[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43136-43143]
[FR Doc No: 2011-17996]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1014-201127; FRL-9437-9]

Approval and Promulgation of Air Quality Implementation Plan;
Kentucky; Disapproval of Interstate Transport Submission for the 2006
24-hour PM2.5 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to disapprove the portion of
Kentucky's September 8, 2009, submission which was intended to meet the
requirement to address interstate transport for the 2006 24-hour fine
particulate matter (PM2.5) national ambient air quality
standards (NAAQS). Additionally, EPA is responding to comments received
on EPA's January 26, 2011, proposed disapproval of the aforementioned
portion of Kentucky's September 8, 2009, submission. On September 8,
2009, the Commonwealth of Kentucky, through the Kentucky Division for
Air Quality (KDAQ), provided a letter to EPA with certification that
Kentucky's state implementation plan (SIP) meets the interstate
transport requirements with regard to the 2006 24-hour PM2.5
NAAQS. Specifically, the interstate transport requirements under the
Clean Air Act (CAA or Act) prohibit a state's emissions from
significantly contributing to nonattainment or interfering with the
maintenance of the NAAQS in any other state. The effect of today's
action will be the promulgation of a Federal Implementation Plan (FIP)
for Kentucky no later than two years from the date of disapproval. The
proposed Transport Rule, when final, is the FIP that EPA intends to
implement for Kentucky.

DATES: Effective Date: This rule will be effective August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2010-1014. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30 excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Kentucky
SIP, contact Mr. Zuri Farngalo, Regulatory Development Section, Air
Planning Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Mr. Farngalo's telephone number is (404)
562-9152; e-mail address<EMAIL_ADDRESS>For information
regarding the PM2.5 interstate transport requirements under
section 110(a)(2)(D)(i), contact Mr. Steven Scofield, Regulatory
Development Section, at the same address above. Mr. Scofield's
telephone number is<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. EPA's Responses to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance for that NAAQS. On December 18, 2006, EPA
revised the 24-hour average PM2.5 primary and secondary
NAAQS from 65 micrograms per cubic meter ([mu]g/m\3\) to 35 [mu]g/m\3\,
thus states were required to provide submissions to address section
110(a)(1) and (2) of the CAA (infrastructure SIPs) for this revised
NAAQS. Kentucky provided its infrastructure submission for the 2006
PM2.5 NAAQS on September 8, 2009. On January 26, 2011, EPA
proposed to disapprove the portion of Kentucky's September 8, 2009,
infrastructure submission related to interstate transport (i.e.,
110(a)(2)(D)(i)(I)) for the 2006 PM2.5 NAAQS. See 76 FR
4597. A summary of

the background for this final action is provided below.
    Section 110(a)(2) lists the elements that infrastructure SIPs must
address, as applicable, including section 110(a)(2)(D)(i), which
pertains to interstate transport of certain emissions. States were
required to provide submissions to address the applicable 110(a)(2)
infrastructure requirements, including section 110(a)(2)(D)(i), by
September 21, 2009.\1\
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    \1\ The rule for the revised PM2.5 NAAQS was signed
by the Administrator and publically disseminated on September 21,
2006. Because EPA did not prescribe a shorter period for 110(a) SIP
submittals, the submittals for the 2006 24-hour NAAQS were due on
September 21, 2009, three years from the September 21, 2006,
signature date.
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    On September 25, 2009, EPA issued a guidance entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS)'' (hereinafter referred to as ``EPA's 2009
Guidance''). EPA developed the EPA's 2009 Guidance to make additional
recommendations to states for making submissions to meet the
requirements of section 110, including 110(a)(2)(D)(i) for the revised
2006 24-hour PM2.5 NAAQS.
    As identified in the EPA's 2009 Guidance, the ``good neighbor''
provisions in section 110(a)(2)(D)(i) require each state to submit a
SIP that prohibits emissions that adversely affect another state in the
ways contemplated in the CAA. Section 110(a)(2)(D)(i) contains four
distinct requirements related to the impacts of interstate transport.
Specifically, the SIP must prevent sources in the state from emitting
pollutants in amounts which will: (1) Contribute significantly to
nonattainment of the NAAQS in other states; (2) interfere with
maintenance of the NAAQS in other states; (3) interfere with provisions
to prevent significant deterioration of air quality in other states; or
(4) interfere with efforts to protect visibility in other states.
    In the EPA's 2009 Guidance, EPA explained that submissions from
states pertaining to the ``significant contribution'' and ``interfere
with maintenance'' requirements in section 110(a)(2)(D)(i)(I) must
contain adequate provisions to prohibit air pollutant emissions from
within the state that contribute significantly to nonattainment or
interfere with maintenance of the NAAQS in any other state. EPA
described a number of considerations for states for providing an
adequate demonstration to address interstate transport requirements in
the EPA's 2009 Guidance. First, EPA noted that the state's submission
should explain whether or not emissions from the state contribute
significantly to nonattainment or interfere with maintenance of the
NAAQS in any other state and, if so, address the impact. EPA stated
that the state's conclusion should be supported by an adequate
technical analysis. Second, EPA recommended the various types of
information that could be relevant to support the state's submission,
such as information concerning emissions in the state, meteorological
conditions in the state and the potentially impacted states, monitored
ambient concentrations in the state, and air quality modeling. Third,
EPA explained that states should address the ``interfere with
maintenance'' requirement independently which requires an evaluation of
impacts on areas of other states that are meeting the 2006 24-hour
PM2.5 NAAQS, not merely areas designated nonattainment.
Lastly, EPA explained that states could not rely on the Clean Air
Interstate Rule (CAIR) to comply with CAA section 110(a)(2)(D)(i)
requirements for the 2006 24-hour PM2.5 NAAQS because CAIR
does not address this NAAQS. CAIR, promulgated by EPA on May 12, 2005
(see 70 FR 25162), required states to reduce emissions of sulfur
dioxide and nitrogen oxides that significantly contribute to, and
interfere with maintenance of the 1997 PM2.5 NAAQS and/or
ozone in any downwind state. CAIR was intended to provide states
covered by the rule with a mechanism to satisfy their CAA section
110(a)(2)(D)(i)(I) obligations to address significant contribution to
downwind nonattainment and interference with maintenance in another
state with respect to the 1997 ozone and PM2.5 NAAQS. Many
states adopted the CAIR provisions and submitted SIPs to EPA to
demonstrate compliance with the CAIR requirements in satisfaction of
their 110(a)(2)(D)(i)(I) obligations for those two pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and
on July 11, 2008, the U.S. Court of Appeals for the District of
Columbia Circuit (DC Circuit or Court) issued its decision to vacate
and remand both CAIR and the associated CAIR FIPs in their entirety.
North Carolina v. EPA, 531 F.3d 836 (DC Circuit, July 11, 2008).
However, in response to EPA's petition for rehearing, the Court issued
an order remanding CAIR to EPA without vacating either CAIR or the CAIR
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Circuit, December 23,
2008). The Court thereby left CAIR in place in order to ``temporarily
preserve the environmental values covered by CAIR'' until EPA replaces
it with a rule consistent with the Court's opinion. Id. at 1178. The
Court directed EPA to ``remedy CAIR's flaws'' consistent with its July
11, 2008, opinion, but declined to impose a schedule on EPA for
completing that action. Id.
    In order to address the judicial remand of CAIR, EPA has proposed a
new rule to address interstate transport pursuant to section
110(a)(2)(D)(i), the ``Federal Implementation Plans to Reduce
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport
Rule).\2\ As part of the proposed Transport Rule, EPA specifically
examined the section 110(a)(2)(D)(i) requirements that emissions from
sources in a state must not ``significantly contribute to
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour
PM2.5 NAAQS by other states. The modeling performed for the
proposed Transport Rule shows that Kentucky significantly contributes
to nonattainment or interferes with maintenance of the 2006 24-hour
PM2.5 NAAQS in downwind areas. EPA has now completed the
modeling for the final Transport Rule and, as indicated by the
technical support documents for this action, Kentucky in fact
contributes to downwind nonattainment in another state or interferes
with maintenance of the 2006 24-hour PM2.5 NAAQS in another
state.
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    \2\ See ``Federal Implementation Plans To Reduce Interstate
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75
FR 45210 (August 2, 2010).
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    On September 8, 2009, the Commonwealth of Kentucky, through KDAQ,
provided a letter to EPA certifying that the Kentucky SIP meets the
interstate transport requirements with regard to the 2006 24-hour
PM2.5 NAAQS.\3\ Specifically, Kentucky certified that its
current SIP adequately addresses the elements of CAA section
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. CAA
section 110(a)(2)(D)(i)(I) requires that implementation plans for each
state contain adequate provisions to prohibit air pollutant emissions
from sources within a state from significantly contributing to
nonattainment in or interfering with maintenance of the

NAAQS (in this case the 2006 24-hour PM2.5 NAAQS) in any
other state. On January 26, 2011, EPA proposed to disapprove the
portion of Kentucky's September 8, 2009, submission related to
interstate transport for the 2006 24-hour PM2.5 NAAQS
because EPA made the preliminary determination that Kentucky's
September 8, 2009, submission does not meet the requirements of section
110(a)(2)(D)(i)(I) of the CAA for this NAAQS. This action is finalizing
EPA's disapproval of Kentucky's September 8, 2009, submission with
regard to section 110(a)(2)(D)(i)(I) of the CAA for the 2006 24-hour
PM2.5 NAAQS. See EPA's January 26, 2011, proposed
disapproval rulemaking at 76 FR 4597 for further information on EPA's
rationale for this final action.
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    \3\ Kentucky's September 8, 2009, certification letter also
explained that Kentucky's current SIP sufficiently addresses other
requirements of section 110(a)(2) for the 2006 24-hour
PM2.5 NAAQS; however, today's final rulemaking only
relates to the section 110(a)(2)(D)(i)(I) requirements for the 2006
24-hour PM2.5 NAAQS. EPA will address the other section
110(a)(2) requirements for the 2006 24-hour PM2.5 NAAQS
in relation to Kentucky's SIP in a rulemaking separate from today's
final rulemaking.
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II. EPA's Responses to Comments

    EPA received three sets of adverse comments on the January 26,
2011, proposed rulemaking to disapprove the portion of Kentucky's
September 8, 2009, infrastructure submission on the interstate
transport requirements of sections 110(a)(2)(D)(i)(I) of the CAA for
the 2006 24-hour PM2.5 NAAQS. A full set of the comments
provided by KDAQ, the North Carolina Department of Environment and
Natural Resources, and the Georgia Environmental Protection Division
(hereinafter referred to as ``the Commenters'') are provided in the
docket for this final action. As a general matter, the comments
overlapped on some issues, and as a result, EPA has organized the
response to comments by issue. In addition, EPA acknowledges Georgia's
comments regarding SIP processing in general. As Georgia is aware, EPA
is considering improvements to the SIP process and appreciates
Georgia's comments in that regard.
    For the most part, the Commenters oppose EPA's proposed disapproval
action for the interstate portion of Kentucky's September 8, 2009,
infrastructure submission for the 2006 24-hour PM2.5 NAAQS.
The comments fall generally into the following categories: (1) States'
inability to rely on CAIR to satisfy the 110(a)(2)(D)(i)(I)
requirements for the 2006 24-hour PM2.5 NAAQS; (2) apparent
lack of guidance from EPA on how states should meet the requirements;
(3) concerns regarding the procedure of taking action to disapprove
Kentucky's submittal; (4) acknowledgement of states' efforts and air
quality conditions; and (5) concerns related to the Transport Rule. A
summary of the comments and EPA's responses are provided below.

States' Inability To Rely on CAIR To Satisfy the 110(a)(2)(D)(i)(I)
Requirements for the 2006 24-hour PM2.5 NAAQS

    Comment 1: The Commenters express concern with EPA's proposed
disapproval and assert that states should be able to rely on CAIR to
address the transport requirements in section 110(a)(2)(D)(i)(I) for
the 2006 24-hour PM2.5 NAAQS. The Commenters explain that
the Court left CAIR in place and opine that states should be able to
rely on emissions reductions from CAIR to address transport. One
Commenter also mentions that ``[t]he Court did not impose a schedule on
EPA for completing the Transport Rule; therefore, states have no
assurances that EPA will ever replace the CAIR rule. Since there is no
guarantee that the Transport Rule will be promulgated in a timely
manner, states cannot rely on the reductions in the proposed Transport
Rule and must rely on the CAIR reductions, which are permanent and
enforceable.''
    Response 1: As discussed in EPA's 2009 Guidance, states cannot rely
on the CAIR rule for the submission for the 2006 24-hour
PM2.5 NAAQS because CAIR does not address this NAAQS, and
was never intended to address this NAAQS. CAIR was originally put in
place to address the 1997 8-hour ozone and PM2.5 NAAQS. In
order to adequately address the requirements of section
110(a)(2)(D)(i)(I), states can only rely on permanent emission
reductions to address transport for the 2006 24-hour PM2.5
NAAQS, and must include an appropriate technical demonstration.

Apparent Lack of Guidance From EPA on How States Should Meet the
Requirements

    Comment 2: Two Commenters note that that 110(a)(2) infrastructure
SIPs for the 24-hour PM2.5 NAAQS were due September 21,
2009, but EPA's guidance was not released to the states until September
25, 2009.
    Response 2: While EPA's 2009 Guidance regarding the 110(a)(2)
infrastructure SIPs for the 2006 24-hour PM2.5 NAAQS was
released on September 25, 2009, this guidance did not establish new
requirements beyond those already required by section
110(a)(2)(D)(i)(I) of the CAA. Relevant portions of section 110(a)(2)
require, as follows, ``Each [implementation plan submitted by a State
under this chapter] shall * * * contain adequate provisions--(i)
prohibiting, consistent with the provisions of this subchapter, any
source or other type of emissions activity within the State from
emitting any air pollutant in amounts which will--contribute
significantly to nonattainment in, or interfere with maintenance by,
any other State with respect to any such national primary or secondary
ambient air quality standard * * *'' States are statutorily obligated
to address the requirements of section 110(a)(2)(D)(i)(I) for the 2006
24-hour PM2.5 NAAQS. This above-quoted provision provides
States with the requirement.
    Comment 3: Two Commenters express concern about communication in
the SIP process. The Commenters go on to say that ``[e]ven though EPA's
guidance was released only a short time later, EPA Region 4 gave
absolutely no indication to its co-regulators that there would be a
fatal flaw with the submittal.'' The commenter further states that,
``it wasn't until a year later that states were informed via an e-mail
on August 27, 2010, that `All Region 4 states submitted complete
infrastructure SIPs for the 2006 PM2.5 NAAQS, and our
intention is to disapprove the 110(a)(2)(D)(i)(I) portion of those
unless it is withdrawn by the state.' ''
    Response 3: EPA disagrees with the Commenters' assertion that they
were initially notified in an August 27, 2010, e-mail about EPA's
expectations and concerns with states' submissions reliance on CAIR to
meet the requirements for section 110(a)(2)(D)(i)(I) for the 2006 24-
hour PM2.5 NAAQS. As was explained above, Kentucky's
obligation stems from the CAA. As is EPA's practice, EPA reminded the
States on a number of occasions of the interstate transport obligations
in 110(a)(2)(D)(i)(I). In addition to the informal reminders (via e-
mail and teleconferences, among other avenues), EPA's January 2011
proposal served as a formal, legal notification and provided for a
formal opportunity for public comment.
    Although EPA reminded states of EPA's expectations and concerns
with states' reliance on CAIR to meet the requirements for section
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS in an
August 27, 2010, e-mail, EPA formally notified states of the
expectations and concerns in the EPA's 2009 Guidance. Specifically, EPA
noted that SIP submissions that relied on CAIR for satisfying the
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5
NAAQS would be inadequate, as CAIR did not address this NAAQS. EPA's
proposed disapproval of the portion of Kentucky's September 8, 2009,
submission did not occur until January 2011, which was over a year
after EPA's notification (through the release of the EPA's 2009
Guidance) of any states'

deficiency for meeting the 110(a)(2)(D)(i)(I) requirement for the 2006
24-hr PM2.5 NAAQS had that state relied on CAIR. Thus,
Kentucky had notification and an opportunity to provide supplemental
information between the release of EPA's 2009 Guidance and EPA's
proposed disapproval action in January 2011.
    Comment 4: One Commenter raises concerns with EPA treating its 2009
Guidance as ``binding'' and suggests that this action is contrary to
statements made by EPA in support of EPA and states being ``co-
regulators.''
    Response 4: EPA disagrees with the Commenter's assertion that the
proposed disapproval is contrary to EPA treating the states as co-
regulators. As was explained earlier, EPA has regular contact with its
state co-regulators. With regard to the proposed disapproval action,
EPA corresponded with Kentucky regarding the September 8, 2009,
submittal prior to the proposed disapproval. In the past several
months, EPA has corresponded with Kentucky on a number of occasions
regarding other SIP revisions and EPA's consideration of those
revisions--as is EPA's typical practice to support the co-regulator
relationship.
    Further, EPA notes that the January 26, 2011, proposed disapproval
of Kentucky's September 8, 2009, submission as it relates to satisfying
the 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour
PM2.5 NAAQS is based on EPA's determination that Kentucky
did not provide adequate information to demonstrate compliance with the
requirements of section 110(a)(2)(D)(i)(I) for the 2006 24-hour
PM2.5 NAAQS for Kentucky. No new requirements were
introduced in EPA's 2009 Guidance. This guidance simply provided
additional clarifications but the CAA requirements existed long before
Kentucky's September 21, 2009, deadline for a SIP submission.
    Comment 5: One Commenter mentions that ``EPA has not stated the
amount of reduction they believe is needed to satisfy the transport
requirements. Not only is this a situation where EPA moves the finish
line (by releasing guidance AFTER the due date), the finish line isn't
even knowable (because EPA refuses to inform the states how much
reduction is enough to satisfy the requirements). EPA seems to say that
it has to be whatever the final Transport Rule says, even though there
is no final Transport Rule.''
    Response 5: EPA disagrees with this comment. As was explained
earlier, the state obligation stems from the CAA itself. As co-
regulators, EPA makes efforts to assist states in submitting approvable
revisions--and EPA took such action with EPA's 2009 Guidance. States
had an opportunity to conduct their own analyses regarding interstate
transport. Section 110(a)(2) requires that the state's submission
contain adequate provisions prohibiting emissions from the state that
contribute significantly to nonattainment of or interfere with
maintenance of the NAAQS in any other state. In order to ensure
compliance with the CAA's mandate of ``adequate'' provisions, the
state's SIP revision must be supported by an adequate technical
analysis, including, but not limited to, information concerning
emissions in the state, meteorological conditions in the state and the
potentially impacted states, monitored ambient concentrations in the
state and the potentially impacted states, the distance to the nearest
area that is not attaining the NAAQS in another state, and air quality
modeling. EPA appreciates that Kentucky has initiated the process of
such an analysis (which is included in Kentucky's comment letter).
    Comment 6: One Commenter notes EPA's statement in the January 26,
2011, proposed disapproval where the Agency states: ``* * * without an
adequate technical analysis EPA does not believe that states can
sufficiently address the section 110(a)(2)(D)(i)(I) requirement for the
2006 PM2.5 NAAQS.'' The Commenter mentions that they, and
possibly other states, were precluded from providing the necessary
technical analysis by EPA because EPA did not release the guidance
until after the SIP submission deadline. Further, the Commenter notes
that EPA did not provide specific criteria for the technical analysis
in the EPA's 2009 Guidance, and mentions that ``[h]ad EPA provided
adequate criteria for an approvable SIP in a timely manner, it is
likely that [the state] would have been able to submit an approvable
SIP by the statutory deadline.'' The Commenter included a technical
analysis as part of their comments on the proposal.
    Response 6: EPA does not agree with the Commenter's assertions. As
was explained earlier, the SIP submission requirement is identified in
the CAA. In addition, States were alerted that a technical analysis
that involved modeling and permanent, enforceable emission reductions
could be used to make an adequate demonstration to satisfy the
110(a)(2)(D)(i)(I) requirement for the 1997 PM2.5 and ozone
NAAQS when EPA promulgated CAIR in 2005. Due to the legal status of
CAIR, states relying on CAIR as permanent were taking a risk given
EPA's proposed Transport Rule and the court decision on CAIR. Further,
states were officially informed that the 110(a)(2)(D)(i)(I) requirement
for the 2006 24-hour PM2.5 NAAQS could not be satisfied by
reliance on CAIR (since that rule did not consider the 2006 24-hour
PM2.5 NAAQS) when EPA released EPA's 2009 Guidance. The
submittal by Kentucky relied on CAIR and it did not include an adequate
technical analysis--despite EPA's efforts to alert states that mere
reliance on CAIR, on its own, would not meet the CAA requirements.
    Consistent with section 110 of the CAA and implementing regulations
at 40 CFR part 51, and as a general matter, ``adequate technical
analyses'' are a cornerstone of ensuring that SIP revisions are
approvable. EPA has addressed the timing of information in previous
comments, but to underscore that point, EPA alerted states formally
upon the release of the EPA's 2009 Guidance that CAIR could not be used
to meet the 110(a)(2)(D)(i)(I) requirement for the 2006
PM2.5 NAAQS. In addition, there are formal SIP revision
requirements described in 40 CFR part 51, subpart F. EPA does not agree
that Kentucky's comments on the January 2011 disapproval proposal may
be considered a ``SIP revision;'' nonetheless, EPA did review the
comments as was described above. Further information regarding the path
forward following today's action is described below.
    Upon disapproval of Kentucky's submittal, EPA has a legal
obligation, pursuant to the Act, to promulgate a FIP. Section 110(a)(1)
of the Act requires states to submit SIPs that meet certain
requirements within three years of promulgation of a NAAQS. These SIPs
are required to contain, among other things, adequate provisions
``prohibiting, consistent with the provisions of this subchapter, any
source or other type of emissions activity within the state from
emitting any air pollutant in amounts which will--(I) contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state with respect to any such national primary or secondary
ambient air quality standard.'' Section 110(a)(1) gives the
Administrator authority to prescribe a period shorter than three years
for the states to adopt and submit such SIPs, but does not give the
Administrator authority to lengthen the time allowed for submission.
    Section 110(c)(1) of the Act, in turn, requires EPA to promulgate
FIPs if EPA has found that the state has failed to make a required
submission or if EPA has disapproved a state submission our

found it to be incomplete. Specifically, section 110(c)(1) requires EPA
to promulgate a FIP within two years after the Administrator ``(A)
finds that a state has failed to make a required submission or finds
that the plan or plan revision submitted by the state does not satisfy
the minimum criteria established under subsection (k)(1)(A) of this
section or (B) disapproves a state implementation plan submission in
whole or in part.'' The Act uses mandatory language, finding that EPA
shall promulgate a FIPs at any time within 2 years after the actions
identified 110(c)(1)(A) or 110(c)(1)(B) have occurred. EPA's legal
obligation to promulgate FIPs arises when those actions occur without
regard to the underlying reason for the underlying state SIP
deficiency. The obligation to promulgate a FIP must be discharged by
EPA unless two conditions are met: (1) The state corrects the
deficiency; and (2) the Administrator approves the plan or plan
revision, before the Administrator promulgates the FIP.
    Under this statutory scheme, EPA has authority and an obligation to
promulgate a FIP to correct a SIP deficiency if the actions identified
in section 110(c)(1)(A) or (B) have been taken, and the two conditions
identified in 110(c)(1) have not been met. The question of whether EPA
has authority to promulgate any particular FIP, therefore, must be
considered on a state specific basis.
    EPA disagrees with the Commenter's suggestion that the rule is
inconsistent with the CAA because it does not give states time to
develop, submit and receive EPA approval of SIPs before the FIP goes
into effect. Section 110(a)(2) calls on states to submit SIPs that
contain adequate provisions prohibiting the emissions proscribed by
section 110(a)(2)(D)(i)(I). However, when EPA has not received such SIP
submission or has disapproved a SIP submission, it has an obligation
created by section 110(c)(1) to promulgate a FIP that meets the
requirements of section 110(a)(2)(D)(i)(I). EPA does not believe it has
authority to adjust the deadlines established in the Act in order to
give states additional time, after promulgation of the Transport Rule,
to submit SIPs that comply with section 110(a)(2)(D)(i)(I). EPA does
not believe it has authority to alter the statutory requirement that it
promulgate FIPs within two years of making a finding of failure to
submit. EPA sought to discharge this duty with respect to the states
covered by CAIR for the PM2.5 NAAQS by promulgating CAIR;
however, the Court found that rule unlawful and not sufficiently
related to the statutory mandate of section 110(a)(2)(D)(i)(I). For
this reason, EPA does not believe it could argue that the CAIR FIPs
completely discharged its duty to promulgate FIPs with respect to the
states whose section 110(a)(2)(D)(i)(I) SIPs are disapproved.
    EPA is following the SIP process established in the statute. The
110(a) SIPs for the 2006 PM2.5 standard were due in 2009. In
each case, states were given the full 3 years to meet the requirement.
The Transport Rule provides the FIP to fulfill the requirement that was
unmet by the states through SIPs. EPA is required to promulgate a FIP
within 2 years of a state's failure to have an approved SIP. States
were in fact given the first chance to fulfill the requirement of
Section 100(a)(2)(D)(i)(I). EPA's action is subsequent to the State's
opportunity to first fulfill the requirement.
    EPA has made every attempt to smooth the transition between the
requirements of CAIR and those of the forthcoming Transport Rule. For
future requirements, EPA will also make every effort to address
transition issues. However, EPA cannot ignore its statutory obligations
and therefore cannot ensure that no new requirements will be placed on
the sources being regulated by this action. Every time a NAAQS is
revised, there is a statutory obligation for states to submit SIPs to
address certain CAA requirements. If states fail to meet the deadlines
or submit incomplete or inadequate SIPs, EPA must act to ensure that
the requirements are put into place.
    Even though EPA is issuing a FIP, the State still has the
opportunity to submit a SIP that can tailor requirements to the
specific needs and concerns of the State in order to meet the
applicable state budgets. Prior to this action, states had ample time
under the provisions of the CAA to develop and submit approvable SIPs
and did not. No state affected by the Transport Rule has submitted a
SIP to replace the emission reductions that were required by CAIR,
despite the North Carolina opinion issued in December 2008 that clearly
said CAIR did not adequately address 110(a)(2)(D)(i)(I). While the
remand left CAIR in place and states and sources were required to
continue to comply with it, states had the opportunity to develop
replacement measures to ensure that 110(a)(2)(D)(i)(I) components of
their SIPs would continue to be fulfilled in the future.

Objection to the Use of Disapproval Actions for States' Implementation
Plans

    Comment 7: Two Commenters express concerns about EPA's proposed
disapproval and indicate that EPA had an obligation to use section
110(k)(5) of the CAA. One Commenter states: ``EPA continues to be
resistant to exploring a legislative approach to fixing some of the SIP
issues, yet the correct process under the existing Clean Air Act to
appropriately address this issue is not being used.'' The Commenter
goes on to state: ``Section 110(k) requires that when EPA finds a plan
to be inadequate, EPA shall (1) require the state to revise the plan,
(2) notify the state of the inadequacy, and (3) may establish
reasonable deadlines not to exceed 18 months.'' Additionally, the
Commenter mentions that in their opinion, ``The proposed disapproval
completely ignores 1 and 3 and only partially
satisfies 2. Regarding 2, the EPA proposal simply
states EPA's position that the SIP is inadequate, but fails to notify
us `of the inadequacy.' '' The Commenter asserts that ``* * * EPA still
has failed to provide any specificity on what is required of a state to
submit an approvable SIP,'' and mentions that ``These Clean Air Act
requirements are not discretionary, and that `EPA must comply with the
provisions of Section 110(k)(5) by providing a reasonable period of
time to allow [the state] to satisfy the inadequacy and sufficient and
timely instructions on what is required to revise the plan instead of
relying on a theoretical FIP as the sole remedy.' '' The Commenter
concludes by stating that ``EPA may not take final action on this
proposal until it complies with Section 110(k)(5) of the Clean Air
Act.''
    Response 7: The issues raised in this comment are also addressed by
Response 6, above. To further clarify what is included in Response 6,
Kentucky's September 8, 2009, submission relating to section
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS is being
disapproved pursuant to sections 110(k)(2) and (3) of the CAA, not
section 110(k)(5). Section 110(k)(5) is applicable to SIPs that have
been federally-approved, and are subsequently found to be substantially
inadequate. This is not the case for Kentucky's September 8, 2009,
submission relating to section 110(a)(2)(D)(i)(I) for the 2006
PM2.5 NAAQS as the September 8, 2009, submission was
provided to EPA for a new requirement that was triggered by the
promulgation of the 24-hour PM2.5 NAAQS in 2006. EPA is
required under

section 110(k)(3) to act upon a state submittal with an approval or
disapproval, within the time period designated under section 110(k)(2).
With this action, EPA is disapproving Kentucky's September 8, 2009,
submission relating to section 110(a)(2)(D)(i)(I), because EPA has made
the determination that the Kentucky SIP does not satisfy these
requirements for the 2006 PM2.5 NAAQS. Kentucky's submission
is inadequate for its failure to meet the statutory requirements of
110(a)(2)(D)(i)(I) as noted above. The Commonwealth can correct the
deficiency by submitting a transport SIP that meets the provisions of
the forthcoming Transport Rule or otherwise eliminates significant
contribution and interference with maintenance. See Response to Comment
6.
    Comment 8: One Commenter expresses concern about EPA's statement in
the January 26, 2011, proposed disapprovals regarding the Agency not
taking action on some elements of the states' 2006 24-hour
PM2.5 infrastructure submissions, and notes the Agency's
statutory timeframe for taking action on SIP submissions. Specifically,
the Commenter cites the following statement from EPA's January 26,
2011, proposed rule: ``[t]herefore, EPA is proposing to disapprove
those provisions which relate to the 110(a)(2)(D)(i)(I) demonstration
and to take no action on the remainder of the demonstration at this
time.'' The Commenter mentions that EPA is ``clearly in violation of
Clean Air Act Section 110(k)(2)'' by not taking action on the remainder
of the states' submissions.
    Response 8: In this action, EPA is disapproving certain elements of
the State's submission related to the requirements under section
110(a)(2)(D)(i)(I). EPA has also determined that these elements are
severable from the rest of the submission. Comments on elements that
are not being addressed here are not relevant to this action. As noted
herein, EPA intends to act on those elements in a subsequent action.
See Response to Comment 6 for additional information.
    Comment 9: One Commenter indicates that EPA could use section
110(k)(4) to conditionally approve the states' implementation plans for
the transport requirements related to the 2006 24-hour PM2.5
NAAQS in anticipation of the promulgation of the final Transport Rule,
``[a]ssuming EPA adequately addresses modeling and emissions inventory
concerns raised during the comment period * * *''
    Response 9: EPA does not agree that the use of 110(k)(4) for a
conditional approval is appropriate in this circumstance. Conditional
approvals may be used to approve a plan revision based on a written
commitment of the State to adopt specific enforceable measures by a
date certain, but not later than 1 year after the date of approval of
the plan revision. If the State does not adopt specific enforceable
measures within a year, the conditional approval automatically converts
to a disapproval. The forthcoming Transport Rule is an action that is
being promulgated from EPA and not the State, so it is unclear what
``condition'' the State would be responsible for satisfying by relying
on the final promulgation of the Transport Rule. Further, as the
Commenter implies, use of 110(k)(4) is optional. See Response to
Comment 6 for additional information.

Acknowledgement of States' Efforts and Air Quality Conditions

    Comment 10: Two Commenters mention innovative air pollution control
strategies that states have implemented to reduce emissions, and seem
to indicate that the adoption of those strategies, in-and-of itself,
complies with the interstate transport provisions of section
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. The
Commenters opine that state laws and rules have resulted in enormous
reductions of pollutants that are key pollutants to interstate
transport.
    Response 10: EPA agrees that states have implemented innovative air
pollution control strategies that have provided significant reductions
in emissions, and the Agency commends states for their efforts.
However, today's action relates to whether Kentucky has provided an
adequate technical analysis and emissions reductions to show compliance
with the 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour
PM2.5 NAAQS for Kentucky. It is EPA's final determination
that Kentucky's September 8, 2009, submission does not provide an
adequate technical analysis and emissions reductions for this
determination and thus EPA is disapproving the portion of Kentucky's
September 8, 2009, submission as it relates to the 110(a)(2)(D)(i)(I)
requirements for the 2006 24-hour PM2.5 NAAQS for Kentucky.

Concerns Related to the Transport Rule

    Comment 11: Two Commenters expresses concern regarding EPA's
statement in the January 26, 2011, proposed disapproval regarding the
modeling used to support the proposed Transport Rule, and the findings
in relation to whether states significantly contribute to nonattainment
or interfere with maintenance of the 2006 24-hour PM2.5
NAAQS in downwind areas. The Commenters state that ``based on 2007-2009
monitoring data, all of these areas are currently meeting the 2006 24-
hour PM2.5 NAAQS'' and express concern that EPA did not note
the area's status with regard to the 2006 24-hour PM2.5
NAAQS in the proposal. The Commenters go on to say ``we noted in our
official comments on the proposed Transport Rule, EPA had numerous
errors in the modeling inputs and failed to ensure that the model
performance was acceptable. This may explain the disparity between
EPA's modeling results and the real world monitors.''
    Response 11: Today's action relates to whether the Commonwealth
provided an adequate technical analysis and emissions reductions to
show compliance with the 110(a)(2)(D)(i)(I) requirements for the 2006
24-hour PM2.5 NAAQS for Kentucky, and is not based on the
attainment status of Kentucky areas. Kentucky did not provide an
adequate technical analysis to EPA to demonstrate compliance with the
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5
NAAQS. With regard to the Commenters' concern about the forthcoming
Transport Rule, EPA notes that the Agency received numerous comments on
the proposed Transport Rule and is considering those comments as it
works toward promulgation of a final Transport Rule. All comments on
the Transport Rule will be addressed in that context.
    Comment 12: Both Commenters assert that EPA's proposed finding of
significant contribution for the proposed Transport Rule is based on an
inaccurate emissions inventory, fails to take into account all of the
reductions required by the state rules already in effect, and contains
numerous other errors that only compound these problems.
    Response 12: EPA received numerous comments on the proposed
Transport Rule and is considering those comments as it works toward
promulgation of a final Transport Rule. All comments on the Transport
Rule will be addressed in that context.

III. Final Action

    EPA is taking final action to disapprove the portion of the
Commonwealth of Kentucky's September 8, 2009, submission, relating to
section 110(a)(2)(D)(i)(I), because EPA has made the determination that
the Kentucky SIP does not satisfy the requirements for the 2006 24-hour
PM2.5 NAAQS. Although EPA is taking final

action to disapprove the portion of Kentucky's September 8, 2009,
submission relating to section 110(a)(2)(D)(i)(I), EPA acknowledges the
Commonwealth's efforts to address this requirement in its September 8,
2009, submission. Unfortunately, the submittal relies on CAIR and
without an adequate technical analysis EPA does not believe that states
can adequately address the section 110(a)(2)(D)(i)(I) requirement for
the 2006 24-hour PM2.5 NAAQS. The purpose of the Transport
Rule that EPA is developing and has proposed is to respond to the
remand of CAIR by the Court and address the section 110(a)(2)(D)(i)(I)
requirements for the 2006 24-hour PM2.5 NAAQS for the
affected states. In today's action, EPA is not taking any disapproval
action on the remaining elements of the submission, including other
section 110(a)(2) infrastructure elements, and specifically the section
110(a)(2)(D)(i)(II) portion regarding interference with measures
required in the applicable SIP for another state designed to prevent
significant deterioration of air quality and protect visibility but
instead will act on those provisions in a separate rulemaking.
    Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a Part D Plan (42 U.S.C. sections 7501-
7515) or is required in response to a finding of substantial inadequacy
as described in section 7410(k)(5) (SIP call) starts a sanctions clock.
Section 110(a)(2)(D)(i)(I) provisions (the provisions being disapproved
in today's notice) were not submitted to meet requirements for Part D,
and therefore, no sanctions will be triggered. This final action
triggers the requirement under section 110(c) that EPA promulgate a FIP
no later than 2 years from the date of the disapproval unless the State
corrects the deficiency, and the Administrator approves the plan or
plan revision before the Administrator promulgates such FIP. The
proposed Transport Rule, when final, is the FIP that EPA intends to
implement to satisfy the 110(a)(2)(D)(i)(I) requirement for Kentucky
for the 2006 24-hr PM2.5 NAAQS.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to act on state law as meeting
federal requirements and does not impose additional requirements beyond
those imposed by state law.

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this SIP disapproval under section 110 and subchapter I, part D
of the CAA will not in-and-of itself create any new information
collection burdens but simply disapproves certain state requirements
for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. For purposes of
assessing the impacts of today's rule on small entities, small entity
is defined as: (1) A small business as defined by the Small Business
Administration's regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This SIP
disapproval under section 110 and subchapter I, part D of the CAA will
not in-and-of itself create any new requirements but simply disapproves
certain state requirements for inclusion into the SIP. Accordingly, it
affords no opportunity for EPA to fashion for small entities less
burdensome compliance or reporting requirements or timetables or
exemptions from all or part of the rule. The fact that the CAA
prescribes that various consequences (e.g., higher offset requirements)
may or will flow from this disapproval does not mean that EPA either
can or must conduct a regulatory flexibility analysis for this action.
Therefore, this action will not have a significant economic impact on a
substantial number of small entities. EPA continues to be interested in
the potential impacts of this proposed rule on small entities and
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. EPA has determined that the disapproval action does not include
a federal mandate that may result in estimated costs of $100 million or
more to either state, local, or tribal governments in the aggregate, or
to the private sector. This action disapproves pre-existing
requirements under state or local law, and imposes no new requirements.
Accordingly, no additional costs to state, local, or tribal
governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely disapproves
certain state requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
EPA is disapproving would not apply in Indian country located in the
State, and EPA notes that it will not impose substantial direct costs
on tribal governments or preempt tribal law. Thus, Executive Order
13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This SIP disapproval under section 110 and subchapter I, part D
of the CAA will not in-and-of itself create any new regulations but
simply disapproves certain state requirements for inclusion into the
SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA, Public Law 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through the Office of Management and Budget,
explanations when the Agency decides not to use available and
applicable voluntary consensus standards. EPA believes that this action
is not subject to requirements of Section 12(d) of NTTAA because
application of those requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the CAA. Accordingly, this action merely proposes to disapprove
certain state requirements for inclusion into the SIP under section 110
and subchapter I, part D of the CAA and will not in-and-of itself
create any new requirements. Accordingly, it does not provide EPA with
the discretionary authority to address, as appropriate,
disproportionate human health or environmental effects, using
practicable and legally permissible methods, under Executive Order
12898.

K. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 19, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.

    Dated: June 28, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart S--Kentucky

0
2. Section 52.933 is amended by adding paragraph (c), to read as
follows:

Sec.  52.933  Control strategy: Sulfur oxides and particulate matter.

* * * * *
    (c) Disapproval. EPA is disapproving portions of Kentucky's
Infrastructure SIP for the 2006 24-hour PM2.5 NAAQS
addressing interstate transport, specifically with respect to section
110(a)(2)(D)(i)(I).

[FR Doc. 2011-17996 Filed 7-19-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Rules and Regulations]
[Pages 39406-39408]
[FR Doc No: 2012-16254]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0584]
RIN 1625-AA00

Safety Zone; Tom Graves Memorial Fireworks, Port Bay, Wolcott, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on
Port Bay, Wolcott, NY. This safety zone is intended to restrict vessels
from a portion of Port Bay during the Tom Graves Memorial Fireworks
display. This temporary safety zone is necessary to protect spectators
and vessels from the hazards associated with a fireworks display.

DATES: This rule will be effective from 9:30 p.m. until 11:30 p.m. on
July 3, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2012-0584]. To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type the
docket number in the ``SEARCH'' box, and click ``Search.'' You may
visit the Docket Management Facility, Department of Transportation,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or email LT Christopher Mercurio, Chief of
Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716-
843-9343, email<EMAIL_ADDRESS>If you have
questions on viewing or submitting material to the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because doing so would be impracticable and
contrary to the public interest. The final details for this event were
not known to the Coast Guard until there was insufficient time
remaining before the event to publish an NPRM. Thus, delaying the
effective date of this rule to wait for a comment period to run would
be both impracticable and contrary to the public interest because it
would inhibit the Coast Guard's ability to protect spectators and
vessels from the hazards associated with a maritime fireworks display,
which are discussed further below.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. For the same reasons discussed in
the preceding paragraph, waiting for a 30-day notice period to run
would be impracticable and contrary to the public interest.

B. Basis and Purpose

    Between 10:00 p.m. and 11:00 p.m. on July 3, 2012, a fireworks
display will be held on Port Bay near Wolcott, NY. The Captain of the
Port Buffalo has determined that fireworks launched proximate to a
gathering of watercraft pose a significant risk to public safety and
property. Such hazards include premature and accidental detonations,
dangerous projectiles, and falling or burning debris.

C. Discussion of Rule

    With the aforementioned hazards in mind, the Captain of the Port
Buffalo has determined that this temporary safety zone is necessary to
ensure the safety of spectators and vessels during the Tom Graves
Memorial Fireworks. This zone will be effective and enforced from 9:30
p.m. until 11:30 p.m. on July 3, 2012. This zone will encompass all
waters of Port Bay, Wolcott, NY within an 840 foot radius of barge
position 43[deg]18'13.3'' N and 76[deg]50'16.9'' W (NAD 83).
    Entry into, transiting, or anchoring within the safety zone is
prohibited unless authorized by the Captain of the Port Buffalo or his
designated on-scene representative. The Captain of the Port or his
designated on-scene representative may be contacted via VHF Channel 16.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. It is not
``significant'' under the regulatory policies and procedures of the
Department of Homeland Security (DHS). We conclude that this rule is
not a significant regulatory action because we anticipate that it will
have minimal impact on the economy, will not interfere with other
agencies, will not adversely alter the budget of any grant or loan
recipients, and will not raise any novel legal or policy issues. The
safety zone created by this rule will be relatively small and enforced
for relatively short time. Also, the safety zone is designed to
minimize its impact on navigable waters. Furthermore, the safety zone
has been designed to allow vessels to transit around it. Thus,
restrictions on vessel movement within that particular area are
expected to be minimal. Under certain conditions, moreover, vessels may
still transit through the safety zone when permitted by the Captain of
the Port.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
    This rule will affect the following entities, some of which might
be small entities: The owners or operators of vessels intending to
transit or anchor in a portion of Port Bay on the evening of July 3,
2012.
    This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: This
safety zone would be activated, and thus subject to enforcement, for
only 120 minutes late in the day. Traffic may be allowed to pass
through the zone with the permission of the Captain of the Port. The
Captain of the Port can be reached via VHF channel 16. Before the
activation of the zone, we would issue local Broadcast Notice to
Mariners.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have

analyzed this rule under that Order and determined that this rule does
not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INTFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves the establishment of a safety zone and,
therefore it is categorically excluded from further review under
paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An
environmental analysis checklist supporting this determination and a
Categorical Exclusion Determination are available in the docket where
indicated under ADDRESSES. We seek any comments or information that may
lead to the discovery of a significant environmental impact from this
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapters 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.

0
2. Add Sec.  165.T09-0584 to read as follows:

Sec.  165.T09-0584  Safety Zone; Tom Graves Memorial Fireworks, Port
Bay, Wolcott, NY.

    (a) Location. The safety zone will encompass all waters of Port
Bay, Wolcott, NY within an 840 foot radius of barge position
43[deg]18'13.3'' N and 76[deg]50'16.9'' W (NAD 83).
    (b) Effective and Enforcement Period. This regulation is effective
and will be enforced on July 3, 2012 from 9:30 p.m. until 11:30 p.m.
    (c) Regulations.
    (1) In accordance with the general regulations in Sec.  165.23 of
this part, entry into, transiting, or anchoring within this safety zone
is prohibited unless authorized by the Captain of the Port Buffalo or
his designated on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may
be permitted by the Captain of the Port Buffalo or his designated on-
scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port
Buffalo is any Coast Guard commissioned, warrant or petty officer who
has been designated by the Captain of the Port Buffalo to act on his
behalf.
    (4) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port Buffalo or his on-scene
representative to obtain permission to do so. The Captain of the Port
Buffalo or his on-scene representative may be contacted via VHF Channel
16. Vessel operators given permission to enter or operate in the safety
zone must comply with all directions given to them by the Captain of
the Port Buffalo, or his on-scene representative.

    Dated: June 20, 2012.
S.M. Wischmann,
Captain, U.S. Coast Guard, Captain of the Port Buffalo.
[FR Doc. 2012-16254 Filed 7-2-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 84, Number 65 (Thursday, April 4, 2019)]
[Notices]
[Pages 13376-13378]
[FR Doc No: 2019-06517]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85458; File No. SR-CBOE-2019-018]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change Relating
To Amend Rule 6.42, Interpretation and Policy .04 To Specify That
Replacement Issues May Be Added to the Penny Pilot Program (``Pilot'')
on a Quarterly Basis, Without Altering the Expiration Date of the
Pilot, Which Is June 30, 2019

March 29, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on March 22, 2019, Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe
Options'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Exchange
filed the proposal as a ``non-controversial'' proposed rule change
pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-
4(f)(6) thereunder.\4\ The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to amend Rule 6.42, Interpretation and Policy .04 to specify that
replacement issues may be added to the Penny Pilot Program (``Pilot'')
on a quarterly basis, without altering the expiration date of the
Pilot, which is June 30, 2019. The text of the proposed rule change is
provided below.

(additions are italicized; deletions are [bracketed])

* * * * *

Rules of Cboe Exchange, Inc.

* * * * *

Rule 6.42. Minimum Increments for Bids and Offers

    (a)-(b) No change.
    . . . Interpretations and Policies:
    .01-.03 No change.
    .04 The Exchange may replace any option class participating in
the Penny Pilot Program that has been delisted with the next most
actively traded, multiply listed option class, based on national
average daily volume in the preceding six calendar months, that is
not yet included in the Pilot Program. Any replacement class would
be added on the second trading day in the first month of each
quarter [following January 1, 2019]. The Penny Pilot will expire on
June 30, 2019.
* * * * *

    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the 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.

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

1. Purpose
    The Exchange proposes to amend Rule 6.42, Interpretation and Policy
.04, regarding the Pilot, to specify that replacement issues may be
added to the Pilot on a quarterly basis, without altering the
expiration date of the Pilot, which is June 30, 2019. The Exchange
recently filed to extend the Pilot until June 30, 2019 (from December
31, 2018) and also updated the rule text to provide that replacement
issues may be added to the Pilot on the second trading day following
January 1, 2019.\5\ The

Rule authorizes the Exchange to replace any options issues in the Pilot
that have been delisted with the next most actively traded multiply
listed options classes that are not yet included in the Program, based
on trading activity in the previous six months.\6\ The Exchange
proposes to modify Rule 6.42, Interpretation and Policy .04 to allow
the Exchange to add replacement issues (for Pilot issues that have been
delisted) on a quarterly basis. The Exchange added replacement issues
in January 2019 and would be able to add eligible replacement issues in
April, July and October. The Exchange believes this change would allow
the Exchange to update issues eligible for the Pilot (by replacing
delisted issues) on a quarterly basis (as opposed to semi-annual) and
would enable further analysis of the Pilot and a determination of how
the Pilot should be structured in the future.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 84940 (December 21,
2018), 83 FR 67759 (December 31, 2018) (SR-CBOE-2018-076). On
January 3, 2019, the Exchange added new issues to replace delisted
Pilot issues, as announced by Product Update, available here, http://markets.cboe.com/resources/product_update/2019/Penny-Pilot-Replacement-Classes-for-January-3-2019-Updated.pdf.
    \6\ See Rule 6.42, Interpretation and Policy .04.
---------------------------------------------------------------------------

    As is the case today, the Exchange will determine replacement
issues based on trading activity in the previous six months (the ``six-
month lookback'') but will not use the month immediately preceding the
addition of a replacement to the Pilot. Thus, a replacement class to be
added on the second trading day following April 1, 2019 would be
identified based on The Option Clearing Corporation's trading volume
data from September 1, 2018 through February 28, 2019.\7\ The Exchange
believes the six-month lookback is appropriate because this time period
would help reduce the impact of unusual trading activity as a result of
unique market events, such as a corporate action (i.e., it would result
in a more reliable measure of average daily trading volume than would a
shorter period).
---------------------------------------------------------------------------

    \7\ The Exchange will continue to announce the replacement
issues by Exchange Notice. See supra note 5.
---------------------------------------------------------------------------

    This filing does not propose any substantive changes to the Pilot:
All classes currently participating will remain the same and all
minimum increments will remain unchanged. The Exchange believes the
benefits to public customers and other market participants who will be
able to express their true prices to buy and sell options have been
demonstrated to outweigh the increase in quote traffic.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act. Specifically, the Exchange
believes the proposed rule change is consistent with the Section
6(b)(5) requirements that the rules of an exchange be designed to
prevent fraudulent and manipulative acts and practices, 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. Additionally, the Exchange
believes the proposed rule change is consistent with the Section
6(b)(5) requirement that the rules of an exchange not be designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers.
    In particular, the Exchange believes the proposal to allow the
addition of replacement issues the Pilot on a quarterly basis would
result in a more current list of Pilot-eligible issues and would enable
further analysis of the Pilot, including for a determination of how the
Pilot should be structured in the future. Further, the Exchange
believes the six-month lookback is appropriate because this time period
would help reduce the impact of unusual trading activity as a result of
unique market events, such as a corporate action (i.e., it would result
in a more reliable measure of average daily trading volume than would a
shorter period). Thus, the Exchange believes this proposal would
promote just and equitable principles of trade, foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and remove impediments to and perfect the mechanisms of a
free and open market and a national market system.
    The Exchange notes that it is not making any other substantive
changes to the Pilot, other than modifying the timing for replacement
issues and therefore the Exchange will continue to participate in a
program that has been viewed as beneficial to traders, investors and
public customers and viewed as successful by the other options
exchanges participating in it. The Exchange believes that the Pilot
would continue to promote just and equitable principles of trade by
enabling public customers and other market participants to express
their true prices to buy and sell options to the benefit of all market
participants.

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. Specifically, the Exchange
believes that allowing the Exchange to add replacement issues to the
Pilot on a quarterly basis would make the list of Pilot-eligible issues
more current and would enable further analysis of the Pilot, including
for a determination of how the Pilot should be structured in the
future. In doing so, the proposed rule change will also serve to
promote regulatory clarity and consistency, thereby reducing burdens on
the marketplace and facilitating investor protection. The Pilot Program
is an industry-wide initiative supported by all other option exchanges.
The Exchange believes that the proposed change would allow for
continued competition between Exchange market participants trading
similar products as their counterparts on other exchanges, while at the
same time allowing the Exchange to continue to compete for order flow
with other exchanges in option issues trading as part of the Pilot.

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

    The Exchange neither solicited nor received comments on the
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \8\ and Rule 19b-4(f)(6) thereunder.\9\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become

effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

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

    A proposed rule change filed under Rule 19b-4(f)(6) \10\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\11\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Commission believes
that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest. The change will allow
the Exchange to add classes to the pilot that are actively traded at
the start of the second quarter (i.e., in April 2019) and replace those
that have been delisted and are no longer trading on a more frequent
basis. This will help ensure that the top 363 most actively traded,
multiply-listed classes are included in the Pilot, which will enable
further analysis of the Pilot.\12\
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    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \13\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-CBOE-2019-018 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CBOE-2019-018. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (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 website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly.
    All submissions should refer to File Number SR-CBOE-2019-018 and
should be submitted on or before April 25, 2019.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-06517 Filed 4-3-19; 8:45 am]
 BILLING CODE 8011-01-P