[Federal Register Volume 82, Number 104 (Thursday, June 1, 2017)]
[Notices]
[Pages 25369-25374]
[FR Doc No: 2017-11357]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80781; File No. SR-NYSEArca-2017-60]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change for a New NYSE Arca Rule 11.6900 and a New NYSE
Arca Equities Rule 6.6900 To Establish the Procedures for Resolving
Potential Disputes Related to CAT Fees Charged to Industry Members

May 26, 2017.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'' or the ``Exchange Act'') \2\ and Rule 19b-4
thereunder,\3\ notice is hereby given that, on May 16, 2017, NYSE Arca,
Inc. (the ``Exchange'' or ``NYSE Arca'') filed with the Securities and
Exchange Commission (``SEC'' or the ``Commission'') the proposed rule
change as described in Items I and II below, which Items have been
prepared by the self-regulatory organization. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
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    \1\ 15 U.S.C.78s (b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes a new NYSE Arca Rule 11.6900 and a new NYSE
Arca Equities Rule 6.6900 to establish

the procedures for resolving potential disputes related to CAT Fees
charged to Industry Members.\4\ The proposed change is available on the
Exchange's Web site at www.nyse.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.
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    \4\ Unless otherwise specified, capitalized terms used in this
rule filing are defined as set forth herein or in the Consolidated
Audit Trail Funding Fees sections of the NYSE Arca Options Fee
Schedule and the NYSE Arca Equities Fee Schedule, the NYSE Arca and
NYSE Arca Equities CAT Compliance Rule Series or in the CAT NMS
Plan.
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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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Bats BYX Exchange, Inc., Bats BZX Exchange, Inc., Bats EDGA
Exchange, Inc., Bats EDGX Exchange, Inc., BOX Options Exchange LLC, C2
Options Exchange, Incorporated, Chicago Board Options Exchange,
Incorporated, Chicago Stock Exchange, Inc., Financial Industry
Regulatory Authority, Inc. (``FINRA''), Investors' Exchange LLC, Miami
International Securities Exchange, LLC, MIAX PEARL, LLC, NASDAQ BX,
Inc., Nasdaq GEMX, LLC, Nasdaq ISE, LLC, Nasdaq MRX, LLC,\5\ NASDAQ
PHLX LLC, The NASDAQ Stock Market LLC, New York Stock Exchange LLC,
NYSE MKT LLC, NYSE Arca, Inc. and NYSE National, Inc.\6\ (collectively,
the ``Participants'') filed with the Commission, pursuant to Section
11A of the Exchange Act \7\ and Rule 608 of Regulation NMS
thereunder,\8\ the National Market System Plan Governing the
Consolidated Audit Trail (the ``CAT NMS Plan'' or ``Plan'').\9\ The
Participants filed the Plan to comply with Rule 613 of Regulation NMS
under the Exchange Act. The Plan was published for comment in the
Federal Register on May 17, 2016,\10\ and approved by the Commission,
as modified, on November 15, 2016.\11\ The Plan is designed to create,
implement and maintain a consolidated audit trail (``CAT'') that would
capture customer and order event information for orders in NMS
Securities and OTC Equity Securities, across all markets, from the time
of order inception through routing, cancellation, modification, or
execution in a single consolidated data source. The Plan accomplishes
this by creating CAT NMS, LLC (the ``Company''), of which each
Participant is a member, to operate the CAT.\12\ Under the CAT NMS
Plan, the Operating Committee of the Company (``Operating Committee'')
has discretion to establish funding for the Company to operate the CAT,
including establishing fees that the Participants will pay, and
establishing fees for Industry Members that will be implemented by the
Participants (``CAT Fees'').\13\ The Participants are required to file
with the SEC under Section 19(b) of the Exchange Act any such CAT Fees
applicable to Industry Members that the Operating Committee
approves.\14\ Accordingly, the Exchange filed a proposed rule change
with the SEC to adopt the Consolidated Audit Trail Funding Fees, which
will require Industry Members that are Exchange members to pay the CAT
Fees determined by the Operating Committee.\15\ The Exchange submits
this rule filing to adopt a new NYSE Arca Rule 11.6900 and a new NYSE
Arca Equities Rule 6.6900 to establish the procedures for resolving
potential disputes related to CAT Fees charged to Industry Members.
Proposed Rule 11.6900 would apply to Industry Members of the Exchange's
options market and proposed Rule 6.6900 would apply to Industry Members
of the Exchange's equities markets. Proposed Rule 11.6900 is described
below.
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    \5\ ISE Gemini, LLC, ISE Mercury, LLC and International
Securities Exchange, LLC have been renamed Nasdaq GEMX, LLC, Nasdaq
MRX, LLC, and Nasdaq ISE, LLC, respectively. See Securities Exchange
Act Release Nos. 80248 (March 15, 2017), 82 FR 14547 (March 21,
2017); 80326 (March 29, 2017), 82 FR 16460 (April 4, 2017); and
80325 (March 29, 2017), 82 FR 16445 (April 4, 2017).
    \6\ National Stock Exchange, Inc. has been renamed NYSE
National, Inc. See Securities Exchange Act Release No. 79902
(January 30, 2017), 82 FR 9258 (February 3, 2017).
    \7\ 15 U.S.C. 78k-1.
    \8\ 17 CFR 242.608.
    \9\ See Letter from the Participants to Brent J. Fields,
Secretary, Commission, dated September 30, 2014; and Letter from
Participants to Brent J. Fields, Secretary, Commission, dated
February 27, 2015. On December 24, 2015, the Participants submitted
an amendment to the CAT NMS Plan. See Letter from Participants to
Brent J. Fields, Secretary, Commission, dated December 23, 2015.
    \10\ Securities Exchange Act Release No. 77724 (April 27, 2016),
81 FR 30614 (May 17, 2016).
    \11\ Securities Exchange Act Release No. 79318 (November 15,
2016), 81 FR 84696 (November 23, 2016) (``Approval Order'').
    \12\ The Plan also serves as the limited liability company
agreement for the Company.
    \13\ Section 11.1(b) of the CAT NMS Plan.
    \14\ Section 11.1(b) of the CAT NMS Plan.
    \15\ See SR-NYSEArca-2017-52, filed on May 10, 2017.
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(1) Definitions
    Paragraph (a) of proposed Rule 11.6900 sets forth the definitions
for proposed Rule 11.6900. Paragraph (a)(1) of proposed Rule 11.6900
states that, for purposes of Rule 11.6900, the terms ``CAT NMS Plan'',
``Industry Member'', ``Operating Committee'', and ``Participant'' are
defined as set forth in the Rule 11.6810 (Consolidated Audit Trail--
Definitions), and the term ``CAT Fee'' is defined in the Consolidated
Audit Trail Funding Fees section of the NYSE Arca Options Fee Schedule.
In addition, the Exchange proposes to add paragraph (a)(2) to proposed
Rule 11.6900. New paragraph (a)(2) would define the term
``Subcommittee'' to mean a subcommittee designated by the Operating
Committee pursuant to the CAT NMS Plan. This definition is the same
substantive definition as set forth in Section 1.1 of the CAT NMS Plan.
(2) Fee Dispute Resolution
    Section 11.5 of the CAT NMS Plan requires Participants to adopt
rules requiring that disputes with respect to fees charged to Industry
Members pursuant to the CAT NMS Plan be determined by the Operating
Committee or Subcommittee. Section 11.5 of the CAT NMS Plan also states
that decisions by the Operating Committee or Subcommittee on such
matters will be binding on Industry Members, without prejudice to the
right of any Industry Member to seek redress from the SEC pursuant to
SEC Rule 608 or in any other appropriate forum. The Exchange proposes
to adopt paragraph (b) of proposed Rule 11.6900. Paragraph (b) of
proposed Rule 11.6900 states that disputes initiated by an Industry
Member with respect to CAT Fees charged to such Industry Member
pursuant to the Consolidated Audit Trail Funding Fees, including
disputes related to the designated tier and the fee calculated pursuant
to such tier, will be resolved by the Operating Committee, or a
Subcommittee designated by the Operating Committee, of the CAT NMS
Plan, pursuant to the Fee Dispute Resolution Procedures adopted
pursuant to the CAT NMS Plan and set forth in paragraph (c) of proposed
Rule 11.6900. Decisions on such matters will be binding on Industry
Members,

without prejudice to the rights of any such Industry Member to seek
redress from the SEC or in any other appropriate forum.
    The Operating Committee has adopted ``Fee Dispute Resolution
Procedures'' governing the manner in which disputes regarding CAT Fees
charged pursuant to the Consolidated Audit Trail Funding Fees will be
addressed. These Fee Dispute Resolution Procedures, as they relate to
Industry Members, are set forth in paragraph (c) of proposed Rule
11.6900. Specifically, the Fee Dispute Resolution Procedures provide
the procedure for Industry Members that dispute CAT Fees charged to
such Industry Member pursuant to one or more of the Participants'
Consolidated Audit Trail Funding Fees Rules, including disputes related
to the designated tier and the fee calculated pursuant to such tier, to
apply for an opportunity to be heard and to have the CAT Fees charged
to such Industry Member reviewed.
    Under these Procedures, an Industry Member that disputes CAT Fees
charged to such Industry Member and that desires to have an opportunity
to be heard with respect to such disputed CAT Fees must file a written
application with the Company within 15 business days after being
notified of such disputed CAT Fees. The application must identify the
disputed CAT Fees, state the specific reasons why the applicant takes
exception to such CAT Fees, and set forth the relief sought. In
addition, if the applicant intends to submit any additional documents,
statements, arguments or other material in support of the application,
the same should be so stated and identified.
    The Company will refer applications for hearing and review promptly
to the Subcommittee designated by the Operating Committee pursuant to
Section 4.12 of the CAT NMS Plan with responsibility for conducting the
reviews of CAT Fee disputes pursuant to these Procedures. This
Subcommittee will be referred to as the Fee Review Subcommittee. The
members of the Fee Review Subcommittee will be subject to the
provisions of Section 4.3(d) of the CAT NMS Plan regarding recusal and
Conflicts of Interest. The Fee Review Subcommittee will keep a record
of the proceedings.
    The Fee Review Subcommittee will hold hearings promptly. The Fee
Review Subcommittee will set a hearing date. The parties to the hearing
will furnish the Fee Review Subcommittee with all materials relevant to
the proceedings at least 72 hours prior to the date of the hearing.
Each party will have the right to inspect and copy the other party's
materials prior to the hearing.
    The parties to the hearing will consist of the applicant and a
representative of the Company who will present the reasons for the
action taken by the Company that allegedly aggrieved the applicant. The
applicant is entitled to be accompanied, represented and advised by
counsel at all stages of the proceedings.
    The Fee Review Subcommittee will determine all questions concerning
the admissibility of evidence and will otherwise regulate the conduct
of the hearing. Each of the parties will be permitted to make an
opening statement, present witnesses and documentary evidence, cross
examine opposing witnesses and present closing arguments orally or in
writing as determined by the Fee Review Subcommittee. The Fee Review
Subcommittee also will have the right to question all parties and
witnesses to the proceeding. The Fee Review Subcommittee must keep a
record of the hearing. The formal rules of evidence will not apply.
    The Fee Review Subcommittee must set forth its decision in writing
and send the written decision to the parties to the proceeding. Such
decisions will contain the reasons supporting the conclusions of the
Fee Review Subcommittee.
    The decision of the Fee Review Subcommittee will be subject to
review by the Operating Committee either on its own motion within 20
business days after issuance of the decision or upon written request
submitted by the applicant within 15 business days after issuance of
the decision. The applicant's petition must be in writing and must
specify the findings and conclusions to which the applicant objects,
together with the reasons for such objections. Any objection to a
decision not specified in writing will be considered to have been
abandoned and may be disregarded. Parties may petition to submit a
written argument to the Operating Committee and may request an
opportunity to make an oral argument before the Operating Committee.
The Operating Committee will have sole discretion to grant or deny
either request.
    The Operating Committee will conduct the review. The review will be
made upon the record and will be made after such further proceedings,
if any, as the Operating Committee may order. Based upon such record,
the Operating Committee may affirm, reverse or modify, in whole or in
part, the decision of the Fee Review Subcommittee. The decision of the
Operating Committee will be in writing, will be sent to the parties to
the proceeding and will be final.
    The Procedures state that a final decision regarding the disputed
CAT Fees by the Operating Committee, or the Fee Review Subcommittee (if
there is no review by the Operating Committee), must be provided within
90 days of the date on which the Industry Member filed a written
application regarding disputed CAT Fees with the Company. The Operating
Committee may extend the 90-day time limit at its discretion.
    In addition, the Procedures state that any notices or other
documents may be served upon the applicant either personally or by
leaving the same at its, his or her place of business or by deposit in
the United States post office, postage prepaid, by registered or
certified mail, addressed to the applicant at its, his or her last
known business or residence address. The Procedures also state that any
time limits imposed under the Procedures for the submission of answers,
petitions or other materials may be extended by permission of the
Operating Committee. All papers and documents relating to review by the
Fee Review Subcommittee or the Operating Committee must be submitted to
the Fee Review Subcommittee or Operating Committee, as applicable.
    The Procedures also note that decisions on such CAT Fee disputes
made pursuant to these Procedures will be binding on Industry Members,
without prejudice to the rights of any such Industry Member to seek
redress from the SEC or in any other appropriate forum.
    Finally, an Industry Member that files a written application with
the Company regarding disputed CAT Fees in accordance with these
Procedures is not required to pay such disputed CAT Fees until the
dispute is resolved in accordance with these Procedures, including any
review by the SEC or in any other appropriate forum. For these
purposes, the disputed CAT Fees means the amount of the invoiced CAT
Fees that the Industry Member has asserted pursuant to these Procedures
that such Industry Member does not owe to the Company. The Industry
Member must pay any invoiced CAT Fees that are not disputed CAT Fees
when due as set forth in the original invoice.
    Once the dispute regarding CAT Fees is resolved pursuant to these
Procedures, if it is determined that the Industry Member owes any of
the disputed CAT Fees, then the Industry Member must pay such disputed
CAT Fees that are owed as well as interest on such disputed CAT Fees
from the original due date (that is, 30 days after

receipt of the original invoice of such CAT Fees) until such disputed
CAT Fees are paid at a per annum rate equal to the lesser of (i) the
Prime Rate plus 300 basis points, or (ii) the maximum rate permitted by
applicable law.
    The Exchange also proposes to adopt new NYSE Arca Equities Rule
6.6900 that would be substantially the same as proposed NYSE Arca Rule
11.6900.
    Like its NYSE Arca counterpart, paragraph (a) of proposed NYSE Arca
Equities Rule 6.6900 sets forth the definitions for proposed Rule
6.6900. Paragraph (a)(1) of proposed Rule 6.6900 states that, for
purposes of Rule 6.6900, the terms ``CAT NMS Plan'', ``Industry
Member'', ``Operating Committee'', and ``Participant'' are defined as
set forth in the Rule 6.6810 (Consolidated Audit Trail--Definitions),
and the term ``CAT Fee'' is defined in the Consolidated Audit Trail
Funding Fees section of the NYSE Arca Equities Fee Schedule. In
addition, the Exchange proposes to add paragraph (a)(2) to proposed
Rule 6.6900. New paragraph (a)(2) would define the term
``Subcommittee'' to mean a subcommittee designated by the Operating
Committee pursuant to the CAT NMS Plan. This definition is the same
substantive definition as set forth in Section 1.1 of the CAT NMS Plan.
    Like its NYSE Arca counterpart, paragraph (b) of proposed Rule
6.6900 states that disputes initiated by an Industry Member with
respect to CAT Fees charged to such Industry Member pursuant to the
Consolidated Audit Trail Funding Fees, including disputes related to
the designated tier and the fee calculated pursuant to such tier, will
be resolved by the Operating Committee, or a Subcommittee designated by
the Operating Committee, of the CAT NMS Plan, pursuant to the Fee
Dispute Resolution Procedures adopted pursuant to the CAT NMS Plan and
set forth in paragraph (c) of proposed Rule 6.6900.
    As discussed above, the Operating Committee has adopted ``Fee
Dispute Resolution Procedures'' governing the manner in which disputes
regarding CAT Fees charged pursuant to the Consolidated Audit Trail
Funding Fees will be addressed. These Fee Dispute Resolution
Procedures, as they relate to Industry Members, are set forth in
paragraph (c) of proposed Rule 6.6900, and are identical to those set
forth in paragraph (c) of proposed NYSE Arca Rule 11.6900. The Fee
Dispute Resolution Procedures provide the procedure for Industry
Members that dispute CAT Fees charged to such Industry Member pursuant
to one or more of the Participants' Consolidated Audit Trail Funding
Fees Rules, including disputes related to the designated tier and the
fee calculated pursuant to such tier, to apply for an opportunity to be
heard and to have the CAT Fees charged to such Industry Member
reviewed.
    As described above for paragraph (c) of proposed NYSE Arca Rule
11.6900, under the Fee Dispute Resolution Procedures, an Industry
Member that disputes CAT Fees charged to such Industry Member and that
desires to have an opportunity to be heard with respect to such
disputed CAT Fees must file a written application with the Company
within 15 business days after being notified of such disputed CAT Fees.
The application must identify the disputed CAT Fees, state the specific
reasons why the applicant takes exception to such CAT Fees, and set
forth the relief sought. In addition, if the applicant intends to
submit any additional documents, statements, arguments or other
material in support of the application, the same should be so stated
and identified.
    The Company will refer applications for hearing and review promptly
to the Subcommittee designated by the Operating Committee pursuant to
Section 4.12 of the CAT NMS Plan with responsibility for conducting the
reviews of CAT Fee disputes pursuant to these Procedures. This
Subcommittee will be referred to as the Fee Review Subcommittee. The
members of the Fee Review Subcommittee will be subject to the
provisions of Section 4.3(d) of the CAT NMS Plan regarding recusal and
Conflicts of Interest. The Fee Review Subcommittee will keep a record
of the proceedings.
    The Fee Review Subcommittee will hold hearings promptly. The Fee
Review Subcommittee will set a hearing date. The parties to the hearing
will furnish the Fee Review Subcommittee with all materials relevant to
the proceedings at least 72 hours prior to the date of the hearing.
Each party will have the right to inspect and copy the other party's
materials prior to the hearing.
    The parties to the hearing will consist of the applicant and a
representative of the Company who will present the reasons for the
action taken by the Company that allegedly aggrieved the applicant. The
applicant is entitled to be accompanied, represented and advised by
counsel at all stages of the proceedings.
    The Fee Review Subcommittee will determine all questions concerning
the admissibility of evidence and will otherwise regulate the conduct
of the hearing. Each of the parties will be permitted to make an
opening statement, present witnesses and documentary evidence, cross
examine opposing witnesses and present closing arguments orally or in
writing as determined by the Fee Review Subcommittee. The Fee Review
Subcommittee also will have the right to question all parties and
witnesses to the proceeding. The Fee Review Subcommittee must keep a
record of the hearing. The formal rules of evidence will not apply.
    The Fee Review Subcommittee must set forth its decision in writing
and send the written decision to the parties to the proceeding. Such
decisions will contain the reasons supporting the conclusions of the
Fee Review Subcommittee.
    The decision of the Fee Review Subcommittee will be subject to
review by the Operating Committee either on its own motion within 20
business days after issuance of the decision or upon written request
submitted by the applicant within 15 business days after issuance of
the decision. The applicant's petition must be in writing and must
specify the findings and conclusions to which the applicant objects,
together with the reasons for such objections. Any objection to a
decision not specified in writing will be considered to have been
abandoned and may be disregarded. Parties may petition to submit a
written argument to the Operating Committee and may request an
opportunity to make an oral argument before the Operating Committee.
The Operating Committee will have sole discretion to grant or deny
either request.
    The Operating Committee will conduct the review. The review will be
made upon the record and will be made after such further proceedings,
if any, as the Operating Committee may order. Based upon such record,
the Operating Committee may affirm, reverse or modify, in whole or in
part, the decision of the Fee Review Subcommittee. The decision of the
Operating Committee will be in writing, will be sent to the parties to
the proceeding and will be final.
    The Procedures state that a final decision regarding the disputed
CAT Fees by the Operating Committee, or the Fee Review Subcommittee (if
there is no review by the Operating Committee), must be provided within
90 days of the date on which the Industry Member filed a written
application regarding disputed CAT Fees with the Company. The Operating
Committee may extend the 90-day time limit at its discretion.
    In addition, the Procedures state that any notices or other
documents may be served upon the applicant either

personally or by leaving the same at its, his or her place of business
or by deposit in the United States post office, postage prepaid, by
registered or certified mail, addressed to the applicant at its, his or
her last known business or residence address. The Procedures also state
that any time limits imposed under the Procedures for the submission of
answers, petitions or other materials may be extended by permission of
the Operating Committee. All papers and documents relating to review by
the Fee Review Subcommittee or the Operating Committee must be
submitted to the Fee Review Subcommittee or Operating Committee, as
applicable.
    The Procedures also note that decisions on such CAT Fee disputes
made pursuant to these Procedures will be binding on Industry Members,
without prejudice to the rights of any such Industry Member to seek
redress from the SEC or in any other appropriate forum.
    Finally, an Industry Member that files a written application with
the Company regarding disputed CAT Fees in accordance with these
Procedures is not required to pay such disputed CAT Fees until the
dispute is resolved in accordance with these Procedures, including any
review by the SEC or in any other appropriate forum. For these
purposes, the disputed CAT Fees means the amount of the invoiced CAT
Fees that the Industry Member has asserted pursuant to these Procedures
that such Industry Member does not owe to the Company. The Industry
Member must pay any invoiced CAT Fees that are not disputed CAT Fees
when due as set forth in the original invoice.
    Once the dispute regarding CAT Fees is resolved pursuant to these
Procedures, if it is determined that the Industry Member owes any of
the disputed CAT Fees, then the Industry Member must pay such disputed
CAT Fees that are owed as well as interest on such disputed CAT Fees
from the original due date (that is, 30 days after receipt of the
original invoice of such CAT Fees) until such disputed CAT Fees are
paid at a per annum rate equal to the lesser of (i) the Prime Rate plus
300 basis points, or (ii) the maximum rate permitted by applicable law.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b)(5) of the Act,\16\ which require,
among other things, that the Exchange's rules must be designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, and, in general, to protect
investors and the public interest, and not designed to permit unfair
discrimination between customers, issuers, brokers and dealers, and
Section 6(b)(8) of the Act,\17\ which requires that the Exchange's
rules not impose any burden on competition that is not necessary or
appropriate.
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    \16\ 15 U.S.C. 78f(b)(5).
    \17\ 15 U.S.C. 78f(b)(8).
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    The Exchange believes that this proposal is consistent with the Act
because it implements, interprets or clarifies Section 11.5 of the
Plan, and is designed to assist the Exchange and its Industry Members
in meeting regulatory obligations pursuant to the Plan. In approving
the Plan, the SEC noted that the Plan ``is necessary and appropriate in
the public interest, for the protection of investors and the
maintenance of fair and orderly markets, to remove impediments to, and
perfect the mechanism of a national market system, or is otherwise in
furtherance of the purposes of the Act.'' \18\ To the extent that this
proposal implements, interprets or clarifies the Plan and applies
specific requirements to Industry Members, the Exchange believes that
this proposal furthers the objectives of the Plan, as identified by the
SEC, and is therefore consistent with the Act.
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    \18\ Approval Order at 84697.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange notes that the
proposed rule change implements Section 11.5 of the CAT NMS Plan
approved by the Commission, and is designed to assist the Exchange in
meeting its regulatory obligations pursuant to the Plan. Similarly, all
national securities exchanges and FINRA are proposing this proposed
rule to implement the requirements of the CAT NMS Plan. Therefore, this
is not a competitive rule filing, and, therefore, it does not raise
competition issues between and among the exchanges and FINRA.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period up to 90 days (i) as the
Commission may designate if it finds such longer period to be
appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) by order approve or disapprove 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 email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2017-60 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSEArca-2017-60. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the 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-2017-60, and should be submitted on or before June 22,
2017.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-11357 Filed 5-31-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Notices]
[Pages 44852-44854]
[FR Doc No: 2016-16242]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings #1

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER10-2290-005.
    Applicants: Avista Corporation.
    Description: Triennial Market Power Update for the Northwest Region
of Avista Corporation.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5409.
    Comments Due: 5 p.m. ET 8/29/16.

    Docket Numbers: ER10-3117-007; ER15-1308-002; ER15-1173-004;

ER15-1172-004; ER15-1171-004; ER15-1170-004; ER14-2823-006; ER13-445-
008; ER11-4061-008; ER11-4060-008; ER10-3300-012; ER10-3115-005.
    Applicants: Badger Creek Limited, Bear Mountain Ltd., Chalk Cliff
Limited, Double C Generation Limited Partnership, High Sierra Ltd.,
Kern Front Ltd., Kingfisher Wind, LLC, La Paloma Generating Company,
LLC, Lea Power Partners, LLC, Live Oak Ltd., McKittrick Ltd., Waterside
Power, LLC.
    Description: Supplement to April 25, 2016 Notice of Change in
Status by Lea Power Partners, LLC, et al.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5398.
    Comments Due: 5 p.m. ET 7/21/16.

    Docket Numbers: ER10-3246-008; ER10-2475-013; ER10-2474-013; ER13-
1266-008.
    Applicants: PacifiCorp, Nevada Power Company, Sierra Pacific Power
Company, CalEnergy, LLC.
    Description: Triennial Market Power Analysis for the Northwest
Region of the BHE Northwest Companies under ER10-3246, et al.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5400.
    Comments Due: 5 p.m. ET 8/29/16.

    Docket Numbers: ER13-520-006; ER13-521-006; ER13-1441-006; ER13-
1442-006; ER12-1626-007; ER13-1266-009; ER13-1267-006; ER13-1268-006;
ER13-1269-006; ER13-1270-006; ER13-1271-006; ER13-1272-006; ER13-1273-
006; ER10-2605-010.
    Applicants: Pinyon Pines Wind I, LLC, Pinyon Pines Wind II, LLC,
Solar Star California XIX, LLC, Solar Star California XX, LLC, Topaz
Solar, LLC, CalEnergy, LLC, CE Leathers Company, Del Ranch Company,
Elmore Company, Fish Lake Power LLC, Salton Sea Power Generation
Company, Salton Sea Power LLC, Vulcan/BN Geothermal Power Company, Yuma
Cogeneration Associates.
    Description: Triennial Filing for the Southwest Region of the BHE
Renewables, LLC Companies, et al.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5403.
    Comments Due: 5 p.m. ET 8/29/16.

    Docket Numbers: ER14-1656-009.
    Applicants: CSOLAR IV West, LLC.
    Description: Updated Market Power Analysis of CSOLAR IV WEST, LLC.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5401.
    Comments Due: 5 p.m. ET 8/29/16.

    Docket Numbers: ER14-2244-001.
    Applicants: La Paloma Generating Company, LLC.
    Description: Market-Based Triennial Review Filing: Triennial
Updated Market Power Analysis for the Southwest Region and Revised MBR
to be effective 8/29/2016.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5295.
    Comments Due: 5 p.m. ET 8/29/16.

    Docket Numbers: ER16-292-000.
    Applicants: Northern Virginia Electric Cooperative, Inc.
    Description: Northern Virginia Electric Cooperative, Inc. submits
tariff filing per 35.19a(b): Refund Report (Supplement) to be effective
N/A.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5405.
    Comments Due: 5 p.m. ET 7/21/16.

    Docket Numbers: ER16-748-002.
    Applicants: Sentinel Energy Center, LLC.
    Description: Triennial Market Power Update of Sentinel Energy
Center, LLC.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5404.
    Comments Due: 5 p.m. ET 8/29/16.

    Docket Numbers: ER16-1649-002.
    Applicants: California Independent System Operator Corporation.
    Description: Compliance filing: 20160701_Compliance on June 1, 2016
Order--Aliso Canyon to be effective 6/2/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5004.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-1690-000.
    Applicants: Public Service Company of Colorado.
    Description: Supplement to Public Service Company of Colorado
tariff filing (Transmittal Letter).
    Filed Date: 6/28/16.
    Accession Number: 20160628-5273.
    Comments Due: 5 p.m. ET 7/19/16.

    Docket Numbers: ER16-1924-001.
    Applicants: Bison Solar LLC.
    Description: Tariff Amendment: Bison Solar Amended Market Based
Rate Tariff to be effective 8/1/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5080.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-1925-001.
    Applicants: Pavant Solar II LLC.
    Description: Tariff Amendment: Pavant Amended MBR to be effective
8/1/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5082.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-1926-001.
    Applicants: San Isabel Solar LLC.
    Description: Tariff Amendment: San Isabel Solar Amended Market
Based Rate Tariff to be effective 8/1/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5066.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-2109-000.
    Applicants: Southern California Edison Company.
    Description: Section 205(d) Rate Filing: Service Agreement No. 885,
PARS Palmdale 1 Project to be effective 8/30/2016.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5302.
    Comments Due: 5 p.m. ET 7/21/16.

    Docket Numbers: ER16-2110-000.
    Applicants: Southern California Edison Company.
    Description: Tariff Cancellation: Notices of Cancellation GIA & DSA
SunEdison ? 2220 Almond Avenue Project to be effective 6/15/2016.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5319.
    Comments Due: 5 p.m. ET 7/21/16.

    Docket Numbers: ER16-2111-000.
    Applicants: Florida Power & Light Company.
    Description: Section 205(d) Rate Filing: FPL and FMPA Transmission
Service Agreement For St. Lucie Unit No. 2 to be effective 7/1/2016.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5328.
    Comments Due: 5 p.m. ET 7/21/16.

    Docket Numbers: ER16-2112-000.
    Applicants: Pacific Gas and Electric Company.
    Description: Section 205(d) Rate Filing: CDWR Work Performance
Agreement for the Thermalito Restoration Project (SA 275) to be
effective 7/1/2016.
    Filed Date: 6/30/16.
    Accession Number: 20160630-5345.
    Comments Due: 5 p.m. ET 7/21/16.

    Docket Numbers: ER16-2113-000.
    Applicants: Portland General Electric Company.
    Description: Compliance filing: Compliance Filing for Order No. 819
to be effective 2/25/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5003.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-2114-000.
    Applicants: Southwest Power Pool, Inc.
    Description: Section 205(d) Rate Filing: 3218 KCP&L and KCP&L-GMO
Interconnection Agreement to be effective 6/27/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5058.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-2115-000.
    Applicants: NorthWestern Corporation.
    Description: Tariff Cancellation: Notice of Cancellation--SA 744,
Firm Point-to-Point TSA with Energy Keepers Inc to be effective 9/1/
2016.

    Filed Date: 7/1/16.
    Accession Number: 20160701-5084.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-2116-000.
    Applicants: Virginia Electric and Power Company, PJM
Interconnection, L.L.C.
    Description: Section 205(d) Rate Filing: VEPCO submits revisions to
OATT, Attach. H-16A to address income tax issues to be effective 9/1/
2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5095.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-2117-000.
    Applicants: Southwest Power Pool, Inc.
    Description: Section 205(d) Rate Filing: 2881R3 City of Chanute, KS
NITSA NOA to be effective 9/1/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5103.
    Comments Due: 5 p.m. ET 7/22/16.

    Docket Numbers: ER16-2118-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Section 205(d) Rate Filing: 2016-07-01_SA 2925 ITC
Midwest-Prairie Wind Energy GIA (J344) to be effective 7/2/2016.
    Filed Date: 7/1/16.
    Accession Number: 20160701-5116.
    Comments Due: 5 p.m. ET 7/22/16.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: July 1, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2016-16242 Filed 7-8-16; 8:45 am]
 BILLING CODE 6717-01-P


The commenter (0684-0044) argued that the EPA's stated reason for adding these provisions is to provide flexibility for facilities who wait until the last minute to prepare their report, without any evidence or basis of actual need or value to clean air or the public interest in creating the extension provisions. The commenter asserted that these provisions do not advance public health or public welfare, and thus they are inconsistent with the Act's purpose and objectives. The commenter argued that there is no such evidence in the record provided for public notice and comment, nor is there any evidence that if there was any reporting problem where any such event occurred, that it could not be resolved through a case-by-case resolution, or that there was any harm of any kind from not having an extension provision. On the other hand, the commenter argued, there is a requirement for reporting on the timeframe the regulations contain, to assure compliance, and achieve the health and environmental protections the regulations require. According to the commenter, delayed reporting and potentially a failure to report will cause harm in that it delays compliance assurance by the EPA, the states, and affected citizens, and thus undermines the health and environmental protections of the standards themselves. The commenter argued that the EPA's proposal is thus arbitrary because the EPA has not given any rational basis for providing the reporting extension provisions, nor any basis for providing an extension without a new deadline to assure reporting indeed does occur. There is a strong public interest in ensuring reporting occurs within the timeframe the regulations require, and the EPA has failed to justify the delay, according to the commenter.
The commenter (0684-0044) argued that even if the EPA had a rational basis and legal authority to allow these extensions consistent with the Act's goals, it may not create an exemption for CEDRI outages or force majeure events. At minimum, the commenter argued, the EPA must set a new firm deadline, assuring that the extension request allows only a temporary period when the facility need not report, such as, at most, a 10-day extension of the deadline, rather than an open-ended extension.
6.8 Response: The EPA acknowledges the commenters' support for electronic reporting. The final rules require the same electronic reporting requirements for all facilities subject to subparts KKKK and SSSS, as proposed. The commenter questions the limited flexibility the EPA proposed (and is finalizing), namely inclusion of electronic reporting provisions for reporters facing circumstances beyond their control. The commenter asserts the brief case-by-case extension of report submittal deadlines is an "unlawful exemption [from compliance with] the emissions standards." This is not the case, as explained below. The proposed provisions (subpart KKKK at 40 CFR 63.3511(g) and (h)) the commenter questions are as follows (emphasis added):
(g) If you are required to electronically submit a report through the CEDRI in the EPA's CDX, you may assert a claim of EPA system outage for failure to timely comply with the reporting requirement. To assert a claim of EPA system outage, you must meet the requirements outlined in paragraphs (g)(1) through (7) of this section.
(1) You must have been or will be precluded from accessing CEDRI and submitting a required report within the time prescribed due to an outage of either the EPA's CEDRI or CDX systems.
(2) The outage must have occurred within the period of time beginning five business days prior to the date that the submission is due.
(3) The outage may be planned or unplanned.
(4) You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or caused a delay in reporting.
(5) You must provide to the Administrator a written description identifying:
(i) The date(s) and time(s) when CDX or CEDRI was accessed and the system was unavailable;
(ii) A rationale for attributing the delay in reporting beyond the regulatory deadline to the EPA system outage;
(iii) Measures taken or to be taken to minimize the delay in reporting; and
(iv) The date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported.
(6) The decision to accept the claim of EPA system outage and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(7) In any circumstance, the report must be submitted electronically as soon as possible after the outage is resolved.

(h) If you are required to electronically submit a report through CEDRI in the EPA's CDX, you may assert a claim of force majeure for failure to timely comply with the reporting requirement. To assert a claim of force majeure, you must meet the requirements outlined in paragraphs (h)(1) through (5) of this section.
(1) You may submit a claim if a force majeure event is about to occur, occurs, or has occurred or there are lingering effects from such an event within the period of time beginning five business days prior to the date the submission is due. For the purposes of this section, a force majeure event is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents you from complying with the requirement to submit a report electronically within the time period prescribed. Examples of such events are acts of nature (e.g., hurricanes, earthquakes, or floods), acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility (e.g., large scale power outage).
(2) You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or has caused a delay in reporting.
(3) You must provide to the Administrator:
(i) A written description of the force majeure event;
(ii) A rationale for attributing the delay in reporting beyond the regulatory deadline to the force majeure event;
(iii) Measures taken or to be taken to minimize the delay in reporting; and
(iv) The date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported.
(4) The decision to accept the claim of force majeure and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(5) In any circumstance, the reporting must occur as soon as possible after the force majeure event occurs.

There is no exception or exemption to reporting, only a method for requesting an extension of the reporting deadline. Reporters are required to justify their request and identify a reporting date. There is no predetermined timeframe for the length of extension that can be granted, as this is something best determined by the Administrator (i.e., the EPA Administrator or delegated authority as defined in 40 CFR 63.2) when reviewing the circumstances surrounding the request. Different circumstances may require a different length of extension for electronic reporting. For example, a tropical storm may delay electronic reporting for a day, but a Hurricane Katrina scale event may delay electronic reporting much longer, especially if the facility has no power, and as such, the owner or operator has no ability to access electronically stored data or to submit reports electronically. The Administrator will consider the information available on the events leading to the request for extension and will assess whether an extension is appropriate, and if so, a reasonable length for the extension. The Administrator may even request that the report be sent in hardcopy until electronic reporting can be resumed. While no new fixed duration deadline is set, the regulation requires that the report be submitted electronically as soon as possible after the CEDRI outage or after the force majeure event resolves.
The concept of force majeure is not arbitrary, as it has been implemented since May 2007 within the Clean Air Act requirements through the performance test extensions provided in 40 CFR 63.7(a)(4) and 60.8(a)(1). Like the performance test extensions, the approval of a requested extension of an electronic reporting deadline is at the discretion of the Administrator.
The EPA disagrees that the reporting extension will undermine enforcement because the Administrator has full discretion to accept or reject the claim of a CEDRI system outage or force majeure. As such, an extension is not automatic and is agreed to on an individual basis by the Administrator. If the Administrator determines that a facility has not acted in good faith to reasonably report in a timely manner, the Administrator can reject the claim and find that the failure to report timely is a deviation from the regulation. CEDRI system outages are infrequent, but the EPA knows when they occur and whether a facility's claim is legitimate. Force majeure events (e.g., natural disasters impacting a facility) are also usually well-known events.
The EPA also disagrees that the ability to request a reporting extension "would create a broad and vague mechanism" that owners and operators "could use to evade binding emissions standards" or "extends the compliance date" for emissions standards. While reporting is an important mechanism for the EPA and air agencies to assess whether owners and operators are in compliance with emissions standards, reporting obligations are separate from (i.e., in addition to) requirements that an owner or operator be in compliance with an emissions standard, especially where the deadline for meeting the standard has already passed and the owner or operator has certified and is monitoring operations to show that they are in compliance with the standard. This is one way in which an extension of a deadline for submitting an electronic report differs from the affirmative defense provisions (which center on compliance with the underlying emission standards). The commenter references deadlines set forth in the CAA for demonstrating initial compliance following the effective date of emission standards, which differs from deadlines for submitting reports. There are no such deadlines stated in the CAA for report due dates, meaning EPA has discretion to establish reporting schedules, and also discretion to allow a mechanism for extension of those schedules on a case-by-case basis. This would not be a reasonable result. Reporting deadlines are often different from compliance deadlines. Rules under 40 CFR part 60 and 63 typically allow months following an initial compliance deadline to conduct testing and submit reports, but compliance with standards is required upon the compliance date.
Additionally, the ability to request a reporting extension does not apply to a broad category of circumstances; on the contrary, the scope for submitting an extension request for an electronic report is very limited in that claims can only be made for an event outside of the owner's or operator's control that occurs in the five business days prior to the reporting deadline. The claim must then be approved by the Administrator, and in approving such a claim, the Administrator agrees that something outside the control of the owner or operator prevented the owner or operator from meeting its reporting obligation. In no circumstance does this electronic reporting extension allow for the owner or operator to be out of compliance with the underlying emissions standards.
The EPA disagrees with the commenter's assumption that the requirement to report "as soon as possible" makes it likely that reporting will be significantly delayed, may lead a facility to drag its feet in submitting reports for an extended period, or may lead to a facility never reporting information. Each request for an extension of the electronic reporting deadline must be approved by the Administrator, and each request must state the date by which the facility proposes to report, or if it has already met the reporting requirement at the time of the notification, the date the facility reported. In order to help prevent a spurious request, facilities must include the dates and times of the unsuccessful attempt(s) to access CEDRI in the case of a CEDRI outage. EPA disagrees that a delay in reporting due to a CEDRI outage or a force majeure event would necessitate a delay in a corrective action that would be taken to prevent harmful and unlawful emission exceedances. The facility must remain in compliance with all NESHAP requirements and has an ongoing responsibility under the general duty clause of 40 CFR 63.6(e) (and under the general duty clause of 40 CFR 63.3500(b) and 63.5140(b) of subparts KKKK and SSSS on and after the compliance date for this action) to operate and maintain any affected source in a manner consistent with safety and good air pollution practices for minimizing emissions. An extension of the deadline for submitting an electronic report in no way eliminates culpability for exceedances of emissions limitations or the requirement to address them.
The e-reporting deadline extension differs from affirmative defense in that it in no way excuses the facility for any emissions exceedances or deviations or shields facilities from the consequences of such exceedances or deviations, but merely extends, under a narrow set of circumstances outside the control of the facilities, the deadline for submitting a report. The reporting deadline extension does not affect the requirement to report.
The EPA disagrees that the force majeure extension request must require a facility to report what steps it will take in the future to prevent the same problem from occurring. A force majeure event for the purpose of electronic reporting is defined as "...an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility." Examples of such events are acts of nature and acts of war or terrorism. By definition, force majeure events are not something that a facility is able to control, and thus there is no way for the facility to prevent it from happening.
The EPA disagrees that the stated reason for these extensions is to provide flexibility for facilities who wait until the last minute to prepare their report or that such language was added without any basis of actual need. The purpose of these requests for extensions are to accommodate owners and operators in cases where they cannot successfully submit a report electronically for reasons that are beyond their control. The extension is not automatic, and the Administrator retains the right to accept or reject the request. The language was added as part of the standard electronic reporting language based on numerous comments received on the proposal for the Electronic Reporting and Recordkeeping Requirements for the New Source Performance Standards (ERRRNSPS) (80 FR 15100).
 7.0	Startup, Shutdown, Malfunction (SSM) Provisions
7.1 Comment: One commenter (0684-0046) argued that it is important to make a distinction between a "deviation" and a "violation" of the emission limits and supported the proposed language in 40 CFR 63.3542(h) and 63.3552(g) stating: "The Administrator will determine whether the deviations are violations according to the provisions in § 63.3500(b)." The commenter argued that there are a number of reasons why a temporary deviation in operating parameters would not result in a violation of the emission limits. The commenter noted that, for example, a short, temporary deviation is unlikely to result in a violation of the emission standards because compliance is calculated based on a 12-month rolling average.
7.1 Response:  The EPA is finalizing the amendments to the SSM provisions as proposed. The EPA acknowledges this support. The EPA agrees, for the reasons explained in the proposal preamble (84 FR 25926) that, for example, malfunctions that lead to deviations may not necessarily lead to violations of the emission standards.
7.2 Comment: One commenter (0685-0048) noted that new language has been proposed for 40 CFR 63.5150(a) which states that on and after the compliance date sources must also maintain the monitoring equipment at all times in accordance with 40 CFR 63.5140(b) and keep the necessary parts readily available for routine repairs of the monitoring equipment.  The commenter expressed concern that different inspectors could have different interpretations of what parts would be "necessary" to be kept readily available and what repairs would be "routine The commenter recommended revising the proposed language for 40 CFR 63.5150(a) to omit "and keep the necessary parts readily available for routine repairs of the monitoring equipment." The commenter argued that compliance requirement language will always be open to some degree of interpretation, but the suggested change would minimize differences in how this new language is interpreted and allow the individual facilities to manage and defend their compliance practices required in this section as they see best.
7.2 Response: EPA disagrees with the commenter and is not accepting this recommended change. The requirement is not new, it was simply moved from the General Provisions to subparts KKKK and SSSS. The language proposed for 40 CFR 63.5150(a) replaces language in 40 CFR 63.8(c)(1)(i) and (ii) that no longer applies. The EPA is amending Table 5 to subpart KKKK of Part 63 so that 40 CFR 63.8(c)(1) no longer applies because 40 CFR 63.8(c)(1)(iii) requires, "The owner or operator of an affected source must develop a written startup, shutdown, and malfunction plan for CMS as specified in §63.6(e)(3)." Because 40 CFR 63.8(c)(1) no longer applies as part of the amendments to remove the SSM exemptions, the provisions of 40 CFR 63.8(c)(1)(i) and (ii) are being added to each subpart. EPA disagrees that the proposed language would lead to differences in interpretation and the commenter provided no evidence that the same language led to compliance issues when it was located only in 40 CFR 63.8(c)(1)(ii).
7.3 Comment: One commenter (0684-0044) supported the EPA's proposal to eliminate the exemption in the current metal can and metal coil surface coating rules for periods of startup, shutdown, and malfunction (SSM). The commenter asserted that the emission limits must apply at all times including malfunctions and challenged the EPA's statement that "Although no statutory language compels the EPA to set standards for malfunctions, the EPA has the discretion to do so where feasible." The commenter also objected to the EPA's stated position that the Petroleum Refinery Sector Risk and Technology Review (RTR) creates a precedent for establishing a work practice for malfunction events. The commenter stated that the Petroleum Refinery RTR rule provides no such precedent because that rule currently is under reconsideration by the agency and because a legal challenge to the malfunction provisions of the refinery rule is being held in abeyance by the D.C. Circuit awaiting the EPA's reconsideration.
7.3 Response: The EPA acknowledges the support for eliminating the exemptions in subparts KKKK and SSSS for SSM periods and agrees that the emissions limits must apply at all times. EPA did not propose and is not establishing emission standards or work practices for malfunction events in the final subparts KKKK or SSSS. In addition, the Petroleum Refinery source category is different from the categories at issue in this case and the malfunction related requirements in the refinery rule are not applicable to the Metal Can and Metal Coil source categories.
 8.0	Test Methods and Ongoing Emissions Compliance Demonstrations Requirement
8.1 Comment: One commenter (0684-0044) supported the EPA's proposal to require additional periodic emission testing.  The commenter agreed that periodic emission testing is necessary, because as the Institute of Clean Air Companies demonstrated, "control equipment degrades over time." 84 Fed. Reg. at 25,930 (citing ICAC comment in the docket here and at EPA-HQ-OAR-2004-0094-0173). The commenter agreed that the evidence demonstrates this requirement is needed, and therefore the EPA should finalize the requirement to assure compliance with the standards and to revise the standards pursuant to § 7412(d)(6).

8.1 Response: The EPA acknowledges the support for the additional periodic testing requirement.

8.2 Comment: One commenter (0684-0046) recommended that language in the proposed rule for 40 CFR part 63, subpart KKKK should be revised to more clearly allow facilities to use the performance tests conducted under their Title V permits, as required by state and local permitting authorities, to meet the proposed requirement for periodic performance testing under 40 CFR part 63, subpart KKKK. The commenter suggested that EPA modify the proposed language for 40 CFR 63.3540 (a)(1)(ii), 63.3540 (b)(1)(ii), 63.3550 (a)(1)(ii), and 63.3550 (b)(1)(ii) and offered clarifying language to say that if a source is not required to complete periodic performance tests as a requirement of renewing its title V operating permit under 40 CFR part 70 or 40 CFR part 71, it must conduct the first periodic performance test before the date 3 years after date of publication of final rule in the Federal Register, unless the source has already conducted a performance test on or after the date two years before the date of publication of final rule in the Federal Register. The commenter then suggested adding language to say that if a source is already required to complete periodic performance tests as a requirement of renewing its title V operating permit under 40 CFR part 70 or 40 CFR part 71, it must conduct the periodic testing in accordance with the terms and schedule required by its permit conditions.

8.2 Response: The EPA agrees that the recommended changes would clarify that facilities can continue to use tests conducted under Title V to meet the subpart KKKK requirement to conduct periodic performance tests. The EPA is making the recommended changes to 40 CFR 63.3540 (a)(1)(ii), 63.3540 (b)(1)(ii), 63.3550 (a)(1)(ii), and 63.3550 (b)(1)(ii) and is making comparable changes to Table 1 To 40 CFR 63.5160 -- Required Performance Testing Summary, in 40 CFR part 63, subpart SSSS.
8.3 Comment: One commenter (0684-0046) stated that it is not clear if the EPA's cost estimates for conducting performance tests include costs associated with facility staff preparing for and participating in testing and reviewing results.
8.3 Response: In the Information Collection Requests (ICR) described in section VIII.C of the proposal preamble (84 FR 25944-25945) and available in the dockets for this action, we have estimated a total of 48 hours at a cost of $5,502 for technical, managerial, and clerical staff to prepare for, monitor, and review the results of each periodic performance test. This is the estimated burden per test per facility.
8.4 Comment: One commenter (0685-0048) reported that most, if not all, metal coil coating facilities surveyed by the commenter already conduct periodic compliance tests on 5-year intervals due to other requirements, such as through state Title V provisions. The commenter also supported allowing facilities to continue their current testing schedule if one is in place.
8.4 Response: The EPA acknowledges the commenter's support.
8.5 Comment: One commenter (0684-0046) recommended that facilities meeting the periodic testing requirement through testing conducted as a condition of their Title V permit should be allowed to submit the testing results in portable document format (PDF) instead of using the file format generated using the EPA's electronic Reporting Tool (ERT) or an alternate electronic file format consistent with the extensible markup language (XML) schema listed on the EPA's ERT website. The commenter argued that testing plans required by state and local permit authorities as part of Title V requirements may not match the format used by EPA's ERT.
8.5 Response: The EPA disagrees with the suggestion that owners or operators should be allowed to submit test documents as PDF files in place of the file format generated by the ERT. Owners and operators do not need to submit test plans to the ERT and need to submit only the results of the testing using the EPA methods. The data generated by tests using the EPA test methods should be consistent with the ERT file format developed for that EPA test method. Therefore, the EPA is not allowing facilities to submit testing results in a PDF file if the ERT supports electronic submission for the test methods used.

The EPA's electronic reporting system provides quick and easy access to submitted data for state, local, and tribal agencies in two convenient locations: CEDRI and WebFIRE. Several states already specify that performance test results must be submitted in an electronic format. The EPA works with state, local, and tribal agencies to encourage and implement the use of the ERT and CEDRI for electronic delivery of performance test reports from facilities within their jurisdiction. As more information is provided through the EPA's electronic reporting system, the EPA expects more state, local, and tribal agencies to adopt the use of the EPA's electronic reporting system. As noted in the preamble to the proposed rule, electronic reporting minimizes submission of unnecessary or duplicative reports in cases where facilities report to multiple government agencies and the agencies opt to rely on the EPA's electronic reporting system to view report submissions. Where air agencies continue to require a paper copy of these reports and will accept a hard copy of the electronic report, facilities will continue to have the option to print paper copies of the electronic report to submit to the air agencies, and, thus, minimize the time spent reporting to multiple agencies.
8.6 Comment: Once commenter (0685-0048) requested that 40 CFR 63.5160(d)(1) be revised to allow compliance demonstrations for removal efficiency by other methods besides simultaneous inlet and outlet emission measurements, such as coating station input VOC and total line outlet emissions measured on a simultaneous basis. The commenter recommended the following revised language:
      "Performance tests conducted to determine the destruction or removal efficiency of the control device must be performed such that control device inlet and outlet testing is conducted simultaneously, or by other equivalent simultaneous methods.
The commenter (0685-0048) argued that at least one coil coating facility uses coating station input VOC and total line output emissions tested simultaneously, rather than control device inlet and outlet emissions tested simultaneously. The commenter suggested that the added language would provide clarity that other simultaneous methods would be acceptable if providing equivalency of input and output emissions levels.
8.6 Response: The EPA is not revising 40 CFR 63.5160(d)(1) as requested by the commenter to allow compliance demonstrations for removal efficiency by other methods besides simultaneous inlet and outlet emission measurements. The General Provisions to Part 63, specifically 40 CFR 63.7(f), allow facilities to seek EPA approval to use an alternative test method after validating the alternative test method. Facilities may use this existing provision to seek EPA approval to use other methods for determining the emissions at the inlet to the control device. The authority to approve alternative test methods is retained by the EPA and is not delegated to state agencies. The commenter did not provide sufficient detail on the "equivalent simultaneous methods" being considered that would allow EPA to evaluate them and to develop more detailed regulatory language within the scope of this action.
8.7 Comment: One commenter (0685-0048) recommended that item 1.a.iii in Table 1 to Subpart SSSS of Part 63 -- Operating Limits if Using Add-On Control Devices and Capture System should be revised to read as follows:
      Maintaining the 3-hour block average combustion temperature at or above the temperature limit.
The commenter (0685-0048) suggested that this change provides clarification that once the data are reduced to 3-hour block averages, those are the values that are then compared to the temperature limit to determine if compliance is demonstrated.
8.7 Response: The EPA proposed no changes to Table 1 of subpart SSSS and considers this comment to be outside the scope of this action. The EPA has reviewed several other surface coating NESHAP (subparts IIII, KKKK, MMMM, NNNN, OOOO, PPPP, and RRRR) with a similar operating limit requirement, which is based on a 3-hour block average as specified in Table 1, item 1.a.ii. The EPA found that these rules use a mix of the term "3-hour average" and "3-hour block average" in item 1.a.iii, but we have no evidence that this inconsistency has led to any confusion because item 1.a.ii clearly indicates these are 3-hour block averages. Therefore, the EPA is making no changes to Table 1 of Subpart SSSS in this action.
8.8 Comment: One commenter (0684-0043) stated that the specification to use EPA Method 25A if the gaseous organic concentration is expected to be 50 ppmC or less and to use EPA Method 25 if it is greater than 50 ppmC, is not based on a valid division. The commenter argued that, prior to the elimination of the US EPA audit program, it had been documented that a Method 25 audit in the range of 50.2 ppmC was passed within the +- 20 percent allowance at that time. The commenter argued that this documented the accuracy of the method at the 50 ppmC cut off point with the full sampling in the field and analysis in the laboratory tested. The commenter argued that the known response factor concerns with the use of a straight FID analyzer and the lack of blind audit documentation for the Method 25A would tend to indicate a lesser confidence in the Method 25A except at the very low limits where there are currently no other alternatives. The commenter asserted that the field blanks for Method 25, depending upon sampled volume, range consistently in the <10 ppmC to <15 ppmC ranges, and sets of samples have been reported in the 17 ppmC range on multiple occasions.
8.8 Response: The EPA proposed no changes to the use of EPA Methods 25 or 25A and considers this comment to be outside the scope of this action and, therefore, no response is required.
8.9 Comment: One commenter (0684-0043) argued that the use of EPA Method 18 for methane, or in some cases, methane/ethane subtraction for the Method 25A analysis, would be more logical if these were not two different methods, which creates a built-in opportunity for systemic bias. The commenter argued that the Method 25 analysis removes the methane subtraction issue, and if there is a need to subtract ethane, a second analytical run may be performed to allow the ethane to elute separately. The commenter argued that this allows a direct subtraction from the NMOC [non-methane organic compound] using the same analytical method to determine NMNEOC [non-methane non-ethane organic compounds] without the loss of any other compounds of interest.
8.9 Response: The EPA acknowledges the information provided by the commenter and agrees that Method 25 removes the methane subtraction issue and would be superior as an NMNEOC method if the concentration of both the inlet and outlet gaseous emission streams are 50 ppm VOC as carbon or greater. Since Method 25 is not applicable to gaseous emission streams containing less than 50 ppm VOC as carbon it cannot be used in all cases. Method 25A is required for measurement of VOC for gaseous emission streams with concentrations below 50 ppm because the method measures ethane, methane, and all other combustible VOC that respond to the flame detector, and its detection limit is dependent on the span range and can be as low as 1 ppm. Therefore, we are finalizing as proposed the addition of Method 18 to subpart SSSS to measure the individual species as needed (i.e., methane and ethane) so they can be subtracted from the total Method 25A measurement. Method 18 is already included in subpart KKKK.

8.10 Comment: One commenter (0684-0043) argued that the use of EPA Method 25A where an oxidizer is not used still does not eliminate the potential for the variable response issue nor the suppressed response where compounds such as alcohols may be present in the sample stream. The commenter asserted that EPA Method 25 does not have such an issue with suppressed response or in some cases excessive response to certain compounds.
8.10 Response: The EPA proposed no changes to the use of EPA Method 25A and considers this comment to be outside the scope of this action, therefore, no response is required.
 9.0	Proposed Compliance Dates
9.1 Comment: One commenter (0685-0048) agreed that the proposed compliance time, 181 days after publication of the final rule is reasonable for this action because it involves no significant new compliance or testing requirements. However, the commenter stated that compliance deadlines should be considered on a rule-by-rule basis and in other cases up to 3 years may be needed.
9.1 Response: The EPA acknowledges the commenter's support for the 181 day compliance deadline.