Idaho

The Idaho Department of Water Resources or the Idaho Department of Environmental Quality does not list any laws regarding a coastal zone management plan on their respective websites (as seen in the attached files). Brian Patten was contacted for further information (208) 287-4800.

HELEN CHENOWETH

MIKE SIMPSON


[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)]
[Notices]
[Page 46885]
[FR Doc No: 2017-21512]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2017-0083]

Petition for Approval of Informational Filing

    Under part 211 of title 49, Code of Federal Regulations (CFR), this
document amends prior public notice that on August 30, 2017, the Yadkin
Valley Railroad (YVRR) petitioned the Federal Railroad Administration
(FRA) for approval of an Informational Filing (IF) pursuant to 49 CFR
236.913(j).
    The YVRR submitted an IF requesting FRA approval to conduct field
testing of a Train Detection System supplied by Next Generation Rail
Technologies S.L. (NGRT) at Bethania Road highway-rail crossing in
Rural Hall, North Carolina. After installation of the system, the
proposed period of data collection will be approximately four months.
YVRR asserts that its IF addresses all requirements of 49 CFR
236.913(j)(1), and that the Train Detection System will be operating in
shadow mode only to collect data, and will not interfere, impact, or
communicate with the current signaling system.
    FRA assigned the petition Docket Number FRA-2017-0083, and
published notice of the petition in the Federal Register on September
18, 2017. 82 FR 43655.
    This document provides additional information and corrections to
the notice published September 18, 2017, regarding this docket. The
September 18 notice included an inaccurate description of the filing,
and omitted language providing an opportunity and instructions for
public comment.
    A copy of the petition, as well as any written communications
concerning the petition, is available for review online at
www.regulations.gov and in person at the U.S. Department of
Transportation's (DOT) Docket Operations Facility, 1200 New Jersey
Avenue SE., W12-140, Washington, DC 20590. The Docket Operations
Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except
Federal Holidays.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested parties
desire an opportunity for oral comment and a public hearing, they
should notify FRA, in writing, before the end of the comment period and
specify the basis for their request.
    All communications concerning these proceedings should identify the
appropriate docket number and may be submitted by any of the following
methods:
     Web site: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue SE., Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Communications received by November 20, 2017 will be considered by
FRA before final action is taken. Comments received after that date
will be considered if practicable.
    Anyone can search the electronic form of any written communications
and comments received into any of our dockets by the name of the
individual submitting the comment (or signing the document, if
submitted on behalf of an association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits comments from the public to better
inform its processes. DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at https://www.transportation.gov/privacy. See also https://www.regulations.gov/privacyNotice for the
privacy notice of regulations.gov.
    Issued in Washington, DC.

Robert C. Lauby,
Associate Administrator for Railroad Safety, Chief Safety Officer.
[FR Doc. 2017-21512 Filed 10-5-17; 8:45 am]
 BILLING CODE 4910-06-P


[Federal Register Volume 88, Number 190 (Tuesday, October 3, 2023)]
[Rules and Regulations]
[Pages 67957-67963]
[FR Doc No: 2023-21757]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2022-0309; FRL-10903-02-R6]

Air Plan Disapproval; Texas; Contingency Measures for the Dallas-
Fort Worth and Houston-Galveston-Brazoria Ozone Nonattainment Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is disapproving revisions to the
Texas State Implementation Plan (SIP) for the Dallas-Fort Worth (DFW)
and Houston-Galveston-Brazoria (HGB) Serious ozone nonattainment areas
for the 2008 ozone National Ambient Air Quality Standard (NAAQS).
Specifically, EPA is disapproving the portion of these SIP revisions
that the state intended to address contingency measure requirements.
Contingency measures are control requirements in a nonattainment area
SIP that would take effect should the area fail to meet Reasonable
Further Progress (RFP) emissions reductions requirements or fail to
attain the NAAQS by the applicable attainment date.

DATES: This rule is effective on November 2, 2023.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2022-0309. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet. Publicly available docket
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Jeff Riley, EPA Region 6 Office,
Infrastructure & Ozone Section,<PHONE_NUMBER>, [email protected].
Please call or email the contact listed above if you need alternative
access to material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our April
21, 2023, proposal (88 FR 24522).\1\ In the April 2023 document, we
proposed to disapprove portions of the May 13, 2020, Texas SIP
revisions addressing requirements for the 2008 8-hour ozone NAAQS for
the two Serious ozone nonattainment areas in Texas--the DFW and HGB
areas. As Serious ozone nonattainment areas, the DFW Area (Collin,
Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and
Wise counties) and the HGB Area (Brazoria, Chambers, Fort Bend,
Galveston, Harris, Liberty, Montgomery, and Waller counties) were both
subject to CAA section 172(c)(9) for contingency measures as well as
CAA 182(c)(9) for the Serious ozone nonattainment area requirements. As
such, the state must adopt and submit contingency measures for
implementation should the area fail to meet RFP requirements or fail to
attain the 2008 ozone NAAQS by the applicable attainment date. The May
13, 2020, SIP submissions included provisions intended to satisfy the
contingency measures requirement for both the DFW and HGB areas. For
each area, the Texas Commission on Environmental Quality (TCEQ or
State) identified the emission reductions from already-implemented
mobile source measures resulting from the incremental turnover of the
motor vehicle fleet each year to meet the contingency measures
requirements.
---------------------------------------------------------------------------

    \1\ Henceforth, we refer to this proposal as ``the April 2023
document'' or ``the April 2023 proposal''. This proposal is provided
in the docket for this action.
---------------------------------------------------------------------------

    As explained in the April 2023 proposal, the U.S. Court of Appeals
for the District of Columbia Circuit (``D.C. Circuit'') issued a
relevant decision in response to challenges to EPA's rule implementing
the 2015 ozone NAAQS (83 FR 62998 (December 6, 2018)). Sierra Club, et
al. v. EPA, 985 F.3d 1055 (D.C. Cir. 2021).\2\ Among the rulings in
this decision, the D.C. Circuit vacated EPA's interpretation of the CAA
that had previously allowed states to rely on already-implemented
control measures to meet the statutory requirements of CAA section
172(c)(9) or 182(c)(9) for

contingency measures in nonattainment plans for the ozone NAAQS (see 83
FR 62998, 63026-27). The Court's interpretation of the statute in the
Sierra Club decision, which requires contingency measures be
prospective and conditional, applies across the U.S.\3\ EPA
acknowledges that it had previously interpreted the requirement
differently, but now agrees that the plain language of section
172(c)(9) and section 182(c)(9) require that contingency measures be
both conditional and prospective. EPA's prior interpretation was
premised on the theory that the statutory language is ambiguous, and
that it was reasonable to interpret it to allow for other approaches.
---------------------------------------------------------------------------

    \2\ See Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016) and Sierra
Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021) (applying the Bahr
reasoning nationwide).
    \3\ Citing previous caselaw, the Court stated that contingency
measures that are to take effect upon failure to satisfy standards
are likewise not measures that have been implemented before such
failure occurs (internal quotations omitted). Sierra Club, et al. v.
EPA, 985 F.3d 1055, 1067-68 (D.C. Cir. 2021).
---------------------------------------------------------------------------

    Our April 2023 document proposed disapproval of the contingency
measure element of the May 13, 2020 SIP submissions for the DFW and HGB
areas for purposes of the 2008 ozone NAAQS because the contingency
measures identified by the State consisted entirely of emission
reductions from measures that would occur regardless of whether the
nonattainment area would fail to meet RFP or to attain by the
applicable attainment date. As such, these measures do not satisfy the
requirements of CAA sections 172(c)(9) and 182(c)(9) that contingency
measures be both prospective and conditional, and thus go into effect
only upon one of the statutory triggering events.
    The comment period on our April 2023 proposal closed on May 22,
2023. We received one relevant supportive comment from the Harris
County Attorney's Office (HCAO), and one set of relevant adverse
comments from the TCEQ.\4\ HCAO supported EPA's proposed disapproval of
the HGB area contingency measures and emphasized the need for
additional emissions reductions in the face of the area's continuing
ozone pollution challenges. TCEQ disagreed with EPA's interpretation of
the CAA contingency measure requirement and Federal case law, arguing
that our proposed disapproval was inconsistent with past Agency
decisions on Texas nonattainment SIP elements. Our responses to the
comments follow.
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    \4\ Henceforth, we refer to the HCAO and the TCEQ as ``the
commenter(s)''. These comments are provided in the docket at https://www.regulations.gov under docket ID: EPA-R06-OAR-2022-0309.
---------------------------------------------------------------------------

II. Response to Comments

    Comment: The commenter supports EPA's proposal to disapprove the
contingency measures element of the May 13, 2020 Texas SIP revisions
for the HGB 2008 8-hour ozone NAAQS Serious nonattainment area,
claiming that the SIP submission fails to protect the public's health
and welfare by failing to provide emission reductions from contingency
measures that would have been triggered by EPA's October 7, 2022,
determination that the HGB Serious nonattainment area failed to attain
the 2008 ozone NAAQS by the applicable attainment date.\5\ The
commenter states that emissions reductions from Texas sources would
assist in mitigating the public health impacts caused by ozone in the
HGB area, and describes the health effects of exposure to ozone,
including the effects on children and disadvantaged communities in the
HGB area. The commenter includes numerous health studies in support of
these statements.
---------------------------------------------------------------------------

    \5\ Note EPA's recent final determination that the DFW and HGB
Serious nonattainment areas failed to attain the 2008 ozone NAAQS by
the areas' attainment date. 87 FR 60926 (October 7, 2022).
---------------------------------------------------------------------------

    Response: The EPA acknowledges the commenter's views and submission
of the studies regarding exposure to ground level ozone. We agree with
the commenter that the HGB area faces significant challenges in
attaining the applicable ozone standards, and that additional control
measures, including contingency measures, would provide meaningful
emission reductions towards improving local air quality. EPA agrees
that the purpose of contingency measures is to provide for additional
emission reductions that will go into effect in areas in the event of a
failure to meet RFP or failure to attain, to help to mitigate the
problem during the period that the state is developing a new SIP
submission to impose additional requirements as required by the
applicable nonattainment classification.
    Comment: The commenter states that the EPA should withdraw its
proposed disapproval of the DFW and HGB 2008 ozone NAAQS contingency
measures because the action is inconsistent with EPA's past practice of
taking no action on SIP elements for Texas nonattainment areas that
have already been reclassified.
    Response: To support the idea that EPA's April 2023 proposal is
inconsistent with past practice, and that the contingency measures SIP
element for the DFW and HGB 2008 eight-hour ozone NAAQS nonattainment
areas under the Serious classification are now moot, the commenter
cites a single memo dated August 23, 2019.\6\ EPA has included the 2019
memo in the docket for this rulemaking action. Upon review, this memo
is incorrect, and should not have been understood to be an official
agency policy statement or interpretation of the statute concerning the
contingency measures requirement. The EPA employee who signed this memo
did not have the authority to speak on behalf of the Agency regarding
these matters. Furthermore, because the 2019 memo does not accurately
reflect the views of the EPA and is not evidence of any previous
position, EPA has never relied on the 2019 memo to support any action.
EPA is accordingly taking this opportunity to officially retract the
2019 memo.
---------------------------------------------------------------------------

    \6\ Memorandum to file with subject ``No EPA Action to be Taken
on 3 Outstanding Texas Moderate Area Ozone State Implementation Plan
Revisions (SIPs)'', dated August 23, 2019 (2019 memo).
---------------------------------------------------------------------------

    Second, to the extent that the 2019 memo may have inadvertently
suggested that Texas' contingency measures SIP submittal from May 13,
2020, is somehow moot upon reclassification of these areas to Severe
ozone nonattainment, that does not represent EPA's position. EPA does
not agree with such an interpretation of section 172(c)(9) and section
182(c)(9). EPA does not agree that the contingency measures SIP element
is moot in this situation, because one of the specific events that
requires the triggering of such provisions has in fact occurred (i.e.,
failure to attain by the applicable attainment date). It is simply not
logical to conclude that a reclassification to the next higher
classification that is required by a failure to attain by the
attainment date (see CAA 181(b)(2)) would moot the contingency measure
requirement that is required to be triggered by the same failure to
attain (see CAA 172(c)(9)). Such an approach would lead to absurd
results that would effectively render the contingency measure
requirement meaningless. Lastly, the commenter did not cite any other
past EPA actions to support the claim that the April 2023 proposal
conflicts with past EPA actions. EPA does not find this isolated,
incorrect, and erroneously issued 2019 memo compelling evidence of
precedent or practice on the matter of contingency measures.
    A reclassification occurs upon an EPA determination that an area
failed to attain by its attainment date. That determination similarly
triggers the requirement to implement contingency measures. Because the
DFW and HGB areas did not attain by the applicable

Serious area attainment date, contingency measures should have already
gone into effect, and should still go into effect as soon as reasonably
possible. As discussed further below, the contingency measures
submitted by the State for purposes of the Serious area attainment plan
are not approvable, and the State should take action promptly to
replace them.
    As detailed in our April 2023 proposed action, the D.C. Circuit
vacated EPA's prior interpretation of the CAA that allowed states to
rely on already-implemented control measures to meet the statutory
requirements of CAA section 172(c)(9) and 182(c)(9) for contingency
measures in nonattainment plans for the ozone NAAQS. The effect of this
decision is that the statutory requirement that contingency measures
must be prospective and conditional applies across the U.S. Continued
adherence to the now-invalidated prior interpretation, including agency
policy statements to justify past practice, does not harmonize with the
D.C. Circuit decision and is therefore not correct. In arguing that
EPA's proposed disapproval is inconsistent with past practice, the
commenter acknowledges the reclassification of the DFW and HGB areas to
Severe nonattainment areas on the effective date of EPA's October 7,
2022, final action finding that these areas failed to attain the 2008
ozone NAAQS by the applicable attainment date for Serious areas (87 FR
60926, October 7, 2022). Such failure to attain by the applicable
attainment date is explicitly identified in the language of CAA section
172(c)(9) as one of the events triggering implementation of contingency
measures. The May 13, 2020, Texas SIP revisions did not establish
prospective and conditional DFW and HGB area contingency measures whose
implementation would be triggered by EPA's finding that the areas had
failed to attain.
    Per the statute and relevant court decisions, EPA must disapprove
the contingency measures element of Texas' May 13, 2020, submittal for
the DFW area because these measures are based upon emissions reductions
from already-implemented measures that would occur regardless of
whether there was a triggering event, and therefore they are not
prospective and conditional as required by statute.\7\
---------------------------------------------------------------------------

    \7\ See Bahr v. EPA, 836 F.3d 1218 (9th Cir. 2016) and Sierra
Club v. EPA, 985 F.3d 1055 (D.C. Cir. 2021) (applying the Bahr
reasoning nationwide).
---------------------------------------------------------------------------

    On May 10, 2021 (86 FR 24717), EPA finalized its approval of the
HGB area RFP demonstration and associated motor vehicle emissions
budgets (budgets), and a revised 2011 base year emissions inventory. In
that final rulemaking, we did not take final action on our October 29,
2020, proposed approval of the contingency measures submitted by the
State in the May 13, 2020, SIP revision submission for the HGB area.
EPA explained that it was reexamining the contingency measures element
of the TCEQ submission for the HGB area in light of the D.C. Circuit
decision, and that it would address those contingency measures in a
separate future action. Consistent with our interpretation of the CAA
contingency measures requirement for the DFW area subsequent to the
D.C. Circuit decision, EPA must also disapprove the contingency
measures element of Texas' May 13, 2020, submittal for the HGB area.
Our April 2023 document proposed disapproval of the contingency measure
element of the May 13, 2020 SIP submissions for the DFW and HGB areas
for purposes of the 2008 ozone NAAQS.
    Comment: The commenter disagrees that EPA's disapproval of the DFW
and HGB 2008 ozone NAAQS Serious area contingency measures would
provide the basis for imposition of a transportation conformity freeze
in these areas upon the effective date of EPA's final action and
therefore states it was not necessary for EPA to discuss the
possibility of a protective finding.\8\
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    \8\ The transportation conformity regulation defines a
``protective finding'' as a determination by EPA that a submitted
control strategy implementation plan revision contains adopted
control measures or written commitments to adopt enforceable control
measures that fully satisfy the emissions reductions requirements
relevant to the statutory provision for which the implementation
plan revision was submitted, such as reasonable further progress or
attainment. (See 40 CFR 93.101.)
---------------------------------------------------------------------------

    Response: EPA agrees with TCEQ on the limited ground that it was
not necessary to discuss the possibility of a transportation conformity
freeze or the eligibility of the Dallas-Fort Worth and Houston-
Galveston-Brazoria areas for protective findings (as defined in 40 CFR
93.101) under the transportation conformity regulations in the action
proposing the disapproval of contingency measures for these areas for
the 2008 ozone NAAQS. Thus, EPA is not taking final action on the
protective finding discussed in the proposal and a transportation
conformity freeze will not occur. A transportation conformity freeze
would not occur in either of these areas under these circumstances
because EPA is only disapproving contingency measures. Moreover, the
State did not submit the contingency measures to provide emission
reductions included in the areas' approved RFP plans and the associated
motor vehicle emissions budgets.\9\ As such EPA's disapproval of the
contingency measures would not impact the approval of the RFP plans and
motor vehicle emissions budgets. Therefore, the approved motor vehicle
emissions budgets would continue to be used in transportation
conformity determinations by the metropolitan planning organizations
for the Dallas and Houston areas after the effective date of the
disapproval of the contingency measures.
---------------------------------------------------------------------------

    \9\ See, 86 FR 24717 (May 10, 2021) (final rule approving
Reasonable Further Progress Plan for the Houston-Galveston-Brazoria
Ozone Nonattainment Area); 88 FR 24693 (April 24, 2023) (final rule
approving Reasonable Further Progress Plan for the Dallas-Fort Worth
Ozone Nonattainment Area).
---------------------------------------------------------------------------

    Comment: The commenter asserts that EPA's prior allowance of
already-implemented control measures that obtain future emission
reductions was an appropriate interpretation of the CAA contingency
measure requirement, and one that states are capable of achieving.
    Response: We disagree with the commenter's assertion that EPA's
prior interpretation of the CAA contingency measure requirement remains
valid. Courts have now ruled, and EPA now acknowledges, that the prior
interpretation was invalid. Sierra Club, et al. v. EPA, 985 F.3d 1055
(D.C. Cir. 2021). The express statutory language of CAA section
172(c)(9) requires that contingency measures be both prospective and
conditional. Thus, reliance on emission reductions from existing
implemented measures, that will occur regardless of whether there is a
triggering event, simply does not meet this requirement for contingency
measures. TCEQ appears to disagree with the D.C. Circuit's decision and
reasoning in Sierra Club. EPA cannot disregard this decision. The
Agency's actions, including this rulemaking, must comport with
applicable caselaw, which in this situation includes the D.C. Circuit's
decision in Sierra Club. EPA Region 6 recognizes the DFW and HGB areas
face significant challenges in attaining the applicable ozone
standards. We are available to assist the State with case-by-case
questions regarding situations specific to each nonattainment area in
the development of approvable contingency measures for ozone
reductions, consistent with the statute and relevant court decisions.
    Comment: The commenter contends that because Texas developed and
submitted the DFW and HGB 2008 ozone NAAQS Serious area contingency
measures in accordance with the requirements and statutory
interpretation applicable at the time of

submittal, EPA should have finalized its proposed approvals of the
contingency measures.
    Response: We acknowledge TCEQ's development and timely May 13, 2020
submittal of the DFW and HGB contingency plans to meet EPA's August 3,
2020, submittal deadline for the 2008 ozone Serious SIP revisions, and
that these submissions were consistent with past EPA approvals of
already-implemented contingency measures.\10\ EPA must act upon SIP
submissions in full consideration of the established requirements and
statutory interpretations, including court rulings, that apply at the
time of EPA's action. In this situation, the D.C. Circuit has made
clear that EPA and Texas' prior statutory interpretation concerning
contingency measures is not consistent with the CAA, and approval of
contingency measures that are not prospective and conditional would be
inconsistent with the CAA. Therefore, it was not possible for EPA to
proceed with an approval after the D.C. Circuit's decision in Sierra
Club. The SIP submissions at issue in this action were still pending
before the Agency when the D.C. Circuit issued the relevant court
decision, and EPA must now take action consistent with that decision.
---------------------------------------------------------------------------

    \10\ See 84 FR 44238, August 23, 2019.
---------------------------------------------------------------------------

    The DFW RFP proposal comment period ended on November 9, 2020, and
relevant adverse comments were received on EPA's proposed approval.\11\
As a required part of the Agency's rulemaking process, EPA must review,
evaluate, and respond to all relevant comments in the issuance of a
final action. EPA was timely in conducting the review and evaluation of
such comments in the development of our final action. EPA did not
complete this process, and did not take final action, in advance of the
January 2021 D.C. Circuit decision. Had it done so more quickly,
however, this could potentially have led to a need for EPA to exercise
its authority under section 110(k)(6) or section 110(k)(5) after such
approval. But in this rulemaking, EPA must adhere to its obligations
under section 110(k)(2), (3), and (4) to approve, disapprove,
conditionally approve, in whole or in part, the contingency measures in
the SIP submissions at issue. EPA may only approve those SIP provisions
that actually meet applicable legal requirements, such as the
requirement that contingency measures must be conditional and
prospective. Similarly, EPA must also adhere to its obligations under
section 110(l) which directs, inter alia, that the agency shall not
approve a revision to a SIP unless it meets applicable requirements of
the CAA.
---------------------------------------------------------------------------

    \11\ Comments received on our October 9, 2020 proposed approval
are provided in the docket for that action at https://www.regulations.gov under docket ID: EPA-R06-OAR-2020-0161.
---------------------------------------------------------------------------

    Comment: The commenter argues that because the DFW and HGB areas
have met the applicable Serious area RFP requirements for the 2008
ozone NAAQS, there is no need for contingency measures for failure to
meet RFP. Therefore, the commenter argues that EPA should not have
disapproved the contingency measures with respect to RFP requirements.
    Response: We agree with the commenter that the DFW and HGB 2008 8-
hour ozone NAAQS Serious nonattainment areas did meet RFP requirements,
as was recognized by EPA's July 1, 2021 determination that the 2008
ozone NAAQS Milestone Compliance Demonstration for the 2020 Calendar
Year adequately established that the January 1, 2021 RFP milestone
emission reductions were met.\12\ However, although the RFP contingency
measures were not triggered by a failure of either area to meet RFP
emission reductions requirements, the State relied on those same
already-implemented mobile source fleet turnover reductions as
contingency measures for purposes of a failure to attain the NAAQS.
Thus, even if contingency measures were not needed for purposes of a
failure to meet RFP, such measures were still needed in the event of a
failure to attain. As previously noted, on October 7, 2022, EPA issued
a final determination that the DFW and HGB Serious nonattainment areas
failed to attain the 2008 8-hour ozone NAAQS by the applicable
attainment dates. CAA section 172(c)(9) requires contingency measures
to be implemented upon an area's failure to meet RFP requirements or
failure to attain the NAAQS by the applicable attainment date.
---------------------------------------------------------------------------

    \12\ EPA's July 1, 2021, determination that TCEQ's 2020
Milestone Compliance Demonstration adequately established that the
2008 ozone NAAQS Serious RFP milestone emission reductions were met
for the DFW and HGB nonattainment areas is provided in the docket
for this action.
---------------------------------------------------------------------------

    The May 13, 2020, Texas SIP submissions did not include prospective
and conditional contingency measures for the DFW or HGB areas that
would be triggered by EPA's finding that the areas had failed to
attain, as required by section 172(c)(9). Although the RFP contingency
measures would not have been triggered by a failure to meet RFP
emission reductions, those same measures would have been required for
failure to attain and therefore triggered for implementation by EPA's
October 7, 2022 final determination. Put another way, and assuming that
the state had separate contingency measures triggered by failure to
meet RFP and contingency measures triggered by failure to attain, EPA
agrees with TCEQ that there is no longer a need for contingency
measures triggered by failure to meet RFP for the DFW and HGB Serious
nonattainment plan for purposes of the 2008 8-hour ozone NAAQS, because
these areas met RFP for this specific classification. However,
contingency measures are still required for the failure to attain (and
indeed, noting the fact that areas failed to attain, should already
have taken effect). The SIP submissions containing the deficient
contingency measures are the basis for this disapproval. Even though
the triggering event has occurred (the areas failed to attain), and
even though these areas met RFP, the State must still meet the
statutory requirement for contingency measures for these areas' Serious
classification. This means the State must now adopt additional measures
beyond those required under the Serious area plan.
    Lastly, it is worth noting that both DFW and HGB continue to be in
violation of the 2008 ozone standards with 2022 Design values of 77 ppb
and 78 ppb respectively. Preliminary 2023 data (not a full year of data
and not certified for quality assurance/quality control) indicates
these areas continue to violate the standard.
    Comment: The commenter asserts that if the EPA's proposed
disapproval is not withdrawn, EPA should provide actionable guidance on
how to implement contingency measures for an RFP milestone and
attainment year that has already passed.
    Response: While EPA acknowledges the request to provide actionable
guidance in this rulemaking, we do not agree that it is relevant to the
question of whether to disapprove the present SIP submissions. The fact
that the State did not provide approvable contingency measures in these
SIP submissions, and thus cannot now adopt and implement new
contingency measures in the original timeframe envisioned in the Act,
does not excuse the State from meeting the requirement, even if late.
Nevertheless, EPA's general advice on this matter following the Sierra
Club decision is that the State should move expeditiously to adopt and
implement contingency measures that meet the Act's requirements as
interpreted in that decision. The contingency measures in the SIP
submissions at issue in this action are inconsistent with statutory
requirements, as reflected in that decision.

    We recognize that the court decision requiring that contingency
measures must be prospective and contingent measures, and thus cannot
be (or cannot rely on emission reductions from) already implemented
measures, came after Texas made this SIP submission but it is worth
noting, if Texas had developed approvable contingency measures any time
before EPA's October 2022 determination that the areas failed to
attain, those measures could have been implemented timely. It is only
because the attainment date has passed and the State's SIP submission
is not approvable in light of the court decision, that timely adoption
and implementation of other appropriate contingency measures is no
longer possible. Situations in which a state and EPA would have to
address deficient contingency measures after the state had already
failed to meet RFP or failed to attain should generally not occur.
    While EPA acknowledges the unusual circumstances of the Sierra Club
decision having occurred after TCEQ's submittal, the appropriate course
of action at this point is to address the deficiency by providing
approvable contingency measures for the Serious area classifications as
quickly as reasonably possible. Further, the state should implement the
new measures as soon as reasonably possible because the statutory
requirement for implementation of those contingency measures has
already arisen as a result of the failure to attain in the DFW and HGB
areas. Contrary to commenter's assertion, this is not retroactive
implementation. EPA is not asking the State to accomplish an impossible
task. The State should follow the applicable SIP-development process to
develop and submit approvable contingency measures and should implement
these measures as soon as reasonably possible. The measures would not
apply in the past or be applied retroactively. The measures would apply
prospectively in that they would achieve emissions reductions after
being developed and implemented, and the State should develop and
implement them as soon as possible because the failures to attain have
already occurred (and thus the need for the measures has already been
triggered).
    EPA is not requiring the state to comply with the contingency
measure requirement for the Serious area plan retrospectively. EPA does
not expect the state to go back in time and impose such measures in the
past. EPA does, however, expect the state to develop and submit
additional measures now to get the emission reductions that the
contingency measures should be achieving now, even if belatedly, to
continue progress toward meeting the NAAQS. EPA emphasizes that
requiring a state to meet a requirement in the present, even if late,
does not equate to requiring a state to comply in the past. Moreover,
to allow the passage of time due to delays in a state's SIP submission,
or as in this case the submission being unapprovable, to obviate the
need to submit contingency measures because implementation timeframes
have passed, would be a clear circumvention of the Clean Air Act's
requirements.
    EPA Region 6 is available to assist Texas with case-by-case
questions regarding situations specific to each nonattainment area in
the development and implementation of approvable contingency plans for
ozone reductions, consistent with the statute and relevant court
decisions.

III. Final Action

    Based upon the statutory requirements of section 172(c)(9), the EPA
is disapproving the contingency measures element of the May 13, 2020,
Texas SIP revisions for Serious nonattainment areas under the 2008 8-
hour ozone NAAQS. EPA is finalizing this disapproval with respect to
the contingency measure requirements under CAA section 172(c)(9) for
the reasons discussed above.
    As a consequence of the disapproval of the contingency measure
element, within 24 months of the effective date of this action, the EPA
must promulgate a Federal implementation plan under CAA section 110(c)
unless we approve subsequent SIP submissions that correct the plan
deficiencies. In addition, under 40 CFR 52.31, the offset sanction in
CAA section 179(b)(2) will be imposed 18 months after the effective
date of this action, and the highway funding sanction in CAA section
179(b)(1) will be imposed six months after the offset sanction is
imposed. A sanction will not be imposed if the EPA determines that a
subsequent SIP submission corrects the identified deficiencies before
the applicable deadline.

IV. Environmental Justice Considerations

    As stated in our April 2023 proposal and for informational purposes
only, EPA conducted screening analyses of the 10-county DFW and 8-
county HGB Serious ozone nonattainment areas using EPA's EJScreen
(Version 2.1) EJ screening and mapping tool.\13\ The results of this
analysis are provided for informational and transparency purposes, not
as a basis of our proposed action. The EJScreen analysis reports are
available in the docket for this rulemaking. The EPA found, based on
the EJScreen analyses, that this final action will not have
disproportionately high or adverse human health or environmental
effects on a particular group of people, as EPA's disapproval of these
contingency measures will require ongoing reductions of ozone precursor
emissions, as required by the CAA. Specifically, this final rule would
require that Texas submit plans for each area containing prospective
and conditional contingency measures consistent with the D.C. Circuit
decision, which would help to improve air quality in the affected
nonattainment area. Information on ozone and its relationship to
negative health impacts can be found at https://www.epa.gov/ground-level-ozone-pollution.\14\
---------------------------------------------------------------------------

    \13\ See https://www.epa.gov/ejscreen.
    \14\ See, also, 80 FR 65292 (October 26, 2015).
---------------------------------------------------------------------------

V. 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, the EPA's role is to review state choices,
and approve those choices if they meet the minimum criteria of the Act.
Accordingly, this final action disapproves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law.
    Additional information about these statutes and Executive orders
can be found at https://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This final action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA, because this final SIP disapproval will not in-and-of itself
create any new information collection burdens, but will simply
disapprove certain State requirements for inclusion in the SIP.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities

under the RFA. This action will not impose any requirements on small
entities. This final SIP disapproval will not in-and-of itself create
any new requirements but will simply disapprove certain State
requirements for inclusion in the SIP.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action finalizes disapproval of certain 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

    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.

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

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that EPA is
disapproving would not apply on any Indian reservation land or in any
other area where EPA or an Indian tribe has demonstrated that a tribe
has jurisdiction, and 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 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This action is not subject to Executive Order
13045 because this final SIP disapproval will not in-and-of itself
create any new regulations, but will simply disapprove certain State
requirements for inclusion in the SIP.

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

    This action is not subject to Executive Order 13211, 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 directs EPA to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. EPA believes
that this action is not subject to the requirements of section 12(d) of
the 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 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
The EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' The EPA further defines the term fair treatment to mean
that ``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.'' \15\
---------------------------------------------------------------------------

    \15\ See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
---------------------------------------------------------------------------

    The air agency did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA performed an environmental justice analysis, as is
described above in the section titled ``Environmental Justice
Considerations.'' The analysis was done for the purpose of providing
additional context and information about this rulemaking to the public,
not as a basis of the action. Due to the nature of the action being
taken here, this action is expected to have a neutral to positive
impact on the air quality of the affected area. In addition, there is
no information in the record upon which this decision is based
inconsistent with the stated goal of E.O. 12898 of achieving
environmental justice for people of color, low-income populations, and
Indigenous peoples.

K. Congressional Review Act (CRA)

    This action is subject to the Congressional Review Act, and the EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).

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 appropriate circuit by December 4, 2023. 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, Nitrogen dioxide, Ozone, Volatile organic compounds.

    Dated: September 25, 2023.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart SS--Texas

0
2. Section 52.2273 is amended by adding paragraph (f) to read as
follows:

Sec.  52.2273  Approval status.

* * * * *
    (f) The contingency measure element of the following Texas SIP
revisions

submittals is disapproved, effective on November 2, 2023:
    (1) The ``Dallas-Fort Worth and Houston-Galveston-Brazoria Serious
Classification Reasonable Further Progress State Implementation Plan
Revision for the 2008 Eight-Hour Ozone National Ambient Air Quality
Standard'' adopted March 4, 2020, and submitted May 13, 2020.
    (2) The ``Dallas-Fort Worth Serious Classification Attainment
Demonstration State Implementation Plan Revision for the 2008 Eight-
Hour Ozone National Ambient Air Quality Standard'' adopted March 4,
2020, and submitted May 13, 2020.
    (3) The ``Houston-Galveston-Brazoria Serious Classification
Attainment Demonstration State Implementation Plan Revision for the
2008 Eight-Hour Ozone National Ambient Air Quality Standard'' adopted
March 4, 2020, and submitted May 13, 2020.

[FR Doc. 2023-21757 Filed 10-2-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Notices]
[Pages 73915-73916]
[FR Doc No: 2014-29110]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-73785; File No. SR-OCC-2014-18]

Self-Regulatory Organizations; The Options Clearing Corporation;
Notice of Filing of Amendment No. 1, and Order Granting Accelerated
Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To
Provide That The Options Clearing Corporation's President Will Be Its
Chief Operating Officer, and That the President Will Not Be a
Management Director

December 8, 2014.
    On October 31, 2014, The Options Clearing Corporation (``OCC'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change SR-OCC-2014-18 pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4
thereunder.\2\ The proposed rule change was published for comment in
the Federal Register on November 7, 2014.\3\ On November 11, 2014, OCC
filed Amendment No. 1 to the proposal.\4\ The Commission did not
receive any comments on the proposal. The Commission is publishing this
notice to solicit comments on Amendment No. 1 and is approving the
proposed rule change, as modified by Amendment No. 1, on an accelerated
basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Securities Exchange Act Release No. 73497 (November 3,
2014), 79 FR 66440 (November 7, 2014) (SR-OCC-2014-18).
    \4\ In Amendment No. 1, OCC amended the proposal to clarify that
the proposal as described also amended Article IV, Section 1, of
OCC's By-Laws to reflect OCC's Board of Directors' decision that the
President should not be a Management Director. Specifically, OCC is
amending Article IV, Section 1 of its By-Laws to refer only to the
Executive Chairman, and not the President, as a Management Director.
---------------------------------------------------------------------------

I. Description of the Proposal

    The purpose of this rule change, as amended, is to provide that
OCC's President will be its Chief Operating Officer, rather than its
Chief Executive Officer, and that the President will not be a
management director on OCC's Board of Directors. These changes are
being made in connection with the resignation of OCC's former President
and Chief Executive Officer, a transition plan that includes the
election of OCC's current Chief Operating Officer as President and
Chief Operating Officer, and the appointment of an Ad Hoc Search
Committee to identify an appropriate candidate to become OCC's Chief
Executive Officer (collectively, the ``Transition Plan''). According to
OCC, OCC's Board of Directors has determined that in light of the
resignation of the former President and Chief Executive Officer and the
election of the current Chief Operating Officer as President, the
positions of President and Chief Executive Officer should be separated
and the position of President should instead be combined with the
position of Chief Operating Officer. To reflect this change, OCC is
revising Section 8 of Article IV of its By-Laws to state that the
President will be OCC's Chief Operating Officer, rather than its Chief
Executive Officer.
    According to OCC, while OCC's existing By-Laws provide that the
President, who is also the Chief Executive Officer, serves as a
Management Director on OCC's Board of Directors, given the separation
of the President and Chief Executive Officer positions and the pending
search for a new Chief Executive Officer, OCC's Board of Directors has
also determined that the President should not be a Management Director.
Accordingly, OCC is revising Section 7 of Article III and Section 1 of
Article IV of its By-Laws to refer only to the Executive Chairman, and
not the President, as a Management Director. OCC also is making a
conforming revision to Section 8 of Article IV of its By-Laws to state
that the President will not preside at meetings of the Board of
Directors or the stockholders in the absence or disability of the
Executive Chairman and the Management Vice Chairman because the
President will no longer serve as a Management Director.
    OCC is also amending its Stockholder Agreement, Board of Directors
Charter and Fitness Standards for Directors, Clearing Members and
Others. In each case, conforming changes are being made to provide that
only the Executive Chairman, not the President, will serve as a
Management Director.
    Once a replacement Chief Executive Officer has been elected by the
Board of Directors, OCC intends to reconsider the appropriate number of
Management Directors. According to OCC, the rule change, as proposed
and amended, represents a short-term measure to implement the
Transition Plan and is not intended as a permanent change in the
composition of the Board of Directors. As indicated in the filing, once
OCC's Board of Directors has elected a Chief Executive Officer, OCC
will propose further changes to its By-Laws, Stockholders Agreement,
Board of Directors Charter and Fitness Standards for Directors,
Clearing Members and Others. OCC believes that the short-term
flexibility reflected in the foregoing changes will assist OCC and its
Board of Directors in implementing the Transition Plan efficiently and
governing OCC effectively.

II. Discussion and Commission Findings

    Section 19(b)(2)(C) of the Act \5\ directs the Commission to
approve a proposed rule change of a self-regulatory organization if it
finds that the proposed rule change is consistent with the requirements
of the Act and the rules and regulations thereunder applicable to such
organization.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78s(b)(2)(C).
---------------------------------------------------------------------------

    The Commission finds that the proposed rule change is consistent
with Section 17A(b)(3)(F) of the Act,\6\ which requires that the rules
of a registered clearing agency be designed to, among other things,
remove the impediments to and perfect the mechanism of a national
system for the prompt and accurate clearance and settlement of
securities transactions, and in general, to protect investors and the
public interest. The proposed rule change, as amended, is consistent
with Section 17A(b)(3)(F) because it should remove the impediments to
and perfect the mechanism of a national clearance and settlement system
and protecting investors and the public interest by providing
transparency with respect to the composition of OCC's management
structure and Board of Directors during the Transition Plan. By
clarifying who from senior management is acting in the role of OCC's
President and clarifying which senior management position is serving as
a management director on OCC's Board of Directors during the
Transition, both OCC's members and the public will have more
information on the overall structure of management and the Board of
Directors at OCC and more information on the level of authority of
specific senior management positions. Additionally, this proposed rule
change is consistent with Section 17A(b)(3)(F) because the Transition
Plan will facilitate uninterrupted, ongoing, operations at OCC
notwithstanding the above described changes at OCC.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78q-1(b)(3)(F).
---------------------------------------------------------------------------

III. Accelerated Approval of the Proposed Rule Change As Modified by
Amendment No. 1

    The Commission finds good cause, pursuant to Section
19(b)(2)(C)(iii) of the Act,\7\ for approving the proposed rule change,
as modified by Amendment No. 1, earlier than 30 days after the date

of publication of notice in the Federal Register.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(2)(C)(iii).
---------------------------------------------------------------------------

    As discussed above, OCC filed Amendment No. 1 to describe the
proposed change to Article IV, Section 1 of OCC's By-Laws to reflect
OCC's Board of Directors' decision that the President should not be a
Management Director. Specifically, OCC is amending Article IV, Section
1 of its By-Laws to refer only to the Executive Chairman, and not the
President, as a Management Director. Amendment No. 1 provides the
Commission with clarifying information about how OCC is implementing
and providing transparency about the Transition Plan. By allowing OCC
to implement the proposed changes, as amended, on an accelerated basis,
OCC will be able to implement the Transition Plan sooner, which should
allow OCC to manage and govern OCC more efficiently and effectively.
    Accordingly, the Commission finds good cause to approve the
proposed rule change, as modified by Amendment No. 1, on an accelerated
basis.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-OCC-2014-18 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-OCC-2014-18. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of OCC. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-OCC-2014-18 and should be
submitted on or before January 2, 2015.

V. Conclusion

    On the basis of the foregoing, the Commission finds that the
proposal is consistent with the requirements of the Act and in
particular with the requirements of Section 17A of the Act \8\ and the
rules and regulations thereunder.
---------------------------------------------------------------------------

    \8\ 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).
---------------------------------------------------------------------------

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\9\ that the proposed rule change (SR-OCC-2014-18), as modified by
Amendment No. 1, be, and it hereby is, approved on an accelerated
basis.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
---------------------------------------------------------------------------

    \10\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-29110 Filed 12-11-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: May 15, 2006 (Volume 71, Number 93)]
[Notices]
[Page 28058-28059]
[DOCID:fr15my06-78]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53774; File No. SR-BSE-2006-10]

Self-Regulatory Organizations; Boston Stock Exchange, Inc.;
Notice of Filing of Proposed Rule Change To Establish Fees Per Contract
Traded for Improvement Orders Submitted Into a Price Improvement Period
by a Public Customer That Are Not Submitted as Customer PIP Orders

May 9, 2006.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 6, 2006, the Boston Stock Exchange, Inc. (``BSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which items have been prepared substantially by the BSE.
The Commission is publishing this notice to solicit comments on the
proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend the Fee Schedule of the Boston
Options Exchange (``BOX'') to establish fees per contract traded for
Improvement Orders,\3\ submitted into a Price Improvement Period
(``PIP'') by a Public Customer \4\ that are not submitted as Customer
PIP Orders (``CPO's'').
---------------------------------------------------------------------------

    \3\ The term ``Improvement Orders'' is defined in the BOX Rules
Chapter V, Section 18(e)(i).
    \4\ ``Public Customer'' means a person that is not a broker or
dealer in securities. BOX Rules Chapter I, Section 1(a)(50).
---------------------------------------------------------------------------

    The BOX Fee Schedule is available on the BOX Web site at:
http://www.bostonoptions.com. The text of the proposed rule change is provided

below, with additions italicized and deletions in [brackets].
Boston Options Exchange Facility
    Fee Schedule
Sec. 1 Trading Fees for Public Customer Accounts
    [None] $0.20 per contract traded for Improvement Orders submitted
into a Price Improvement Period (``PIP'') by a Public Customer, that
are not submitted as Customer PIP Orders (``CPO's'').
* * * * *

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 as
amended 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
    Currently, there are two ways Public Customer Orders can be
submitted into a PIP auction as an Improvement Order. The first way is
a CPO, which is an order a Public Customer provides to her/his BOX
Order Flow Provider (``OFP'') that contains a standard limit order
price in a nickel increment and the CPO PIP Reference Price \5\ in a
penny increment. The premise of a CPO order is for a Public Customer to
provide a standard limit order price to be submitted to the BOX book,
and the additional penny auction limit price to be submitted into a PIP
auction should one occur while her/his limit order is on the BOX book.
The CPO PIP Reference Price provided by the Public Customer to OFP
allows the Public Customer to participate in PIP auction by the OFP
submitting Improvement Orders on her/his behalf up to the CPO PIP
Reference Price. The CPO order allows the average investor to
participate in penny price PIP auctions when she/he already has an
order on the BOX book for that particular series.
---------------------------------------------------------------------------

    \5\ The term ``CPO Reference Price'' is defined in BOX Rules
Chapter V, Section 18(g)(i).
---------------------------------------------------------------------------

    The second way a Public Customer Order can be submitted into a PIP
auction as an Improvement Order is by submitting instructions to an OFP
to submit an Improvement Order on her/his behalf under any instructions
the OFP wishes to accept. These Public Customer Improvement Orders that
are not submitted as CPO's do not have a limit order on the BOX book
coupled with their Improvement Order. These Improvement Orders are
being submitted in reaction to the PIP auction broadcast.\6\
---------------------------------------------------------------------------

    \6\ The PIP broadcast is disseminated once a PIP is initiated
and is distributed solely to BOX Options Participants. The
broadcasting of this message advises the Options Participants: (1)
That a Primary Improvement Order, as that term is defined in the BOX
Rules Chapter V, Section 18(e), has been processed; (2) of
information concerning series, size, price and side of market, and;
(3) when the PIP will conclude (``PIP Broadcast'').
---------------------------------------------------------------------------

    A Public Customer receiving and reacting to the PIP broadcast needs
highly developed technology similar to the technology used by BOX OFPs
and Market Makers, which is not readily available to the average
investor. This technology is necessary for the Public Customer to
receive significant amounts of data at an extremely high rate of speed
and to react to the PIP broadcast, within the time frame of the three-
second PIP auction. Typically, a Public Customer who can receive a PIP
broadcast and react to it by submitting an Improvement Order would be a
sophisticated investor possessing the aforementioned technology. The
sophisticated Public Customer investor's possession of the technology,
similar to BOX OFPs and Market Makers, allows this Public Customer to
compete in PIPs on the same level playing field as OFPs and Market
Makers.
    The BOX proposes to charge a $0.20 per contract traded fee for
Improvement Orders submitted into a PIP by a Public Customer that are
not submitted as CPO's. The BOX believes this fee is reasonable because
these orders are submitted into a PIP auction, which is a special
trading mechanism within the BOX Trading Host that utilizes the PIP
broadcast to create these orders. The BOX believes it is fair that
customers behaving as ``options professionals'' should be subject to
the same trading fees in the interests of a level playing field. The
BOX is not proposing to charge a fee for Public Customer Improvement
Orders, which are submitted as CPO's. All other Public Customer Orders
traded on BOX, including marketable orders, which interact with a PIP
already underway, will continue to be free.

2. Statutory Basis
    The Exchange believes that the proposal is consistent with the
requirements of Section 6(b) of the Act,\7\ in general, and Section
6(b)(4) of the Act,\8\ in particular, in that it is designed to provide
for the equitable allocation of reasonable dues, fees, and other
charges among its members and issuers and other persons using its
facilities.
---------------------------------------------------------------------------

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

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

    The Exchange believes that the proposed rule change would not
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

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

    The Exchange has not solicited or received comments on the proposed
rule change.

III. Date of Effectiveness of the Proposed Rule

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

IV. Solicitation of Comments

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

Electronic Comments

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

File No. SR-BSE-2006-10 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BSE-2006-10. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commissions Internet Web site (http://www.sec.gov/rules/sro.shtml).

Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for inspection and copying in the
Commission's Public Reference Room. Copies of such filing also will be
available for inspection and copying at the principal office of the
Exchange.
    All comments received will be posted without change; the Commission
does not edit personal identifying information from submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-BSE-2006-10
and should be submitted by June 5, 2006.
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    \9\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\9\
Nancy M. Morris,
Secretary.
 [FR Doc. E6-7321 Filed 5-12-06; 8:45 am]

BILLING CODE 8010-01-P