCA sections 6(b)(4)(A) through (H) enumerate the deadlines and
minimum requirements applicable to this process, including provisions
that provide instruction on chemical substances that must undergo
evaluation, the minimum components of a TSCA risk evaluation, and the
timelines for public comment and completion of the risk evaluation.
TSCA also requires that EPA operate in a manner that is consistent with
the best available science, make decisions based on the weight of the
scientific evidence, and consider reasonably available information. 15
U.S.C. 2625(h), (i), and (k).
    The statute identifies the minimum components for all chemical
substance risk evaluations. For each risk evaluation, EPA must publish
a document that outlines the scope of the risk evaluation to be
conducted, which includes the hazards, exposures, conditions of use,
and the potentially exposed or susceptible subpopulations that EPA
expects to consider. 15 U.S.C. 2605(b)(4)(D). The statute further
provides that each risk evaluation must also: (1) integrate and assess
available information on hazards and exposures for the conditions of
use of the chemical substance, including information that is relevant
to specific risks of injury to health or the environment and
information on relevant potentially exposed or susceptible
subpopulations; (2) describe whether aggregate or sentinel exposures
were considered and the basis for that consideration; (3) take into
account, where relevant, the likely duration, intensity, frequency, and
number of exposures under the conditions of use; and (4) describe the
weight of the scientific evidence for the identified hazards and
exposures. 15 U.S.C. 2605(b)(4)(F)(i) through (ii) and (iv) through
(v). Each risk evaluation must not consider costs or other non-risk
factors. 15 U.S.C. 2605(b)(4)(F)(iii).
    EPA has inherent authority to reconsider previous decisions and to
revise, replace, or repeal a decision to the extent permitted by law
and supported by reasoned explanation. FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009); see also Motor Vehicle Mfrs. Ass'n v.
State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983). Pursuant to
such authority, EPA is reconsidering the risk determinations in the
December 2020 NMP Risk Evaluation.

C. What action is EPA taking?

    EPA is announcing the availability of and seeking public comment on
a draft revision to the risk determination for the risk evaluation for
NMP under TSCA, which was initially published in December 2020 (Ref.
1). EPA is specifically seeking public comment on the draft revision to
the risk determination for the risk evaluation where the agency intends
to determine that NMP, as a whole chemical, presents an unreasonable
risk of injury to health when evaluated under its conditions of use.
The Agency's risk determination for NMP is better characterized as a
whole chemical risk determination rather than condition-of-use-specific
risk determinations. Accordingly, EPA would revise and replace section
5 of the risk evaluation for NMP where the findings of unreasonable
risk to health were previously made for the individual conditions of
use evaluated. EPA would also withdraw the order issued previously for
11 conditions of use previously determined not to present unreasonable
risk.
    This revision would be consistent with EPA's plans to revise
specific aspects of the first ten TSCA chemical risk evaluations in
order to ensure that the risk evaluations better align with TSCA's
objective of protecting health and the environment. Under the draft
revision, removing the assumption that workers always and appropriately
wear PPE (see Unit II.C.) in making the whole chemical risk
determination for NMP would result in three additional conditions of
use to the original 26 driving the unreasonable risk determination for
NMP. Additionally, for five conditions of use, acute effects in
addition to chronic effects would now drive the unreasonable risk to
workers. Overall, 29 of the 37 conditions of use EPA evaluated would
drive the NMP whole chemical unreasonable risk determination due to
risks identified for human health. The full list of the conditions of
use evaluated for the NMP TSCA risk evaluation is in Table 1-6 of the
risk evaluation (Ref. 2).

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

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed CBI. In addition to one complete
version of the comment that includes information claimed as CBI, a copy
of the comment that does not contain the information claimed as CBI
must be submitted for inclusion in the public docket. Information so
marked will not be disclosed except in accordance with procedures set
forth in 40 CFR part 2.
    2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at https://www.epa.gov/dockets/comments.html.

II. Background

A. Why is EPA re-issuing the risk determination for the NMP risk
evaluation conducted under TSCA?

    In 2016, as directed by TSCA section 6(b)(2)(A), EPA chose the
first ten chemical substances to undergo risk evaluations under the
amended TSCA. These chemical substances are asbestos, 1-bromopropane,
carbon tetrachloride, C.I. Pigment Violet 29, HBCD, 1,4-dioxane,
methylene chloride, NMP, perchloroethylene (PCE), and trichloroethylene
(TCE).
    From June 2020 to January 2021, EPA published risk evaluations on
the first ten chemical substances, including for NMP in December 2020.
The risk evaluations included individual unreasonable risk
determinations for each condition of use evaluated. EPA issued
determinations that particular conditions of use did not present an
unreasonable risk by order under TSCA section 6(i)(1).
    In accordance with Executive Order 13990 (Ref. 3) and other
Administration priorities (Refs. 4, 5, and 6), EPA reviewed the risk
evaluations for the first ten chemical substances, including NMP, to
ensure that they meet the requirements of TSCA, including conducting
decision making in a manner that is consistent with the best available
science.
    As a result of this review, EPA announced plans to revise specific
aspects of the first ten risk evaluations in order to ensure that the
risk evaluations appropriately identify

unreasonable risks and thereby help ensure the protection of human
health and the environment (Ref. 7). To that end, EPA is reconsidering
two key aspects of the risk determinations for NMP published in
December 2020. First, following a review of specific aspects of the
December 2020 NMP risk evaluation, EPA proposes that making an
unreasonable risk determination for NMP as a whole chemical substance,
rather than making unreasonable risk determinations separately on each
individual condition of use evaluated in the risk evaluation, is the
most appropriate approach to NMP under the statute and implementing
regulations. Second, EPA proposes that the risk determination should be
explicit that it does not rely on assumptions regarding the use of
personal protective equipment (PPE) in making the unreasonable risk
determination under TSCA section 6, even though some facilities might
be using PPE as one means to reduce workers exposures; rather, the use
of PPE would be considered during risk management as appropriate.
    Separately, EPA is conducting a screening approach to assess
potential risks from the air and water pathways for several of the
first 10 chemicals, including this chemical. For NMP the exposure
pathways that were or could be regulated under another EPA administered
statute were not fully assessed as part of the final risk evaluation
(see section 1.4.2 of the December 2020 NMP risk evaluation). During
problem formulation, EPA conducted a first-tier screening analysis for
the ambient air pathway to near-field populations downwind from
industrial and commercial facilities releasing NMP which indicated low
risk. In the final risk evaluation EPA conducted a first-tier analysis
to estimate NMP surface water concentrations and did not identify risks
from incidental ingestion or dermal contact during swimming. This
resulted in the ambient air and drinking water pathways for NMP not
being fully assessed in the risk evaluation published in December 2020.
The goal of the recently-developed screening approach is to provide for
a more robust assessment of these pathways for NMP and to identify if
there are risks that were unaccounted for in the NMP risk evaluation.
While this analysis is underway, EPA is not incorporating the
screening-level approach into this draft revised unreasonable risk
determination. If the results suggest there is additional risk, EPA
will determine if the risk management approaches being contemplated for
NMP will protect against these risks or if the risk evaluation will
need to be formally supplemented or revised.
    This action pertains only to the risk determination for NMP. While
EPA intends to consider and may take additional similar actions on
other of the first ten chemicals, EPA is taking a chemical-specific
approach to reviewing the risk evaluations and is incorporating new
policy direction in a surgical manner, while being mindful of the
Congressional direction on the need to complete risk evaluations and
move toward any associated risk management activities in accordance
with statutory deadlines.

B. What is a whole chemical view of the unreasonable risk determination
for the NMP risk evaluation?

    TSCA section 6 repeatedly refers to determining whether a chemical
substance presents unreasonable risk under its conditions of use.
Stakeholders have disagreed over whether a chemical substance should
receive: A single determination that is comprehensive for the chemical
substance after considering the conditions of use, referred to as a
whole-chemical determination; or multiple determinations, each of which
is specific to a condition of use, referred to as condition-of-use-
specific determinations.
    The proposed risk evaluation procedural rule was premised on the
whole chemical approach to making an unreasonable risk determination
(Ref. 8). In that proposed rule, EPA acknowledged a lack of specificity
in statutory text that might lead to different views about whether the
statute compelled EPA's risk evaluations to address all conditions of
use of a chemical substance or whether EPA had discretion to evaluate
some subset of conditions of use (i.e., to scope out some
manufacturing, processing, distribution in commerce, use, or disposal
activities), but also stated that ``EPA believes the word `the' (in
TSCA section 6(b)(4)(A)) is best interpreted as calling for evaluation
that considers all conditions of use.'' (Ref. 8).
    The proposed rule, however, was unambiguous on the point that an
unreasonable risk determination would be for the chemical substance as
a whole, even if based on a subset of uses. (See Ref. 8 at pgs. 7565-
66: ``TSCA section 6(b)(4)(A) specifies that a risk evaluation must
determine whether `a chemical substance' presents an unreasonable risk
of injury to health or the environment `under the conditions of use.'
The evaluation is on the chemical substance--not individual conditions
of use--and it must be based on `the conditions of use.' In this
context, EPA believes the word `the' is best interpreted as calling for
evaluation that considers all conditions of use.''). In the proposed
regulatory text, EPA proposed to determine whether the chemical
substance presents an unreasonable risk of injury to health or the
environment under the conditions of use (Ref. 8 at pg. 7480).
    The final risk evaluation procedural rule (Ref. 9) stated: ``As
part of the risk evaluation, EPA will determine whether the chemical
substance presents an unreasonable risk of injury to health or the
environment under each condition of uses [sic] within the scope of the
risk evaluation, either in a single decision document or in multiple
decision documents.'' (See also 40 CFR 702.47). For the unreasonable
risk determinations in the first ten risk evaluations, EPA applied this
provision by making individual risk determinations for each condition
of use evaluated in each risk evaluation (i.e., the condition-of-use-
specific approach to risk determinations). That approach was based on
one particular passage in the preamble to the final risk evaluation
procedural rule, which stated that EPA will make individual risk
determinations for all conditions of use identified in the scope. (Ref.
9 at pg. 33744).
    In contrast to this portion of the preamble of the final risk
evaluation procedural rule, the regulatory text itself and other
statements in the preamble reference a risk determination for the
chemical substance under its conditions of use, rather than separate
risk determinations for each of the conditions of use of a chemical
substance. In the key regulatory provision excerpted earlier from 40
CFR 702.47, the text explains that ``[a]s part of the risk evaluation,
EPA will determine whether the chemical substance presents an
unreasonable risk of injury to health or the environment under each
condition of uses [sic] within the scope of the risk evaluation, either
in a single decision document or in multiple decision documents'' (Ref.
9, emphasis added). Other language reiterates this perspective. For
example, 40 CFR 702.31(a) states that the purpose of the rule is to
establish the EPA process for conducting a risk evaluation to determine
whether a chemical substance presents an unreasonable risk of injury to
health or the environment as required under TSCA section 6(b)(4)(B).
Likewise, there are recurring references to whether the chemical
substance presents an unreasonable risk

in 40 CFR 702.41(a). See, for example, 40 CFR 702.41(a)(6), which
explains that the extent to which EPA will refine its evaluations for
one or more condition of use in any risk evaluation will vary as
necessary to determine whether a chemical substance presents an
unreasonable risk. Notwithstanding the one preambular statement about
condition-of-use-specific risk determinations, the preamble to the
final rule also contains support for a risk determination on the
chemical substance as a whole. In discussing the identification of the
conditions of use of a chemical substance, the preamble notes that this
task inevitably involves the exercise of discretion on EPA's part, and
``as EPA interprets the statute, the Agency is to exercise that
discretion consistent with the objective of conducting a technically
sound, manageable evaluation to determine whether a chemical
substance--not just individual uses or activities--presents an
unreasonable risk.'' (Ref. 8 at pg. 33729).
    Therefore, notwithstanding EPA's choice to issue condition-of-use-
specific risk determinations to date, EPA interprets its risk
evaluation regulation to also allow the Agency to issue whole-chemical
risk determinations. Either approach is permissible under the
regulation. A panel of the Ninth Circuit Court of Appeals also
recognized the ambiguity of the regulation on this point. Safer
Chemicals v. EPA, 943 F.3d 397, 413 (9th Cir. 2019) (holding a
challenge about ``use-by-use risk evaluations [was] not justiciable
because it is not clear, due to the ambiguous text of the Risk
Evaluation Rule, whether the Agency will actually conduct risk
evaluations in the manner Petitioners fear'').
    EPA plans to consider the appropriate approach for each chemical
substance risk evaluation on a case-by-case basis, taking into account
considerations relevant to the specific chemical substance in light of
the Agency's obligations under TSCA. The Agency expects that this case-
by-case approach will provide greater flexibility in the Agency's
ability to evaluate and manage unreasonable risk from individual
chemical substances. EPA believes this is a reasonable approach under
TSCA and the Agency's implementing regulations.
    With regard to the specific circumstances of NMP, as further
explained in this notice, EPA proposes that a whole chemical approach
is appropriate for NMP in order to protect health and the environment.
The whole chemical approach is appropriate for NMP because there are
benchmark exceedances for multiple conditions of use (spanning across
most aspects of the chemical lifecycle--from manufacturing (including
import), processing, commercial and industrial use, consumer use, and
disposal) for health of workers and consumers and the irreversible
health effects (specifically developmental post implantation fetal loss
and reduced fertility and fecundity) associated with NMP exposures.
Because these chemical-specific properties cut across the conditions of
use within the scope of the risk evaluation, a substantial amount of
the conditions of use drive the unreasonable risk; therefore, it is
appropriate for the Agency to make a determination for NMP that the
whole chemical presents an unreasonable risk.
    As explained later in this document, the revisions to the
unreasonable risk determination (section 5 of the risk evaluation)
would be based on the existing risk characterization section of the
risk evaluation (section 4 of the risk evaluation) and would not
involve additional technical or scientific analysis. The discussion of
the issues presented in this Federal Register notice and in the
accompanying draft revision to the risk determination would supersede
any conflicting statements in the prior NMP risk evaluation and the
response to comments document (Ref. 10). With respect to the NMP risk
evaluation, EPA intends to change the risk determination to a whole
chemical approach without considering the use of PPE and does not
intend to amend, nor does a whole chemical approach require amending,
the underlying scientific analysis of the risk evaluation in the risk
characterization section of the risk evaluation. EPA views the peer
reviewed hazard and exposure assessments and associated risk
characterization as robust and upholding the standards of best
available science and weight of the scientific evidence per TSCA
sections 26(h) and (i).
    EPA is announcing the availability of and seeking public comment on
the draft superseding unreasonable risk determination for NMP,
including a description of the risks driving the unreasonable risk
determination under the conditions of use for the chemical substance as
a whole. For purposes of TSCA section 6(i), EPA is making a draft risk
determination on NMP as a whole chemical. Under the proposed revised
approach, the ``whole chemical'' risk determination for NMP would
supersede the no unreasonable risk determinations for NMP that were
premised on a condition-of-use-specific approach to determining
unreasonable risk. When finalized, EPA's revised unreasonable risk
determination would also contain an order withdrawing the TSCA section
6(i)(1) order in section 5.4.1 of the December 2020 NMP risk
evaluation.

C. What revision does EPA propose about the use of PPE for the NMP risk
evaluation?

    In the risk evaluations for the first ten chemical substances, as
part of the unreasonable risk determination, EPA assumed for several
conditions of use that all workers were provided and always used PPE in
a manner that achieves the stated assigned protection factor (APF) for
respiratory protection, or used chemically resistant gloves for dermal
protection. In support of this assumption, EPA considered reasonably
available information such as public comments indicating that some
employers, particularly in the industrial setting, provide PPE to their
employees and follow established worker protection standards (e.g.,
Occupational Safety and Health Administration (OSHA) requirements for
protection of workers).
    For the December 2020 NMP risk evaluation, EPA assumed based on
information provided by public comments and safety data sheets of NMP
that workers use PPE--specifically, respirators with an APF 10 and
gloves with a PF ranging from 5 to 10--for all occupational conditions
of use. In the December 2020 NMP risk evaluation, EPA determined that
there is unreasonable risk to these workers for 25 of the 28
occupational COUs even with this assumed PPE use.
    EPA is revising the assumption for NMP that workers always or
properly use PPE, although it does not question the public comments
received regarding the occupational safety practices often followed by
industry respondents. When characterizing the risk to human health from
occupational exposures during risk evaluation under TSCA, EPA believes
it is appropriate to evaluate the levels of risk present in baseline
scenarios where PPE is not assumed to be used by workers. This approach
of not assuming PPE use by workers considers the risk to potentially
exposed or susceptible subpopulations (workers and occupational non-
users) who may not be covered by OSHA standards, such as self-employed
individuals and public sector workers who are not covered by a State
Plan. It should be noted that, in some cases, baseline conditions may
reflect certain mitigation measures, such as engineering controls, in
instances where exposure estimates are based on

monitoring data at facilities that have engineering controls in place.
    In addition, EPA believes it is appropriate to evaluate the levels
of risk present in scenarios considering applicable OSHA requirements
(e.g., chemical-specific permissible exposure limits (PELs) and/or
chemical-specific PELs with additional substance-specific standards),
as well as scenarios considering industry or sector best practices for
industrial hygiene that are clearly articulated to the Agency.
Consistent with this approach, the December 2020 NMP risk evaluation
characterized risk to workers both with and without the use of PPE. By
characterizing risks using scenarios that reflect different levels of
mitigation, EPA risk evaluations can help inform potential risk
management actions by providing information that could be used during
risk management to tailor risk mitigation appropriately to address any
unreasonable risk identified, or to ensure that applicable OSHA
requirements or industry or sector best practices that address the
unreasonable risk are required for all potentially exposed or
susceptible subpopulations (including self-employed individuals and
public sector workers who are not covered by an OSHA State Plan).
    When undertaking unreasonable risk determinations as part of TSCA
risk evaluations, however, EPA does not believe it is appropriate to
assume as a general matter that an applicable OSHA requirement or
industry practices related to PPE use is consistently and always
properly applied. Mitigation scenarios included in the EPA risk
evaluation (e.g., scenarios considering use of various PPE) likely
represent what is happening already in some facilities. However, the
Agency cannot assume that all facilities have adopted these practices
for the purposes of making the TSCA risk determination.
    Therefore, EPA proposes to make a determination of unreasonable
risk for NMP from a baseline scenario that does not assume compliance
with OSHA standards, including any applicable exposure limits or
requirements for use of respiratory protection or other PPE. Making
unreasonable risk determinations based on the baseline scenario should
not be viewed as an indication that EPA believes there are no
occupational safety protections in place at any location, or that there
is widespread non-compliance with applicable OSHA standards. Rather, it
reflects EPA's recognition that unreasonable risk may exist for
subpopulations of workers that may be highly exposed because they are
not covered by OSHA standards, such as self-employed individuals and
public sector workers who are not covered by a State Plan, or because
their employer is out of compliance with OSHA standards, or because EPA
finds unreasonable risk for purposes of TSCA notwithstanding OSHA
requirements.
    In accordance with this approach, EPA is proposing the draft
revision to the NMP risk determination without relying on assumptions
regarding the occupational use of PPE in making the unreasonable risk
determination under TSCA section 6; rather, information on the use of
PPE as a means of mitigating risk (including public comments received
from industry respondents about occupational safety practices in use)
would be considered during the risk management phase as appropriate.
This would represent a change from the approach taken in the 2020 risk
evaluation for NMP and EPA invites comments on this draft change to the
NMP risk determination. As a general matter, when undertaking risk
management actions, EPA intends to strive for consistency with
applicable OSHA requirements and industry best practices, including
appropriate application of the hierarchy of controls, when those
measures would address an identified unreasonable risk, including
unreasonable risk to potentially exposed or susceptible subpopulations.
Consistent with TSCA section 9(d), EPA will consult and coordinate TSCA
activities with OSHA and other relevant Federal agencies for the
purpose of achieving the maximum applicability of TSCA while avoiding
the imposition of duplicative requirements. Informed by the mitigation
scenarios and information gathered during the risk evaluation and risk
management process, the Agency might propose rules that require risk
management practices that may be already common practice in many or
most facilities. Adopting clear, comprehensive regulatory standards
will foster compliance across all facilities (ensuring a level playing
field) and assure protections for all affected workers, especially in
cases where current OSHA standards may not apply or be sufficient to
address the unreasonable risk.
    Removing the assumption that workers always and appropriately wear
PPE in making the whole chemical risk determination for NMP would
result in three additional conditions of use driving EPA's unreasonable
risk determination for NMP as a whole chemical. The three conditions of
use affected by this change are: industrial and commercial use in ink,
toner, and colorant products; industrial and commercial use in other
uses in soldering materials; and industrial and commercial use in other
uses in fertilizer and other agricultural chemical manufacturing--
processing aids and solvents. Additionally, for five conditions of use,
acute effects in addition to chronic effects would now drive the
unreasonable risk to workers (the five conditions of use are:
processing for incorporation into articles in paint additives and
coating additives not described by other codes in transportation
equipment manufacturing; industrial and commercial use in paints,
coatings, and adhesive removers; industrial and commercial use in
paints and coatings in lacquers, stains, varnishes, primers, and floor
finishes, powder coatings (surface preparation); industrial and
commercial use paint additives and coating additives in multiple
manufacturing sectors; and industrial and commercial use in adhesives
and sealants including binding agents, single component glues and
adhesives, including lubricant additives, two-component glues, and
adhesives including some resins) (Ref. 1).
    The draft revision to the risk determination would clarify that EPA
does not rely on the assumed use of PPE when making the risk
determination for the whole substance. EPA is requesting comment on
this potential change.

D. What is NMP?

    NMP is a water-miscible, organic solvent that is often used as a
substitute for halogenated solvents. NMP exhibits a unique set of
physical and chemical properties that have proven useful in a range of
industrial, commercial, and consumer applications. NMP has a wide range
of uses, including in the production of paints and coatings, as a
solvent for cleaning and degreasing, and in the manufacture of
electronics. There are also a variety of consumer and commercial
products that contain NMP, such as adhesives and sealants, as well as
adhesive removers, automotive care products, and paints and coatings.
NMP is both manufactured domestically and imported into the United
States.

E. What conclusions did EPA reach about the risks of NMP in the 2020
TSCA risk evaluation and what conclusions is EPA proposing to reach
based on the whole chemical approach and not assuming the use of PPE?

    In the 2020 risk evaluation, EPA determined that NMP presents an
unreasonable risk to health under the following conditions of use:
     Domestic manufacture;
     Manufacture (import);

     Processing as a reactant or intermediate in plastic
material and resin manufacturing and other non-incorporative
processing;
     Processing for incorporation into a formulation, mixture,
or reaction product in multiple sectors;
     Processing for incorporation into articles--in lubricants
and lubricant additives in machinery manufacturing;
     Processing for incorporation into articles in paint
additives and coating additives not described by other codes in
transportation equipment manufacturing;
     Processing for incorporation into articles as a solvent
(which become part of product formulation or mixture), including in
textiles, apparel, and leather manufacturing;
     Processing for incorporation into articles in other
sectors, including in plastic product manufacturing;
     Processing in recycling;
     Processing for repackaging (wholesale and retail trade);
     Industrial and commercial use in paints, coatings, and
adhesive removers;
     Industrial and commercial use in paints and coatings in
lacquers, stains, varnishes, primers, and floor finishes, powder
coatings (surface preparation);
     Industrial and commercial use in paint additives and
coating additives not described by other codes in computer and
electronic product manufacturing in electronic parts manufacturing;
     Industrial and commercial use paint additives and coating
additives not described by other codes in computer and electronic
product manufacturing in semiconductor manufacturing;
     Industrial and commercial use paint additives and coating
additives in multiple manufacturing sectors;
     Industrial and commercial use as a solvent (for cleaning
or degreasing) in electrical equipment, appliance and component
manufacturing;
     Industrial and commercial use as a solvent (for cleaning
or degreasing) in electrical equipment appliance and component
manufacturing in semiconductor manufacturing;
     Industrial and commercial use in processing aids specific
to petroleum production in petrochemical manufacturing, in other uses
in oil and gas drilling, extraction, and support activities, and in
functional fluids (closed systems);
     Industrial and commercial use in adhesives and sealants
including binding agents, single component glues and adhesives,
including lubricant additives, two-component glues, and adhesives
including some resins;
     Industrial and commercial use in other uses in anti-freeze
and de-icing products, automotive care products, and lubricants and
greases;
     Industrial and commercial use in metal products not
covered elsewhere and lubricant and lubricant additives including
hydrophilic coatings;
     Industrial and commercial uses in other uses in laboratory
chemicals;
     Industrial and commercial uses in other uses in lithium
ion battery manufacturing;
     Industrial and commercial uses in other uses in cleaning
and furniture care products including wood cleaners and gasket
removers;
     Consumer use in adhesives and sealants (glues and
adhesives including lubricant adhesives); and
     Disposal.
    Under the proposed whole chemical approach to the NMP risk
determination, the unreasonable risk from NMP would continue to be
driven by risk from those same conditions of use. In addition, by
removing the assumption of PPE use in making the whole chemical risk
determination for NMP, three conditions of use in addition to the
original 26 would drive the unreasonable risk:
     Industrial and commercial use in ink, toner, and colorant
products (printer ink; inks in writing equipment);
     Industrial and commercial use in other uses in soldering
materials;
     Industrial and commercial use in other uses in fertilizer
and other agricultural chemical manufacturing in processing aids and
solvents.
    Overall, 29 conditions of use out of the 37 evaluated would drive
the NMP whole chemical unreasonable risk determination.

III. Revision of the December 2020 Risk Evaluation

A. Why is EPA proposing to revise the risk determination for the NMP
risk evaluation?

    EPA is proposing to revise the risk determination for the NMP risk
evaluation pursuant to TSCA section 6(b) and consistent with Executive
Order 13990, (``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis'') and other
Administration priorities (Refs. 3, 4, and 6). EPA is revising specific
aspects of the first ten TSCA existing chemical risk evaluations in
order to ensure that the risk evaluations better align with TSCA's
objective of protecting health and the environment. For the NMP risk
evaluation, this includes the draft revision: (1) Making the risk
determination in this instance based on the whole chemical substance
instead of by individual conditions of use and (2) Emphasizing that EPA
does not rely on the assumed use of PPE when making the risk
determination.

B. What are the draft revisions?

    EPA is releasing a draft revision of the risk determination for the
NMP risk evaluation pursuant to TSCA section 6(b). Under the revised
determination, EPA preliminarily conclude that NMP, as evaluated in the
risk evaluation as a whole, presents an unreasonable risk of injury to
health under its conditions of use. This revision would replace the
previous unreasonable risk determinations made for NMP by individual
conditions of use, supersede the determinations (and withdraw the
associated order) of no unreasonable risk for the conditions of use
identified in the TSCA section 6(i)(1) no unreasonable risk order, and
clarify the lack of reliance on assumed use of PPE as part of the risk
determination.
    These draft revisions do not alter any of the underlying technical
or scientific information that informs the risk characterization, and
as such the hazard, exposure, and risk characterization sections are
not changed except to the extent that statements about PPE assumptions
in section <IP_ADDRESS> (Occupational Exposures Approach and Methodology)
and 4.2.2 (Risk Estimation for Worker Exposures for Occupational Use of
NMP), of the NMP risk evaluation would be superseded. The discussion of
the issues in this notice and in the accompanying draft revision to the
risk determination would supersede any conflicting statements in the
prior executive summary and sections <IP_ADDRESS> and 4.2.2 from the NMP
risk evaluation and the response to comments document (Refs. 2 and 10).
Additional policy changes to other chemical risk evaluations, including
any consideration of potentially exposed or susceptible subpopulations
and/or inclusion of additional exposure pathways, are not necessarily
reflected in these draft revisions to the risk determination.

C. Will the draft revised risk determination be peer reviewed?

    The risk determination (section 5 in the December 2020 risk
evaluation) was not part of the scope of the peer review of the NMP
risk evaluation by the Science Advisory Committee on Chemicals (SACC).
Thus, consistent with that approach, EPA does not intend to conduct
peer review of the draft revised unreasonable risk determination for
the NMP risk evaluation because no technical or scientific changes will
be made to the

hazard or exposure assessments or the risk characterization.

D. What are the next steps for finalizing revisions to the risk
determination?

    EPA will review and consider public comment received on the draft
revised risk determination for the NMP risk evaluation and issue a
final revised NMP risk determination. If finalized as drafted, EPA
would also issue a new order to withdraw the TSCA section 6(i)(1) no
unreasonable risk order issued in Section 5.4.1 of the 2020 NMP risk
evaluation. This final revised risk determination would supersede the
December 2020 risk determinations of no unreasonable risk. Consistent
with the statutory requirements of TSCA section 6(a), the Agency would
then propose risk management actions to address the unreasonable risk
determined in the NMP risk evaluation.

IV. References

    The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the person
listed under FOR FURTHER INFORMATION CONTACT.

1. EPA. Draft Revised Unreasonable Risk Determination for NMP,
Section 5, June 2022.
2. EPA. Risk Evaluation for n-Methylpyrrolidone (NMP). EPA Document
#740-R-18-009. December 2020. https://www.regulations.gov/document/EPA-HQ-OPPT-2019-0236-0081.
3. Executive Order 13990. Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis.
Federal Register. 86 FR 7037, January 25, 2021.
4. Executive Order 13985. Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government. Federal
Register. 86 FR 7009, January 25, 2021.
5. Executive Order 14008. Tackling the Climate Crisis at Home and
Abroad. Federal Register. 86 FR 7619, February 1, 2021.
6. Presidential Memorandum. Memorandum on Restoring Trust in
Government Through Scientific Integrity and Evidence-Based
Policymaking. Federal Register. 86 FR 8845, February 10, 2021.
7. EPA Press Release. EPA Announces Path Forward for TSCA Chemical
Risk Evaluations. June 2021. https://www.epa.gov/newsreleases/epa-announces-path-forward-tsca-chemical-risk-evaluations.
8. EPA. Proposed Rule; Procedures for Chemical Risk Evaluation Under
the Amended Toxic Substances Control Act. Federal Register. 82 FR
7562, January 19, 2017 (FRL-9957-75).
9. EPA. Final Rule; Procedures for Chemical Risk Evaluation Under
the Amended Toxic Substances Control Act. Federal Register. 82 FR
33726, July 20, 2017 (FRL-9964-38).
10. EPA. Summary of External Peer Review and Public Comments and
Disposition for n-Methylpyrrolidone (NMP). December 2020. https://www.regulations.gov/document/EPA-HQ-OPPT-2019-0236-0082.

    Authority: 15 U.S.C. 2601 et seq.

    Dated: June 27, 2022.
Michal Freedhoff,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2022-14108 Filed 6-30-22; 8:45 am]
BILLING CODE 6560-50-P


RULE 801.	NEW SOURCE REVIEW  -  DEFINITIONS AND GENERAL REQUIREMENTS             (Adopted 4/17/1997, revised 8/25/2016)

A.	Applicability

      This rule and this Regulation shall apply to any applicant for a new or modified stationary source which emits or may emit any affected pollutant.

B.	Exemptions

      None

C.	Definitions

	See Rule 102, Definitions, for definitions not limited to this regulation. For the purposes of Regulation 	VIII, the following definitions shall apply:

     "Enforceable" means the emission reductions are capable of being legally and practically enforced by the District, including through either the SIP or inclusion of conditions on an Authority to Construct, Permit to Operate, Determination of Issuance, or Emission Reduction Credit certificate, or a legally binding written contract executed with the District.

     "Federal Land Manager" means, with respect to any lands in the United States, the Secretary of the department with authority over such lands.             "Net Air Quality Benefit" means a net improvement in air quality resulting from actual emission reductions impacting the same general area affected by the new or modified source and which will be consistent with reasonable further progress.            "Permanent" means reductions that will endure and are otherwise creditable for the entire term of the proposed use of the emission reduction credit. Permanence is generally assured by requiring federally enforceable changes in federally enforceable permits, regulations in the applicable State Implementation Plan, or some other federally enforceable instrument.             "Project" means any article, machine, equipment or contrivance belonging to the same emission unit at a stationary source and applied for in one or more applications for an Authority to Construct permit. Project shall not include any article, machine, equipment or contrivance described in any application for an Authority to Construct permit submitted more than 12 months after issuance of the Permit to Operate. Notwithstanding the above, Project shall include any application to increase permitted emissions due primarily to an increase in throughput or usage not associated with any new or modified article, machine, equipment or contrivance, regardless of the time between permit applications.            "Quantifiable" means emission reductions (and increases) for which both the amount and the character can be determined. Quantification may be based on emission factors, stack tests, monitored values, operating rates and averaging times, process or production inputs, modeling, or other reasonable measurement practices. The quantification methods "shall be credible, workable, and replicable." "Replicable" refers to "methods which are sufficiently unambiguous such that the same or equivalent results would be obtained by the application of the method by difference users." The same method for calculating emissions should be used to measure the emissions both before and after the changes in emission levels, both at the generator and at the user of the Emission Reduction Credits. Quantification must be based on the actual emissions from the source prior to the reduction.            "Real" means an emission reduction where actual air emissions are reduced and not artificially devised.            "Surplus" means emission reductions not required by current regulations in the State Implementation Plan, not already relied upon for State Implementation Plan planning purposes; and not used by the source to meet any other regulatory requirement, including, at the Emission Reduction Credits time of use, Reasonable Available Control Technology, Best Available Retrofit Control Technology, Reasonable Further Progress or milestones therefor, or demonstration of attainment.

D.	Requirements  -  General

	1.	Regulations in Force Govern

		The granting or denial of an Authority to Construct shall be governed by the requirements of this regulation in force on the date the application is deemed complete. In addition, the Air Pollution Control Officer shall deny any Authority to Construct for any new stationary source or modification, or any portion thereof, unless:

		a.	The new source or modification, or applicable portion thereof, complies with the provisions of this rule and all other applicable District rules and regulations; and

		b.	The applicant for the proposed new or modified source has demonstrated that all major stationary sources owned or operated by such person, or by any entity controlling, controlled by, or under common control with such person, in California and all stationary sources in the air basin which are subject to emission limitations are in compliance, or on a schedule for compliance with all applicable emission limitations and standards under the Clean Air Act (42 USC 7401 et seq.) and all applicable emission limitations and standards which are part of the State Implementation Plan approved by the Environmental Protection Agency.

	2.	Denial, Failure to Meet Standards

		The Control Officer shall deny any Authority to Construct or Permit to Operate if the Control Officer finds that the subject of the application would not comply with the standards set forth in this Regulation.

	3.	Certification Statement

		Any application for an Authority to Construct any new stationary source or modification, or portion thereof, shall certify, at the time of application, that all major stationary sources in the State and all stationary sources in the air basin which are owned or operated by the applicant, or by an entity controlling, controlled by, or under common control with the applicant, are in compliance, or are on approved schedule for compliance, with all applicable emission limitations and standards under the Clean Air Act (42 USC 7401 et seq.) and all applicable emission limitations and standards which are part of the State Implementation Plan approved by the Environmental Protection Agency. The Control Officer may request any necessary information from the applicant to make this determination.

	4.	State Ambient Air Quality Standards

		All references in this Regulation to national ambient air quality standards shall be interpreted to include State ambient air quality standards. While State standards are to be considered in the application evaluation mentioned, they are not meant to be part of the State Implementation Plan.

E.	Requirements  -  Conditions of Granting Permits

	1.	The Control Officer shall deny an Authority to Construct or Permit to Operate unless the applicant demonstrates that the source will be operated consistent with the application, the supplements and clarifications provided by the applicant, and the engineering evaluation used in making the analysis for compliance with the Rules and Regulations.

	2.	The Control Officer shall not issue a Permit to Operate unless it is determined that:

		a.	The new or modified stationary source will operate without emitting pollutants in violation of any applicable state, federal or local emission limitations or these Rules and Regulations; and

		b.	The emissions of any pollutants from the new or modified stationary source are less than or equal to the emissions contained in the application, the supplements and clarifications provided by the applicant, and the engineering evaluation used by the Control Officer in granting an Authority to Construct; and

		c.	The offsets required as a condition of the Authority to Construct will commence at the time or prior to initial operations of the new source or modification, and that the offsets will be maintained throughout the operation of the new or modified source. In the case of a new or modified source which will be, in whole or in part, a replacement for an existing source on the same property, the Control Officer may allow a maximum of ninety (90) days as a start-up period for simultaneous operation of the existing source and the new source or replacement; and

		d.	All conditions specified in the Authority to Construct have been or will be complied with by any dates specified.

F.	Requirements  -  Compliance with All Regulatory Requirements

	Issuance of any Authority to Construct or Permit to Operate under this regulation does not relieve the applicant from complying with any applicable local, state or federal regulation.


[Federal Register Volume 86, Number 105 (Thursday, June 3, 2021)]
[Notices]
[Pages 29764-29765]
[FR Doc No: 2021-11709]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. Er21-2001-000]

Shell Chemical Appalachia LLC; Supplemental Notice That Initial
Market-Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding of
Shell Chemical Appalachia LLC's application for market-based rate
authority, with an accompanying rate tariff, noting that such
application includes a request for blanket authorization, under 18 CFR
part 34, of future issuances of securities and assumptions of
liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is June 16, 2021.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically may mail similar pleadings to
the Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426. Hand delivered submissions in docketed
proceedings should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) using
the ``eLibrary'' link. Enter the docket number excluding the

last three digits in the docket number field to access the document. At
this time, the Commission has suspended access to the Commission's
Public Reference Room, due to the proclamation declaring a National
Emergency concerning the Novel Coronavirus Disease (COVID-19), issued
by the President on March 13, 2020. For assistance, contact the Federal
Energy Regulatory Commission at<EMAIL_ADDRESS>or call
toll-free,<PHONE_NUMBER> or TYY,<PHONE_NUMBER>.

    Dated: May 27, 2021.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2021-11709 Filed 6-2-21; 8:45 am]
BILLING CODE 6717-01-P