[Federal Register Volume 83, Number 76 (Thursday, April 19, 2018)]
[Notices]
[Pages 17462-17467]
[FR Doc No: 2018-08153]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83046; File No. SR-NASDAQ-2018-012]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order
Granting Approval of a Proposed Rule Change To List and Trade, Under
Nasdaq Rule 5705, the Shares of the Horizons Russell 2000 Covered Call
ETF

April 13, 2018.

I. Introduction

    On February 9, 2018, The Nasdaq Stock Market LLC (``Nasdaq'' 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 list and trade shares (``Shares'') of the
Horizons Russell 2000 Covered Call ETF (``Fund''). The proposed rule
change was published for comment in the Federal Register on February
28, 2018.\3\ The Commission received no comments on the proposal. This
order approves the proposed rule change.
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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. 82761 (Feb. 22,
2018), 83 FR 8719 (``Notice'').
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade Shares of the Fund under
Rule 5705, which governs the listing and trading of Index Fund Shares
on the Exchange. The Shares will be offered by the Fund, which will be
a passively managed exchange-traded fund (``ETF'') that seeks to track
the performance of the CBOE Russell 2000 30-Delta BuyWrite V2 Index
(``Benchmark Index'').\4\ The Fund is a series of the Horizons ETF
Trust I (``Trust'').\5\ Horizons ETF Management (US), LLC will serve as
the investment adviser (``Adviser'') to the Fund.\6\ Foreside Fund

Services, LLC will serve as the principal underwriter and distributor
of the Fund's Shares. U.S. Bank National Association will act as the
custodian for the Fund. U.S. Bancorp Fund Services, LLC will serve as
the administrator, transfer agent and fund accounting agent for the
Fund. The Benchmark Index was developed by and is maintained by FTSE
International Limited and Frank Russell Company (``Index
Provider'').\7\
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    \4\ The Benchmark Index methodology is available at: https://www.cboe.com/products/strategy-benchmark-indexes/buywrite-indexes/cboe-russell-2000-30-delta-buywrite-index-bxrd. The Chicago Board
Options Exchange, Incorporated (n/k/a Cboe Exchange, Inc.)
(``CBOE'') is the index calculation agent for the Benchmark Index.
    \5\ The Trust is registered with the Commission as an open-end
management investment company and has filed a post-effective
amendment to its registration statement on Form N-1A (``Registration
Statement'') on behalf of the Fund. See Registration Statement for
the Trust, filed on June 22, 2017 (File No. 333-183155). In
addition, the Commission has issued an order granting certain
exemptive relief to the Trust under the 1940 Act. See Investment
Company Act Release No. 31961 (Jan. 19, 2016) (File No. 812-14461)
(``Exemptive Order'').
    \6\ The Exchange represents that the Adviser is not a broker-
dealer; however, it is affiliated with two broker-dealers. A fire
wall exists around the respective personnel at the Adviser and
affiliated broker-dealers who have access to information concerning
changes and adjustments to the composition and/or changes to the
Fund's portfolio. In addition, such personnel will be subject to
procedures designed to prevent the use and dissemination of material
non-public information regarding the Fund's portfolio. The Exchange
represents that in the event (a) the Adviser, any sub-adviser, or
the Index Provider (as discussed herein) becomes registered as a
broker-dealer or is newly affiliated with a broker dealer, or (b)
any new adviser, sub-adviser, or Index Provider is a registered
broker-dealer or becomes affiliated with a broker dealer, then the
Adviser, sub-adviser or Index Provider will implement a fire wall
with respect to its relevant personnel or such broker dealer
affiliate, as applicable, regarding access to information concerning
the composition or changes to the portfolio or concerning changes
and adjustments to the Benchmark Index and will be subject to
procedures designed to prevent the use and dissemination of
material, nonpublic information regarding the Fund's portfolio.
According to the Exchange, the Fund does not currently intend to use
a sub-adviser.
    \7\ The Exchange represents that the Index Provider is not a
broker-dealer and it is not affiliated with a broker-dealer. A fire
wall exists around its personnel who have access to information
concerning changes and adjustments to the Benchmark Index. In
addition, such personnel will be subject to procedures designed to
prevent the use and dissemination of material non-public information
regarding the Benchmark Index.
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    The Exchange has made the following representations and statements
in describing the Fund and its investment strategies, including other
assets and investment restrictions.\8\
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    \8\ Additional information regarding the Trust, the Fund, and
the Shares, including information relating to the underlying Index,
investment strategies, risks, net asset value (``NAV'') calculation,
creation and redemption procedures, fees, portfolio holdings
disclosure policies, distributions, and taxes, among other
information, is included in the Notice and the Registration
Statement, as applicable. See Notice, supra note 3 and Registration
Statement, supra note 5.
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A. Exchange's Description of the Fund's Principal Investments

    According to the Exchange, the Fund's investment objective is to
seek to track the investment results that correspond (before fees and
expenses) generally to the performance of the Benchmark Index provided
by the Index Provider. The Fund will pursue its objective by investing
at least 80% of its total assets in all of the equity securities in the
Russell 2000 Index and a single written one-month out-of-the-money
covered call option on the Russell 2000 Index. The market value of the
option strategy may be up to 20% of the Fund's overall net asset value.
The market value of the call options included in the Benchmark Index
will not represent more than 10% of the total weight of the Benchmark
Index. According to the Exchange, the component securities of the
Benchmark Index meet all requirements of Nasdaq Rule 5705(b)(3)(A)(i)
except that the Benchmark Index includes call options, which are not
NMS Stocks as defined in Rule 600 of Regulation NMS.\9\
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    \9\ See Notice, supra note 3, 83 FR at 8720.
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    In pursuing its investment objective, under normal market
conditions,\10\ the Fund will seek investment results that, before fees
and expenses, generally correspond to the performance of the Benchmark
Index. The Fund seeks correlation of 0.90 or better between its
performance and the performance of the Benchmark Index. A figure of
1.00 would represent perfect correlation. The call option written is at
the strike nearest to the 30 Delta between 10:30 a.m. and 11:00 a.m. CT
on the roll date (the third Friday of every month).
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    \10\ The term ``under normal market conditions'' as used herein
includes, but is not limited to, the absence of adverse market,
economic, political or other conditions, including extreme
volatility or trading halts in the securities markets or the
financial markets generally; operational issues causing
dissemination of inaccurate market information; or force majeure
type events such as systems failure, natural or man-made disaster,
act of God, armed conflict, act of terrorism, riot or labor
disruption or any similar intervening circumstance. In periods of
extreme market disturbance, the Fund may take temporary defensive
positions, by overweighting its portfolio in cash/cash-like
instruments; however, to the extent possible, the Adviser would
continue to seek to achieve the Fund's investment objective.
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    The Benchmark Index is a benchmark index that measures the
performance of a theoretical portfolio that holds the stocks included
in the Russell 2000 Index and writes (or sells) a single one-month out-
of-the-money Russell 2000 Index covered call option. The call option
written for the Benchmark Index is at the strike nearest to the 30
Delta between 10:30 a.m. and 11:00 a.m. CT on the roll date (the third
Friday of every month). The Russell 2000 Index measures the performance
of the small capitalization sector of the U.S. equity market, as
defined by the Index Provider. The Russell 2000 Index is a subset of
the Russell 3000 Index, which measures the performance of the broad
U.S. equity market, as determined by the Index Provider. The Russell
2000 Index is a float-adjusted capitalization-weighted index of equity
securities issued by the approximately 2000 smallest issuers in the
Russell 3000 Index. Preferred and convertible preferred stock,
redeemable shares, participating preferred stock, warrants, rights,
installment receipts and trust receipts are not included in the Russell
2000 Index.
    According to the Exchange, because a covered call strategy
generates income in the form of premiums on the written call options,
the Benchmark Index is generally expected to provide higher total
returns with lower volatility than the Russell 2000 Index in most
market environments, with the exception of when the equity market is
rallying rapidly. The Exchange states that each single call option in
the Benchmark Index will be traded on national securities exchanges,
such as the CBOE. According to the Exchange, as of October 31, 2017,
the Russell 2000 Index included common stocks of 1984 companies, with
an average market capitalization of approximately $2.3 billion.\11\
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    \11\ See Notice, supra note 3, 83 FR at 8721.
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    The Fund will generally use a replication methodology, meaning it
will invest in all of the securities and the call option comprising the
Benchmark Index in proportion to the weightings in the Benchmark Index.
However, the Fund may, from time-to-time, utilize a sampling
methodology under various circumstances where it may not be possible or
practicable to purchase all of the equity securities comprising the
Benchmark Index.
    The Exchange represents that the equity securities in which the
Fund will invest and the option that the Fund will write will be
limited to U.S. exchange-traded securities and call options,
respectively, and that such securities will trade in markets that are
members of the Intermarket Surveillance Group (``ISG'') or which are
parties to a comprehensive surveillance sharing agreement with the
Exchange.\12\
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    \12\ See id. A list of ISG members is available at
www.isgportal.org.
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    The equity securities held by the Fund will be rebalanced
quarterly. The call option portion of the portfolio will consist of a
single U.S. exchange-traded one-month covered call on the Russell 2000
Index that is written by the Fund slightly out-of-the-money. A call
option will give the holder the right to buy the securities underlying
the call options written at a predetermined strike price from the Fund.
The notional value of the covered call options written (including the
financial instruments in the Exchange's description of the Fund's Other
Investments below) will be generally 100% of the overall Fund.
    The Fund will utilize options in accordance with Rule 4.5 of the
Commodity Exchange Act (``CEA''). The Trust, on behalf of the Fund, has
filed a notice of eligibility for exclusion from the definition of the
term ``commodity pool operator'' in accordance with Rule 4.5 so that
the Fund is not subject to registration or regulation as a commodity
pool operator under the CEA.

B. Exchange's Description of the Fund's Other Investments

    According to the Exchange, the Fund may invest no more than 20% of
its net

assets in the instruments described below.
    The Fund may invest in ETFs, which shall be registered as
investment companies under the 1940 Act and trade on a U.S. national
securities exchange. The Fund may also buy and sell individual large
capitalization equity securities that do not comprise the Russell 2000
Index and are traded on a U.S. national securities exchange.
    The Fund may invest in U.S. exchange-listed futures contracts based
on (1) the Benchmark Index or Russell 2000 Index and (2) ETFs designed
to track the Benchmark Index or Russell 2000 Index. In addition, the
Fund may invest in forward contracts based on (1) the Benchmark Index
or Russell 2000 Index and (2) ETFs designed to track the Benchmark
Index or Russell 2000 Index. The Fund may also buy and sell OTC options
on (1) the Benchmark Index or Russell 2000 Index and (2) ETFs designed
to track the Benchmark Index or Russell 2000 Index. Moreover, the Fund
may enter into dividend and total return swap transactions (including
equity swap transactions) based on (1) the Benchmark Index or Russell
2000 Index and (2) ETFs designed to track the Benchmark Index or
Russell 2000 Index.\13\ The Fund also may engage in interest rate swap
transactions. The Fund would use interest rate swap transactions to
manage or hedge exposure to interest rate fluctuations.
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    \13\ The Exchange represents that the Fund will transact only
with swap dealers that have in place an International Swaps and
Derivatives Association (``ISDA'') agreement with the Fund. See id.
at 8721 n.10. According to the Exchange, where practicable, the Fund
intends to invest in swaps cleared through a central clearing house
(``Cleared Swaps''). Currently, only certain of the interest rate
swaps in which the Fund intends to invest are Cleared Swaps, while
the dividend and total return swaps (including equity swaps) in
which the Fund may invest are currently not Cleared Swaps. See id.
at 8721 n.11.
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    The Exchange represents that the Fund's short positions and its
investments in swaps, futures contracts, forward contracts and options
based on the Benchmark Index and Russell 2000 Index and ETFs designed
to track the Benchmark Index or Russell 2000 Index will be backed by
investments in cash, high-quality short-term debt securities and money-
market instruments in an amount equal to the Fund's maximum liability
under the applicable position or contract, or will otherwise be offset
in accordance with Section 18 of the 1940 Act.\14\
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    \14\ The Exchange represents that the Fund will seek, where
possible, to use counterparties, as applicable, whose financial
status is such that the risk of default is reduced; however, the
risk of losses resulting from default is still possible. The Adviser
will evaluate the creditworthiness of counterparties on an ongoing
basis. In addition to information provided by credit agencies, the
Adviser will evaluate each approved counterparty using various
methods of analysis, such as, for example, the counterparty's
liquidity in the event of default, the counterparty's reputation,
the Adviser's past experience with the counterparty, and the
counterparty's share of market participation. See id. at 8721 n.12.
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    The Fund will attempt to limit counterparty risk in non-cleared
swaps, forwards, and OTC option contracts by entering into such
contracts only with counterparties the Adviser believes are
creditworthy and by limiting the Fund's exposure to each counterparty.
The Adviser will monitor the creditworthiness of each counterparty and
the Fund's exposure to each counterparty on an ongoing basis.
    The Fund may invest in short-term debt securities, money market
instruments and shares of money market funds to the extent permitted
under the 1940 Act. Short-term debt securities and money market
instruments include shares of fixed income or money market mutual
funds, commercial paper, certificates of deposit, bankers' acceptances,
U.S. government securities (including securities issued or guaranteed
by the U.S. government or its authorities, agencies, or
instrumentalities) and, repurchase agreements.\15\ Short-term debt
securities include bonds that are rated BBB or higher.
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    \15\ The Fund may enter into repurchase agreements with banks
and broker-dealers. A repurchase agreement is an agreement under
which securities are acquired by a fund from a securities dealer or
bank subject to resale at an agreed upon price on a later date. The
acquiring fund bears a risk of loss in the event that the other
party to a repurchase agreement defaults on its obligations and the
fund is delayed or prevented from exercising its rights to dispose
of the collateral securities.
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    The Exchange represents that the Fund's investments described above
in this section will be consistent with the Fund's investment objective
and with the requirements of the 1940 Act.\16\
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    \16\ The Exchange represents that, to limit the potential risk
associated with such transactions, the Fund will segregate or
``earmark'' assets determined to be liquid by the Adviser in
accordance with procedures established by the Trust's Board of
Trustees and in accordance with the 1940 Act (or, as permitted by
applicable regulation, enter into certain offsetting positions) to
cover its obligations arising from such transactions. In addition,
the Fund will include appropriate risk disclosure in its offering
documents, including leveraging risk. Leveraging risk is the risk
that certain transactions of the Fund may give rise to leverage,
causing the Fund to be more volatile than if it had not been
leveraged. To mitigate leveraging risk, the Adviser will segregate
or ``earmark'' liquid assets or otherwise cover the transactions
that may give rise to such risk the 1940 Act. The Exchange further
represents that the Fund will not make investments in securities to
seek to achieve a multiple or inverse multiple of an index and they
will not be used to enhance leverage. See Notice, supra note 3, 83
FR at 8722 n.14.
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    The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid securities (calculated at the time of investment).
The Fund will monitor its portfolio liquidity on an ongoing basis to
determine whether, in light of current circumstances, an adequate level
of liquidity is being maintained, and will consider taking appropriate
steps in order to maintain adequate liquidity if, through a change in
values, net assets, or other circumstances, more than 15% of the Fund's
net assets are held in illiquid securities. Illiquid securities include
securities subject to contractual or other restrictions on resale and
other instruments that lack readily available markets, as determined in
accordance with Commission staff guidance.
    The Exchange states that the Fund will not invest in assets that
are not described in this proposed rule change.
    The Fund seeks to track the Benchmark Index, which itself may have
concentration in certain regions, economies, markets, industries or
sectors. The Fund may concentrate its investments in a particular
industry or group of industries to the extent that the Russell 2000
Index concentrates in an industry or group of industries.\17\ According
to the Exchange, by concentrating its investments in an industry or
sector, the Fund faces more risks than if it were diversified broadly
over numerous industries or sectors.
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    \17\ See Registration Statement, supra note 5, Item 9. The
Commission has taken the position that a fund is concentrated if it
invests more than 25% of the value of its total assets in any one
industry. See, e.g., Investment Company Act Release No. 9011
(October 30, 1975), 40 FR 54241 (November 21, 1975).
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III. Discussion and Commission's Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of Section 6 of the Act \18\
and the rules and regulations thereunder applicable to a national
securities exchange.\19\ In particular, the Commission finds that the
proposal is consistent with Section 6(b)(5) of the Act,\20\ which
requires, among other things, that the Exchange's rules be designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, 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. The Commission also finds that the
proposal to list and trade the Shares on the Exchange is consistent
with Section 11A(a)(1)(C)(iii) of the Act,\21\ which sets forth
Congress' finding that it is in the public interest and appropriate for
the protection of investors and the maintenance of fair and orderly
markets to assure the availability to brokers, dealers, and investors
of information with respect to quotations for, and transactions in,
securities.
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    \18\ 15 U.S.C. 78f.
    \19\ 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).
    \20\ 15 U.S.C. 78f(b)(5).
    \21\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    Quotation and last-sale information for the Shares will be
available via Nasdaq proprietary quote and trade services, as well as
in accordance with the Unlisted Trading Privileges and the Consolidated
Tape Association plans for the Shares. With respect to the securities
and other assets held by the Fund, the intra-day, executable price
quotations on such securities will be available from major broker-
dealer firms or on the exchange on which they are traded, as
applicable. Intra-day price information will also be available through
subscription services, such as Bloomberg, Markit and Thomson Reuters,
which can be accessed by Authorized Participants and other investors.
Specifically, the intra-day, closing and settlement prices of the
portfolio securities and other Fund investments, including exchange-
listed equity securities, exchange-listed futures, and exchange-listed
options, will be readily available from the national securities
exchanges trading such securities, automated quotation systems,
published or other public sources, and, with respect to OTC options,
swaps, and forwards, from third party pricing sources, or on-line
information services such as Bloomberg or Reuters. Price information
regarding ETFs will be available from on-line information services and
from the website for the applicable investment company security. The
intra-day, closing and settlement prices of short-term debt securities
and money market instruments will be readily available from published
and other public sources or on-line information services. Money market
funds are typically priced once each business day and their prices will
be available through the applicable fund's website or from major market
data vendors.
    The value of the Benchmark Index will be published by one or more
major market data vendors every 15 seconds during the Regular Market
Session.\22\ Information about the Benchmark Index constituents, the
weighting of the constituents, the Benchmark Index's methodology, and
the Benchmark Index's rules will be available at no charge on the Index
Provider's website. In addition, for the Fund, an estimated value,
defined in Rule 5705(b)(3)(C) as the ``Intraday Indicative Value,''
that reflects an estimated intraday value of the Fund's portfolio, will
be disseminated. The Intraday Indicative Value, available on the NASDAQ
Information LLC proprietary index data service,\23\ will be based upon
the current value for the components of the Disclosed Portfolio (as
discussed herein) and will be updated and widely disseminated and
broadly displayed at least every 15 seconds during the Regular Market
Session. The Intraday Indicative Value will be based on quotes and
closing prices from the assets' local market and may not reflect events
that occur subsequent to the local market's close. Premiums and
discounts between the Intraday Indicative Value and the market price
may occur.
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    \22\ See Nasdaq Rule 4120(b)(4) (describing the three trading
sessions on the Exchange: (1) Pre-Market Session from 4 a.m. to 9:30
a.m. Eastern time; (2) Regular Market Session from 9:30 a.m. to 4
p.m. or 4:15 p.m. Eastern time; and (3) Post-Market Session from 4
p.m. or 4:15 p.m. to 8 p.m. Eastern time).
    \23\ Currently, the NASDAQ Global Index Data Service (``GIDS'')
is the NASDAQ global index data feed service, offering real-time
updates, daily summary messages, and access to widely followed
indexes and Intraday Indicative Values for ETFs. GIDS provides
investment professionals with the daily information needed to track
or trade NASDAQ indexes, listed ETFs, or third-party partner indexes
and ETFs.
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    On each business day, before commencement of trading in Shares in
the Regular Market Session on the Exchange, the Fund will disclose on
its website the identities and quantities of the portfolio of
securities and other assets (the ``Disclosed Portfolio'') held by the
Fund that will form the basis for the Fund's calculation of NAV at the
end of the business day.\24\ The NAV of the Fund's Shares generally
will be calculated once daily Monday through Friday as of the close of
regular trading on the Nasdaq Stock Exchange, generally 4:00 p.m.
Eastern time. In addition, a basket composition file, which includes
the asset names, amounts and share quantities, as applicable, required
to be delivered in exchange for the Fund's Shares, together with
estimates and actual cash components, will be publicly disseminated
daily prior to the opening of Nasdaq, via the National Securities
Clearing Corporation. The basket will represent one Creation Unit of
the Fund.
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    \24\ On a daily basis, the Fund will disclose on the Fund's
website (www.us.horizonsetfs.com) the following information
regarding each portfolio holding, as applicable to the type of
holding: Ticker symbol; CUSIP number or other identifier, if any; a
description of the holding (including the type of holding); with
respect to holdings in derivatives, the identity of the security,
index, or other asset upon which the derivative is based; for
options, the option strike price, quantity held (as measured by, for
example, par value, notional value or number of shares, contracts or
units), and expiration of call option; maturity date, if any; coupon
rate; if any; effective date, if any; market value of the holding;
percentage weighting of the holding in the Fund's portfolio; and
cash equivalents and the amount of cash held. The website
information will be publicly available at no charge.
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    Information regarding market price and trading volume of the Shares
will be continually available on a real-time basis throughout the day
on brokers' computer screens and other electronic services, and
information regarding the previous day's closing price and trading
volume information for the Shares will be published daily in the
financial section of newspapers. The Fund's website will include a form
of the prospectus for the Fund that may be downloaded and additional
data relating to NAV and other applicable quantitative information.
    The Commission further believes that the proposal to list and trade
the Shares is reasonably designed to promote fair disclosure of
information that may be necessary to price the Shares appropriately and
to prevent trading when a reasonable degree of transparency cannot be
assured. The Exchange will obtain a representation from the issuer of
the Shares that the NAV per Share will be calculated daily and that the
NAV and the Disclosed Portfolio will be made available to all market
participants at the same time.\25\ Nasdaq will halt or pause trading in
the Shares under the conditions specified in Nasdaq Rules 4120 and
4121, including the trading pauses under Nasdaq Rules 4120(a)(11) and
(12). Trading may be halted because of market conditions or for reasons
that, in the view of the Exchange, make trading in the Shares
inadvisable.\26\ If the Intraday Indicative Value, the Benchmark Index
value or the value of the Disclosed Portfolio is not being disseminated
as required, the Exchange may halt trading during the day in which the
disruption occurs; if the interruption persists past the day in which
it occurred, the Exchange will

halt trading no later than the beginning of the trading day following
the interruption. The Exchange also states that it has a general policy
prohibiting the distribution of material, non-public information by its
employees.\27\ In addition, the Exchange states that the Adviser is not
a broker-dealer; however, it is affiliated with two broker-dealers. The
Exchange states that the Adviser represents that a fire wall exists
around the respective personnel at the Adviser and affiliated broker-
dealers who have access to information concerning changes and
adjustments to the composition and/or changes to the Fund's
portfolio.\28\ In addition, the Exchange represents that such personnel
will be subject to procedures designed to prevent the use and
dissemination of material non-public information regarding the Fund's
portfolio.\29\ The Exchange further states that the Index Provider is
not a broker-dealer and it is not affiliated with a broker-dealer, and
it has represented that a fire wall exists around personnel who have
access to information concerning changes and adjustments to the
Benchmark Index, and such personnel will be subject to procedures
designed to prevent the use and dissemination of material non-public
information regarding the Benchmark Index.\30\
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    \25\ See Notice, supra note 3, 83 FR at 8724.
    \26\ These may include: (1) The extent to which trading is not
occurring in the securities and/or the financial instruments
constituting the Disclosed Portfolio of the Fund; or (2) whether
other unusual conditions or circumstances detrimental to the
maintenance of a fair and orderly market are present. With respect
to trading halts, the Exchange may consider all relevant factors in
exercising its discretion to halt or suspend trading in the Shares
of the Fund. Trading in the Shares also will be subject to Nasdaq
Rule 5705(b)(1)(B)(iv), which sets forth circumstances under which
Shares of the Fund may be halted.
    \27\ See Notice, supra note 3, 83 FR at 8725.
    \28\ See supra note 6. The Commission also notes that an
investment adviser to an open-end fund is required to be registered
under the Investment Advisers Act of 1940 (the ``Advisers Act''). As
a result, the Adviser and its related personnel are subject to the
provisions of Rule 204A-1 under the Advisers Act relating to codes
of ethics. This Rule requires investment advisers to adopt a code of
ethics that reflects the fiduciary nature of the relationship to
clients as well as compliance with other applicable securities laws.
Accordingly, procedures designed to prevent the communication and
misuse of non-public information by an investment adviser must be
consistent with the Advisers Act and Rule 204A-1 thereunder. In
addition, Rule 206(4)-7 under the Advisers Act makes it unlawful for
an investment adviser to provide investment advice to clients unless
such investment adviser has (i) adopted and implemented written
policies and procedures reasonably designed to prevent violation, by
the investment adviser and its supervised persons, of the Advisers
Act and the Commission rules adopted thereunder; (ii) implemented,
at a minimum, an annual review regarding the adequacy of the
policies and procedures established pursuant to subparagraph (i)
above and the effectiveness of their implementation; and (iii)
designated an individual (who is a supervised person) responsible
for administering the policies and procedures adopted under
subparagraph (i) above.
    \29\ See Notice, supra note 3, 83 FR at 8720.
    \30\ See id.
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    The Exchange represents that trading in the Shares will be subject
to the existing trading surveillances, administered by both Nasdaq and
also the Financial Industry Regulatory Authority (``FINRA'') on behalf
of the Exchange, which are designed to detect violations of Exchange
rules and applicable federal securities laws.\31\ FINRA, on behalf of
the Exchange, will communicate as needed regarding trading in the
Shares, in the equity securities in which the Fund will invest, and in
the U.S. exchange-traded options and futures which the Fund will buy
and write with other markets and other entities that are members of the
ISG or with which the Exchange has in place a comprehensive
surveillance sharing agreement,\32\ and FINRA may obtain trading
information regarding trading in the Shares and in such equity
securities and U.S. exchange-traded options and futures from such
markets and other entities. In addition, the Exchange may obtain
information regarding trading in the Shares and in such equity
securities and U.S. exchange-traded options and futures from markets
and other entities that are members of the ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
The Exchange may also obtain information from the Trade Reporting and
Compliance Engine (``TRACE''), which is the FINRA developed vehicle
that facilitates mandatory reporting of OTC secondary market
transactions in eligible fixed income securities.
---------------------------------------------------------------------------

    \31\ FINRA surveils trading on the Exchange pursuant to a
regulatory services agreement. The Exchange is responsible for
FINRA's performance under this regulatory services agreement.
    \32\ For a list of the current members of ISG, see supra note
12.
---------------------------------------------------------------------------

    The Commission notes that the Shares and the Fund must comply with
the initial and continued listing criteria in Rule 5705 for the Shares
to be listed and traded on the Exchange.
    The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities. In support of this
proposal, the Exchange has made the following representations:
    (1) The Shares will be subject to Rule 5705, which sets forth the
initial and continued listing criteria applicable to Index Fund
Shares.\33\
---------------------------------------------------------------------------

    \33\ See Notice, supra note 3, 83 FR at 8724.
---------------------------------------------------------------------------

    (2) The component securities of the Benchmark Index meet all
requirements of Nasdaq Rule 5705(b)(3)(A)(i) except that the Benchmark
Index includes call options, which are not NMS Stocks as defined in
Rule 600 of Regulation NMS.\34\
---------------------------------------------------------------------------

    \34\ See id. at 8720.
---------------------------------------------------------------------------

    (3) The Exchange has the appropriate rules to facilitate
transactions in the Shares during all trading sessions.\35\
---------------------------------------------------------------------------

    \35\ See id. at 8724.
---------------------------------------------------------------------------

    (4) Trading in the Shares will be subject to the existing trading
surveillances, administered by Nasdaq and FINRA on behalf of the
Exchange.\36\ The Exchange represents that these procedures are
adequate to properly monitor Exchange trading of the Shares in all
trading sessions and to deter and detect violations of Exchange rules
and applicable federal securities laws.\37\
---------------------------------------------------------------------------

    \36\ See id.
    \37\ See id. at 8725.
---------------------------------------------------------------------------

    (5) FINRA, on behalf of the Exchange, will communicate as needed
regarding trading in the Shares, in the equity securities in which the
Fund will invest, and in the U.S. exchange-traded options and futures
which the Fund will buy and write with other markets and other entities
that are members of the ISG or with which the Exchange has in place a
comprehensive surveillance sharing agreement. FINRA may obtain trading
information regarding trading in the Shares and in such equity
securities and U.S. exchange-traded options and futures from such
markets and other entities. In addition, the Exchange may obtain
information regarding trading in the Shares and in such equity
securities and U.S. exchange-traded options and futures from markets
and other entities that are members of the ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
The Exchange may also obtain information from FINRA's TRACE.\38\
---------------------------------------------------------------------------

    \38\ See id.
---------------------------------------------------------------------------

    (6) For initial and/or continued listing, the Fund must be in
compliance with Rule 10A-3 \39\ under the Act.\40\
---------------------------------------------------------------------------

    \39\ See 17 CFR 240.10A-3.
    \40\ See Notice, supra note 3, 83 FR at 8724.
---------------------------------------------------------------------------

    (7) Prior to the commencement of trading, the Exchange will inform
its members in an Information Circular of the special characteristics
and risks associated with trading the Shares. Specifically, the
Information Circular will discuss the following: (a) The procedures for
purchases and redemptions of Shares in Creation Units (and that Shares
are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes
suitability obligations on Nasdaq members with respect to recommending
transactions in the Shares to customers; (c) how information regarding
the Benchmark Index value and Intraday Indicative Value is
disseminated; (d) the risks involved in trading the Shares during the
Pre-Market and Post-Market

Sessions when an updated Benchmark Index value and Intraday Indicative
Value will not be calculated or publicly disseminated; (e) the
requirement that members deliver a prospectus to investors purchasing
newly issued Shares prior to or concurrently with the confirmation of a
transaction; and (f) trading information.\41\
---------------------------------------------------------------------------

    \41\ See id. at 8725.
---------------------------------------------------------------------------

    (8) The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid securities (calculated at the time of
investment).\42\
---------------------------------------------------------------------------

    \42\ See id. at 8722.
---------------------------------------------------------------------------

    (9) Each single call option in the Benchmark Index will be traded
on national securities exchanges.\43\
---------------------------------------------------------------------------

    \43\ See id. at 8721.
---------------------------------------------------------------------------

    (10) The equity securities in which the Fund will invest, and the
option that the Fund will write, will be limited to U.S. exchange-
traded securities and call options, respectively, and such securities
will trade in markets that are members of the ISG or which are parties
to a comprehensive surveillance sharing agreement with the
Exchange.\44\
---------------------------------------------------------------------------

    \44\ See id.
---------------------------------------------------------------------------

    (11) The Fund will invest at least 80% of its total assets in all
of the equity securities in the Russell 2000 Index and a single written
one-month out-of-the-money covered call option on the Russell 2000
Index, and the market value of the option strategy may be up to 20% of
the Fund's overall net asset value.\45\
---------------------------------------------------------------------------

    \45\ See id. at 8720.
---------------------------------------------------------------------------

    (12) The Fund will utilize options in accordance with Rule 4.5 of
the CEA.\46\
---------------------------------------------------------------------------

    \46\ See id. at 8721.
---------------------------------------------------------------------------

    (13) The Fund will transact only with swap dealers that have in
place an ISDA agreement with the Fund.\47\
---------------------------------------------------------------------------

    \47\ See id. at 8721 n.10.
---------------------------------------------------------------------------

    (14) The Fund's short positions and its investments in swaps,
futures contracts, forward contracts and options based on the Benchmark
Index and Russell 2000 Index and ETFs designed to track the Benchmark
Index or Russell 2000 Index will be backed by investments in cash,
high-quality short-term debt securities and money-market instruments in
an amount equal to the Fund's maximum liability under the applicable
position or contract, or will otherwise be offset in accordance with
Section 18 of the 1940 Act.\48\
---------------------------------------------------------------------------

    \48\ See id. at 8721.
---------------------------------------------------------------------------

    (15) The Fund will attempt to limit counterparty risk in non-
cleared swaps, forwards, and OTC option contracts by entering into such
contracts only with counterparties the Adviser believes are
creditworthy and by limiting the Fund's exposure to each counterparty.
The Adviser will monitor the creditworthiness of each counterparty and
the Fund's exposure to each counterparty on an ongoing basis.\49\
---------------------------------------------------------------------------

    \49\ See id. at 8722.
---------------------------------------------------------------------------

    (16) To limit the potential risk associated with such transactions,
the Fund will segregate or ``earmark'' assets determined to be liquid
by the Adviser in accordance with procedures established by the Trust's
Board of Trustees and in accordance with the 1940 Act (or, as permitted
by applicable regulation, enter into certain offsetting positions) to
cover its obligations arising from such transactions. In addition, the
Fund will include appropriate risk disclosure in its offering
documents, including leveraging risk.\50\
---------------------------------------------------------------------------

    \50\ See id. at 8722 n.14.
---------------------------------------------------------------------------

    (17) The Fund will not make investments in securities to seek to
achieve a multiple or inverse multiple of an index and they will not be
used to enhance leverage.\51\
---------------------------------------------------------------------------

    \51\ See id.
---------------------------------------------------------------------------

    (18) The Fund will not invest in assets that are not described in
the proposed rule change.\52\
---------------------------------------------------------------------------

    \52\ See id. at 8722.
---------------------------------------------------------------------------

    (19) A minimum of 100,000 Shares will be outstanding at the
commencement of trading on the Exchange.\53\
---------------------------------------------------------------------------

    \53\ See id. at 8724.
---------------------------------------------------------------------------

    The Exchange further represents that all statements and
representations made in this filing regarding the description of the
portfolio, limitations on portfolio holdings or reference assets,
dissemination and availability of the reference asset and intraday
indicative values, and the applicability of Exchange listing rules
shall constitute continued listing requirements for listing the Shares
on the Exchange. The issuer has represented to the Exchange that it
will advise the Exchange of any failure by the Fund to comply with the
continued listing requirements, and, pursuant to its obligations under
Section 19(g)(1) of the Act, the Exchange will monitor for compliance
with the continued listing requirements. If the Fund is not in
compliance with the applicable listing requirements, the Exchange will
commence delisting procedures under the Nasdaq 5800 Series.\54\
---------------------------------------------------------------------------

    \54\ See id. at 8725.
---------------------------------------------------------------------------

    This approval order is based on all of the Exchange's
representations, including those set forth above and in the Notice. For
the foregoing reasons, the Commission finds that the proposed rule
change is consistent with Section 6(b)(5) of the Act \55\ and the rules
and regulations thereunder applicable to a national securities
exchange.
---------------------------------------------------------------------------

    \55\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\56\ that the proposed rule change (SR-NASDAQ-2018-012) be, and it
hereby is, approved.
---------------------------------------------------------------------------

    \56\ 15 U.S.C. 78s(b)(2).
    \57\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\57\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-08153 Filed 4-18-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: September 22, 2006 (Volume 71, Number 184)]
[Proposed Rules]
[Page 55403]
[DOCID:fr22se06-25]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[EPA-R05-OAR-2006-0543; FRL-8217-9]

Approval and Promulgation of Air Quality Implementation Plans;
Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to approve revisions to the Wisconsin State
Implementation Plan (SIP) for ozone. In these revisions, the State has
incorporated changes EPA made to its definition of volatile organic
compound (VOC) and its VOC control requirements for yeast
manufacturing. As a result of EPA's approval, five chemical compounds
will no longer be considered VOCs. The changes to VOC control
requirements match the EPA maximum achievable control technology (MACT)
limits for yeast manufacturers.

DATES: Comments must be received on or before October 23, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0543, by one of the following methods:
      http://www.regulations.gov: Follow the on-line instructions for

submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: John M. Mooney, Chief, Criteria Pollutant Section,
(AR-18J), U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
     Hand Delivery: John M. Mooney, Chief, Criteria Pollutant
Section, (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only
accepted during the Regional Office normal hours of operation, and
special arrangements should be made for deliveries of boxed
information. The Regional Office official hours of business are Monday
through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays.
    Please see the direct final rule which is located in the Rules
section of this Federal Register for detailed instructions on how to
submit comments.

FOR FURTHER INFORMATION CONTACT: Matt Rau, Environmental Engineer,
Criteria Pollutant Section, Air Programs Branch AR-18J), Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: In the Final Rules section of this Federal
Register, EPA is approving the State's SIP submittal as a direct final
rule without prior proposal because the Agency views this as a
noncontroversial submittal and anticipates no adverse comments. A
detailed rationale for the approval is set forth in the direct final
rule. If no adverse comments are received in response to this rule, no
further activity is contemplated. If EPA receives adverse comments, the
direct final rule will be withdrawn and all public comments received
will be addressed in a subsequent final rule based on this proposed
rule. EPA will not institute a second comment period. Any parties
interested in commenting on this action should do so at this time.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment. For
additional information, see the direct final rule which is located in
the Rules section of this Federal Register.

    Dated: August 23, 2006.
Jerri-Anne Garl,
Acting Regional Administrator, Region 5.
[FR Doc. 06-8112 Filed 9-21-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: March 27, 2008 (Volume 73, Number 60)]
[Rules and Regulations]
[Page 16205-16211]
[DOCID:fr27mr08-5]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR PART 52

[EPA-HQ-OAR-2007-1173, FRL-8545-6]
RIN 2060-APO3

Completeness Findings for Section 110(a) State Implementation
Plans for the 8-hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The EPA is making a finding concerning whether or not each
State has submitted a complete State Implementation Plan (SIP) that
provides the basic program elements specified in Clean Air Act (Act or
CAA) section 110(a)(2) necessary to implement the 1997 8-hour ozone
National Ambient Air Quality Standards (NAAQS). By this action, EPA is
identifying those States that: Have failed to make a complete
submission for all requirements; have failed to make a complete
submission for specific requirements; or have made a complete
submission. The findings of failure to submit for all or a portion of a
State's SIP establish a 24-month deadline for EPA to promulgate Federal
Implementation Plans (FIPs) to address the outstanding SIP elements
unless, prior to that time, the affected States submit, and EPA
approves, the required SIPs. The findings that all, or portions of a
State's SIP submission, are complete establish a 12-month deadline for
EPA to take action upon the complete SIP elements in accordance with
section 110(k).

DATES: The effective date of this rule is April 28, 2008.

FOR FURTHER INFORMATION CONTACT: General questions concerning this
notice should be addressed to Mr. Larry D. Wallace, PhD, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail Code
C504-2, 109 TW Alexander Drive, Research Triangle Park, NC 27709;
telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Section 553 of the Administrative Procedures
Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause
finds that notice and public procedure are impracticable, unnecessary
or contrary to the public interest, the agency may issue a rule without
providing notice and an opportunity for public comment. EPA has
determined that there is good cause for making this rule final without
prior proposal and opportunity for comment because no significant EPA
judgment is involved in making a finding of failure to submit SIPs, or
elements of SIPs, required by the CAA, where states have made no
submissions, or incomplete submissions, to meet the requirement by the
statutory date. Thus, notice and public procedure are unnecessary. EPA
finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
    For questions related to a specific State please contact the
appropriate regional office:

------------------------------------------------------------------------
            Regional offices                          States
------------------------------------------------------------------------
Dave Conroy, Acting Branch Chief, Air    Connecticut, Maine,
 Programs Branch, EPA New England, 1      Massachusetts, New Hampshire,
 Congress Street, Suite 1100, Boston,     Rhode Island, and Vermont.
 MA 02203-2211.
Raymond Werner, Chief, Air Programs      New Jersey, New York, Puerto
 Branch, EPA Region II, 290 Broadway,     Rico, and the Virgin Islands.
 21st Floor, New York, NY 10007-1866.
Christina Fernandez, Acting Branch       Delaware, District of Columbia,
 Chief, Air Quality Planning Branch,      Maryland, Pennsylvania,
 EPA Region III, 1650 Arch Street,        Virginia, and West Virginia.
 Philadelphia, PA 19103-2187.
Dick A. Schutt, Chief, Regulatory        Alabama, Florida, Georgia,
 Development Section, EPA Region IV,      Kentucky, Mississippi, North
 Sam Nunn, Atlanta Federal Center, 61     Carolina, South Carolina, and
 Forsyth Street, SW., 12th Floor,         Tennessee.
 Atlanta, GA 30303.
Jay Bortzer, Chief, Air Programs         Illinois, Indiana, Michigan,
 Branch, EPA Region V, 77 West Jackson    Minnesota, Ohio, and
 Street, Chicago, IL 60604.               Wisconsin.
Tom Diggs, Acting Associate Director     Arkansas, Louisiana, New
 Air Programs, EPA Region VI, 1445 Ross   Mexico, Oklahoma, and Texas.
 Avenue, Dallas, TX 75202-2733.
Joshua A. Tapp, Chief, Air Programs      Iowa, Kansas, Missouri, and
 Branch, EPA Region VII, 901 North 5th    Nebraska.
 Street, Kansas City, Kansas 66101-2907.
Cynthia Cody, Unit Leader, Air Quality   Colorado, Montana, North
 Planning Unit, EPA Region VIII Air       Dakota, South Dakota, Utah,
 Program, 1595 Wynkoop St. (8P-AR),       and Wyoming.
 Denver, CO 80202-1129.
Lisa Hanf, Air Planning Office, EPA      Arizona, California, Guam,
 Region IX, 75 Hawthorne Street, San      Hawaii, and Nevada.
 Francisco, CA 94105.
Mahbubul Islam, Manager, State and       Alaska, Idaho, Oregon, and
 Tribal Air Programs, EPA Region X,       Washington.
 Office of Air, Waste, and Toxics, Mail
 Code OAQ-107, 1200 Sixth Avenue,
 Seattle, WA 98101.
------------------------------------------------------------------------

Table of Contents

I. Background
II. This Action
    A. Finding of Failure To Submit for States that Failed To Make a
Submittal
    B. Finding of Failure To Submit Specific Elements of Section
110(a)(2)
    C. List of States That Submitted Complete Submissions To Satisfy
the Section 110(a)(2) Requirements
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act of 1995 (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority and Low Income Populations
    K. Congressional Review Act
    L. Judicial Review

I. Background

    On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the
previous 1-hour averaging period, and the level of the NAAQS was
changed from 0.12 ppm to 0.08 ppm (62 FR 38,856).
    The CAA section 110(a) requires States to submit SIPs that provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within 3 years following the promulgation of such NAAQS,
or within such shorter period as EPA may prescribe. Section 110(a)
imposes the obligation upon States to make a SIP submission to EPA for
a new or revised NAAQS, but the contents of that submission may vary
depending upon the facts and circumstances. In particular, the data and
analytical tools available at the time the State develops and submits
the SIP for a new or revised NAAQS necessarily affects the content of
the submission. The contents of such SIP submissions may also vary
depending upon what provisions the State's existing SIP already
contains. In the case of the 1997 8-hour ozone NAAQS, States typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous ozone
standards.
    Section 110(a)(2) lists specific elements that States must meet in
these SIP submissions. The requirements include SIP infrastructure
elements such as requirements for modeling, monitoring, and emissions
inventories that are designed to assure attainment and maintenance of
the NAAQS. The requirements that are the subject of this action are
listed in EPA's October 2, 2007 memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM-2.5 National Ambient Air Quality Standards.''
    Two elements identified in section 110(a)(2) are not governed by
the 3 year submission deadline of section 110(a)(1) because SIPs
incorporating necessary local nonattainment area controls are not due
within 3 years after promulgation of a new or revised NAAQS, but rather
are due at the time the nonattainment area plan requirements are due
pursuant to section 172. These requirements are: (i) Submissions
required by section 110(a)(2)(C) to the extent that subsection refers
to a permit program as required in part D Title I of the CAA, and (ii)
submissions required by section 110(a)(2)(I) which pertain to the
nonattainment planning requirements of part D, Title I of the CAA.
Therefore, this action does not cover these specific SIP elements. This
action also does not pertain to section 110(a)(2)(D), because EPA has
previously addressed that requirement.\1\
---------------------------------------------------------------------------

    \1\ EPA published a finding that all States had failed to submit
SIPs addressing interstate transport for the 8-hour ozone and
PM2.5 NAAQS, as required by section 110(a)(2)(D)(i). See
70 FR 21,147 (April 25, 2005).
---------------------------------------------------------------------------

    As of 2004, States had not submitted complete SIPs to satisfy all
of the section 110(a)(2) requirements for the 1997 8-hour ozone NAAQS
revision. On March 4, 2004, Earth Justice submitted a notice of intent
to sue related to EPA's failure to issue findings of failure to submit
related to these requirements. Subsequently, EPA entered into a Consent
Decree with Earth Justice which required EPA, among other things, to
complete a Federal Register notice announcing EPA's determinations
pursuant to section 110(k)(1)(B) as to whether each State has made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA
received an extension of the date to complete this Federal Register
notice until March 17, 2008, based upon an

agreement to make the findings with respect to submissions made by
January 7, 2008. In accordance with the Consent Decree, EPA is making
completeness findings for each State based upon what the Agency
received from each State as of January 7, 2008. This notice reflects
EPA's determinations with respect to the section 110(a)(2)
requirements, based upon the submissions made by the States, either
certifying that they have already met the requirements, making a
submission to meet any outstanding requirements, or both.
    For those States that have not yet made a submittal, or that made a
submittal that was not complete with respect to each element of section
110(a)(2), EPA is making a finding of failure to submit. For those
States that did not make any submittal by January 7, 2008, EPA is
making a finding with respect to all of the section 110(a)(2) SIP
elements. For those States that did not make a submittal that addressed
all of the section 110(a)(2) elements, EPA is making these findings
only with respect to those specific section 110(a)(2) SIP elements
which a State has not certified that it has met, or not made a SIP
submission to meet, as of January 7, 2008. These findings establish a
24 month deadline for the promulgation by EPA of a FIP, in accordance
with section 110(c)(1). These findings of failure to submit do not
impose sanctions, or set deadlines for imposing sanctions as described
in section 179 of the CAA, because these finding do not pertain to the
elements of a Title I part D plan for nonattainment areas as required
under section 110(a)(2)(I), and because this action is not a SIP call
pursuant to section 110(k)(5).
    With respect to the remaining section 110(a)(2) SIP elements in
those States in which EPA has identified specific findings of failure
to submit, EPA is by this action making a finding that the remainder of
such SIPs are complete. Likewise, with respect to those States for
which EPA has not made any finding of failure to submit concerning the
section 110(a)(2) SIP elements, EPA is by this action making a finding
that such SIPs are complete for all such elements. These full and
partial completeness findings establish a 12-month deadline for EPA to
take action upon such SIPs in accordance with section 110(k).

II. This Action

    The EPA is making a finding concerning whether each State has
submitted or failed to submit a complete SIP that provides the basic
program elements of section 110(a)(2) necessary to implement the 1997
8-hour ozone NAAQS. For those States that have not yet made a complete
submission, or that have not made a submission that is complete for
each element of section 110(a)(2), these findings establish a 24-month
deadline for the promulgation by EPA of a FIP addressing these specific
SIP elements, in accordance with section 110(c)(1). For those States
that have submitted a complete SIP, and for those elements of SIPs in
States for which EPA has identified only partial incompleteness, these
findings establish a 12-month deadline for action upon the SIP, in
accordance with section 110(k). This action will be effective on April
28, 2008.

A. Finding of Failure To Submit for States That Failed to Make a
Submittal

    The following States failed to make a complete submittal to satisfy
the requirements of section 110(a)(2) by January 7, 2008. EPA is by
this action starting a 24-month deadline by which time EPA must
promulgate a FIP for the affected States to address section 110(a)(2)
requirements, if the affected States fail to submit, and obtain EPA
approval of, the SIP revisions necessary to address these requirements.
The States and territories that are affected by this finding of failure
to submit are the following:

Region I: Vermont
Region VI: Texas
Region VIII: North Dakota
Region IX: Arizona, Hawaii, Nevada,\2\ Guam, American Samoa,
Commonwealth of the Northern Mariana Islands.
---------------------------------------------------------------------------

    \2\ It should be noted that, while the State of Nevada did not
make the submittal addressing the requirements of section 110(a)(2)
by the January 7, 2008 timeframe specified in the amended Consent
Decree with Earth Justice, the State has subsequently made a
submittal to address these requirements on February 1, 2008 and EPA
is currently reviewing the submittal for completeness and
approvability.
---------------------------------------------------------------------------

Region X: Alaska, Idaho, Oregon, Washington.

B. Finding of Failure To Submit Specific Elements of Section 110(a)(2)

    The following States made submissions that address some, but not
all of the section 110(a)(2) requirements, by January 7, 2008. EPA is
by this action identifying the specific elements for which States have
not made a complete submission:

Region I:

    Massachusetts: The State of Massachusetts has failed to submit a
SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.

Region II:

    New York: The State of New York has failed to submit a SIP
addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.
    New Jersey: The State of New Jersey has failed to submit a SIP
addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.
    Puerto Rico: The Commonwealth of Puerto Rico has failed to submit a
SIP addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.
    Virgin Islands: The Virgin Islands has failed to submit a SIP
addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.

Region III:

    Maryland: As required by sections 110(a)(2)(C) and (J), the State
of Maryland has failed to submit a SIP addressing changes to its part C
PSD permit program required by the November 29, 2005 (70 FR 71612, page
71699) final rule that made NOX a precursor for ozone in the
part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.
    Pennsylvania: The Commonwealth of Pennsylvania has failed to submit
a SIP addressing section 110(a)(2)(C) (the Part C PSD permit program)
for only the Allegheny County portion of the Commonwealth. However,
this requirement has already been addressed by a FIP (Implementation of
the Federal PSD program has been delegated to the Allegheny County
Health Department) that remains in place, and therefore this action
will not trigger any additional FIP obligation. All other areas of the
Commonwealth, exclusive of Allegheny County, has a SIP approved PSD
program in place.
    Virginia: The Commonwealth of Virginia has failed to submit a SIP
addressing the part C PSD permit program, which consists of changes
required by the November 29, 2005 (70 FR 71612 page 71699) final rule
that

made NOX a precursor for ozone in the Part C regulations at
40 CFR 51.166 and in 40 CFR 52.21.
    Washington, DC: The District of Columbia has failed to submit a SIP
addressing sections 110(a)(2)(B), (C) (the Part C PSD permit program),
(E)(i), (F) (the public availability of reports), (H), and (J) (with
respect to a part C Prevention of Significant Deterioration (PSD)
permit program and to public notification under section 127).\3\ The
section 110(a)(2)(C) (the Part C PSD permit program) requirement has
already been addressed by a FIP that remains in place, and therefore
this action will not trigger any additional FIP obligation with respect
to this requirement.
---------------------------------------------------------------------------

    \3\ While the District of Columbia did not make the submittal
addressing the aforementioned requirements by the January 7, 2008
timeframe called for under the Consent Decree with Earth Justice,
the District of Columbia subsequently made a submittal on January
11, 2008 that addresses the requirements related to sections
110(a)(2)(B), (E)(i), (F) (with respect to the public availability
of reports), (H), and (J) (with respect to public notification under
section 127). The EPA is currently reviewing the submittal for
completeness. The District of Columbia has not submitted a part C
PSD permit program required under sections 110(a)(2)(C) and (J). It
should be noted, however, that the District of Columbia is already
subject to a FIP for a PSD permit program pursuant to 40 CFR 52.499.
---------------------------------------------------------------------------

    West Virginia: The State of West Virginia has failed to make a
submittal with respect to sections 110(a)(2)(B), (E)(i), (G) (with
respect to authority comparable to section 303), (H) and (J) (relating
to public notification under section 127) and (M). The State of West
Virginia has also failed to submit a SIP addressing changes to the part
C PSD permit program required by the November 29, 2005 (70 FR 71612,
page 71699) final rule that made NOX a precursor for ozone
in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.
    Delaware: As required by sections 110(a)(2)(C) and (J), the State
of Delaware has failed to submit a SIP addressing changes to its part C
PSD permit program required by the November 29, 2005 (70 FR 71612, page
71699) final rule that made NOX a precursor for ozone in the
Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

Region IV:

    Florida: The State of Florida has failed to submit a SIP addressing
the emergency episode plan requirement of section 110(a)(2)(G).
    Georgia: The State of Georgia has failed to submit a SIP addressing
the emergency episode plan requirements of section 110(a)(2)(G).
    North Carolina: As required by sections 110(a)(2)(C) and (J), the
State of North Carolina has failed to submit a SIP addressing changes
to its part C PSD permit program required by the November 29, 2005 (70
FR 71612, page 71699) final rule that made NOX a precursor
for ozone in the Part C regulations at 40 CFR 51.166 and in 40 CFR
52.21.\4\
---------------------------------------------------------------------------

    \4\ The State of North Carolina is currently going through the
rulemaking process to approve the requirements to meet this element
of section 110(a)(2) and anticipates making the submittal to address
the requirement by May 2008.
---------------------------------------------------------------------------

    Tennessee: As required by sections 110(a)(2)(C) and (J), the State
of Tennessee has failed to submit a SIP addressing changes to its part
C PSD permit program required by the November 29, 2005 (70 FR 71612,
page 71699) final rule that made NOX a precursor for ozone
in the Part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.\5\
---------------------------------------------------------------------------

    \5\ The State of Tennessee is currently going through the
rulemaking process to approve the requirements to meet this element
of section 110(a)(2) and anticipates making the submittal to address
the requirement by May 2008.

---------------------------------------------------------------------------
Region V:

    Illinois: The State of Illinois has failed to submit a SIP
addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.
    Minnesota: The State of Minnesota has failed to submit a SIP
addressing section 110(a)(2)(C) (the Part C PSD permit program).
However, this requirement has already been addressed by a FIP that
remains in place, and therefore this action will not trigger any
additional FIP obligation.

Region VI:

    Arkansas: As required by section 110(a)(2)(C) and (J), the State of
Arkansas has failed to submit a SIP addressing changes to the part C
PSD permit program required by the November 29, 2005 (70 FR 71612, page
71699) final rule that made NOX a precursor for ozone in the
part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.
    New Mexico: As required by section 110(a)(2)(C) and (J), the State
of New Mexico has failed to submit a SIP addressing changes to the part
C PSD permit program required by the November 29, 2005 (70 FR 71612,
page 71699) final rule that made NOX a precursor for ozone
in the part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.
    Oklahoma: As required by section 110(a)(2)(C) and (J), the State of
Oklahoma has failed to submit a SIP addressing changes to the part C
PSD permit program required by the November 29, 2005 (70 FR 71612, page
71699) final rule that made NOX a precursor for ozone in the
part C regulations at 40 CFR 51.166 and in 40 CFR 52.21.

Region IX:

    California: The State of California has failed to submit a SIP
addressing section 110(a)(2)(C) (the Part C PSD permit program) that
applies to some Air Districts within the State. However, this
requirement has already been addressed for these Air Districts by a FIP
that remains in place, and therefore this action will not trigger any
additional FIP obligation. All other areas of the State, exclusive of
these Air Districts have an approved PSD program in place.

C. List of States That Submitted Complete Submissions to Satisfy the
Section 110(a)(2) Requirements

    The following States have been determined by EPA to have made
complete SIP submissions that address all of the section 110(a)(2)
requirements by January 7, 2008:

Region I: Maine, Rhode Island, Connecticut, and New Hampshire.
Region IV: Alabama, Kentucky, Mississippi, and South Carolina.
Region V: Indiana, Ohio, Michigan, and Wisconsin.
Region VI: Louisiana.
Region VII: Iowa, Kansas, Nebraska, and Missouri.
Region VIII: Colorado, Montana, South Dakota, Utah, and Wyoming.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it is likely to
result in a rule that may raise novel legal or policy issues arising
out of legal mandates, the President's priorities, or the principles
set forth in the Executive Order. Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866 and any changes made in response to OMB recommendations have been
documented in the docket for this action.

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. This
rule relates to the requirement in the CAA for States to submit SIPs
under section 110(a) to satisfy certain infrastructure and general
authority-related elements required under section 110(a)(2) of the CAA
for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA requires
that States submit SIPs that implement, maintain, and enforce a new or
revised NAAQS which satisfies the requirements of section 110(a)(2)
within 3 years of promulgation of such standard, or shorter period as
EPA may provide. The present final rule does not establish any new
information collection requirement apart from that already required by
law. Burden means that total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An Agency may not
conduct or sponsor, and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in the
CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act (APA) or any other statute 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 organizations, and small governmental jurisdictions.
    For the purpose of assessing the impacts of this final rule on
small entities, small entity is defined as: (1) A small business that
is a small industry entity as defined in the U.S. Small Business
Administration (SBA) size standards (See 13 CFR 121); (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 independently owned and operated is not dominant in
its field.
    After considering the economic impacts of this final rule on small
entities, I certify that this rule will not have a significant economic
impact on a substantial number of small entities. This final rule will
not impose any requirements on small entities.

D. Unfunded Mandates Reform Act of 1995 (UMRA)

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandate'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify,
and consider, a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small government on compliance with
regulatory requirements.
    EPA has determined that this action does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local and tribal governments, in the aggregate, or the private
sector in any 1 year. It does not create any additional requirements
beyond those of the 1997 8-hour ozone NAAQS (62 FR 38652; 62 FR 38856,
July 18, 1997). This rule responds to the requirement in the CAA for
States to submit SIPs under section 110(a) to satisfy certain
infrastructure and general authority-related elements required under
section 110(a)(2) of the CAA for the 1997 8-hour ozone NAAQS. Section
110(a)(1) of the CAA requires that States submit SIPs that implement,
maintain, and enforce a new or revised NAAQS which satisfies the
requirements of section 110(a)(2) within 3 years of promulgation of
such standard, or shorter period as EPA may provide. The EPA believes
that any new controls imposed as a result of this action will not cost
in the aggregate $100 million or more annually. Thus, this action is
not subject to the requirements of section 202 and 205 of the UMRA.

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, or the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This final rule 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. The CAA establishes the scheme
whereby States take the lead in developing plans to meet the NAAQS.
This rule will not modify the relationship of the States and EPA for
purposes of developing programs to implement the NAAQS. Thus, Executive
Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by

Tribal officials in the development of regulatory policies that have
Tribal implications.'' This final rule does not have Tribal
implications, as specified in Executive Order 13175. This rule responds
to the requirement in the CAA for States to submit SIPs under section
110(a) to satisfy certain elements required under section 110(a)(2) of
the CAA for the 1997 8-hour ozone NAAQS. Section 110(a)(1) of the CAA
requires that States submit SIPs that provide for implementation,
maintenance, and enforcement of a new or revised NAAQS, and which
satisfy the applicable requirements of section 110(a)(2), within 3
years of promulgation of such standard, or within shorter period as EPA
may provide. The CAA provides for States and Tribes to develop plans to
regulate emissions of air pollutants within their jurisdictions. The
regulations clarify the statutory obligations of States and Tribes that
develop plans to implement this rule. The Tribal Authority Rule (TAR)
gives Tribes the opportunity to develop and implement CAA programs, but
it leaves to the discretion of the Tribe whether to develop these
programs and which programs, or appropriate elements of a program, the
Tribe will adopt.
    This rule does not have Tribal implications as defined by Executive
Order 13175. It does not have a substantial direct effect on one or
more Indian Tribes, because no Tribe has implemented an air quality
management program related to the 1997 8-hour ozone NAAQS. Furthermore,
this rule does not affect the relationship or distribution of power and
responsibilities between the Federal government and Indian Tribes. The
CAA and the TAR establish the relationship of the Federal government
and Tribes in developing plans to attain the NAAQS, and this rule does
nothing to modify that relationship. Thus, Executive Order 13175 does
not apply to this rule.

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

    EPA interprets EO 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 EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it is making findings concerning whether or not each
State has submitted a complete SIP that provides the basic program
elements specified in CAA section 110(a)(2) necessary to implement the
1997 8-hour ozone NAAQS. The findings of failure to submit for all or a
portion of a State's SIP establish a 24-month deadline for EPA to
promulgate FIPs to address the outstanding SIP elements unless, prior
to that time, the affected States submit, and EPA approves, the
required SIPs.

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

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. At the time of
proposal of the implementation rule for the 1997 8-hour ozone standard,
information on the methodology and data regarding the assessment of
potential energy impacts regarding implementation of the 1997 8-hour
standard was addressed in Chapter 6 of U.S. EPA 2003, Cost, Emission
Reduction, Energy, and Economic Impact Assessment of the Proposed Rule
Establishing the Implementation Framework for the 1997 8-Hour, 0.08 ppm
Ozone National Ambient Air Quality Standard, prepared by the Innovative
Strategies and Economics Group, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, April 24, 2003. Subsequently,
EPA issued an Addendum 1 to that analysis for the Phase 1 final rule
(April 30, 2004 (69 FR 33951)) and designated nonattainment areas. By
adopting the more flexible approaches while providing for attainment
and maintenance of the 8-hour NAAQS as required by the CAA for the
areas covered by this rulemaking, additional energy cost associated
with more extensive use of less flexible approaches would be averted.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards (VCS) in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impracticable. VCS are technical standards
(e.g., materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by VCS bodies. The
NTTAA directs EPA to provide Congress, through OMB, explanations when
the Agency decides not to use available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any VCS.

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
directly affect the level of protection provided to human health or the
environment. This notice is making a finding concerning whether each
State has submitted or failed to submit a complete SIP that provides
the basic program elements of section 110(a)(2) necessary to implement
the 1997 8-hour ozone NAAQS.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this 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 the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective April 28, 2008.

L. 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 District of Columbia Circuit Court within 60 days from the date
final action is published in the Federal Register. Filing a petition
for review by the Administrator of this

final rule does not affect the finality of this rule for the purposes
of judicial review nor does it extend the time within which a petition
for judicial review must be filed, and shall not postpone the
effectiveness of such rule or action.
    Thus, any petitions for review of this action related to a finding
of failure to submit related to the requirements of section 110(a) to
satisfy certain elements required under section 110(a)(2) of the CAA
for the 1997 8-hour ozone NAAQS must be filed in the Court of Appeals
for the District of Columbia Circuit within 60 days from the date final
action is published in the Federal Register.

List of Subjects in 40 CFR Part 52

    Approval and promulgation of implementation plans, Environmental
protection, Administrative practice and procedures, Air pollution
control, Intergovernmental relations, and Reporting and recordkeeping
requirements.

    Dated: March 17, 2008.
Robert J. Meyers,
Principal Deputy Assistant Administrator.
 [FR Doc. E8-6176 Filed 3-26-08; 8:45 am]

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