[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)]
[Rules and Regulations]
[Pages 29498-29501]
[FR Doc No: 2016-11125]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2013-0534; FRL-9946-29-Region 9]

Withdrawal of Approval and Disapproval of Air Quality
Implementation Plans; California; San Joaquin Valley; Contingency
Measures for the 1997 PM2.5 Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is withdrawing a May
22, 2014 final action approving a state implementation plan (SIP)
revision submitted by the State of California under the Clean Air Act
(CAA) to address contingency measure requirements for the 1997 annual
and 24-hour national ambient air quality standards (NAAQS) for fine
particulate matter (PM2.5) in the San Joaquin Valley.
Simultaneously, EPA is disapproving this SIP submission. These final
actions are in response to a decision issued by the U.S. Court of
Appeals for the Ninth

Circuit (Committee for a Better Arvin v. EPA, 786 F.3d 1169 (9th Cir.
2015)) remanding EPA's approval of a related SIP submission and
rejecting EPA's rationale for approving plan submissions that rely on
California mobile source control measures to meet SIP requirements such
as contingency measures, which was a necessary basis for the May 22,
2014 final rule. Finally, EPA is issuing a protective finding for
transportation conformity determinations for the disapproval.

DATES: This rule is effective June 13, 2016.

ADDRESSES: The EPA has established docket number EPA-R09-OAR-2013-0534
for this action. Generally, documents in the docket for this action are
available electronically at http://www.regulations.gov or in hard copy
at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94015-
3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at
the hard copy location (e.g., copyrighted material, large maps), and
some may not be publicly available in either location (e.g., CBI). To
inspect the hard copy materials, please schedule an appointment during
normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Doris Lo, EPA Region IX, (415) 972-
3959<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. Final Action
IV. Statutory and Executive Order Reviews

I. Proposed Action

    On August 17, 2015, EPA proposed to withdraw its May 22, 2014 final
action approving California's July 3, 2013 submission to address
contingency measure requirements for the 1997 annual and 24-hour
PM2.5 NAAQS in the San Joaquin Valley (2013 Contingency
Measure Submittal).\1\ Simultaneously, EPA proposed to disapprove this
SIP submission. These proposed actions were in response to a decision
issued by the U.S. Court of Appeals for the Ninth Circuit remanding
EPA's approval of a related SIP submission and rejecting EPA's
rationale for approving SIP submissions that rely on California mobile
source control measures not actually part of the EPA-approved SIP in
order to meet SIP requirements (Committee for a Better Arvin v. EPA,
786 F.3d 1169 (9th Cir. 2015)), which was a necessary basis for the May
22, 2014 final rule. EPA's May 22, 2014, approval of the 2013
Contingency Measure Submittal likewise relied on the same California
mobile source control measures.
---------------------------------------------------------------------------

    \1\ 80 FR 49190 (August 17, 2015).
---------------------------------------------------------------------------

    EPA proposed to determine that the disapproval of the 2013
Contingency Measure Submittal would not start a mandatory sanctions
clock or Federal implementation plan (FIP) clock because the specific
type of contingency measure at issue in that submittal was no longer a
required attainment plan element for the San Joaquin Valley (SJV) area.
The California Air Resources Board (CARB) had submitted the 2013
Contingency Measure Submittal to address the contingency measure
requirement in CAA section 172(c)(9) as applied to the 2008
PM2.5 Plan, which provided for attainment of the 1997
PM2.5 NAAQS in the SJV by April 5, 2015, the latest
permissible attainment date for this area under subpart 1 of part D,
title I of the Act. EPA stated in the proposed rule that, as a
consequence of EPA's March 27, 2015 reclassification of the SJV area
from ``Moderate'' to ``Serious'' nonattainment for the 1997
PM2.5 NAAQS, the specific requirement for contingency
measures for failure to attain as a Moderate area plan requirement had
been eliminated and superseded by different planning obligations under
subpart 4 of part D, title I of the Act.\2\ Because the State had
submitted the 2013 Contingency Measure Submittal to address a
contingency measure requirement for failure to attain by a statutory
attainment date that no longer applied to the area (April 5, 2015), EPA
proposed to find that this SIP submittal no longer addressed an
applicable requirement of part D, title I of the Act, and that the
disapproval of it therefore would not trigger sanctions. For the same
reason, EPA proposed to find that disapproval of the submission would
not create any deficiency in a mandatory component of the SIP for the
area and, therefore, would not trigger the obligation on EPA to
promulgate a FIP under section 110(c) of the Act.\3\
---------------------------------------------------------------------------

    \2\ Id. at 49192.
    \3\ Id.
---------------------------------------------------------------------------

II. Public Comments and EPA Responses

    EPA received one comment on the proposed action, submitted by
Earthjustice. EPA summarizes and responds to the comment below.
    Comment: Earthjustice argues that EPA has no legal basis for
proposing to determine that the disapproval of the 2013 Contingency
Measure Submittal would not start a mandatory sanctions clock or FIP
clock. According to Earthjustice, section 179(a)(2) of the Clean Air
Act provides that sanctions ``shall apply'' if EPA disapproves a
submission based on its failure to meet one or more CAA requirements
applicable to nonattainment areas, and section 110(c) provides that EPA
``shall promulgate a Federal implementation plan at any time within 2
years after [EPA] . . . disapproves a State implementation plan in
whole or in part . . . .'' Earthjustice asserts that contingency
measures under CAA section 172(c)(9) are required elements for all
attainment plans for nonattainment areas and must provide for the
implementation of specific measures that will be undertaken if the area
fails to attain, regardless of the applicable attainment date. Although
EPA has some flexibility to establish a schedule for submitting a plan
meeting the requirements of section 172(c), according to Earthjustice,
that schedule may not be extended beyond three years from the date of
the nonattainment designation, a date that has passed for the San
Joaquin Valley. Earthjustice argues that the contingency measure
requirement was not a ``Moderate area'' requirement and is not reset or
eliminated with reclassification under subpart 4, and that although
reclassification as a ``Serious area'' may affect the tonnage of
reductions that must be achieved, it does not eliminate the section
172(c)(9) requirement that the District was required to meet years ago.
For all of these reasons, Earthjustice argues that the disapproval of
this submittal triggers a sanctions clock under CAA section 179 and a
FIP clock under section 110(c).
    Response: Upon further consideration of these issues, EPA agrees
with the commenter that the disapproval of the 2013 Contingency Measure
Submittal triggers a mandatory sanctions clock under CAA section 179
and a FIP clock under section 110(c).
    Section 179(a) of the Act provides that, for any SIP revision
required under part D of title I of the Act or required in response to
a finding of substantial inadequacy as described in section 110(k), if
EPA disapproves a submission for a nonattainment area based on the
state's failure to meet one or more of the CAA requirements applicable
to the area, mandatory sanctions under section 179(b) shall apply. The
2013 Contingency Measure Submittal was a plan revision required under
part D of

title I of the Act for the purposes of implementing the 1997
PM2.5 NAAQS in the SJV PM2.5 nonattainment area.
As explained in the proposed action, EPA is disapproving the 2013
Contingency Measure Submittal based on the failure to meet the
contingency measure requirement in CAA section 172(c)(9) for the area--
i.e., because of the reliance on California waiver measures that EPA
has not approved into the California SIP. This disapproval triggers a
mandatory sanctions clock under section 179.
    Section 110(c) of the Act states that EPA ``shall promulgate a
Federal implementation plan at any time within 2 years after the
Administrator--. . . (B) disapproves a State implementation plan
submission in whole or in part,'' unless the State corrects the
deficiency and EPA approves the plan or plan revision before
promulgating such FIP. As a consequence of our disapproval of the 2013
Contingency Measure Submittal, the California SIP does not contain any
contingency measures to be triggered if the SJV area fails to attain
the 1997 PM2.5 NAAQS by the Serious area attainment date,
which is currently December 31, 2015. Because this disapproval creates
a deficiency in the SIP, the disapproval triggers the obligation on EPA
to promulgate a FIP under section 110(c), unless the State submits and
EPA approves a SIP revision correcting the deficiency within two years
of the disapproval.
    As explained in the proposed action, contingency measures for
failure to attain by the Moderate area attainment date are no longer
required in the SJV as the requirement for such measures has been
superseded by the requirement for contingency measures as part of a
Serious area plan for the 1997 PM2.5 NAAQS in this area.\4\
Thus, the State is no longer required to adopt contingency measures for
failure to attain by April 5, 2015. Because the SJV area is currently
classified as a Serious nonattainment area for the 1997
PM2.5 NAAQS, however, the State must satisfy the contingency
measure requirement in section 172(c)(9) as applied to a Serious area
attainment plan to provide for attainment of the 1997 PM2.5
NAAQS in the SJV no later than the applicable attainment date, which is
currently December 31, 2015.
---------------------------------------------------------------------------

    \4\ Id. at 49192 (August 17, 2015).
---------------------------------------------------------------------------

    California submitted a Serious area plan for the 1997
PM2.5 NAAQS in the SJV on June 25, 2015, together with
requests for extension of the Serious area attainment date under CAA
section 188(e) to December 31, 2018 and December 31, 2020 for the 1997
24-hour and annual standards, respectively, and EPA has proposed to
grant these requests for extension of the attainment date.\5\ If EPA
takes final action to extend the Serious area attainment date for the
1997 PM2.5 NAAQS in the SJV, the State will be obligated to
adopt and submit contingency measures to be implemented if the SJV area
fails to make reasonable further progress or to attain the 1997
PM2.5 NAAQS by the extended attainment date(s) approved by
EPA in that action. We encourage the State and District to consult with
EPA during their development of a corrective SIP submission to ensure
that it fully satisfies the section 172(c)(9) contingency measure
requirement for the 1997 PM2.5 NAAQS in the SJV area and
thereby corrects the current deficiency in the SIP.
---------------------------------------------------------------------------

    \5\ 81 FR 6936 at 6938 (February 9, 2016).
---------------------------------------------------------------------------

III. Final Action

    EPA is withdrawing its May 22, 2014 final action approving the 2013
Contingency Measure Submittal. Simultaneously, under section 110(k)(3)
of the Act, EPA is disapproving this SIP submission for failure to
satisfy the requirements of CAA section 172(c)(9).
    Under section 179(a) of the CAA, a final disapproval of a submittal
that addresses a requirement of part D of title I of the CAA or is
required in response to a finding of substantial inadequacy as
described in CAA section 110(k)(5) (SIP Call), triggers a sanction
clock under CAA section 179(b) that runs from the effective date of the
final action. The first sanction, the offset sanction in CAA section
179(b)(2), will apply in the SJV PM2.5 nonattainment area 18
months after June 13, 2016. The second sanction, highway funding
sanctions in CAA section 179(b)(1), will apply in the area six months
after the offset sanction is imposed. Neither sanction will be imposed
under the CAA if California submits and we approve, prior to the
implementation of the sanctions, a SIP submission that corrects the
deficiencies identified in this final action.
    In addition to the sanctions, CAA section 110(c)(1) provides that
EPA must promulgate a federal implementation plan (FIP) addressing the
deficiency at any time within two years after June 13, 2016, the
effective date of this rule, unless the state makes a SIP submission to
correct the deficiency and EPA approves such submission before
promulgating a FIP.
    Because we previously approved the RFP and attainment
demonstrations and the motor vehicle emissions budgets,\6\ we are
issuing a protective finding under 40 CFR 93.120(a)(3) to the
disapproval of the contingency measures. Without a protective finding,
the final disapproval would result in a conformity freeze, under which
only projects in the first four years of the most recent conforming
Regional Transportation Plan and Transportation Improvement Programs
can proceed. During a freeze, no new RTPs, TIPs or RTP/TIP amendments
can be found to conform.\7\ Under this protective finding, the final
disapproval of the contingency measures does not result in a
transportation conformity freeze in the San Joaquin Valley
PM2.5 nonattainment area.
---------------------------------------------------------------------------

    \6\ 76 FR 69896 (November 9, 2011).
    \7\ 40 CFR 93.120(a)(2).
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at http://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 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 SIP disapproval does not in-and-of itself create
any new information collection burdens, but simply disapproves 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 SIP
disapproval does not in-and-of itself create any new requirements but
simply disapproves 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 disapproves pre-existing requirements
under State or local law, and imposes no new requirements. Accordingly,
no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

E. Executive Order 13132: Federalism

    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: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP revision that the EPA is
disapproving would not apply on any Indian reservation land or in any
other area where the 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

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the 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 SIP disapproval does not in-and-of
itself create any new regulations, but simply disapproves 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 the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The 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 Population

    The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 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. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 11, 2016. Filing a
petition for reconsideration 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 may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Sulfur oxides.

    Dated: April 29, 2016.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is
amended 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 F--California

0
2. Section 52.220 is amended by adding paragraph (c)(438)(ii)(C) to
read as follows:

Sec.  52.220  Identification of plan.

* * * * *
    (c) * * *
    (438) * * *
    (ii) * * *
    (C) Previously approved in paragraphs (c)(438)(ii)(A)(1),
(c)(438)(ii)(A)(2), (c)(438)(ii)(A)(3), and (c)(438)(ii)(B)(1) of this
section and now deleted without replacement: ``Quantifying Contingency
Reductions for the 2008 PM2.5 Plan'' (dated June 20, 2013),
SJVUAPCD Governing Board Resolution No. 13-6-18 (dated June 20, 2013),
Electronic mail (dated July 24, 2013) from Samir Sheikh to Kerry Drake,
and California Air Resources Board Executive Order 13-30 (dated June
27, 2013).
* * * * *

0
3. Section 52.237 is amended by adding paragraph (a)(8) to read as
follows:

Sec.  52.237  Part D disapproval.

    (a) * * *
    (8) The contingency measure portion of the 2008 PM2.5
Plan for attainment of the 1997 PM2.5 standards in the San
Joaquin Valley (June 2013).

[FR Doc. 2016-11125 Filed 5-11-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register: June 6, 2007 (Volume 72, Number 108)]
[Notices]
[Page 31320-31321]
[DOCID:fr06jn07-85]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2244-016]

Energy Northwest; Notice of Application for Amendment of License
and Soliciting Comments, Motions To Intervene, and Protests

May 31, 2007.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Amendment of License to construct a permanent
tailrace barrier.
    b. Project No.: P-2244-016.
    c. Date Filed: April 9, 2007.
    d. Applicant: Energy Northwest.
    e. Name of Project: Packwood Lake Project.
    f. Location: The project is located in Lewis County, Washington,
and within the Gifford Pinchot National Forest.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Ms. Laura Schinnell, Energy Northwest, P.O.
Box 968, Mail Drop 1030, Richland, WA 99342-0968.
    i. FERC Contact: Diana Shannon, Telephone<PHONE_NUMBER>, and e-
mail: Diana<EMAIL_ADDRESS>    j. Deadline for filing comments, motions to intervene, and protest:
July 2, 2007.
    All documents (original and eight copies) should be filed with: The
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.

    The Commission's Rules of Practice and Procedure require all
interveners filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervener files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency. A copy
of any motion to intervene must also be served upon each representative
of the Applicant specified in the particular application.
    k. Description of Request: Energy Northwest proposes to install a
permanent tailrace barrier within the existing tailrace canal for the
purpose of preventing fish, both resident and anadromous, from
traveling up the project tailrace and stilling basin. Such delays in
migration could result in delayed spawning or pre-spawning mortality.
Construction is planned for October 2007. The licensee has consulted
with federal and state resource agencies in the barrier's design and in
developing its proposal.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street, NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov using the

``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. You may also
register online at http://www.ferc.gov/docs-filing/esubscription.asp to

be notified via e-mail of new filings and issuances related to this or
other pending projects. For assistance, call 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item
(h) above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Any filings must bear in all capital letters the title
``COMMENTS'', ``PROTEST'', or ``MOTION TO INTERVENE'', as applicable,
and the Project Number of the particular application to which the
filing refers.
    p. Agency Comments: Federal, State, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.
    q. Comments, protests and interventions may be filed electronically
via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's Web site at http://www.ferc.gov

under the ``e-Filing'' link.

Kimberly D. Bose,
Secretary.
[FR Doc. E7-10837 Filed 6-5-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: December 16, 2008 (Volume 73, Number 242)]
[Notices]
[Page 76433-76435]
[DOCID:fr16de08-101]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59070; File No. SR-NASDAQ-2008-092]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Trade the Shares of the MacroShares $100 Oil Up Trust and the
MacroShares $100 Oil Down Trust

December 9, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 1, 2008, The NASDAQ Stock Market LLC (``Nasdaq'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by Nasdaq. Nasdaq has
designated the proposed rule change as constituting a rule change under
Section 19(b)(3)(A) of the Act \3\ and Rule 19b-4(f)(6) thereunder,\4\
which renders the proposal effective upon filing with the Commission.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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

    Nasdaq proposes to trade, pursuant to unlisted trading privileges
(``UTP''), shares of the MacroShares $100 Oil Up Trust (``Up Trust'')
and the MacroShares $100 Oil Down Trust (``Down Trust'', and, together
with the Up Trust, the ``Trusts''). The shares of the Up Trust are
referred to as the Up MacroShares, and the shares of the Down Trust are
referred to as the Down MacroShares (collectively, the ``Shares'').
    The text of the proposed rule change is available from Nasdaq's Web
site at http://nasdaq.cchwallstreet.com, at Nasdaq's principal office,
and at the Commission's Public Reference Room.

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

    In its filing with the Commission, Nasdaq included statements
concerning the purpose of, and basis for, the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below, and is set forth in Sections A, B, and C below.

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

1. Purpose
    Nasdaq proposes to trade the Shares pursuant to UTP. The Commission
has recently approved the substantially identical filing of NYSE Arca,
Inc. for the listing and trading of the same product.\5\ Also, the
Commission has previously approved the listing and/or trading of a
product similar to the Shares.\6\ The Up MacroShares and the Down
MacroShares will be offered by the Up Trust and the Down Trust,
respectively, established by MACRO Securities Depositor LLC, as
depositor, under the laws of the State of New York. The Trusts are not
registered with the Commission as investment companies.\7\ The Trusts
are currently listed on NYSE Alternext U.S. LLC (``NYSE Alternext US''
(formerly, the American Stock Exchange LLC (``Amex'')) and are traded
pursuant to UTP.\8\ Prior to listing on NYSE Arca, Inc., the Trusts
would be required to satisfy the applicable delisting procedures of
NYSE Alternext U.S. and applicable statutory and regulatory
requirements, including, without limitation, Section 12 of the Act,\9\
relating to listing the Shares on NYSE Arca, Inc.\10\
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 58873 (October 28,
2008), 73 FR 65709 (November 4, 2008) (SR-NYSEArca-2008-110) (``NYSE
Arca Order'').
    \6\ The Commission approved the trading of a similar product on
Nasdaq pursuant to UTP when it approved Securities Exchange Act
Release No. 55740 (May 10, 2007) (SR-NASDAQ-2007-048), 72 FR 27889
(May 17, 2007) (approving UTP trading of Claymore MACROshares Oil Up
Tradeable Shares and Claymore MACROshares Oil Down Tradeable
Shares). See also Securities Exchange Act Release No. 55033
(December 29, 2006), 72 FR 1253 (January 10, 2007) (SR-NYSEArca-
2006-75) (approving UTP trading of Claymore MACROshares Oil Up
Tradeable Shares and Claymore MACROshares Oil Down Tradeable
Shares). The Commission also approved such product for listing and
trading on the American Stock Exchange LLC. See Securities Exchange
Act Release No. 54839 (November 29, 2006), 71 FR 70804 (December 6,
2006) (SR-Amex-2006-82) (approving listing and trading Claymore
MACROshares Oil Up Tradeable Shares and Claymore MACROshares Oil
Down Tradeable Shares).
    \7\ The Shares are being offered by the Trusts under the
Securities Act of 1933, as amended. On April 17, 2008, the depositor
filed with the Commission a Registration Statement on Form S-1 for
both the Up MacroShares (File No. 333-150282-01) (``Up Trust
Registration Statement'') and the Down MacroShares (File No. 333-
150282-02) (``Down Trust Registration Statement'' and together with
the Up Trust Registration Statement, the ``Registration
Statements'').
    \8\ See Securities Exchange Act Release No. 58057 (June 30,
2008), 73 FR 38474 (July 7, 2008) (SR-Amex-2008-36) (order approving
listing of the Trusts on the Amex) (``Amex Order''); Securities
Exchange Act Release No. 58058 (June 30, 2008), 73 FR 38484 (July 7,
2008) (SR-NYSEArca-2008-65) (order approving trading of the Trusts
on the Exchange pursuant to UTP).
    \9\ 15 U.S.C. 78(l).
    \10\ NYSE Arca, Inc. has represented that it will seek the
voluntary consent of the issuer of the Shares to be delisted from
NYSE Alternext U.S. and listed on NYSE Arca, Inc. NYSE Arca, Inc.
has noted that its approval of the Trusts' listing applications
would be required prior to listing. See NYSE Arca Order, supra note
3, 73 FR at 65710.
---------------------------------------------------------------------------

    Nasdaq deems the Shares to be equity securities, thus rendering the
trading in the Shares subject to its existing rules governing the
trading of equity securities, including Nasdaq Rule 4630, which governs
trading of Commodity-related Securities. The Shares will trade on
Nasdaq from 7 a.m. until 8 p.m. Eastern Time (``ET'').\11\ The Trusts
have represented that they are relying on the exemption provided for
passive trusts under Rule 10A-3(c)(7)\12\ under the Act with respect to
establishment of an independent audit committee.
---------------------------------------------------------------------------

    \11\ See E-mail from Jonathan Cayne, Associate General Counsel,
NASDAQ OMX to Mitra Mehr, Special Counsel, Division of Trading and
Markets, Commission, dated December 8, 2008 (clarifying trading
hours).
    \12\ 17 CFR 240.10A-3(c)(7).
---------------------------------------------------------------------------

    More information regarding the Shares, the Trusts, the Applicable
Reference Price of Crude Oil, quarterly distributions, final
distributions, underlying values, risks, fees and expenses, termination
triggers, and creation and redemption procedures can be found in the
Registration Statements and the Amex Order.\13\
---------------------------------------------------------------------------

    \13\ Terms relating to the Trusts referred to, but not defined
herein, are defined in the Registration Statements.
---------------------------------------------------------------------------

Availability of Information
    Intraday Indicative Values. Quotations for and last sale
information regarding the Shares are disseminated through the
Consolidated Tape Association (``CTA''). Throughout each price
determination day, NYSE

Alternext US, acting as the calculation agent for each Trust, will
calculate and disseminate, at least every 15 seconds from 9:30 a.m.
until 4:15 p.m. during the time the Shares trade on Nasdaq, through the
facilities of the CTA, an estimated value (referred to as an ``Intraday
Indicative Value'' or ``IIV'') for the underlying value per Share of
both the Up MacroShares and the Down MacroShares. The purpose of this
disclosure is to promote liquidity and intraday pricing transparency
with respect to these estimated per-Share underlying values, which can
be used in connection with other related market information. To enable
this calculation, the NYSE Alternext U.S. will receive real time price
data from the NYMEX through two major market data vendors for the light
sweet crude oil futures contract of the designated maturity that trades
on the NYMEX.
    Because the NYMEX market for the light sweet crude oil futures
contract will be closed for portions of the period from 9:30 a.m. until
4:15 p.m. ET, the IIV calculated values will become fixed and will not
be updated at such times that the NYMEX contract is not trading.\14\
Conversely, at times when the light sweet crude oil futures contract of
the designated maturity is trading on NYMEX, those trades will be used
to update the IIV values.
---------------------------------------------------------------------------

    \14\ The IIV calculated during the period following the daily
opening of the regular session trading at 9:30 a.m. but prior to any
trades taking place on the NYMEX in the relevant light sweet crude
oil futures contract will be based on the final price of the futures
contract on the prior trading day.
---------------------------------------------------------------------------

    Availability of Other Information and Data. At the end of each
price determination day, NYSE Alternext U.S. will also calculate the
premium or discount of the midpoint of the bid/offer for the Up
MacroShares at their close relative to the underlying value of one of
those Shares for that price determination day. NYSE Alternext U.S. will
also perform the same calculation with respect to the Down MacroShares.
MacroMarkets LLC (``MacroMarkets'') will then post thesepremiums/
discounts, together with the end-of-day price information for the
Shares, on itsWeb site at http: //www.macromarkets.com. Further,
MacroMarkets will post on its Web site the Applicable Reference Price
of Crude Oil that was reported by NYMEX for any price determination
day. NYSE Arca, Inc. also intends to disseminate a variety of data with
respect to the Shares on a daily basis by means of CTA and CQ High
Speed Lines, including quotation and last sale data information.
    On each price determination day, State Street Bank and Trust
Company, the trustee for the Trusts, will calculate the underlying
value of the Up Trust and the Down Trust and the per-Share underlying
value of one Up MacroShare and one Down MacroShare, based on the
Applicable Reference Price of Crude Oil established and reported by
NYMEX. The trustee will then provide such values to MacroMarkets, which
will post them on its Web site, and information posted on such Web site
will be made available to all market participants at the same time. All
investors and marketparticipants will have access to MacroMarkets' Web
site at no charge. Information regarding secondary market prices and
volume of the Shares will be broadly available on a real-time basis
throughout the trading day on brokers' computer screens and other
electronic services. The previous day's closing price and trading
volume information will be published daily in the financial section of
newspapers.
Trading Halts
    Nasdaq will halt trading in the Shares under the conditions
specified in Nasdaq Rules 4120 and 4121. The conditions for a halt
include a regulatory halt by the listing market. UTP trading in the
Shares will also be governed by provisions of Nasdaq Rule 4120(b)
relating to temporary interruptions in the calculation or wide
dissemination of the IIV. Additionally, Nasdaq may cease trading the
Shares if other unusual conditions or circumstances exist which, in the
opinion of Nasdaq, make further dealings on Nasdaq detrimental to the
maintenance of a fair and orderly market. Nasdaq will also follow any
procedures with respect to trading halts as set forth in Nasdaq Rule
4120(c). Nasdaq also will stop trading the Shares if the listing market
delists them.
    If the Exchange becomes aware that the underlying value per Share
of each Up Share and Down Share is not disseminated to all market
participants at the same time, it will halt trading in the Up
MacroShares or the Down MacroShares, as the case may be, until such
time as the underlying value per share is available to all market
participants.
Trading Rules
    Nasdaq deems the Shares to be equity securities, thus rendering
trading in the Shares subject to its existing rules governing the
trading of equity securities, including Rule 4630, which governs
trading of Commodity-Related Securities. The trading hours for the
Shares on the Exchange would be 7 a.m. to 8 p.m., ET, unless such
trading hours are changed by a subsequent rule change.
Surveillance
    Nasdaq believes that its surveillance procedures are adequate to
address any concerns about the trading of the Shares on Nasdaq. Trading
of the Shares through Nasdaq will be subject to FINRA's surveillance
procedures for equity securities in general and ETFs in particular.\15\
The Exchange may obtain information via the Intermarket Surveillance
Group (``ISG'') from other exchanges who are members or affiliates of
the ISG.\16\
---------------------------------------------------------------------------

    \15\ FINRA surveils trading on Nasdaq pursuant to a regulatory
services agreement. Nasdaq is responsible for FINRA's performance
under this regulatory services agreement.
    \16\ For a list of the current members and affiliate members of
ISG, see http://www.isgportal.com.
---------------------------------------------------------------------------

Information Circular
    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: (1) The procedures for purchases
and redemptions of Shares of the Trusts (and that Shares are not
individually redeemable); (2) Nasdaq Rule 2310, which imposes
suitability obligations on Nasdaq members with respect to recommending
transactions in the Shares to customers; (3) how information regarding
the IIV is disseminated; (4) the requirement that members deliver a
prospectus to investors purchasing newly issued Shares prior to or
concurrently with the confirmation of a transaction; (5) the risks
involved in trading the Shares during the Pre-Market and Post-Market
Sessions when an updated IIV will not be calculated or publicly
disseminated; and (6) trading information.
    The Exchange notes that investors purchasing Shares directly from a
Trust will receive a prospectus. Members purchasing Shares from a Trust
for resale to investors will deliver a prospectus to such investors.
The Information Circular will also discuss any exemptive, no-action and
interpretive relief granted by the Commission from any rules under the
Act.
    In addition, the Information Circular will reference that the
Shares are subject to various fees and expenses described in the
Registration Statements. The Information Circular will also reference
that the CFTC has regulatory jurisdiction over the trading of futures
contracts.

    The Information Circular will also disclose the trading hours of
the Shares and that the NAV for the Shares will be calculated after 4
p.m. ET each trading day. The Information Circular will disclose that
information about the Shares and the corresponding Indexes will be
publicly available on the Shares' Web site.
2. Statutory Basis
    Nasdaq believes that the proposal is consistent with Section 6(b)
of the Act \17\ in general and Section 6(b)(5) of the Act \18\ in
particular, in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, remove impediments to a free and open market and a
national market system, and, in general, to protect investors and the
public interest. The Commission has approved the NYSE Arca, Inc.
listing and trading of the Shares.\19\
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
    \19\ See supra note 5.
---------------------------------------------------------------------------

    In addition, Nasdaq believes that the proposal is consistent with
Rule 12f-5 under the Act \20\ because it deems the Shares to be an
equity securities, thus rendering trading in the Shares subject to
Nasdaq's existing rules governing the trading of equity securities.
---------------------------------------------------------------------------

    \20\ 17 CFR 240.12f-5.
---------------------------------------------------------------------------

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

    Nasdaq does not believe that the proposed rule change will impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

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

    Written comments were neither solicited nor received.

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

    Because the foregoing proposed rule change does not:
    (i) Significantly affect the protection of investors or the public
interest;
    (ii) impose any significant burden on competition; and
    (iii) become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate if
consistent with the protection of investors and the public interest, it
has become effective pursuant to Section 19(b)(3)(A) of the Act \21\
and Rule 19b-4(f)(6) thereunder.\22\
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f)(6). The Commission notes that Nasdaq
has satisfied the five day pre-filing notice requirement.
---------------------------------------------------------------------------

    Nasdaq has asked the Commission to waive the 30-day operative
delay. The Commission believes that such waiver is consistent with the
protection of investors and the public interest because such waiver
should benefit investors by creating, without undue delay, additional
competition in the market for the Shares. The Commission has previously
approved the listing and trading of the Shares on another exchange \23\
and does not believe that the proposed rule change presents any novel
or significant regulatory issues. Therefore, the Commission designates
the proposed rule change as operative upon filing.\24\
---------------------------------------------------------------------------

    \23\ See supra note 5.
    \24\ For purposes only of waiving the operative date of this
proposal, the Commission has considered the rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2008-092 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2008-092. 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 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 inspection
and copying in the Commission's Public Reference Room on official
business days between the hours of 10 a.m. and 3 p.m. Copies of such
filing also will be available for inspection and copying at the
principal offices 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-NASDAQ-2008-092 and should be submitted on or before
January 6, 2009.

Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-29695 Filed 12-15-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Notices]
[Page 75283]
[FR Doc No: 2023-24208]

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

ENVIRONMENTAL PROTECTION AGENCY

[CERCLA-04-2023-2530(b) et al.; FRL-11526-01-R4]

Bennett Landfill Fire Superfund Site, Chester, South Carolina;
Proposed Settlements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed settlements.

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

SUMMARY: Under the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), the United States Environmental Protection
Agency is proposing to enter into individual settlements with three
parties concerning the Bennett Landfill Fire Site located in Chester,
South Carolina. The proposed settlements address recovery of CERCLA
costs for a cleanup that was performed at the Site and costs incurred
by EPA. The individual proposed settlements are as follows: Perrigo
Company, CERCLA-04-2023-2530(b); Brookland Lakeview Empowerment Center,
CERCLA-04-2023-2531(b); and Spartanburg County School District 4,
CERCLA-04-2023-2534(b).

DATES: The Agency will consider public comments on the proposed
settlements until December 4, 2023. The Agency will consider all
comments received and may modify or withdraw its consent to the
proposed settlements if comments received disclose facts or
considerations which indicate that the proposed settlement is
inappropriate, improper, or inadequate.

ADDRESSES: Copies of the proposed settlements are available from the
Agency by contacting Ms. Paula V. Painter, Program Analyst, using the
contact information provided in this notice. Comments may also be
submitted by referencing the Site's name through one of the following
methods:
    Internet: https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices.
    Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Paula V. Painter at 404/562-8887.

Maurice Horsey,
Branch Manager, Enforcement Branch, Superfund & Emergency Management
Division.
[FR Doc. 2023-24208 Filed 11-1-23; 8:45 am]
BILLING CODE 6560-50-P