[Federal Register: May 7, 2008 (Volume 73, Number 89)]
[Notices]
[Page 25758]
[DOCID:fr07my08-94]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[FEMA-1740-DR]

Indiana; Amendment No. 3 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the State of Indiana (FEMA-1740-DR), dated January 30, 2008, and
related determinations.

DATES: Effective Date: April 25, 2008.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration
for the State of Indiana is hereby amended to include the following
areas among those areas determined to have been adversely affected by
the catastrophe declared a major disaster by the President in his
declaration of January 30, 2008.

    Benton, Carroll, Cass, DeKalb, Elkhart, Jasper, Kosciusko,
Marshall, Newton, Noble, Pulaski, Starke, and White Counties for
Public Assistance (already designated for Individual Assistance).

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households in
Presidential Declared Disaster Areas; 97.049, Presidential Declared
Disaster Assistance--Disaster Housing Operations for Individuals and
Households; 97.050 Presidential Declared Disaster Assistance to
Individuals and Households--Other Needs, 97.036, Disaster Grants--
Public Assistance (Presidentially Declared Disasters); 97.039,
Hazard Mitigation Grant.)

R. David Paulison,
Administrator, Federal Emergency Management Agency.
 [FR Doc. E8-10144 Filed 5-6-08; 8:45 am]

BILLING CODE 9110-10-P


[Federal Register: June 4, 2010 (Volume 75, Number 107)]
[Notices]
[Page 31830-31834]
[DOCID:fr04jn10-101]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62194; File No. SR-Phlx-2010-48]

 Self-Regulatory Organizations; Order Approving Proposed Rule
Change by NASDAQ OMX PHLX, Inc. Relating to Market Data Fees

May 28, 2010.

I. Introduction

    On April 6, 2010, NASDAQ OMX PHLX, Inc. (``Phlx'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to
establish fees for a data product, Top of Phlx Options Plus Orders
(``TOPO Plus Orders'' or ``TOPO Plus''), which currently provides
disseminated Exchange top-of-market data (including orders, quotes and
trades), together with all information that is included in the
Exchange's Specialized Order Feed (``SOF''). The proposed rule change
was published for comment in the Federal Register on April 16, 2010.\3\
The Commission received three comment letters on the proposed rule
change.\4\ The Exchange submitted one letter in response to these
comment letters.\5\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 61878 (April 8,
2010), 75 FR 20023 (April 16, 2010) (``Notice'').
    \4\ See Letter from Lawrence Lempert, Bullock Trading, LP,
Michael Waber, Fairview Trading Corp., Andy Yang, Cutler Group, LP,
Theodore Raven, TSR Associates, LLC, and Tim Lobach, Keystone
Trading Partners to Mary Schapiro, Chairman, Commission, dated May
3, 2010 (``Lempert Letter'') and Letter from Robert Sullivan, Empire
Options Corporation to Mary Schapiro, Chairman, Commission, received
May 3, 2010 (``Sullivan Letter''). See also Letter from Michael
Waber, Fairview Trading, Inc., to Elizabeth M. Murphy, Secretary,
Commission, dated May 23, 2010 (``Waber Letter'') (responding to the
Phlx Letter, infra note 5).
    \5\ See Letter from Richard S. Rudolph, Assistant General
Counsel, NASDAQ OMX PHLX, Inc. to Elizabeth M. Murphy, Secretary,
Commission, dated May 13, 2010 (``Phlx Letter'').
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    This order approves the proposed rule change.

II. Description of the Proposed Rule Change

    In June 2009, the Exchange launched Phlx XL II, an electronic
trading platform on which all options on the Exchange are currently
traded.\6\ In conjunction with the launch and rollout of the Phlx XL II
system, the Exchange developed the Top of Phlx Options direct data feed
(``TOPO''),\7\ which provides to subscribers the Exchange's best bid
and offer position, with aggregate size, based on displayable order and
quoting interest on the Phlx XL II system.
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    \6\ See Securities Exchange Act Release No. 59995 (May 28,
2009), 74 FR 26750 (June 3, 2009) (SR-Phlx-2009-32).
    \7\ See Securities Exchange Act Release No. 60459 (August 7,
2009), 74 FR 41466 (August 17, 2009) (SR-Phlx-2009-54). The Exchange
represents that the data contained in the TOPO data feed is
identical to the data sent to the processor for the Options Price
Regulatory Authority (``OPRA''), and the TOPO and OPRA data leave
the Phlx XL II system at the same time.
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    In October 2009, the Exchange made the TOPO Plus Orders data feed
available to all market participants for free.\8\ According to the
Exchange, TOPO Plus Orders provides disseminated Exchange top-of-market
data (including orders, quotes and trades) together with all
information that is included in SOF, the Exchange's real-time full
limit order book data feed. When it established TOPO Plus Orders, the
Exchange stated that it planned to submit a proposed rule change to the
Commission in order to implement fees for the use of TOPO Plus Orders.
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    \8\ See Securities Exchange Act Release No. 60877 (October 26,
2009), 74 FR 56255 (October 30, 2009) (SR-Phlx-2009-92).
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    SOF is currently available to any Exchange quoting participant
(i.e., specialists, Streaming Quote Traders, and Remote Streaming Quote
Traders (collectively, ``users'')) and is available to users on an
issue-by-issue basis at the user's request. A user does not have to be
assigned in an issue for the Exchange to provide SOF to such user in
that issue. The SOF provides real-time information to keep track of the
single order book(s), single and complex orders, complex strategy and
Live Auction for all symbols for which the user is configured. Users
may be configured for one or more symbols. SOF provides real-time data
for the entire book to its users. It is a compilation of limit order
data resident in the Exchange's limit order book for options traded on
the Exchange that the Exchange provides through a real-time data feed.
The Exchange updates SOF information upon receipt of each displayed
limit order. For every limit

price, the SOF includes the aggregate order volume.
    The Exchange anticipates that it will generally phase out SOF as of
June 1, 2010, and instead offer only TOPO Plus Orders to participants
that wish to continue to receive the data currently included in SOF.
Thus, current SOF users must migrate to TOPO Plus Orders by June 1,
2010. The Exchange recognizes, however, that some SOF users may
encounter issues beyond their control that render them unable to
migrate from SOF to the TOPO Plus Orders feed on or before that date.
Accordingly, the Exchange would make SOF available for a period of time
after June 1, 2010 to current SOF users that have not migrated to TOPO
Plus Orders. In the event that an SOF user is unable to migrate to TOPO
Plus Orders due to circumstances beyond their control, by June 1, 2010,
the Exchange would apply the same monthly fee applicable to TOPO Plus
Orders users that are Internal Distributors (as defined below) to such
SOF users. Once a user has migrated from SOF to TOPO Plus Orders, they
would not have the option of reverting to SOF. New subscribers
currently do not have, and would not be given, the option to use SOF.
New subscribers must subscribe to TOPO Plus Orders to receive the
market data feed.
    The Exchange proposes to charge monthly fees to distributors for
use of TOPO Plus Orders. The amount of the monthly distributor fee
would depend on whether the distributor is an ``Internal Distributor''
or an ``External Distributor.'' The Exchange's fee schedule currently
reflects that a ``distributor'' of NASDAQ OMX PHLX data is any entity
that receives a feed or data file of data directly from NASDAQ OMX PHLX
or indirectly through another entity and then distributes it either
internally (within that entity) or externally (outside that entity),
and that all distributors would be required to execute a NASDAQ OMX
PHLX distributor agreement.
    An Internal Distributor is an organization that subscribes to the
Exchange for the use of TOPO or TOPO Plus Orders, and is permitted by
agreement with the Exchange to provide TOPO or TOPO Plus Orders data to
internal users (i.e., users within their own organization). Under the
proposal, Internal Distributors of TOPO Plus Orders would be charged a
monthly fee of $4,000 per organization.\9\ This charge would also apply
to SOF users that have not migrated to TOPO Plus Orders on or before
June 1, 2010.\10\
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    \9\ Internal Distributors of TOPO are currently charged a
monthly fee of $2,000 per organization. This fee would continue to
apply to Internal Distributors that distribute the TOPO feed.
    \10\ SOF users do not distribute SOF to any external users.
Therefore, the Exchange would assess the lesser fee applicable to
internal distributors of TOPO Plus Orders on SOF users that have not
migrated as of June 1, 2010.
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    An External Distributor is an organization that subscribes to the
Exchange for the use of TOPO Plus Orders, and is permitted by agreement
with the Exchange to provide TOPO Plus Orders data to both internal
users and to external users (i.e., users outside of their own
organization). External Distributors would be charged a monthly fee of
$5,000 per organization.\11\
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    \11\ External Distributors of TOPO are currently charged a
monthly fee of $2,500 per organization. This fee would continue to
apply to External Distributors that distribute the TOPO feed.
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    The Exchange also proposes to assess a monthly Subscriber Fee \12\
on External Distributors of TOPO Plus Orders. The monthly Subscriber
Fee would be assessed on a per-subscriber basis depending upon whether
the subscriber is a Non-Professional Subscriber \13\ or a Professional
Subscriber.\14\ The monthly Subscriber Fee assessed to External
Distributors would be $1 per Non-Professional Subscriber. The monthly
Subscriber Fee assessed to External Distributors would be $20 per
Professional Subscriber. The Monthly Subscriber Fee would also apply to
SOF users that have not migrated to TOPO Plus Orders on or before June
1, 2010.
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    \12\ A ``subscriber'' is a person or entity to whom the External
Distributor provides the TOPO Plus Orders data feed.
    \13\ A Non-Professional Subscriber is a natural person who is
neither: (i) Registered or qualified in any capacity with the
Commission, the Commodities Futures Trading Commission, any state
securities agency, any securities exchange or association, or any
commodities or futures contract market or association; (ii) engaged
as an ``investment adviser'' as that term is defined in Section
201(11) of the Investment Advisors Act of 1940 (whether or not
registered or qualified under that Act); nor (iii) employed by a
bank or other organization exempt from registration under federal or
state securities laws to perform functions that would require
registration or qualification if such functions were performed for
an organization not so exempt.
    \14\ A Professional Subscriber is any subscriber that is not a
Non-Professional Subscriber. If the NASDAQ OMX PHLX distributor
agreement is signed in the name of a business or commercial entity,
such entity would be considered a Professional Subscriber.
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III. Summary of Comments and Phlx's Response

    The commenters argue that, contrary to the Exchange's claim in the
Notice, at least some of the information contained in TOPO Plus should
not qualify as ``non-core.'' In addition, the commenters argue that the
proposed fees for TOPO Plus are not fair and reasonable.\15\
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    \15\ In addition to the issues discussed here, the Commission
notes the comment letters raise additional issues that are not
pertinent or applicable to the subject matter of the current
proposed rule change, and which are not discussed in this order.
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A. Core Data vs. Non-Core Data

    The commenters argue that the TOPO Plus Order feed should not be
considered non-core data, but instead that portions of it (e.g., single
and complex order book, and Live Auction data) should be viewed as core
data.\16\ For example, the Lempert Letter states that TOPO Plus
epitomizes the type of essential data that should be included in core
data, and believes that Phlx's TOPO Plus is distinguishable from other
data products approved by the Commission \17\ because the SOF portion
of TOPO Plus is critical information not available anywhere else.\18\
In addition, the Lempert Letter states that the complex order book
should be classified as core data because ``customers have an
expectation that those orders are displayed to all market participants
in a transparent manner just as single option orders must be
disseminated to OPRA.'' \19\
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    \16\ See Lempert Letter at 2-3; Sullivan Letter at 1; see also
Waber Letter at 1-2.
    \17\ See Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770 (December 9, 2008) (SR-NYSEArca-2006-21) (``NYSE
Arca Order'').
    \18\ See Lempert Letter at 2.
    \19\ Id. at 3.
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    Phlx disagrees and states in its response letter that the
Commission has defined ``core data'' as ``the best priced quotations
and comprehensive last sale reports of all market data,'' which is
reported to OPRA and then disseminated to the market place as a
whole.\20\ Phlx states that non-core data is defined as anything other
than core data that an exchange produces on a voluntary basis, such as
depth-of-market data, and notes that data such as TOPO Plus is not
required to be produced by Phlx.\21\ The Exchange also notes that,
while it provides last sale data regarding complex orders to OPRA as
core data pursuant to the requirements of the OPRA Plan, it does not
provide top of the complex order book data to the OPRA Plan because
OPRA does not currently support such order types and the OPRA Plan
explains that such information should not be reported to OPRA.\22\
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    \20\ See Phlx Letter at 2 (citing the NYSE Arca Order).
    \21\ Id. at 2.
    \22\ Id. at 2-3.

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B. Fees and Costs

    The commenters also argue that the proposed fees are not fair and
reasonable, and believe that the proposed fees discriminate against
smaller broker-dealers because they would charge the same amount per
broker-dealer regardless of the quantity of issues traded.\23\ In
addition, one commenter also expresses concern regarding the cost for
broker-dealers of acquiring the technology necessary if they opt to
receive the TOPO Plus raw data stream.\24\
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    \23\ See Lempert Letter at 3; see also Sullivan Letter at 1 and
Waber Letter at 1-2.
    \24\ See Lempert Letter at 3-4.
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    In its response letter, Phlx contends that its TOPO Plus fees
represent an equitable allocation of reasonable dues, fees and other
charges among its members and issuers and other persons using its
facilities.\25\ Phlx states that the commenters in the Sullivan and
Lempert Letters would be considered Internal Distributors, and thereby
subject to the $4,000 fee, only if they choose to receive a raw data
feed from Phlx or any other vendor where the subscriber can interact
with data in its raw form.\26\ In the Phlx Letter, the Exchange states
that, based ``upon the use of TOPO Plus by [the commenters] and the
manner in which External Distributors would distribute TOPO Plus to
them, Phlx concludes that [they] are neither Internal Distributors nor
External Distributors of TOPO Plus,'' and therefore not subject to the
monthly $4,000 (for Internal Distributors) or $5,000 (for External
Distributors) in monthly fees.\27\ Instead, Phlx believes they would be
Professional Subscribers and subject to the fees charged them by the
External Distributor from which they receive the feed. Such External
Distributor would be assessed a $20 monthly fee for each of its
Professional Subscribers, which Phlx believes would likely be passed
through to subscribers, along with any other fees agreed upon by such
External Distributor and its subscribers.\28\
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    \25\ See Phlx Letter at 3.
    \26\ Id. at 4.
    \27\ Id.
    \28\ Id. at 4.
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IV. Discussion and Commission Findings

    After careful review, the Commission finds that the proposal is
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange.\29\ In particular, the Commission finds that the proposed
rule change is consistent with the requirements of Section 6(b)(4) of
the Act,\30\ which requires that the rules of a national securities
exchange provide for the equitable allocation of reasonable dues, fees
and other charges among members and issuers and other persons using its
facilities. The Commission also believes that the proposed rule change
is consistent with Section 6(b)(5) of the Act,\31\ which requires,
among other things, that the rules of an exchange be designed to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest; and not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. The Commission further believes that the proposed
rule change is consistent with Section 6(b)(8) of the Act,\32\ in that
it does not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.
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    \29\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \30\ 15 U.S.C. 78f(b)(4).
    \31\ 15 U.S.C. 78f(b)(5).
    \32\ 15 U.S.C. 78f(b)(8).
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    The Commission has reviewed the proposal using the approach set
forth in the NYSE Arca Order for non-core market data fees.\33\ There,
the Commission stated that ``core'' data related to data ``that
Commission rules require to be consolidated and distributed to the
public by a single central processor'' whereas ``no Commission rule
requires exchange or market participants either to distribute non-core
data to the public or to display non-core data to investors.'' \34\ In
the NYSE Arca Order, the Commission also 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.'' \35\ It noted that the ``existence of significant
competition provides a substantial basis for finding that the terms of
an exchange's fee proposal are equitable, fair, reasonable, and not
unreasonably or unfairly discriminatory.'' \36\ If an exchange ``was
subject to significant competitive forces in setting the terms of a
proposal,'' the Commission will approve a proposal unless it determines
that ``there is a substantial countervailing basis to find that the
terms nevertheless fail to meet an applicable requirement of the
Exchange Act or the rules thereunder.'' \37\
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    \33\ See NYSE Arca Order, supra note 17.
    \34\ Id. at 74771.
    \35\ Id.
    \36\ Id. at 74782.
    \37\ Id. at 74781.
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    As noted in the NYSE Arca Order, the standards in Section 6 of the
Act do not differentiate between types of data and therefore apply to
exchange proposals to distribute both core data and non-core data.\38\
All U.S. options exchanges are required pursuant to the OPRA Plan to
provide core data--the best-priced quotations and comprehensive last
sale reports--to OPRA, which data is then distributed to the public
pursuant to the OPRA Plan.\39\ In contrast, individual exchanges and
other market participants distribute non-core data voluntarily.\40\ The
mandatory nature of the core data disclosure regime leaves little room
for competitive forces to determine products and fees.\41\ Non-core
data products and their fees are, by contrast, much more sensitive to
competitive forces. The Commission therefore is able to rely on
competitive forces in its determination of whether an exchange's
proposal to distribute non-core data meets the standards of Section
6.\42\
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    \38\ Id. at 74779.
    \39\ See Plan for Reporting of Consolidated Options Last Sale
Reports and Quotation Information (``OPRA Plan''), Sections V(a)-
(c).
    \40\ See NYSE Arca Order at 74779.
    \41\ Id.
    \42\ Id.
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    The Commission agrees with Phlx that, contrary to the commenters'
assertions, the Exchange's instant proposal relates to the distribution
of non-core data. The Commission will, therefore, apply the market-
based approach set forth in the NYSE Arca Order. Pursuant to this
approach, the first step is to determine whether Phlx was subject to
significant competitive forces in setting the terms of its non-core
market data proposal, including the level of any fees. As in the
Commission's NYSE Arca Order, in determining whether Phlx was subject
to significant competitive forces in setting the terms of its proposal,
the Commission has analyzed Phlx's need to attract order flow from
market participants, and the availability to market participants of
alternatives to purchasing Phlx's non-core market data.
    The Commission believes that the options industry is currently
subject to

significant competitive forces.\43\ It is generally accepted that the
start of wide-spread multiple listing of options across exchanges in
August 1999 greatly enhanced competition among the exchanges.\44\ The
launch of four new options exchanges since that time, numerous market
structure innovations, and the start of the options penny pilot \45\
have all further intensified intermarket competition for order flow.
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    \43\ The Commission has previously stated that the options
industry is subject to significant competitive forces. See
Securities Exchange Act Release No. 59949 (May 20, 2009), 74 FR
25593 (May 28, 2009) (SR-ISE-2007-97) (order approving the
International Stock Exchange's proposal establishing fees for a
real-time depth of market data offering).
    \44\ See, generally, Concept Release: Competitive Developments
in the Options Markets, Securities Exchange Act Release No. 49175
(date), 69 FR 6124 (February 9, 2004); see also Battalio, Robert,
Hatch, Brian, and Jennings, Robert, Toward a National Market System
for U.S. Exchange-Listed Equity Options, The Journal of Finance 59
(933-961); De Fontnouvelle, Patrick, Fishe, Raymond P., and Harris,
Jeffrey H., The Behavior of Bid-Ask Spreads and Volume in Options
Markets During the Competition for Listings in 1999, The Journal of
Finance 58 (2437-2463); and Mayhew, Stewart, Competition, Market
Structure, and Bid-Ask Spreads in Stock Option Markets, The Journal
of Finance 57 (931-958).
    \45\ See, e.g., Securities Exchange Act Release Nos. 55162
(January 24, 2007), 72 FR 4738 (February 1, 2007) (SR-Amex-2006-
106); 55073 (January 9, 2007), 72 FR 4741 (February 1, 2007) (SR-
BSE-2006-48); 55154 (January 23, 2007), 72 FR 4743 (February 1,
2007) (SR-CBOE-2006-92); 55161 (January 24, 2007), 72 FR 4754
(February 1, 2007) (SR-ISE-2006-62); 55156 (January 23, 2007), 72 FR
4759 (February 1, 2007) (SR-NYSEArca-2006-73); and 55153 (January
23, 2007), 72 FR 4553 (January 31, 2007) (SR-Phlx-2006-74).
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    Phlx currently competes with seven other options exchanges for
order flow.\46\ Attracting order flow is an essential part of Phlx's
competitive success.\47\ If Phlx cannot attract order flow to its
market, it will not be able to execute transactions. If Phlx cannot
execute transactions on its market, it will not generate transaction
revenue. If Phlx cannot attract orders or execute transactions on its
market, it will not have market data to distribute, for a fee or
otherwise, and will not earn market data revenue and thus not be
competitive with other exchanges that have this ability. This
compelling need to attract order flow imposes significant pressure on
Phlx to act reasonably in setting its fees for Phlx market data,
particularly given that the market participants that will pay such fees
often will be the same market participants from whom Phlx must attract
order flow. These market participants include broker-dealers that
control the handling of a large volume of customer and proprietary
order flow. Given the portability of order flow from one exchange to
another, any exchange that sought to charge unreasonably high data fees
would risk alienating many of the same customers on whose orders it
depends for competitive survival.
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    \46\ In its filing, Phlx discusses ``the intensity of the
competition for order flow,'' and states that ``Phlx currently
competes with seven other options exchanges for order flow'' and
``the ISE and CBOE enjoy close to thirty percent market share of
volume, followed by NYSE Arca and Phlx at close to fifteen percent
market share, followed by four other exchanges with meaningful
market share.'' See Notice at 20025.
    \47\ Phlx states in its filing that ``it has a compelling need
to attract order flow from market participants * * * in order to
maintain its share of trading volume.'' Id.
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    Phlx also notes that it currently trades options on seven
proprietary index products that are not traded on any other exchange.
These seven options currently represent less than 0.04% of Phlx's total
contract volume.\48\ The Commission believes that, given the small
percentage of Phlx's total contract volume represented by these seven
products, the inclusion of data on these products in the TOPO Plus
Orders product does not confer market power on Phlx to compel market
participants to purchase the entire Phlx data feed and the inclusion of
depth-of-book data for these products in Phlx's TOPO Plus Orders
product does not undermine the fact that Phlx is subject to significant
competitive forces in setting the TOPO Plus fees.
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    \48\ Notice at 20025.
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    In addition to the need to attract order flow, the availability of
alternatives to Phlx's TOPO Plus product significantly affect the terms
on which Phlx can distribute this market data.\49\ In setting the fees
for its TOPO Plus product, Phlx must consider the extent to which
market participants would choose one or more alternatives instead of
purchasing its data.\50\ The most basic source of information
concerning the depth generally available at an exchange is the complete
record of an exchange's transactions that is provided in the core data
feeds.\51\ In this respect, the core data feeds that include an
exchange's own transaction information are a significant alternative to
the exchange's market data product.\52\ Further, other options
exchanges can produce their own data products, and thus are sources of
potential competition for Phlx.\53\ In addition, one or more securities
firms could act independently and distribute their own order data, with
or without a fee.
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    \49\ See NYSE Arca Order at 74784.
    \50\ See NYSE Arca Order at 74783.
    \51\ Id.
    \52\ Id. Information on transactions executed on Phlx is
available through OPRA.
    \53\ For example, ISE and CBOE each enjoy greater market shares
than Phlx and thus have the ability to offer data products that
could compete favorably with the Exchange's products.
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    The Commission believes that there are a number of alternative
sources of information that impose significant competitive pressures on
Phlx in setting the terms for distributing its TOPO Plus product. The
Commission believes that the availability of those alternatives, as
well as Phlx's compelling need to attract order flow, impose
significant competitive pressure on Phlx to act equitably, fairly, and
reasonably in setting the terms of its proposal.\54\
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    \54\ The Commission stated in the NYSE Arca Order that broker-
dealers are not required to obtain depth-of-book order data to meet
their duty of best execution. See id. at 74788 for a more detailed
discussion. Likewise, the Commission does not view obtaining depth-
of-book data as a necessary prerequisite to broker-dealers
satisfying the duty of best execution with respect to the trading of
standardized options.
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    Because Phlx was subject to significant competitive forces in
setting the terms of the proposal, the Commission will approve the
proposal in the absence of a substantial countervailing basis to find
that the terms of the proposal fail to meet the applicable requirements
of the Act or the rules thereunder. An analysis of the proposal does
not provide such a basis. The fees do not unreasonably discriminate
among types of distributors, such as by favoring participants in the
Phlx market or penalizing participants in other markets.\55\ The
Commission notes that the Exchange will assess on External Distributors
a monthly subscriber fee of $20 per Professional Subscriber, and $1 per
Non-Professional Subscriber. The monthly subscriber fees assessed upon
External Distributors are based upon the manner in which the data will
ultimately be used, i.e., for commercial vs. non-commercial
purposes.\56\
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    \55\ Phlx notes that TOPO Plus Orders are lower for Internal
Distributors than for External Distributors. Because Internal
Distributors are by definition more limited in the scope of their
distribution of TOPO Plus Orders data than External Distributors, it
is reasonable to expect that Internal Distributors will provide TOPO
Plus Orders data to a smaller number of internal subscribers.
Conversely, External Distributors can reasonably be expected to
distribute the TOPO Plus Orders data to a higher number of
subscribers because they do not have the same limitation. See Notice
at 20025.
    \56\ The Commission notes that the CTA participants' fees have
long provided for a lower fee for non-professional subscribers, and
that the fees approved by the Commission in the NYSE Arca Order also
provided for lower fees for non-professional subscribers. See NYSE
Arca Order at 74772.
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    As discussed above, the commenters also argue that the proposed
TOPO Plus fees are not fair and reasonable, and that the fee amounts
discriminate against smaller broker-dealers because the proposed fees
would charge the same

amount per broker-dealer regardless of the quantity of issues traded,
and concern regarding the cost of acquiring the technology necessary if
they opt to receive the TOPO Plus raw data stream.\57\ The Commission
believes that, in the Phlx Letter, the Exchange addressed the
commenters' concerns in clarifying that the Exchange would only
consider them to be Internal Distributors (and thus subject to a $4,000
monthly fee) if they opt to receive the TOPO Plus data as a raw data
feed. The Exchange noted that the commenters could opt to receive TOPO
Plus from an External Distributor, whereby they would be considered
Professional Subscribers. In such a case, the proposal would charge an
External Distributor $20 per month for each Professional Subscriber to
whom it distributes the feed and Phlx notes that the External
Distributor may pass through the Professional Subscriber fee to its
subscribers, along with any other fees agreed upon, which should be
significantly less than the monthly distributor fees proposed under the
proposed rule change.
---------------------------------------------------------------------------

    \57\ See supra notes 23-24 and accompanying text.
---------------------------------------------------------------------------

    Though the Commission notes the commenters cost concerns regarding
receiving the TOPO Plus raw data stream, if the commenters choose to
receive the raw data stream, they would be subject to the same
technology constraints and costs in dealing with the data as other
market participants. In addition, the Commission notes that the
Exchange has stated that it would make the SOF data feed available for
those current SOF users that may encounter issues beyond their control
that render them unable to migrate to TOPO Plus before June 1, 2010.

V. Conclusion

    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with the Act and the rules and regulations
thereunder applicable to a national securities exchange and, in
particular, with Section 6(b)(4), (5), and (8) of the Act.\58\
---------------------------------------------------------------------------

    \58\ 15 U.S.C. 78f(b)(4), (5), and (8).
---------------------------------------------------------------------------

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\59\ that the proposed rule change (SR-Phlx-2010-48) is approved.
---------------------------------------------------------------------------

    \59\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\60\
---------------------------------------------------------------------------

    \60\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-13461 Filed 6-3-10; 8:45 am]
BILLING CODE 8010-01-P


[Federal Register: February 3, 2010 (Volume 75, Number 22)]
[Rules and Regulations]
[Page 5518-5522]
[DOCID:fr03fe10-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2007-0460; FRL-8808-8]

Dithianon; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes a tolerance for residues of
dithianon in or on grapes that are imported. BASF requested this
tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).

DATES: This regulation is effective February 3, 2010. Objections and
requests for hearings must be received on or before April 5, 2010, and
must be filed in accordance with the instructions provided in 40 CFR
part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2007-0460 All documents in the
docket are listed in the docket index available at http://
www.regulations.gov. Although listed in the index, some information is
not publicly available, e.g., Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available in the electronic
docket at http://www.regulations.gov, or, if only available in hard
copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac
Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket
Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket Facility telephone number is (703)
305-5805.

FOR FURTHER INFORMATION CONTACT: Rose Kearns, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
Potentially affected entities may include, but are not limited to those
engaged in the following activities:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather to
provide a guide for readers regarding entities likely to be affected by
this action. Other types of entities not listed in this unit could also
be affected. The North American Industrial Classification System
(NAICS) codes have been provided to assist you and others in
determining whether this action might apply to certain entities. If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.

B. How Can I Get Electronic Access to Other Related Information?

    You may access a frequently updated electronic version of EPA's
tolerance regulations at 40 CFR part 180 through the Government
Printing Office's e-CFR cite at http://www.gpoaccess.gov/ecfr. To
access the OPPTS harmonized test guidelines referenced in this document
electronically, please go to http://www.epa.gov/oppts and select ``Test
Methods & Guidelines'' on the left-side navigation menu.

C. Can I File an Objection or Hearing Request?

    Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file
an objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2007-0460 in the subject line on the first
page of your submission. All requests must be in writing, and must be
mailed or delivered to the Hearing Clerk as required by 40 CFR part 178
on or before April 5, 2010.
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing that does not contain any CBI for inclusion in the public
docket that is described in ADDRESSES. Information not marked
confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA
without prior notice. Submit this copy, identified by docket ID number
EPA-HQ-OPP-2007-0460, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket Facility's normal hours of operation (8:30
a.m. to 4 p.m., Monday through Friday, excluding legal holidays).
Special arrangements should be made for deliveries of boxed
information. The Docket Facility telephone number is<PHONE_NUMBER>.

II. Petition for Tolerance

    In the Federal Register of November 4, 2009 (74 FR 57170) (FRL-
8797-7), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21
U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP
6E7103) by BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research
Triangle Park, NC 27709-3528. The petition requested that 40 CFR
180.621 be amended by establishing a tolerance for residues of the
fungicide dithianon, 5,10-dihydro-5-10-dioxonaptho(2,3-b)-1,4-dithiin-
2,3-

dicarbonitrile, in or on grapes at 3 parts per million (ppm). That
notice referenced a summary of the petition prepared by BASF, the
registrant, which is available to the public in the docket, http://
www.regulations.gov. There were no comments received in response to the
notice of filing.

III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a
tolerance (the legal limit for a pesticide chemical residue in or on a
food) only if EPA determines that the tolerance is ``safe.'' Section
408(b)(2)(A)(ii) of FFDCA defines ``safe'' to mean that ``there is a
reasonable certainty that no harm will result from aggregate exposure
to the pesticide chemical residue, including all anticipated dietary
exposures and all other exposures for which there is reliable
information.'' This includes exposure through drinking water and in
residential settings, but does not include occupational exposure.
Section 408(b)(2)(C) of FFDCA requires EPA to give special
consideration to exposure of infants and children to the pesticide
chemical residue in establishing a tolerance and to ``ensure that there
is a reasonable certainty that no harm will result to infants and
children from aggregate exposure to the pesticide chemical
residue....''
    Consistent with section 408(b)(2)(D) of FFDCA, and the factors
specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the
available scientific data and other relevant information in support of
this action. EPA has sufficient data to assess the hazards of and to
make a determination on aggregate exposure for the petitioned-for
tolerance, for residues of dithianon on grape at 3 ppm. EPA's
assessment of exposures and risks associated with establishing
tolerances follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children.
    The acute toxicity is mild via the oral route. The toxicologically
significant adverse effects of dithianon are similar across species. In
studies with shorter durations of exposure, including the subchronic
dog and rat studies, the developmental toxicity study in rats, and the
2-generation reproduction rat study, decreases in body weight, body
weight gain, and/or food consumption were noted in adults. However,
with continued exposure, as in the chronic and/or carcinogenicity
studies in the rat, mouse, and dog, the kidney is the target organ for
toxicity. Signs of renal toxicity include increased absolute and/or
relative kidney weights in the rat, mouse, and dog; non-neoplastic
kidney lesions in mice and rats; and renal adenomas and carcinomas in
female rats. Post-implantation loss due to early resorptions was
observed in the developmental rat study.
    The available toxicology database does not show any indication of
increased qualitative or quantitative susceptibility of the offspring.
Dithianon did not cause reproductive or developmental toxicity in the
2-generation reproduction study. In the developmental rat study,
decreased fetal weights were observed only at a dose higher than that
which produced similar maternal effects. The developmental toxicity
study in rabbits was classified unacceptable/guideline.
    Carcinogenicity studies in rats and mice do not raise a concern as
to carcinogenicity. The only treatment-related tumors, rare kidney
tumors, (primarily adenomas), were seen only at the highest dose tested
(30 milligram/kilogram/day (mg/kg/day)) in one sex (females) and in one
species (rats). The highest dose tested was considered adequate, but
not excessive, to assess the carcinogenicity of dithianon; however,
significant renal toxicity occurred at this dose, which may have
contributed to the tumor formulation. Although the Agency concluded
that there was not a sufficient or cohesive dataset at the time to
fully support a mode of action, it is biologically plausible that the
tumors were caused by a non-genotoxic mode of action involving
hephrotoxicity and sustained regenerative proliferation. Further,
dithianon is not mutagenic. Dithianon produced positive results in an
acceptable chromosomal aberration assay that was conducted in vitro
using Chinese hamster lung fibroblasts (V79 cells); in contrast, a
forward gene mutation assay tested in this same cell line was negative.
A second forward gene mutation assay with V79 cells was also negative,
but it was classified unacceptable due to inadequate cytotoxicity at
the highest concentration tested. Negative responses were seen in
bacteria (two acceptable reverse gene mutation assays in Salmonella),
Wistar rat systems (an acceptable in vivo cytogenetic assay and an
acceptable in vitro UDS assay), and NMRI mice (an unacceptable in vivo
micronucleus assay).
    Specific information on the studies received and the nature of the
adverse effects caused by dithianon as well as the no-observed-adverse-
effect-level (NOAEL) and the lowest-observed-adverse-effect-level
(LOAEL) from the toxicity studies can be found at http://
www.regulations.gov in the document ``Dithianon-Human Health Risk
Assessment for Proposed Tolerance on Imported Grapes,'' at pages 9-12
in docket ID number EPA-HQ-OPP-2007-0460.

B. Toxicological Endpoints

    For hazards that have a threshold below which there is no
appreciable risk, a toxicological point of departure (POD) is
identified as the basis for derivation of reference values for risk
assessment. The POD may be defined as the highest dose at which the
NOAEL in the toxicology study identified as appropriate for use in risk
assessment. However, if a NOAEL cannot be determined, the lowest dose
at which adverse effects of concern are identified (the LOAEL) or a
benchmark dose (BMD) approach is sometimes used for risk assessment.
Uncertainty/safety factors (UFs) are used in conjunction with the POD
to take into account uncertainties inherent in the extrapolation from
laboratory animal data to humans and in the variations in sensitivity
among members of the human population as well as other unknowns. Safety
is assessed for acute and chronic dietary risks by comparing aggregate
food and water exposure to the pesticide to the acute population
adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The
aPAD and cPAD are calculated by dividing the POD by all applicable UFs.
Aggregate short-, intermediate-, and chronic-term risks are evaluated
by comparing food, water, and residential exposure to the POD to ensure
that the margin of exposure (MOE) called for by the product of all
applicable UFs is not exceeded. This latter value is referred to as the
level of concern (LOC).
    For non-threshold risks, the Agency assumes that any amount of
exposure will lead to some degree of risk. Thus, the Agency estimates
risk in terms of the probability of an occurrence of the adverse effect
greater than that expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see http://www.epa.gov/
pesticides/factsheets/riskassess.htm.
    A summary of the toxicological endpoints for dithianon used for
human

risk assessment can be found at http://www.regulations.gov in the
document ``Dithianon -- Human Health Risk Assessment for Proposed
Tolerance on Imported Grapes,'' at pages 20-24 in docket ID number EPA-
HQ-OPP-2007-0460.

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to dithianon, EPA considered exposure under the petitioned-for
tolerances as well as all existing dithianon tolerances in (40 CFR
180.621). EPA assessed dietary exposures from dithianon in food as
follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk
assessments are performed for a food-use pesticide, if a toxicological
study has indicated the possibility of an effect of concern occurring
as a result of a 1-day or single exposure.
    No such effects were identified applicable to the general
population in the toxicological studies for dithianon; therefore, a
quantitative acute dietary exposure assessment is unnecessary. However
an endpoint was identified for females 13-49 years of age. In
conducting the acute dietary exposure assessment EPA used the Dietary
Exposure Evaluation Model-Food Commodity Intake Database (DEEM-FCID,
version 2.03). EPA assumed that dithianon is used on all crops covered
by tolerances and that all treated crops bear tolerance-level residues.
    ii. Chronic exposure. In conducting the chronic dietary exposure
assessment EPA used the DEEM-FCID, version 2.03. EPA assumed that
dithianon is used on all crops covered by tolerances and that all
treated crops bear average values from crop residue field trials.
    iii. Cancer. For the reasons explained in Unit III.A., EPA has
concluded that dithianon does not pose a cancer risk and therefore an
exposure assessment for the purpose of evaluating cancer risk is
unnecessary.
    iv. Anticipated residue information. Section 408(b)(2)(E) of FFDCA
authorizes EPA to use available data and information on the anticipated
residue levels of pesticide residues in food and the actual levels of
pesticide residues that have been measured in food. If EPA relies on
such information, EPA must require pursuant to FFDCA section 408(f)(1)
that data be provided 5 years after the tolerance is established,
modified, or left in effect, demonstrating that the levels in food are
not above the levels anticipated. For the present action, EPA will
issue such data call-ins as are required by FFDCA section 408(b)(2)(E)
and authorized under FFDCA section 408(f)(1). Data will be required to
be submitted no later than 5 years from the date of issuance of these
tolerances.
    2. Dietary exposure from drinking water. Current and proposed
tolerances for dithianon are intended to support imported commodities
only and there are no existing or proposed U.S. registrations.
Therefore, there is no expectation that dithianon residues would occur
in surface or ground water sources of drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., for lawn and garden pest control, indoor pest control,
termiticides, and flea and tick control on pets).
    Dithianon is not registered for any specific use patterns that
would result in residential exposure.
    4. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
    EPA has not found dithianon to share a common mechanism of toxicity
with any other substances, and dithianon does not appear to produce a
toxic metabolite produced by other substances. For the purposes of this
tolerance action, therefore, EPA has assumed that dithianon does not
have a common mechanism of toxicity with other substances. For
information regarding EPA's efforts to determine which chemicals have a
common mechanism of toxicity and to evaluate the cumulative effects of
such chemicals, see EPA's website at http://www.epa.gov/pesticides/
cumulative.

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA
shall apply an additional tenfold (10X) margin of safety for infants
and children in the case of threshold effects to account for prenatal
and postnatal toxicity and the completeness of the database on toxicity
and exposure unless EPA determines based on reliable data that a
different margin of safety will be safe for infants and children. This
additional margin of safety is commonly referred to as the FQPA SF. In
applying this provision, EPA either retains the default value of 10X,
or uses a different additional safety factor when reliable data
available to EPA support the choice of a different factor.
    2. Prenatal and postnatal sensitivity. There is no indication of
increased quantitative or qualitative susceptibility of rats to in
utero and/or postnatal exposure to dithianon.
    3. Conclusion. The FQPA Safety Factor will be retained at 10X as a
database uncertainty factor for acute and chronic assessments. The
primary reason for retaining the FQPA safety factor is residual
uncertainty concerning lack of an acceptable rabbit development study.
In deciding to retain the safety factor EPA also took into account the
following considerations:
    i. Immunotoxicity testing is required as a result of changes made
to the pesticide data requirements in December 2007. Although a study
has not yet been submitted, there is no evidence of immunotoxicity in
any study in the toxicity database for dithianon and the Agency does
not believe that conducting an immunotoxicity study will result in a
lower POD than that currently used for overall risk assessment.
Therefore, a database uncertainty factor (UFDB ) is not needed to
account for the lack of this study.
    ii. Acute and subchronic neurotoxicity testing is required as a
result of changes made to the pesticide data requirements in December
2007. Although these studies have not yet been submitted, there is no
evidence of neurotoxicity in any study in the toxicity database for
dithianon and the Agency does not believe that conducting these studies
will result in a lower POD than that currently used for overall risk
assessment. Therefore, a UFDB is not needed to account for the lack of
this study. For the same reason, EPA has determined that there is no
need for a developmental neurotoxicity study.
    iii. There is no evidence that dithianon results in increased
susceptibility in in utero rats or rabbits in the prenatal
developmental study or in young rats in the 2-generation reproduction
study.
    iv. There are no residual uncertainties identified in the exposure
databases. The dietary food exposure assessments were performed based
on 100% CT and tolerance-level residues for the acute analysis and
reliable data on average field trial residues in the chronic analysis.
The exposure assessments will not understate exposure to dithianon.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic pesticide exposures are
safe by comparing aggregate exposure estimates to the aPAD and cPAD.
The aPAD and cPAD represent the highest safe exposures, taking into
account all appropriate SFs. EPA calculates the aPAD and cPAD by
dividing the POD by all applicable UFs. For linear cancer risks, EPA
calculates the probability of additional cancer cases given the
estimated aggregate exposure. Short-, intermediate-, and chronic-term
risks are evaluated by comparing the estimated aggregate food, water,
and residential exposure to the POD to ensure that the MOE called for
by the product of all applicable UFs is not exceeded.
    1. Acute risk. Using the exposure assumptions discussed in this
unit for acute exposure, the acute dietary exposure from food and water
to dithianon will occupy 79% of the aPAD for (females 13-49 years of
age at the 95th percentile of exposure) the population group receiving
the greatest exposure.
    2. Chronic risk. The exposure for all populations assessed are
below the level of concern. The exposure for the general U.S.
population is at 18% of cPAD. The most highly exposed sub-group is
children ( 1-2 years old), whose exposure is at 63% of the cPAD. This
assessment is slightly refined with use of average residue values and
empirical processing factors, but is still highly conservative with the
assumption of 100% CT. There are no residential uses for dithianon.
    3. Short-term risk. Short-term aggregate exposure takes into
account short-term residential exposure plus chronic exposure to food
and water (considered to be a background exposure level).
    Dithianon is not registered for any use patterns that would result
in residential exposure. Therefore, the short-term aggregate risk is
the sum of the risk from exposure to dithianon through food and water
and will not be greater than the chronic aggregate risk.
    4. Intermediate-term risk. Intermediate-term aggregate exposure
takes into account intermediate-term residential exposure plus chronic
exposure to food and water (considered to be a background exposure
level).
    Dithianon is not registered for any use patterns that would result
in intermediate-term residential exposure. Therefore, the intermediate-
term aggregate risk is the sum of the risk from exposure to dithianon
through food and water, which has already been addressed, and will not
be greater than the chronic aggregate risk.
    5. Aggregate cancer risk for U.S. population. As described in Unit
III.A. above, dithianon is not expected to pose a cancer risk.
    6. Determination of safety. Based on these risk assessments, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population, or to infants and children from aggregate
exposure to dithianon residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    An adequate methodology LC/MS/MS method (BASF 244882) is available
for enforcing the proposed tolerance on grapes. Adequate multi-residue
method testing data are available for dithianon and these data have
been forwarded to the FDA for evaluation. The data indicate that FDA
multi-residue methods are not suitable for determining residues of
dithianon.

B. International Residue Limits

    There are currently no established Canadian or Mexican maximum
residue limits (MRLs) for dithianon on grapes. There are no
harmonization concerns with MRL's on grapes established by Codex and
the European Union because the grape tolerance being established is
equivalent to these MRLs both in terms of residue expression and
residue level.

C. Revisions to Petitioned-For Tolerances

    EPA has revised the dithianon tolerance expression to clarify the
chemical moieties that are covered by the tolerances and specify how
compliance with the tolerances is to be measured. The revised tolerance
expression makes clear that the tolerances cover residues of dithianon
and its metabolites and degradates but that compliance with tolerance
levels will be determined by measuring only dithianon, (5,10-dihydro-
5,10-dioxonaphtho(2-3-b)-1,4-dithiin-2,3-dicarbonitrile), in or on the
commodities that have an established tolerance level. EPA has
determined that it is reasonable to make this change final without
prior proposal and opportunity for comment, because public comment is
not necessary, in that the change has no substantive effect on the
tolerance, but rather is merely intended to clarify the existing
tolerance expression.

V. Conclusion

    Therefore, tolerances are established for residues of dithianon,
5,10-dihydro-5,10-dioxonaphtho(2,3-b)-1,4-dithiin-2,3-dicarbonitrile,
in or on grapes at 3 ppm.

VI. Statutory and Executive Order Reviews

    This final rule establishes tolerances under section 408(d) of
FFDCA in response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these types of actions from
review under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Because this final rule has been
exempted from review under Executive Order 12866, this final rule is
not subject to Executive Order 13211, entitled Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997). This final rule does not contain any
information collections subject to OMB approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any
special considerations under Executive Order 12898, entitled Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under section 408(d) of FFDCA, such as the tolerance in
this final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) do not apply.
    This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined that Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999) and Executive Order 13175, entitled
Consultation and Coordination with Indian Tribal Governments (65 FR
67249, November 9, 2000) do not apply to this final rule. In addition,
this final

rule does not impose any enforceable duty or contain any unfunded
mandate as described under Title II of the Unfunded Mandates Reform Act
of 1995 (UMRA) (Public Law 104-4).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note).

VII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this rule 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 this final rule in the Federal
Register. This final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: January 25, 2010.
Lois Rossi,
Director, Registration Division, Office of Pesticide Programs.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.621 is revised to read as follows:

Sec.  180.621  Dithianon; tolerances for residues.

    (a) General. Tolerances are established for residues of dithianon,
including its metabolites and degradates, in or on the commodities in
the table below. Compliance with the tolerance levels specified below
is to be determined by measuring only dithianon, 5, 10-dihydro-5,10-
dioxonaphtho(2,3-b)-1,4-dithiin-2,3-dicarbonitrile.

------------------------------------------------------------------------
                                                             Parts per
                        Commodity                             million
------------------------------------------------------------------------
Fruit, pome, group 11\1\................................               5
Grape \2\...............................................               3
Hop, dried cones\1\.....................................             100

------------------------------------------------------------------------
\1\No U.S. registration as of September 5, 2006.
\2\No U.S. registration as of January 29, 2010.

    (b)Section 18 emergency exemptions. [Reserved]
    (c) Tolerances with regional registrations. [Reserved]
    (d) Indirect or inadvertent residues. [Reserved]

[FR Doc. 2010-2145 Filed 2-2-10; 8:45 am]
BILLING CODE 6560-50-S


[Federal Register Volume 86, Number 34 (Tuesday, February 23, 2021)]
[Notices]
[Pages 11004-11005]
[FR Doc No: 2021-03649]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2006-0042]

CSA Group Testing & Certification Inc.: Application for Expansion
of Recognition

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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

SUMMARY: In this notice, OSHA announces the application of CSA Group
Testing & Certification Inc. for expansion of recognition as a
Nationally Recognized Testing Laboratory (NRTL) and presents the
agency's preliminary finding to grant the application.

DATES: Submit comments, information, and documents in response to this
notice, or requests for an extension of time to make a submission, on
or before March 10, 2021.

ADDRESSES: Comments may be submitted as follows:
    Electronically: You may submit comments, including attachments,
electronically at http://www.regulations.gov, the Federal eRulemaking
Portal. Follow the online instructions for submitting comments.
    OSHA will place comments and requests for a hearing, including
personal information, in the public docket, which will be available
online. Therefore, OSHA cautions interested parties about submitting
personal information such as Social Security numbers and birthdates.
    Docket: To read or download comments or other material in the
docket, go to http://www.regulations.gov. Documents in the docket are
listed in the http://www.regulations.gov index; however, some
information (e.g., copyrighted material) is not publicly available to
read or download through this website. All submissions, including
copyrighted material, are available for inspection through the OSHA
Docket Office. Contact the OSHA Docket Office for assistance in
locating docket submissions.
    Instructions: All submissions must include the agency name and OSHA
docket number (OSHA-2006-0042). All comments, including any personal
information you provide, are placed in the public docket without
change, and may be made available online at http://www.regulations.gov.
For further information on submitting comments, see the section of this
notice titled SUPPLEMENTARY INFORMATION.
    Extension of comment period: Submit requests for an extension of
the comment period on or before March 10, 2021 to the Office of
Technical Programs and Coordination Activities, Directorate of
Technical Support and Emergency Management, Occupational Safety and
Health Administration, U.S. Department of Labor, 200 Constitution
Avenue NW, Room N-3655, Washington, DC 20210, or by fax to (202) 693-
1644.

FOR FURTHER INFORMATION CONTACT: Information regarding this notice is
available from the following sources:
    Press inquiries: Contact Mr. Frank Meilinger, Director, OSHA Office
of Communications, U.S. Department of Labor by phone<PHONE_NUMBER> or
email<EMAIL_ADDRESS>    General and technical information: Contact Mr. Kevin Robinson,
Director, Office of Technical Programs and Coordination Activities,
Directorate of Technical Support and Emergency Management, Occupational
Safety and Health Administration, U.S. Department of Labor by phone
(202) 693-2110 or email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Notice of the Application for Expansion

    OSHA is providing notice that CSA Group Testing & Certification
Inc. (CSA) is applying for expansion of their current recognition as a
NRTL. CSA requests the addition of four test standards to the NRTL
scope of recognition.
    OSHA recognition of a NRTL signifies that the organization meets
the requirements specified in 29 CFR 1910.7. Recognition is an
acknowledgment that the organization can perform independent safety
testing and certification of the specific products covered within the
scope of recognition. Each NRTL's scope of recognition includes (1) the
type of products the NRTL may test, with each type specified by the
applicable test standard; and (2) the recognized site(s) that has/have
the technical capability to perform the product-testing and product-
certification activities for test standards within the NRTL's scope.
Recognition is

not a delegation or grant of government authority; however, recognition
enables employers to use products approved by the NRTL to meet OSHA
standards that require product testing and certification.
    The agency processes an application by a NRTL for initial
recognition and for an expansion or renewal of this recognition,
following requirements in Appendix A, 29 CFR 1910.7. This appendix
requires that the agency publish two notices in the Federal Register in
processing an application. In the first notice, OSHA announces the
application and provides the preliminary finding. In the second notice,
the agency provides the final decision on the application. These
notices set forth the NRTL's scope of recognition or modifications of
that scope. OSHA maintains an informational web page for each NRTL,
including CSA, which details the NRTL's scope of recognition. These
pages are available from the OSHA website at http://www.osha.gov/dts/otpca/nrtl/index.html.
    CSA currently has seven facilities (sites) recognized by OSHA for
product testing and certification. The headquarters location is
Canadian Standards Association, 178 Rexdale Boulevard, Etobicoke,
Ontario, M9W 1R3, Canada. A complete list of CSA's scope of recognition
is available at https://www.osha.gov/dts/otpca/nrtl/csa.html.

II. General Background on the Application

    CSA submitted an application, dated July 17, 2019 (OSHA-2006-0042-
0018), to expand their recognition to include four additional test
standards. OSHA staff performed detailed analysis of the application
packet and reviewed other pertinent information. OSHA did not perform
any on-site reviews in relation to this application.
    Table 1 below lists the appropriate test standards found in CSA's
application for expansion for testing and certification of products
under the NRTL Program.

  Table 1--Proposed List of Appropriate Test Standards for Inclusion in
                     CSA's NRTL Scope of Recognition
------------------------------------------------------------------------
      Test standard                     Test standard title
------------------------------------------------------------------------
UL 2271..................  Standard for Batteries for Use in Light
                            Electric Vehicle (LEV) Applications.
UL 9540..................  Standard for Energy Storage Systems and
                            Equipment.
UL 2054..................  Standard for Household and Commercial
                            Batteries.
UL 1973..................  Standard for Batteries for Use in Stationary,
                            Vehicle Auxiliary Power and Light Electric
                            Rail (LER) Applications.
------------------------------------------------------------------------

III. Preliminary Findings on the Application

    CSA submitted an acceptable application for expansion of the scope
of recognition. OSHA's review of the application file and pertinent
documentation indicates that CSA can meet the requirements prescribed
by 29 CFR 1910.7 for expanding their recognition to include the
addition of the four test standards for NRTL testing and certification
listed above. This preliminary finding does not constitute an interim
or temporary approval of CSA's application.
    OSHA welcomes public comment as to whether CSA meets the
requirements of 29 CFR 1910.7 for expansion of the recognition as a
NRTL. Comments should consist of pertinent written documents and
exhibits. Commenters needing more time to comment must submit a request
in writing, stating the reasons for the request. Commenters must submit
the written request for an extension by the due date for comments. OSHA
will limit any extension to 10 days unless the requester justifies a
longer period. OSHA may deny a request for an extension if the request
is not adequately justified. To obtain or review copies of the exhibits
identified in this notice, as well as comments submitted to the docket,
contact the Docket Office. These materials also are available online at
http://www.regulations.gov under Docket No. OSHA-2006-0042.
    OSHA staff will review all comments to the docket submitted in a
timely manner and, after addressing the issues raised by these
comments, will make a recommendation to the Assistant Secretary for
Occupational Safety and Health as to whether to grant CSA's application
for expansion of the scope of recognition. The Assistant Secretary will
make the final decision on granting the application. In making this
decision, the Assistant Secretary may undertake other proceedings
prescribed in Appendix A to 29 CFR 1910.7.
    OSHA will publish a public notice of the final decision in the
Federal Register.

IV. Authority and Signature

    Amanda L. Edens, Deputy Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue NW, Washington,
DC 20210, authorized the preparation of this notice. Accordingly, the
agency is issuing this notice pursuant to Section 29 U.S.C. 655(6)(d),
Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020),
and 29 CFR 1905.11.

    Signed at Washington, DC, on February 11, 2021.
Amanda L. Edens,
Deputy Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2021-03649 Filed 2-22-21; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register: December 15, 2006 (Volume 71, Number 241)]
[Notices]
[Page 75603-75604]
[DOCID:fr15de06-123]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-54911; File No. SR-NYSE-2006-108]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Amend the Linkage Fee

December 11, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 4, 2006, the New York Stock Exchange LLC (``Exchange'' or
``NYSE'') 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. NYSE has
designated this proposal as one establishing or changing a due, fee, or
other charge imposed by NYSE under Section 19(b)(3)(A)(ii) of the Act
\3\ and Rule 19b-4(f)(2) thereunder,\4\ which renders the proposed rule
change effective upon filing with the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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

    The Exchange proposes to increase from $0.00025 to $0.000275 per
share the fee (``Linkage Order Fee'') it charges its member
organizations in connection with orders in equities executed in another
market pursuant to the Plan for the Purpose of Creating and Operating
an Intermarket Communications Linkage (``Linkage Plan'').

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

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.
    The text of the proposed rule change is available on the Exchange's
Web site (http://www.nyse.com), at the Exchange's Office of the

Secretary, and at the Commission's Public Reference Room.

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

1. Purpose
    The Exchange proposes to increase from $0.00025 to $0.000275 per
share the Linkage Order Fee, which it charges its member organizations
in connection with orders in equities executed in another market
pursuant to the Linkage Plan. At the time of its adoption,\5\ the
Linkage Order Fee was established at the same rate as the regular
equity transaction fee. The Exchange recently modified its regular
equity transaction fee effective December 1, 2006,\6\ but did not
increase the Linkage Order Fee at that time. The Exchange is increasing
the Linkage Order Fee to $0.000275 so that it will once again be set at
the same level as the regular equity transaction fee.
---------------------------------------------------------------------------

    \5\ See Exchange Act Release No. 54727 (November 8, 2006); 71 FR
66820 (November 16, 2006) (SR-NYSE-2006-79).
    \6\ See Exchange Act Release No. 54856 (December 1, 2006); 71 FR
71215 (December 8, 2006) (SR-NYSE-2006-106).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act \7\ in general and furthers
the objectives of Section 6(b)(4) \8\ in particular, in that it is
designed to provide for the equitable allocation of reasonable dues,
fees and other charges among its members and other persons using its
facilities. The fee is intended to permit the Exchange to recover fees
billed to Archipelago Securities LLC, as a Sponsoring Member, by other
markets for orders executed pursuant to the Linkage Plan. In addition,
with the exception of the per trade cap applicable to non-Linkage
orders, the billing rate is the same for Linkage and non-Linkage
orders.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

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 that is not necessary or appropriate
in furtherance of the purposes of the Act.

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

    Written comments were neither solicited nor received.

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

    The foregoing proposed rule change has become effective upon filing
pursuant to Section 19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(2)
\10\ thereunder because it establishes or changes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 19b-4(f)(2).
---------------------------------------------------------------------------

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File No. SR-NYSE-2006-108 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2006-108. 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 Commissions Internet Web site (http://www.sec.gov/rules/sro.shtml).

Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written

communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for inspection and copying in the Commission's Public
Reference Room. Copies of such filing also will be available for
inspection and copying at the principal office of the NYSE. 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-NYSE-2006-108 and should be
submitted on or before January 5, 2007.

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

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

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E6-21374 Filed 12-14-06; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: January 5, 2010 (Volume 75, Number 2)]
[Notices]
[Page 350]
[DOCID:fr05ja10-42]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 13581-000]

FFP Qualified Hydro 16 LLC; Notice of Preliminary Permit
Application Accepted for Filing and Soliciting Comments, Motions To
Intervene, and Competing Applications

December 29, 2009.
    On September 4, 2009, FFP Qualified Hydro 16 LLC filed an
application for a preliminary permit, pursuant to section 4(f) of the
Federal Power Act, proposing to study the feasibility of the Fulton
Lock and Dam Hydroelectric Project, located on the Tennessee-Tombigbee
Waterway, in Itawamba County, Mississippi. The sole purpose of a
preliminary permit, if issued, is to grant the permit holder priority
to file a license application during the permit term. A preliminary
permit does not authorize the permit holder to perform any land
disturbing activities or otherwise enter upon lands or waters owned by
others without the owners' express permission.
    The proposed project would consist of the following:
    (1) A 40-ft by 150-ft long power canal; (2) a 50-ft by 40-ft
powerhouse; (3) a new 3 MVA substation; (4) a 1,400-ft long
transmission line; (5) 200 feet of new access roads; and (6)
appurtenant facilities. The proposed Fulton Lock and Dam Hydroelectric
Project would have an average annual generation of 11 gigawatt-hours.
    Applicant Contact: Ramya Swaminathan, Free Flow Power Corporation,
33 Commercial Street, Gloucester, MA 01930.
    FERC Contact: Allyson Conner,<PHONE_NUMBER>.
    Deadline for filing comments, motions to intervene, competing
applications (without notices of intent), or notices of intent to file
competing applications: 60 days from the issuance of this notice.
Comments, motions to intervene, notices of intent, and competing
applications may be filed electronically via the Internet. See 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
(http://www.ferc.gov/docs-filing/ferconline.asp) under the ``eFiling''
link. For a simpler method of submitting text only comments, click on
``Quick Comment.'' For assistance, please contact FERC Online Support
at<EMAIL_ADDRESS>call toll-free at<PHONE_NUMBER>; or,
for TTY, contact<PHONE_NUMBER>. Although the Commission strongly
encourages electronic filing, documents may also be paper-filed. To
paper-file, mail an original and eight copies to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.
    More information about this project, including a copy of the
application, can be viewed or printed on the ``eLibrary'' link of
Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp.
Enter the docket number (P-13581) in the docket number field to access
the document. For assistance, contact FERC Online Support.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-31329 Filed 1-4-10; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 80, Number 144 (Tuesday, July 28, 2015)]
[Rules and Regulations]
[Pages 44882-44883]
[FR Doc No: 2015-18516]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 97

[FRL-9931-40-OAR]

Allocations of Cross-State Air Pollution Rule Allowances From New
Unit Set-Asides for the 2015 Compliance Year

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of data availability (NODA).

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

SUMMARY: The Environmental Protection Agency (EPA) is providing notice
of emission allowance allocations to certain units under the new unit
set-aside (NUSA) provisions of the Cross-State Air Pollution Rule
(CSAPR) federal implementation plans (FIPs) and is responding to
objections to preliminary calculations. EPA has completed final
calculations for the first round of NUSA allowance allocations for the
2015 compliance year and has posted spreadsheets containing the
calculations on EPA's Web site. The final allocations are unchanged
from the preliminary calculations. EPA will record the allocated
allowances in sources' Allowance Management System (AMS) accounts by
August 1, 2015.

DATES: July 28, 2015.

FOR FURTHER INFORMATION CONTACT: Questions concerning this action
should be addressed to Robert Miller at<PHONE_NUMBER> or
<EMAIL_ADDRESS>or to Kenon Smith at<PHONE_NUMBER> or
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Under the CSAPR FIPs, a portion of each
state budget for each of the four CSAPR emissions trading programs is
reserved as a NUSA from which allowances are allocated to eligible
units through an annual one- or two-round process. In a NODA published
in the Federal Register on June 1, 2015 (80 FR 30988), EPA described
the allocation process and provided notice of preliminary calculations
for the first-round 2015 NUSA allowance allocations. EPA also described
the process for submitting any objections to the preliminary
calculations.
    In response to the June 1 NODA, EPA received three timely written
objections, two late written objections, and several telephone
inquiries. The objections and inquiries all concerned the question of
whether EPA is correct to exclude emissions that occurred before a
unit's monitor certification deadline from the emissions data used to
calculate the NUSA allowance allocations. As explained below, under the
regulations such emissions are properly excluded because they are not
emissions during a ``control period.''
    Under the CSAPR FIPs, an eligible unit's first-round NUSA allowance
allocation for a given compliance year is generally based on the unit's
emissions ``during the immediately preceding control period'' (that is,
the control period in the year before the compliance year).\1\ An
eligible unit's second-round NUSA allowance allocation for a given

compliance year is generally based on the positive difference, if any,
between the unit's emissions ``during such control period'' (that is,
the control period in the compliance year) and the unit's first-round
NUSA allocation for the compliance year.\2\ A ``control period'' is
defined as either a calendar year or a May-September period--for the
SO2 and NOX annual programs and for the
NOX ozone season program, respectively--subject in both
cases to an exclusion, for any given unit, of periods before the unit's
monitor certification deadline, thereby ensuring that the unit's
``control periods'' generally represent the periods for which the unit
must hold CSAPR allowances equal to its emissions.\3\ The emissions
data used in calculating NUSA allowance allocations under the CSAPR
FIPs thus properly exclude any emissions occurring before a unit's
monitor certification deadline because such emissions are not emissions
``during the immediately preceding control period'' or ``during such
control period.'' \4\
---------------------------------------------------------------------------

    \1\ 40 CFR 97.412(a)(4)(i), 97.512(a)(4)(i), 97.612(a)(4)(i),
and 97.712(a)(4)(i). First-round NUSA allocations may be affected by
first-round NUSA over-subscription and rounding.
    \2\ 40 CFR 97.412(a)(9)(i), 97.512(a)(9)(i), 97.612(a)(9)(i),
and 97.712(a)(9)(i). Second-round NUSA allocations occur only if all
NUSA allowances were not allocated in the first round and may be
affected by second-round NUSA over-subscription and rounding.
    \3\ 40 CFR 97.402, 97.502, 97.602, and 97.702 (definitions of
``control period''); see also 40 CFR 97.406(c)(3), 97.506(c)(3),
97.606(c)(3), and 97.706(c)(3) (exclusion of periods before monitor
certification deadline).
    \4\ The CSAPR regulations' exclusion of periods before a unit's
monitor certification deadline from ``control periods'' is explicit
with respect to control periods in and after 2015, the first year of
obligations to hold CSAPR allowances. The regulations' only
operative references to control periods before 2015 are the
references in the NUSA allowance allocation provisions to ``the
immediately preceding control period,'' which, in the context of the
2015 compliance year, indicate 2014 ``control periods.'' EPA
interprets the NUSA provisions as intended to operate in the same
manner in all compliance years and accordingly interprets the
exclusion of periods before a unit's monitor certification deadline
as applying to all control periods, including the 2014 ``control
periods.''
---------------------------------------------------------------------------

    EPA excluded emissions before units' monitor certification
deadlines from the preliminary calculations of first-round 2015 NUSA
allowance allocations discussed in the June 1 NODA. In the final
calculations, EPA has likewise excluded emissions before units' monitor
certification deadlines and has made no other changes to the data used
in the preliminary calculations. The final first-round 2015 NUSA
allowance allocations are therefore unchanged from the preliminary
calculations.
    The final unit-by-unit data and allowance allocation calculations
are set forth in Excel spreadsheets titled
``CSAPR_NUSA_2015_NOx_Annual_1st_Round_Final_Data'',
``CSAPR_NUSA_2015_NOx_OS_1st_Round_Final_Data'', and
``CSAPR_NUSA_2015_SO2_1st_Round_Final_Data,'' available on
EPA's Web site at http://www.epa.gov/crossstaterule/actions.html. The
three spreadsheets show EPA's final determinations of first-round 2015
NUSA allocations under the CSAPR NOX annual, NOX
ozone season, and SO2 (Group 1 and Group 2) trading
programs, respectively.
    Pursuant to CSAPR's allowance recordation timing requirements, the
allocated NUSA allowances will be recorded in sources' AMS accounts by
August 1, 2015. EPA notes that an allocation or lack of allocation of
allowances to a given unit does not constitute a determination that
CSAPR does or does not apply to the unit. EPA also notes that NUSA
allocations are subject to potential correction if a unit to which NUSA
allowances have been allocated for a given compliance year is not
actually an affected unit as of January 1 (or May 1 in the case of the
NOX ozone season program) of the compliance year.\5\
---------------------------------------------------------------------------

    \5\ See 40 CFR 97.411(c), 97.511(c), 97.611(c), and 97.711(c).

---------------------------------------------------------------------------
(Authority: 40 CFR 97.411(b), 97.511(b), 97.611(b), and 97.711(b).)

    Dated: July 20, 2015.
Reid P. Harvey,
Director, Clean Air Markets Division.
[FR Doc. 2015-18516 Filed 7-27-15; 8:45 am]
BILLING CODE 6560-50-P