[Federal Register: April 22, 2010 (Volume 75, Number 77)]
[Notices]
[Page 21076-21077]
[DOCID:fr22ap10-129]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61915; File No. SR-CBOE-2010-033]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated: Notice of Filing and Immediate Effectiveness of Proposed
Rule Change To Amend the Strategy Fee Cap Program

April 15, 2010.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of
1934, 15 U.S.C. 78s(b)(1), notice is hereby given that on March 26,
2010, Chicago Board Options Exchange, Incorporated (``CBOE'' or the
``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 by CBOE. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.

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

    Chicago Board Options Exchange, Incorporated (``CBOE'' or
``Exchange'') proposes to amend its strategy fee cap program. The text
of the proposed rule change is available on the Exchange's Web site
(http://www.cboe.org/legal), at the Exchange's Office of the Secretary
and at the Commission.

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

    In its filing with the Commission, CBOE included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. CBOE has prepared summaries, set forth in section (A),
(B), and (C) below, of the most significant aspects of such statements.

 (a) Purpose

    The Exchange caps market-maker, firm, and broker-dealer transaction
fees associated with dividend, merger and short stock interest
strategies, as described in Footnote 13 of the CBOE Fees Schedule
(``Strategy Fee Cap''). Specifically, market-maker, firm and broker-
dealer transaction fees are capped at $1,000 for all (i) Dividend
strategies,\1\ (ii) merger strategies \2\ and (iii) short stock
interest strategies \3\ executed on the same trading day in the same
options class. In addition, such transaction fees for these strategies
are further capped at $25,000 per month per initiating member or firm.
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    \1\ A dividend strategy is defined as transactions done to
achieve a dividend arbitrage involving the purchase, sale and
exercise of in-the-money options of the same class, executed prior
to the date on which the underlying stock goes ex-dividend.
    \2\ A merger strategy is defined as transactions done to achieve
a merger arbitrage involving the purchase, sale and exercise of
options of the same class and expiration date, each executed prior
to the date on which shareholders of record are required to elect
their respective form of consideration, i.e., cash or stock.
    \3\ A short stock interest strategy is defined as transactions
done to achieve a short stock interest arbitrage involving the
purchase, sale and exercise of in-the-money options of the same
class.
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    The Exchange proposes a limited expansion of the Strategy Fee Cap
program. Specifically, the Exchange proposes to cap market-maker and
broker-dealer transaction fees at $1,000 for all reversals, conversions
and jelly roll strategies (as defined below) executed on the same
trading day in the same Flexible Exchange (FLEX) option class,
excluding any option class on which the Exchange charges the surcharge
fee under Footnote 14 of the CBOE Fees Schedule. As under the current
program, such transaction fees would be further capped at $25,000 per
month per initiating member or firm, and to qualify transactions for
the cap a rebate request with supporting documentation must be
submitted to the Exchange within 3 business days of the
transactions.\4\
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    \4\ In addition, the Exchange proposes to amend Footnote 13 of
the Fees Schedule to clarify that ``license fees'' has the same
meaning as ``Surcharge Fees'' and that the pass-through of Surcharge
Fees is only applicable to the cap on dividend, merger and short
stock interest strategies since the cap on reversals, conversions
and jelly roll strategies excludes any option class on which the
Exchange assesses the Surcharge Fee.
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    Reversals, conversions and jelly roll strategies are included in
the strategy fee cap programs of other exchanges.\5\ Reversals and
conversions are transactions that employ calls, puts and the underlying
security to lock in a nearly risk free profit. Reversals are
established by combining a short security position with a short put and
a long call position that shares the same strike and expiration.
Conversions employ long positions in the underlying security that
accompany long puts and short calls sharing the same strike and
expiration.
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    \5\ See the options fee schedules of NYSE Amex, LLC and NYSE
Arca, LLC.
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    A Jelly Roll is a long calendar call spread combined with the same
short calendar put spread, or vice versa. This option strategy aims to
profit from a time value spread through the purchase and sale of two
call and two put options, each with different expiration dates. A Jelly
Roll is created by entering into two separate positions simultaneously.
One position involves buying a put and selling a call with the same
strike price and expiration. The second position involves selling a put
and buying a call, with the same strike price, but a different
expiration from the first position. Below is an example of a Jelly Roll
strategy execution.

XYZ Jun/Oct 25 Jelly Roll:
--Buy XYZ Jun 25 put and sell XYZ Jun 25 call
--Sell XYZ Oct 25 Put and buy XYZ Oct 25 call

Market BBO:

Jun 25 call .51 at .53
Jun 25 put .72 at .74
Oct 25 call 1.52 at 1.55
Oct 25 put 2.35 at 2.39

    .74(long Jun put) + 1.52(long Oct call)-.51(short Jun call)-
2.35(short Oct put) = .60 credit received for the Jelly roll.
    The proposed fee change would become operative on March 29, 2010.
    The Exchange proposes to amend Footnote 6 of the Fees Schedule in
conjunction with the proposed expansion of the strategy fee cap to
include reversals, conversions and jelly roll strategies. Specifically,
the Exchange proposes to amend Footnote 6 to clarify that the marketing
fee will not

apply to any of the strategies identified and/or defined in Footnote
13.

 (b) Statutory Basis

    The Exchange believes the proposed rule change is consistent with
Section 6(b) of the Securities Exchange Act of 1934 (``Act''),\6\ in
general, and furthers the objectives of Section 6(b)(4) \7\ of the Act
in particular, in that it is designed to provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and other persons using its facilities. The Exchange believes
excluding member firm transaction fees from the proposed fee cap is
consistent with the Act because member firm transaction fees are
reduced under the Member Firm Proprietary Sliding Scale program.
Market-maker transaction fees are reduced under the Liquidity Provider
Sliding Scale, however market-makers are required to prepay annual fees
for the first two tiers of the sliding scale in order to be eligible
for the fee rates in the lowest tiers while there is no similar
requirement for firms under the Member Firm Proprietary Sliding Scale.
Also, member firm transaction fees are lower than broker-dealer
transaction fees. In addition, the Exchange believes expansion of the
Strategy Fee Cap program would benefit market participants who trade
these strategies by lowering their fees and allow the Exchange to
remain competitive with other exchanges that offer similar fee cap
programs.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(4).
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A. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \8\ and subparagraph (f)(2) of Rule 19b-4 \9\
thereunder. 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.
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(2).
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 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-CBOE-2010-033 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CBOE-2010-033. 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 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
a.m. and 3 p.m. 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
sbmit only information that you wish to make publicly available. All
submissions should refer to File Number SR-CBOE-2010-033 and should be
submitted on or before May 13, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-9275 Filed 4-21-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: March 8, 2007 (Volume 72, Number 45)]
[Proposed Rules]
[Page 10445-10453]
[DOCID:fr08mr07-38]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2001-0004; FRL-8284-1]
RIN 2060-AN88

Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NSR): Reasonable Possibility in Recordkeeping

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA proposes revisions to the regulations governing the
major new source review (NSR) programs mandated by parts C and D of
title I of the Clean Air Act (CAA). These proposed changes clarify the
``reasonable possibility'' recordkeeping and reporting standard of the
2002 NSR reform rules. The ``reasonable possibility'' standard
identifies for sources and reviewing authorities the circumstances
under which a major stationary source undergoing a modification that
does not trigger major NSR must keep records. The standard also
specifies the recordkeeping and reporting requirements on such sources.
Recently, the U.S. Court of Appeals for the DC Circuit in New York v.
EPA, 413 F.3d 3 (DC Cir. 2005) (New York) remanded for the EPA either
to provide an acceptable explanation for its ``reasonable possibility''
standard or to devise an appropriately supported alternative. To
satisfy the Court's remand, we (the EPA) are proposing two alternative
options to clarify what constitutes ``reasonable possibility'' and when
the ``reasonable possibility'' recordkeeping requirements apply. The
two options are the ``percentage increase trigger'' and the ``potential
emissions trigger.''

DATES: Comments. Comments must be received on or before May 7, 2007.
    Public Hearing. If anyone contacts EPA requesting a public hearing
by March 22, 2007, we will hold a public hearing approximately 30 days
after publication in the Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2001-0004 by one of the following methods:
     http://www.regulations.gov: Follow the online instructions

for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Air and Radiation Docket and Information Center,
Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460. In addition, please mail a copy of
your comments on the information collection provisions to the Office of
Information and Regulatory Affairs, Office of Management and Budget
(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC
20503.
     Hand Delivery: Environmental Protection Agency, EPA West
Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2001-0004. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site

is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be

automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, avoid any form of encryption, and be
free of any defects or viruses. For additional information about EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
 For additional instructions on

submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION
section of this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov
 or in hard copy at the Air and Radiation Docket and

Information Center, EPA/DC, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The Public

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the Air
and Radiation Docket and Information Center is<PHONE_NUMBER>.
    Public Hearing: If a public hearing is held, it will be held at 9
a.m. in EPA's Auditorium in Research Triangle Park, North Carolina, or
at an alternate site nearby. Details regarding the hearing (time, date,
and location) will be posted on EPA's Web site at http://www.epa.gov/nsr
 not later than 15 days prior to the hearing date. People interested

in presenting oral testimony or inquiring as to whether a hearing is to
be held should contact Ms. Pam Long, Air Quality Planning Division,
Office of Air Quality Planning and Standards (C504-03), U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711,
telephone<PHONE_NUMBER>, fax number<PHONE_NUMBER>, e-mail address
<EMAIL_ADDRESS>at least 2 days in advance of the public hearing (see

DATES. People interested in attending the public hearing must also call
Ms. Long to verify the time, date, and location of the hearing. The
public hearing will provide interested parties the opportunity to
present data, views, or arguments concerning the proposed action.

FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply To Me?

    Entities affected by this rule include sources in all industry
groups. The majority of sources potentially affected are expected to be
in the following groups:

------------------------------------------------------------------------
          Industry Group             SIC \a\           NAICS \b\
------------------------------------------------------------------------
Electric Services.................        491  221111, 221112, 221113,
                                                221119, 221121, 221122.
Petroleum Refining................        291  324110.
Industrial Inorganic Chemicals....        281  325181, 325120, 325131,
                                                325182, 211112, 325998,
                                                331311, 325188.
Industrial Organic Chemicals......        286  325110, 325132, 325192,
                                                325188, 325193, 325120,
                                                325199.
Miscellaneous Chemical Products...        289  325520, 325920, 325910,
                                                325182, 325510.
Natural Gas Liquids...............        132  211112.
Natural Gas Transport.............        492  486210, 221210.
Pulp and Paper Mills..............        261  322110, 322121, 322122,
                                                322130.
Paper Mills.......................        262  322121, 322122.
Automobile Manufacturing..........        371  336111, 336112, 336211,
                                                336992, 336322, 336312,
                                                336330, 336340, 336350,
                                                336399, 336212, 336213.
Pharmaceuticals...................        283  325411, 325412, 325413,
                                                325414.
------------------------------------------------------------------------
\a\ Standard Industrial Classification.
\b\ North American Industry Classification System.

    Entities affected by the rule also include States, local permitting
authorities, and Indian tribes whose lands contain new and modified
major stationary sources.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of

the information that you claim to be CBI. For CBI information in a disk
or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM
as CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date, and
page number).
     Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives,
and provide substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.
    Commenters wishing to submit proprietary information for
consideration must clearly distinguish such information from other
comments and clearly label it as CBI. Send submissions containing such
proprietary information directly to the following address, and not to
the public docket, to ensure that proprietary information is not
inadvertently placed in the docket: Attention: Mr. Roberto Morales,
U.S. Environmental Protection Agency, OAQPS Document Control Officer,
109 TW Alexander Drive, Room C404-02, Research Triangle Park, NC 27711.
EPA will disclose information identified as CBI only to the extent
allowed by the procedures set forth in 40 CFR part 2. If no claim of
confidentiality accompanies a submission when it is received by the
EPA, the information may be made available to the public without
further notice to the commenter.

C. Where Can I Obtain Additional Information?

    In addition to being available in the docket, an electronic copy of
this proposed rule is also available on the World Wide Web. Following
signature

by the EPA Administrator, a copy of this proposed rule will be posted
on the EPA's New Source Review (NSR) Web site, under Regulations &
Standards, at http://www.epa.gov/nsr.

D. How Is This Preamble Organized?

    The information presented in this preamble is organized as follows:

I. General Information
    A. Does This Action Apply To Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
    C. Where Can I Obtain Additional Information?
    D. How Is This Preamble Organized?
II. Introduction
    A. Purpose of Proposed Rulemaking
    B. Background
    C. Reasonable Possibility Standard
    D. Court Remand of Reasonable Possibility Standard
    E. Interim Interpretation of Reasonable Possibility in Appendix
S
III. Description of This Proposed Action
    A. Application of ``Reasonable Possibility'' Standard
    B. Options for Circumstances Under Which ``Reasonable
Possibility'' Standard Applies
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866--Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Analysis (RFA)
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132--Federalism
    F. Executive Order 13175--Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045--Protection of Children from
Environmental Health Risks and Safety Risks
    H. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898--Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
V. Statutory Authority

II. Introduction

A. Purpose of Proposed Rulemaking

    On December 31, 2002 (67 FR 80187), we promulgated final changes
(variously, ``2002 NSR reform rules,'' ``NSR reform,'' or ``reform
rules'') to the major NSR program contained in 40 CFR 51.165, 51.166,
52.21, and 52.24. Major elements of these NSR reform changes concerned
baseline emissions, actual-to-projected-actual methodology, Clean
Units, Plantwide Applicability Limitations (PALs), and Pollution
Control Projects (PCPs). At that time we also added ``reasonable
possibility'' recordkeeping requirements, to apply to projects at
existing emissions units at a major stationary source (other than
projects at a Clean Unit or at a source with a PAL). Further, the
``reasonable possibility'' requirements only apply if such a project
relies on a projection of post-project actual emissions (as opposed to
potential to emit) in order to demonstrate that the project is not part
of a major modification.
    It was our intent to finalize changes to another part of the major
NSR program, at 40 CFR part 51, appendix S (``Appendix S''), precisely
as we finalized the NSR reform changes. Appendix S provides NSR
requirements applicable to nonattainment areas after EPA promulgates a
new or revised NAAQS but before the area has an approved NSR SIP.
However, in the New York case, the Court remanded the ``reasonable
possibility'' recordkeeping and reporting provision of the 2002 NSR
reform rules for the EPA either to provide an acceptable explanation or
to devise an appropriately supported alternative. The New York case
also vacated the Clean Unit provision and the PCP exemption in the 2002
NSR reform rules. In a separate Federal Register notice published on
this date, we are finalizing changes to Appendix S to add the December
2002 NSR reform changes. These final changes also include an interim
interpretation of the ``reasonable possibility'' standard based on the
``percentage increase trigger'' option as described later.
    To reflect that the Court vacated the Clean Unit provision, this
proposed rule omits reference to Clean Units in the description of
projects to which the ``reasonable possibility'' provisions apply.
    The purpose of this rulemaking is to address the Court's remand by
clarifying the reasonable possibility standard and thus clarifying the
circumstances under which records must be kept for projects that do not
trigger major NSR. For purposes of 40 CFR 51.165, 51.166, 52.21, 52.24,
and part 51 appendix S, we are proposing two main options for
clarifying the ``reasonable possibility'' standard.

B. Background

1. 2002 NSR Reform Rule
    In our 2002 NSR reform rule, we revised the major NSR applicability
test by promulgating an actual-to-projected-actual applicability test
for projects involving existing emissions units. Under this test,
sources base major NSR applicability determinations on projected actual
emissions (not necessarily their future potential to emit).
    Until promulgation of the 2002 NSR reform rules, sources that were
not electric utility steam generating units (EUSGUs) were subject to
the ``potential to emit'' test for determining emissions increases and
therefore were not required to keep records of projected emissions. The
2002 NSR reform rules changed the applicability test for non-EUSGU
sources and created certain recordkeeping requirements under what is
referred to as the ``reasonable possibility'' standard. The NSR reform
rules added the same ``reasonable possibility'' recordkeeping and
reporting requirements for EUSGUs.
2. July 1992 Rule for EUSGUs
    Primarily as a result of Wisconsin Elec. Power Co. v. Reilly
(``WEPCO''), 893 F.2d 901 (7th Cir. 1990), we revised our NSR
regulations in 1992 to apply an actual-to-future-actual test on all
physical or operational changes at EUSGUs except those that are an
addition of a new unit or constitute a replacement of an existing unit.
The 1992 regulation (57 FR 32314, July 21, 1992) provides a
``representative actual annual emissions'' methodology that requires
the EUSGU (other than a new unit or the replacement of an existing
unit) to compare its baseline emissions with its estimated future
actual emissions to determine how much the proposed change will
increase actual emissions. A discussion of the WEPCO case is included
in the preamble to the 1992 regulation.
    In the 1992 regulation, EPA added a reporting provision as a
safeguard to ensure that future actual emissions resulting from the
change that exceeded the estimate would not go unnoticed or unreviewed.
Under the reporting provision, sources that utilize the
``representative actual annual emissions'' methodology to determine
that they are not subject to NSR must maintain and submit sufficient
records to determine if the change results in an increase in
representative actual annual emissions. The regulation generally
required that the owner or operator submit records to the reviewing
authority on an annual basis for a period of 5 years from the date the
unit resumes regular operation after the change; however, it allowed
for a longer tracking period, not to exceed 10 years, in cases where
the permitting agency determined that such longer period was necessary
to capture normal source operations. We expected that documentation of
post-change actual annual emissions would not impose any additional
data collection burden on the part of the EUSGUs, because the EUSGUs
would submit the same data

normally used to report emissions or operational levels under other
existing requirements. As we noted in the preamble to the 1992
regulations (57 FR at 32325), the purpose of the provision is ``to
provide a reasonable means of determining whether a significant
increase in representative actual annual emissions resulting from a
proposed change at an existing utility occurs within the 5 years
following the change.'' Prior to 1992, no sources were required to keep
records of projected emissions under major NSR because only the actual-
to-potentials test was used.

C. Reasonable Possibility Standard

    Under the two-step applicability test of the 2002 NSR reform rules,
a physical or operational change is a major modification for a
regulated NSR pollutant if it causes both: (1) A significant emissions
increase (see, e.g., 40 CFR 52.21(b)(40)); and (2) a significant net
emissions increase (as defined pursuant to, e.g., 40 CFR 52.21(b)(3)
and (b)(23)). Under the first step of this test, you compare baseline
actual emissions before the change to projected actual emissions after
the change to determine whether the change would result in a
significant increase in emissions. The regulation defines ``projected
actual emissions'' such that the owner or operator of the major
stationary source projects the post-project maximum annual rate at
which an existing emissions unit would emit a regulated NSR pollutant.
See, e.g., 40 CFR 52.21(b)(41)(i). This definition provides that an
owner or operator may use the emissions unit's potential to emit, in
tons per year, in lieu of a projection. Under the second step, which is
referred to as netting, you net the contemporaneous emissions decreases
and increases that occurred at the source against the emissions
increase determined under the first step. If the net amount equals or
exceeds the significant level, then the change triggers major NSR.
(``Significant levels'' for regulated NSR pollutants are commonly
called ``significance levels'' or ``significance thresholds,'' and
these terms are used interchangeably for purposes of this proposed
action.)
    In the reform rules (see 40 CFR 51.165(a)(6), 40 CFR 51.166(r), and
40 CFR 52.21(r)), EPA determined that a source making a change need not
keep records of its emissions (including data on which the source based
its projections and data of actual emissions going forward) unless the
source believes there is a ``reasonable possibility'' that the change
may result in a significant emissions increase. See, e.g., 40 CFR
52.21(r)(6).

    The provisions of this paragraph (r)(6) apply to projects at an
existing emissions unit at a major stationary source (other than
projects at * * * a source with a PAL) in circumstances where there
is a reasonable possibility that a project that is not a part of a
major modification may result in a significant emissions increase
and the owner or operator elects to use the method specified in
paragraphs (b)(41)(ii)(a) through (c) of this section for
calculating projected actual emissions.

    To determine whether a change at an existing emissions unit will
result in an emissions increase, you must use an actual-to-projected-
actual applicability test. Note, however, that you may opt to use the
source(s potential to emit as its projected actual emissions (see,
e.g., 40 CFR 52.21(b)(41)(ii)(d)).
    The ``reasonable possibility'' standard requires that a source keep
records if it meets the following three requirements: (i) The source
projects post-change actual emissions and does not use the actual-to-
potential test. (ii) The source determines that the change would not
trigger major NSR. (iii) The source nevertheless believes that there is
a reasonable possibility that the change may significantly increase
emissions.\1\ For subject sources, the ``reasonable possibility''
recordkeeping requirements apply to all regulated NSR pollutants, and
they apply to each emissions unit that could be affected by the
project. Further, if the project increases design capacity or PTE of
any regulated NSR pollutant, the recordkeeping and reporting
requirements apply for 10 years instead of 5 years. (For purposes of
this proposed action, we refer to the physical or operational change
as, interchangeably, a change or a project.)
---------------------------------------------------------------------------

    \1\ The ``reasonable possibility'' standard covers both EUSGUs
and non-EUSGUs. As noted above, prior to promulgation of the
``reasonable possibility'' standard, an EUSGU that made a change
that did not result in a significant emissions increase (under the
actual-to-projected-actual measure) was required to provide the
permitting authority with at least 5 years of data to confirm the
accuracy of the projection.
---------------------------------------------------------------------------

    More specifically, if your change or project has a reasonable
possibility of resulting in a significant emissions increase, then you
must: (1) Keep certain records that are created before construction
(description of the project, identification of emissions units affected
by the project, and a description of the applicability test); and (2)
monitor emissions, calculate annual emissions, and maintain records of
emissions for 5 years (or 10 years in certain cases) once the change is
completed. If the change's annual emissions for a calendar year exceed
the baseline by a significant amount and also differ from the
projection, then you are additionally required to report emissions for
the calendar year.

D. Court Remand of Reasonable Possibility Standard

    In the New York case, the Court held, ``Because EPA has failed to
explain how it can ensure NSR compliance without the relevant data, we
will remand for it either to provide an acceptable explanation for its
`reasonable possibility' standard or to devise an appropriately
supported alternative.'' 413 F.3d at 35-36. The Court explained:

    The problem is that EPA has failed to explain how, absent
recordkeeping, it will be able to determine whether sources have
accurately concluded that they have no `reasonable possibility' of
significantly increased emissions. We recognize that less burdensome
requirements may well be appropriate for sources with little
likelihood of triggering NSR, but EPA needs to explain how its
recordkeeping and reporting requirements allow it to identify such
sources.

413 F.3d at 34. The Court added:

    [T]he intricacies of the actual-to-projected-actual methodology
will aggravate the enforcement difficulties stemming from the
absence of data. The methodology mandates that projections include
fugitive emissions, malfunctions, and start-up costs, and exclude
demand growth unrelated to the change. * * *. Each such
determination requires sources to predict uncertain future events.
By understating projections for emissions associated with
malfunctions, for example, or overstating the demand growth
exclusion, sources could conclude that a significant emissions
increase was not reasonably possible. Without paper trails, however,
enforcement authorities have no means of discovering whether the
exercise of such judgment was indeed ``reasonable.''

Id. at 35.

    We are proposing options for determining the circumstances under
which a change would have a reasonable possibility of significantly
increasing emissions. With the final rulemaking, we intend to clarify
the meaning of the ``reasonable possibility'' standard through the
selected option(s) and thus fully address the Court's remand.

E. Interim Interpretation of Reasonable Possibility in Appendix S

    As stated earlier, in a separate Federal Register notice published
on this date, we are establishing an interim interpretation of the
reasonable possibility provisions for purposes of implementing appendix
S. In that rulemaking, EPA is revising the major NSR requirements that
are applicable to major sources in a State after EPA

revises a NAAQS but before the State receives EPA approval of its NSR
SIP. The purpose of these revisions is to reflect the requirements of
the 2002 NSR reform rule, taking into account the decision in New York.
    For purposes of Appendix S, we are providing an interim
interpretation of ``reasonable possibility'' to apply during the period
until we promulgate our clarification of the ``reasonable possibility''
standard. Under the interim interpretation, we conclude that there is a
``reasonable possibility'' that the change would result in a
significant emissions increase if the change's projected actual
emissions increase equals or exceeds 50 percent of the applicable NSR
significance level for any pollutant. We base this conclusion on an
assumption that the magnitude of projected actual emissions correlates
positively to the likelihood of a significant emissions increase. This
test may be termed the ``percentage increase trigger'' that we propose
in this action, as described below.

III. Description of This Proposed Action

    This action responds to the Court's remand by proposing two options
for determining the circumstances under which a change or project must
be considered to have a ``reasonable possibility'' of significantly
increasing emissions. We explain our basis for why each option is
enforceable and solicit input from the public.
    In this section, we also solicit comment on how the ``reasonable
possibility'' standard is generally applied and what is to be recorded
and reported in the case of a change or project for which there is a
reasonable possibility that the change will result in a significant
emissions increase.

A. Application of ``Reasonable Possibility'' Standard

    This proposed action makes clear that the requirements of the
``reasonable possibility'' standard are triggered on a pollutant-
specific basis and apply on a project-wide basis. This approach is
consistent with our 2002 NSR reform rules. In 40 CFR 52.21(r)(6)(iii),
for example, we require the owner or operator to monitor ``emissions of
any regulated NSR pollutant that could increase as a result of the
project'' for which there is a reasonable possibility of a significant
emissions increase.
    Note that the ``reasonable possibility'' standard is specific to
projects at a major stationary source (see, e.g., 40 CFR 52.21(r)(6)).
Therefore, the proposal to clarify this standard does not apply to
existing minor sources. As a result, existing minor sources will not
become subject to the ``reasonable possibility'' recordkeeping and
reporting standard, even when they make changes that would, if they
were major sources, trigger the applicability of those requirements.
Minor sources remain subject to appropriate recordkeeping and reporting
requirements in the State's minor NSR program.
    Note further that ``synthetic minor modifications'' are also not
subject to the ``reasonable possibility'' standard. When a major
stationary source undertakes a project that would be a major
modification (as defined at 40 CFR 52.21(b)(2) and elsewhere) except
that the source accepts a practically enforceable restriction in order
to limit the project's increase in emissions to less than significant
emissions increase level, the project is termed a ``synthetic minor
modification.'' Such a source must keep records as part of the
practically enforceable restriction (e.g., under a State's minor source
NSR program) in order to demonstrate that the increase in potential
emissions resulting from the project remains below the significance
levels. However, these ``synthetic minor modifications'' are not
subject to the ``reasonable possibility'' standard.
    When we finalize this action to clarify the ``reasonable
possibility'' standard, we intend to apply the clarification where we
refer to ``reasonable possibility'' in 40 CFR 51.165(a)(6),
51.166(r)(6), 52.21(r)(6), and part 51 appendix S. Our final rule will
supersede the interim interpretation of ``reasonable possibility'' that
we are establishing for appendix S in a separate Federal Register
notice published on this date.

B. Options for Circumstances Under Which ``Reasonable Possibility''
Standard Applies

    We propose the following two options for identifying the
circumstances under which the increase in emissions caused by a project
triggers the ``reasonable possibility'' recordkeeping and reporting
requirements. Our preferred option is the ``percentage increase
trigger,'' and as an alternative we propose the ``potential emissions
trigger.'' The amendatory rule language included in this proposed rule
is specific to the ``percentage increase trigger'' option. We believe
the ``potential emissions trigger'' option would be effective without
need for amendatory rule language.
1. Percentage Increase Trigger
    As our preferred option, we propose what we refer to as the
``percentage increase trigger'' option for applying the ``reasonable
possibility'' standard. This ``percentage increase trigger'' is also
our interim interpretation for Appendix S purposes, as described
earlier. Under this proposed option, you would conclude there is a
reasonable possibility that your change will result in a significant
emissions increase if the change's projected actual emissions increase
equals or exceeds a percentage of the applicable NSR significance level
for any pollutant. We propose to use 50 percent of the significance
level for the relevant regulated NSR pollutant as the trigger, but we
solicit comment on use of a different percentage to trigger
recordkeeping and reporting, such as 25, 33, 66 or 75 percent. The
significance levels for regulated NSR pollutants are provided in 40 CFR
51.165(a)(1)(x), 51.166(b)(23)(i), 52.21(b)(23)(i), and paragraph
II.A.10 in appendix S to part 51.
    As noted earlier, the Court found that EPA had not explained how,
under the ``reasonable possibility'' methodology, EPA can ensure NSR
compliance without a source's maintaining relevant data. The Court
explained that for each major NSR applicability determination, the
methodology requires sources to:

    * * * predict uncertain future events. By understating
projections for emissions associated with malfunctions, for example,
or overstating the demand growth exclusion, sources could conclude
that a significant emissions increase was not reasonably possible.
Without paper trails, however, enforcement authorities have no means
of discovering whether the exercise of such judgment was indeed
``reasonable.''

413 F.3d at 35.

    We believe that the proposed ``percentage increase trigger'' option
addresses these concerns. The Court observed, ``We recognize that less
burdensome requirements may well be appropriate for sources with little
likelihood of triggering NSR, but EPA needs to explain how its
recordkeeping and reporting requirements allow it to identify such
sources.'' Id. at 34. The ``reasonable possibility'' requirements apply
only in the case of a change that the source considers small, in that
the source believes it increases projected emissions by only a small
amount. That is, the requirements apply only with respect to a change
that may result in a ``significant emissions increase.''
    The significance levels for most regulated NSR pollutants are on
their face small. Thus, the projects associated with these amounts are
relatively small. This is particularly so because under the
``reasonable possibility'' standard, the requirements are triggered
only by projects that may result in the specified levels of increased
emissions, without

taking into account netting. For the same reasons, very large sources
are less likely to make changes that are covered by the ``reasonable
possibility'' standard because virtually any change that a very large
source makes may be expected to increase emissions above the
significance levels and require a major NSR permit.
    Moreover, under our proposal, a project would avoid triggering the
``reasonable possibility'' requirements only if the source believed
that the emissions increase from the project would be no more than 50
percent of the significance levels. Therefore, our proposal
considerably limits the number of projects that could avoid
``reasonable possibility'' requirements. By assuming that the magnitude
of projected actual emissions correlates positively to the likelihood
of a significant emissions increase, this ``percentage increase
trigger'' option provides that you keep records for projects with a
reasonable possibility of significant emissions increases but also
takes into account the impracticality of your having to keep records
when anticipating only a small increase in emissions. Thus, EPA
believes this interpretation addresses the issues identified by the
Court in the New York case, in that we are providing a clear
distinction, prior to construction, between projects more and less
likely to trigger NSR. Table 1 illustrates by example how the
``percentage increase trigger'' option would apply to two hypothetical
projects at a major stationary source.

      Table 1.--Example Application of Percentage Increase Trigger
------------------------------------------------------------------------
                                 Project 1 example--  Project 2 example--
                                 smaller increase in  larger increase in
                                   actual emissions    actual emissions

------------------------------------------------------------------------
Example pollutant's NSR                            40.
 significance level (tpy).
Trigger level, based on 50                         20.
 percent of significance level
 (tpy).
                                ----------------------------------------
Baseline actual emissions (tpy)  50.................  50.
Projected actual emissions       60.................  90.
 after change (tpy).
Increase in actual emissions     10.................  40.
 (tpy).
Does project trigger             No, because          Yes, because
 ``reasonable possibility''       ``increase in        ``increase in
 requirements?                    actual emissions''   actual
                                  (10 tpy) is less     emissions'' (40
                                  than ``trigger       tpy) is greater
                                  level'' (20 tpy).    than ``trigger
                                                       level'' (20 tpy).
------------------------------------------------------------------------

    Under the ``percentage increase trigger'' option, we acknowledge
that a source with projected actual emissions below 50 percent (or some
other percentage) of the NSR significance levels would be able to avoid
``reasonable possibility'' recordkeeping and reporting requirements.
However, we believe that EPA has numerous means of enforcing the NSR
provisions against such a source, even in the absence of records kept
under the ``reasonable possibility'' standard. Two types of records a
source owner or operator is generally expected to keep are: (1) Records
to report emissions; and (2) records for business purposes. Records for
business purposes could include corporate minutes, blueprints, plant
manager logs, records of capital costs and purchases of materials, and
other documents that would describe the types of changes made at the
source (wholly apart from changes in emissions that result from the
changes). Businesses also have incentives to maintain design parameter
information for safety and maintenance reasons. We note that these
records give EPA an adequate basis to bring to bear certain enforcement
tools, such as the authority to compel document production, conduct
inspections, and compel oral testimony, in order to enforce the
``reasonable possibility'' standard. We solicit comment on the types of
records sources keep for business purposes.
    We request comment on whether to adopt a percentage increase
trigger for recordkeeping requirements under the ``reasonable
possibility'' standard.
2. Potential Emissions Trigger
    We propose an alternative interpretation, what we refer to as the
``potential emissions trigger'' option. Under this option, you would
conclude there is a reasonable possibility that your change will result
in a significant emissions increase if the post-change potential to
emit equals or exceeds NSR significance levels (even though the source
opts to base its determination as to whether NSR applies on projected
actual emissions).
    The EPA believes the ``potential emissions trigger'' approach would
also resolve the issues identified by the Court in the New York case.
The Court raised the concern that the ``reasonable possibility''
methodology, as it currently stands, fails to explain how EPA can
ensure NSR compliance without the source's maintaining relevant data.
We explain below that potential emissions represent the upper bound of
post-change emissions, and so under the ``potential emissions
trigger,'' records of projected actual emissions are unnecessary for
the purpose of ascertaining whether post-change emissions increased
beyond expectations. As long as a project's post-change potential
emissions are at or above significance levels, then the source will
either trigger major NSR or will be subject to recordkeeping and
reporting requirements under the ``potential emissions trigger.'' If
the project's post-change potential emissions are below significance
levels, then clearly the project's projected actual emissions would
also necessarily be below significance levels, and the ``reasonable
possibility'' standard would not apply. Thus, short of requiring
recordkeeping and reporting for all projects that do not trigger major
NSR, the ``potential emissions trigger'' requires recordkeeping and
reporting of the greatest number of projects under the ``reasonable
possibility'' standard.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a significant regulatory action. The action was
determined to be a ``significant regulatory action'' because it raises
policy issues arising from the President's priorities. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been

documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
We are not promulgating any new paperwork requirements (e.g.,
monitoring, reporting, recordkeeping) as part of this proposed action.
However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations (40 CFR parts 51 and 52) under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned
OMB control number 2060-0003, EPA ICR number 1230.17. A copy of the OMB
approved Information Collection Request (ICR) EPA ICR number 1230.17
may be obtained from Susan Auby, Collection Strategies Division; U.S.
Environmental Protection Agency (2822T); 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460 or by calling<PHONE_NUMBER>.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Analysis (RFA)

    The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
    For purposes of assessing the impacts of this action on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.
    After considering the economic impacts of this proposed action on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities. We
continue to be interested in the potential impacts of the proposed rule
on small entities and welcome comments on issues related to such
impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
1 year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation as to why
that alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan.
    The plan must provide for notifying potentially affected small
governments, enabling officials of affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements. This rule contains no Federal mandates
(under the regulatory provisions of Title II of the UMRA) for State,
local, or Tribal governments or the private sector.
    Thus, this rule is not subject to the requirements of sections 202
and 205 of the UMRA.

E. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This proposal rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13175. Thus, Executive Order 13175 does
not apply to this action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA is soliciting comment on this proposal from State and
local officials.

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

    Executive Order 13175, entitled (Consultation and Coordination with
Indian Tribal Governments (65 FR 13175, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This proposed rule does not have
tribal implications, as specified in Executive Order 13175. There are
no tribal authorities currently issuing major NSR and title V permits.
Thus, Executive Order 13175 does not apply to this rule.

    Although Executive Order 13175 does not apply to this proposed
rule, EPA specifically solicits comment on this proposed rule from
Tribal officials.

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

    Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. This proposed action does not
establish an environmental standard intended to mitigate health or
safety risks but rather provides explanation of an existing
recordkeeping and reporting standard.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical.
    Voluntary consensus standards are technical standards (for example,
materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus standards bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

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

    Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994), establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
    The EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This proposed rule provides explanation of an existing
recordkeeping and reporting standard.

V. Statutory Authority

    The statutory authority for this action is provided by sections
307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42
U.S.C. 7401, 7411, 7414, 7416, and 7601). This notice is also subject
to section 307(d) of the CAA (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Transportation, Volatile
organic compounds.

    Dated: February 28, 2007.
Stephen L. Johnson,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth
below.

PART 51--[AMENDED]

    1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Subpart I--[Amended]

    2. Section 51.165 is amended by revising paragraph (a)(6)
introductory text and adding paragraph (a)(6)(vi) to read as follows:

Sec.  51.165  Permit requirements.

    (a) * * *
    (6) Each plan shall provide that the following specific provisions
apply on a pollutant-by-pollutant basis with respect to any regulated
NSR pollutant associated with projects at existing emissions units at a
major stationary source (other than projects at a source with a PAL) in
circumstances where there is a reasonable possibility, within the
meaning of paragraph (a)(6)(vi) of this section, that a project that is
not a part of a major modification may result in a significant
emissions increase of such pollutant, and the owner or operator elects
to use the method specified in paragraphs (a)(1)(xxviii)(B)(1) through
(3) of this section for calculating projected actual emissions.
Deviations from these provisions will be approved only if the State
specifically demonstrates that the submitted provisions are more
stringent than or at least as stringent in all respects as the
corresponding provisions in paragraphs (a)(6)(i) through (vi) of this
section.
* * * * *
    (vi) A ``reasonable possibility'' under paragraph (a)(6) of this
section occurs when the owner or operator calculates the project to
result in projected actual emissions increases of at least 50 percent
of the significant level defined

in paragraph (a)(1)(x) of this section for the regulated NSR pollutant.
* * * * *
    3. Section 51.166 is amended by revising paragraph (r)(6)
introductory text and adding paragraph (r)(6)(vi) to read as follows:

Sec.  51.166  Prevention of significant deterioration of air quality.

    (r) * * *
    (6) Each plan shall provide that the following specific provisions
apply on a pollutant-by-pollutant basis with respect to any regulated
NSR pollutant associated with projects at existing emissions units at a
major stationary source (other than projects at a source with a PAL) in
circumstances where there is a reasonable possibility, within the
meaning of paragraph (r)(6)(vi) of this section, that a project that is
not a part of a major modification may result in a significant
emissions increase of such pollutant, and the owner or operator elects
to use the method specified in paragraphs (b)(40)(ii)(a) through (c) of
this section for calculating projected actual emissions. Deviations
from these provisions will be approved only if the State specifically
demonstrates that the submitted provisions are more stringent than or
at least as stringent in all respects as the corresponding provisions
in paragraphs (r)(6)(i) through (vi) of this section.
* * * * *
    (vi) A ``reasonable possibility'' under paragraph (r)(6) of this
section occurs when the owner or operator calculates the project to
result in projected actual emissions increases of at least 50 percent
of the significant level defined in paragraph (b)(23)(i) of this
section for the regulated NSR pollutant.
* * * * *
    4. Appendix S to Part 51 is amended by revising paragraph IV.J
introductory text and adding paragraph IV.J.6 to read as follows:
    Appendix S to Part 51--Emission Offset Interpretative Ruling.
* * * * *
    IV. * * *
    J. Provisions for projected actual emissions. The provisions of
this paragraph IV.J apply on a pollutant-by-pollutant basis with
respect to any regulated NSR pollutant associated with projects at
existing emissions units at a major stationary source (other than
projects at a source with a PAL) in circumstances where there is a
reasonable possibility, within the meaning of paragraph IV.J.6 of this
Ruling, that a project that is not a part of a major modification may
result in a significant emissions increase of such pollutant, and the
owner or operator elects to use the method specified in paragraphs
II.A.24(ii)(a) through (c) of this Ruling for calculating projected
actual emissions.
* * * * *
    6. A ``reasonable possibility'' under paragraph IV.J of this Ruling
occurs when the owner or operator calculates the project to result in
projected actual emissions increases of at least 50 percent of the
significant level defined in paragraph II.A.10 of this section for the
regulated NSR pollutant.
* * * * *

PART 52--[AMENDED]

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

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

Subpart A--[Amended]

    6. Section 52.21 is amended by revising paragraph (r)(6)
introductory text and adding paragraph (r)(6)(vi) to read as follows:

Sec.  52.21  Prevention of significant deterioration of air quality.

    (r) * * *
    (6) The provisions of this paragraph (r)(6) apply on a pollutant-
by-pollutant basis with respect to any regulated NSR pollutant
associated with projects at existing emissions units at a major
stationary source (other than projects at a source with a PAL) in
circumstances where there is a reasonable possibility, within the
meaning of paragraph (r)(6)(vi) of this section, that a project that is
not a part of a major modification may result in a significant
emissions increase of such pollutant, and the owner or operator elects
to use the method specified in paragraphs (b)(41)(ii)(a) through (c) of
this section for calculating projected actual emissions.
* * * * *
    (vi) A ``reasonable possibility'' under paragraph (r)(6) of this
section occurs when the owner or operator calculates the project to
result in projected actual emissions increases of at least 50 percent
of the significant level defined in paragraph (b)(23)(i) of this
section for the regulated NSR pollutant.
* * * * *
 [FR Doc. E7-3897 Filed 3-6-07; 8:45 am]

BILLING CODE 6560-50-P


RED FACTS; MCPB EPA 738 R 06 011 March 2006 All pesticides sold or distributed in the United States must be registered by EPA, based on scientific studies showing that they can be used without posing unreasonable risks to people or the environment. Because of advances in scientific knowledge, the law requires that pesticides first registered before November 1, 1984, be reregistered to ensure that they meet today's more stringent standards.

In evaluating pesticides for reregistration, EPA obtains and reviews a complete set of studies from pesticide producers that describe the human health and environmental effects of each pesticide. To implement provisions of the Food Quality Protection Act ( FQPA) of 1996, EPA considers the special sensitivity of infants and children to pesticides, as well as aggregate exposure of the public to pesticide residues from all sources, and the cumulative effects of pesticides and other compounds with common mechanisms of toxicity. The Agency develops any mitigation measures or regulatory controls needed to effectively reduce each pesticide's risks. EPA then reregisters pesticides that meet current human health and safety standards and can be used without posing unreasonable risks to human health and the environment.

When a pesticide is eligible for reregistration, EPA explains the basis for its decision in a Reregistration Eligibility Decision ( RED) document. This fact sheet summarizes the information in the RED document for the pesticide MCPB ( 4( 2 methyl 4 chlorophenoxy) butyric acid) and salts, case number2365.

Uses   MCPB is a phenoxy herbicide produced as a sodium salt and an acid.   MCPB is registered for use on pea crops before flowering, for post emergence control of broadleaf annual and perennial weeds including Canadian thistle, buttercup, mustard, purslane, ragweed, common lambsquarters, pigweed, smartweed, sowthistle, and morning glory.   Application rates range from 0.5 to 1.5 lb ae/ A applied once per year. The highest rate is used to treat Canada thistle at the bud stage.   MCPB is a general use pesticide with no residential uses.   There is one tolerance established for residues of MCPB per se in/ on peas at 0.1 ppm ( 40 CFR § 180.318).   Approximately 12,000 pounds of MCPB is used annually. Health Effects   MCPB has low to moderate acute toxicity.   MCPB is not a dermal sensitizer and nor is it irritating to the skin   Kidney and liver effects are the most prevalent hazard concerns for MCPB.   Developmental and reproductive toxicity studies do not indicate an enhanced sensitivity or susceptibility to young animals.   Neurotoxicity effects were noted in studies conducted on MCPA ( a structurally similar compound and metabolite of MCPB), and therefore a developmental neurotoxicity study is required for MCPB.

Ecological Effects   MCPB is not volatile, not persistent, and not likely to bioconcentrate   MCPB's acidic/ anionic nature, physicochemical properties, and relatively low sorption to soil indicate that MCPB is prone to leach and runoff.   MCPB is slightly to moderately toxic to freshwater fish on an acute basis, and slightly toxic to freshwater invertebrates on an acute basis.   MCPB is classified as moderately toxic to birds based on data from an acute oral gavage study, and it is classified as practically non toxic to birds on an acute dietary basis.   MCPB is classified as slightly toxic to practically non toxic to mammals on an acute oral basis. However, developmental effects and maternal toxicity were noted in a developmental study.   MCPB is an herbicide, and therefore plant toxicity is expected.

Risks   Acute and chronic dietary risks for food and drinking water are below the Agency's level of concern ( i. e., less than 100 percent of the population adjusted dose ( PAD)). The most highly exposed population subgroup was infants (< 1 years old), at approximately 6% of the acute PAD ( at the 95th percentile of exposure) and approximately 10% of the chronic PAD.   Dermal and inhalation risks to occupational handlers are below the Agency's level of concern with baseline clothing and chemical resistant gloves.   Risks to workers entering pea fields recently treated with MCPB to perform tasks such as scouting and irrigation are below EPA's level of concern with a 12 hour Restricted Entry Interval.   No acute or chronic risks are predicted for freshwater fish, freshwater invertebrates, or marine/ estuarine fish.   There are potential acute risks to small birds that consume short grass. All other avian risk quotients are below the Agency's level of concern. No chronic avian risks are predicted for MCPB.   No acute risks to mammals are predicted for MCPB. However, EPA's level of concern is exceeded for chronic risks to mammals of all weight classes that consume grasses, broadleaf forage, and small insects.   EPA's level of concern is exceeded for terrestrial plants.

Risk Mitigation The following risk mitigation measures are required for MCPB to address risks of concern.

  To address potential acute risks to small birds and terrestrial plants, and chronic risks to mammals, EPA is requiring medium or coarser droplet sizes to minimize the potential for spray drift.

Regulatory Conclusion EPA has determined that all supported uses of DCNA are eligible for reregistration, provided that registrants implement risk mitigation measures described in the RED and make required changes to product labeling and provided that additional data identified in Chapter V of the RED confirm this decision.

For More Information Electronic copies of the MCPB RED and all supporting documents are available in Docket # EPAHQ OPP 2005 0263 at http:// www. regulations. gov .

For more information about EPA's pesticide reregistration program, the MCPB RED, or reregistration of individual products containing MCPB, please contact the Special Review and Reregistration Division ( 7508C), Office of Pesticide Programs, US EPA, Washington, DC 20460, telephone 703 308 8000.

For information about the health effects of pesticides, or for assistance in recognizing and managing pesticide poisoning symptoms, please contact the National Pesticide Information Center ( NPIC). Call toll free 1 800 858 7378, from 6: 30 am to 4: 30 am Pacific Time, or 9: 30 am to 7: 30 pm Eastern Standard Time, seven days a week. The NPIC internet address is http:// npic. orst. edu.


[Federal Register: January 13, 2006 (Volume 71, Number 9)]
[Notices]
[Page 2205]
[DOCID:fr13ja06-57]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP06-158-000]

Gulf South Pipeline Company, LP; Notice of Proposed Changes in
FERC Gas Tariff

January 5, 2006.
    Take notice that on December 29, 2005, Gulf South Pipeline Company,
LP (Gulf South) tendered for filing as part of its Sixth Revised Volume
No. 1 FERC Gas Tariff, the following tariff sheets, to become effective
February 1, 2006:

First Revised Sheet No. 719.
Second Revised Sheet No. 720.

    Gulf South states that copies of this filing have been served upon
Gulf South's customers, state commissions and other interested parties.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible online at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary. Docket No. RP06-158-000
[FR Doc. E6-265 Filed 1-12-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 84, Number 91 (Friday, May 10, 2019)]
[Notices]
[Pages 20625-20626]
[FR Doc No: 2019-09547]

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

ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL-9044-7]

Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General
Information<PHONE_NUMBER> or https://www.epa.gov/nepa/.
Weekly receipt of Environmental Impact Statements
Filed 04/29/2019 Through 05/03/2019
Pursuant to 40 CFR 1506.9.

Notice

    Section 309(a) of the Clean Air Act requires that EPA make public
its comments on EISs issued by other Federal agencies. EPA's comment
letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

EIS No. 20190085, Final, FERC, AK, Grant Lake Hydroelectric Project,
Review Period Ends: 06/10/2019, Contact: Office of External Affairs
866-208-3372.
EIS No. 20190086, Final, USACE, CO, Adams and Denver Counties, Colorado
General Investigation Study, Review Period Ends: 06/10/2019, Contact:
Dave Crane<PHONE_NUMBER>.
EIS No. 20190087, Final, NASA, VA, NASA WFF Site-wide Programmatic
Environmental Impact Statement, Review Period Ends: 06/10/2019,
Contact: Shari A. Miller<PHONE_NUMBER>.
EIS No. 20190088, Draft, USACE, CA, Draft Integrated General
Reevaluation Report and Environmental Impact Statement for San
Francisco Bay to Stockton, California Navigation Study, Comment Period
Ends: 06/24/2019, Contact: Stacie Auvenshine<PHONE_NUMBER>.
EIS No. 20190089, Final, NPS, CA, Saline Valley Warm Springs Management
Plan, Review Period Ends: 06/10/2019, Contact: Kelly Daigle 303-987-
6897.
EIS No. 20190090, Final, BR, CA, Central Valley Project Water Supply
Contracts Under Public Law 101-514 (Section 206): Contract Between the
U.S. Bureau of Reclamation and the El Dorado County Water Agency,
Subcontract Between the El Dorado County Water Agency and the El Dorado
Irrigation District, and Subcontract Between the El Dorado County Water
Agency and the Georgetown Divide Public Utility District, Review Period
Ends: 06/10/2019, Contact: Cynthia Meyer<PHONE_NUMBER>.

EIS No. 20190091, Final, FERC, LA, Plaquemines LNG and Gator Express
Pipeline Project, Review Period Ends: 06/10/2019, Contact: Office of
External Affairs<PHONE_NUMBER>.
EIS No. 20190092, Final Supplement, USACE, AL, Mobile Harbor, Mobile,
Alabama Integrated Final General Evaluation Report with Supplemental
Environmental Impact Statement, Review Period Ends: 06/10/2019,
Contact: Jennifer L. Jacobson<PHONE_NUMBER>.
EIS No. 20190093, Final, USACE, CA, Whittier Narrows Dam Flood Control
Project Dam Safety Modification Study, Review Period Ends: 06/10/2019,
Contact: Deborah Lamb<PHONE_NUMBER>.
EIS No. 20190094, Final, BLM, CA, Central Coast Field Office Proposed
Resource Management Plan Amendment and Final Environmental Impact
Statement for Oil and Gas Leasing and Development, Review Period Ends:
06/10/2019, Contact: Sky Murphy<PHONE_NUMBER>.
EIS No. 20190095, Final, FHWA, SC, Carolina Crossroads I-20/26/126
Corridor Improvement Project, Contact: Jeffrey S. Belcher<PHONE_NUMBER>.
Under 23 U.S.C. 139(n)(2), FHWA has issued a single document that
consists of a final environmental impact statement and record of
decision. Therefore, the 30-day wait/review period under NEPA does not
apply to this action.

Amended Notice

EIS No. 20180168, Draft, USACE, AL, Mobile Harbor, Mobile, Alabama
Draft Integrated General Reevaluation Report with Supplemental
Environmental Impact Statement, Comment Period Ends: 09/10/2018,
Contact: Jennifer L. Jacobson<PHONE_NUMBER> Revision to FR Notice
Published 07/27/2018; Correction to Document Type from Draft to Draft
Supplemental.
EIS No. 20190060, Draft, USFWS, CA, Proposed Habitat Conservation Plan
and Incidental Take Permit for Sierra Pacific Industries, Comment
Period Ends: 07/01/2019, Contact: Kim Turner<PHONE_NUMBER>. Revision to
FR Notice Published 04/19/2019; Extending the Comment Period from 06/
18/2019 to 07/01/2019.
EIS No. 20190082, Draft Supplement, BLM, AK, Supplemental Draft
Environmental Impact Statement for the Haines Amendment to the Ring of
Fire Resource Management Plan, Comment Period Ends: 08/01/2019,
Contact: Marnie Graham<PHONE_NUMBER>. Revision to FR Notice Published
05/03/2019; Correcting the Comment Period from 07/25/2019 to 08/01/
2019.

    Dated: May 6, 2019.
Robert Tomiak,
Director, Office of Federal Activities.
[FR Doc. 2019-09547 Filed 5-9-19; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Notices]
[Pages 43883-43885]
[FR Doc No: 2012-18215]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67474; File No. SR-BX-2012-051]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
Routing Fees

July 20, 2012.
    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 July 10, 2012, NASDAQ OMX BX, Inc. (``BX'' 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 by the Exchange. 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.
---------------------------------------------------------------------------

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

    The Exchange proposes to amend Chapter XV, Section 2 entitled ``BX
Options Market--Fees and Rebates'' to amend a Customer fee for routing
options to The NASDAQ Options Market (``NOM'').
    The text of the proposed rule change is available on the Exchange's
Web site at http://www.nasdaqtrader.com/micro.aspx?id=BXRulefilings, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.

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

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these

statements may be examined at the places specified in Item IV below.
The Exchange has prepared summaries, set forth in sections A, B, and C
below, of the most significant aspects of such statements.

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

1. Purpose
    The Exchange recently filed a proposal to adopt fees for routing
contracts to markets other the BX Options market.\3\ Specifically, the
Exchange adopted the following routing fees in Chapter XV, Section
2(4):
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 67339 (July 3,
2012), 77 FR 405688 (July 10, 2012) (SR-BX-2012-043).

----------------------------------------------------------------------------------------------------------------
                                                                                Firm/market
                         Exchange                               Customer        maker/broker-     Professional
                                                                                dealer
----------------------------------------------------------------------------------------------------------------
BATS (Penny Pilot)........................................             $0.55             $0.55             $0.55
BOX.......................................................              0.11              0.55              0.11
CBOE......................................................              0.11              0.55              0.31
CBOE orders greater than 99 contracts in ETFs, ETNs and                 0.29               N/A              0.31
 HOLDRS)..................................................
C2........................................................              0.55              0.55              0.55
ISE (Standard)............................................              0.11              0.55              0.29
ISE (Select Symbols) *....................................              0.31              0.55              0.39
NOM.......................................................              0.11              0.55              0.55
NYSE Arca (Penny Pilot)...................................              0.55              0.55              0.55
NYSE Amex.................................................              0.11              0.55              0.31
PHLX (for all options than PHLX Select Symbols)...........              0.11              0.55              0.36
PHLX Select Symbols **....................................              0.50              0.55              0.55
----------------------------------------------------------------------------------------------------------------

    The Exchange inadvertently noted that the NOM Customer routing fee
is $0.11 per contract. NOM assesses a Customer Fee to Remove Liquidity
in Penny Pilot Options of $0.45 per contract.\4\ The routing fees are
proposed to recoup costs that the Exchange incurs for routing and
executing certain orders on away markets.
---------------------------------------------------------------------------

    \4\ See NOM Rules at Chapter XV, Section 2(4).
---------------------------------------------------------------------------

    BX currently recoups clearing and transaction charges incurred by
the Exchange as well as certain other costs incurred by the Exchange
when routing to away markets, such as administrative and technical
costs associated with operating the order router, membership fees at
away markets, and technical costs associated with routing.\5\ For
example, BX incurs costs related to the Nasdaq Options Services LLC
(``NOS''), a member of the Exchange and the Exchange's exclusive order
router.\6\ Each time NOS routes an order to an away market, NOS is
charged a $0.06 clearing fee and, in the case of certain exchanges, a
transaction fee is also charged in certain symbols, which fees are
passed through to the Exchange. The Exchange proposes to recoup a
portion of the above costs along with the NOM Customer routing fee of
$0.45 per contract when routing Customer orders to NOM. The Exchange is
proposing a NOM Customer routing fee of $0.55 per contract.\7\ While
the Exchange would incur a cost of $0.56 per contract to route a
Customer order to NOM, the Exchange has determined to assess a fee of
$0.55 per contract for routing Customer orders to NOM.
---------------------------------------------------------------------------

    \5\ In addition to membership fees and transaction fees, the
Exchange also incurs an Options Regulatory Fee when routing to an
away market that assesses that fee.
    \6\ See BX Rules at Chapter VI, Section 11(e) (Order Routing).
    \7\ The Exchange calculates its routing fees by totaling its
costs which include the remove fee at the away market ($0.45 per
contract), a $0.06 per contract clearing fee and another $0.05 per
contract fee associated with administrative and technical costs
associated with operating NOS. This would total $0.56 per contract
to route a Customer order to NOM.
---------------------------------------------------------------------------

2. Statutory Basis
    BX believes that the proposed rule changes are consistent with the
provisions of Section 6 of the Act,\8\ in general, and with Section
6(b)(4) of the Act,\9\ in particular, in that they provide for the
equitable allocation of reasonable dues, fees and other charges among
members and issuers and other persons using any facility or system
which BX operates or controls.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f.
    \9\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The amended NOM Customer routing fee is reasonable because it seeks
to recoup costs that are incurred by the Exchange when routing Customer
orders to NOM on behalf of members. Each destination market's
transaction charge varies and there is a standard clearing charge for
each transaction incurred by the Exchange along with other
administrative and technical costs \10\ that are incurred by the
Exchange. The Exchange believes that the proposed NOM Customer routing
fee would enable the Exchange to recover the remove fee assessed to
each market participant by NOM, plus clearing and other administrative
and technical fees for the execution of orders routed to BX and
executed on NOM.
---------------------------------------------------------------------------

    \10\ The Exchange utilizes the Nasdaq Options Services LLC
(``NOS''), a member of the Exchange and the Exchange's exclusive
order router to route orders in options listed and open for trading
on the BX to destination markets. See Securities Exchange Act
Release No. 67256 (June 26, 2012) (SR-BX-2012-030).
---------------------------------------------------------------------------

    The Exchange also believes that the amended NOM Customer routing
fee is equitable and not unfairly discriminatory because it would be
uniformly applied to all market participant Customer orders that are
routed to NOM to cover the cost to route the order. The Exchange
applied a similar methodology in calculating the routing fees for each
market participant by adding not more than a $0.11 per contract fee to
the away market's remove fee to determine BX routing fees.

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

    BX does not believe that the proposed rule change will impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act. In addition, a BX Participant may designate an
order as not available for routing to avoid routing fees.\11\
---------------------------------------------------------------------------

    \11\ See BX Rules at Chapter VI, Section 11(e).
---------------------------------------------------------------------------

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\12\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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-BX-2012-051 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2012-051. 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 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-BX-2012-051 and should be
submitted on or before August 16, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
---------------------------------------------------------------------------

    \13\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-18215 Filed 7-25-12; 8:45 am]
BILLING CODE 8011-01-P