[Federal Register Volume 87, Number 150 (Friday, August 5, 2022)]
[Notices]
[Pages 48045-48049]
[FR Doc No: 2022-16763]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95398; File No. SR-CBOE-2022-040]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Rule 4.5

August 1, 2022.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on July 29, 2022, Cboe Exchange, Inc. (``Exchange'' or ``Cboe
Options'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
filed the proposal as a ``non-controversial'' proposed rule change
pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-
4(f)(6) thereunder.\4\ The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to amend Rule 4.5. The text of the proposed rule change is provided in
Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The proposed rule change amends Rule 4.5(d). Specifically, the
Exchange proposes to amend Rule 4.5(d)(6) to account for conflicts
between different provisions within the Short Term Option Series Rules
and make other clarifying changes.
    In 2021, the Exchange amended Rule 4.5 to limit the intervals
between strikes in equity options listed as part of the Short Term
Option Series Program, excluding Exchange-Traded Fund Shares and ETNs,
that have an expiration date more than twenty-one days from the listing
date (``Strike Interval Proposal'').\5\ The Strike Interval Proposal
adopted new subparagraph (d)(6), which included a table that intended
to specify the applicable strike intervals that would supersede
subparagraph (d)(5) \6\ for Short Term Option Series in equity options,
excluding options on exchange-traded fund shares and on exchange-traded
notes, which have an expiration more than 21 days from the listing
date. The Strike Interval Proposal was designed to reduce the density
of strike intervals that would be listed in later weeks, within the
Short Term Option Series Program, by utilizing limitations for
intervals between strikes that have an expiration date more than 21
days from the listing date.
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    \5\ See Securities Exchange Act Release No. 91456 (April 1,
2021), 86 FR 18090 (April 7, 2021) (SR-CBOE-2021-019).
    \6\ Rule 4.5(d)(5) states the interval between strike prices on
Short Term Option Series may be: (a) $0.50 or greater where the
strike is less than $100 and $1 or greater where the strike price is
between $100 and $150 for all classes that participate in the Short
Term Option Series Program; (b) $0.50 or greater for classes that
trade in one dollar increments in non-Short Term Options and that
participate in the Short Term Option Series Program; or (c) $2.50 or
greater where the strike price is above $150. A non-Short Term
Option that is on a class that has been selected to participate in
the Short Term Option Series Program is referred to as a ``Related
non-Short Term Option.''
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    The Exchange proposes to amend Rule 4.5(d)(6) to clarify the
current rule text and amend the application of the table to account for
potential conflicts within the Short Term Option Series Rules.
Currently, Rule 4.5(d)(6) provides that notwithstanding subparagraph
(d)(5), when Short Term Option Series in equity options (excluding
options on ETFs and ETNs) have an expiration more than 21 days from the
listing date, the strike interval for each option class will be based
on the following table:

----------------------------------------------------------------------------------------------------------------
                                                                  Share price \7\
                                 -------------------------------------------------------------------------------
   Tier     Average daily volume                    $25 to less     $75 to less    $150 to less       $500 or
                                   Less than $25     than $75        than $150       than $500        greater
----------------------------------------------------------------------------------------------------------------
1........  Greater than 5,000...           $0.50           $1.00           $1.00           $5.00           $5.00
2........  Greater than 1,000 to            1.00            1.00            1.00            5.00           10.00
            5,000.
3........  0 to 1,000...........            2.50            5.00            5.00            5.00           10.00
----------------------------------------------------------------------------------------------------------------

    First, the Exchange proposes to add the phrase ``which specifies
the applicable interval for listing'' to the end of the first sentence
of subparagraph (d)(6). The table within that subparagraph provides for
the listing of intervals based on certain parameters (average daily
volume and share price). The Exchange proposes to add the phrase
``which specifies the applicable interval for listing'' to clarify that
the only permitted intervals are as specified in the table within
subparagraph (d)(6), as proposed to be amended.
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    \7\ Share Price is the closing price on the primary market on
the last day of the calendar quarter. In the event of a corporate
action, the Share Price of the surviving company is utilized. The
Average Daily Volume is the total number of option contracts traded
in a given security for the applicable calendar quarter divided by
the number of trading days in the applicable calendar quarter.
Beginning on the second trading day in the first month of each
calendar quarter, the Average Daily Volume is calculated by
utilizing data from the prior calendar quarter based on Customer-
cleared volume at OCC. For options listed on the first trading day
of a given calendar quarter, the Average Daily Volume is calculated
using the quarter prior to the last trading calendar quarter. See
Rule 4.5(d)(6)(A) and (B).
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    Second, the Exchange proposes to amend the table in subparagraph
(d)(6) to address situations in which there is a conflict between
applying the intervals in subparagraph (d)(5) and the table in
subparagraph (d)(6). Today, there are instances where a conflict is
presented as between the application of the table within subparagraph
(d)(6) and the rule text within subparagraph (d)(5) with respect to the
correct interval. To address these potential conflicts, the Exchange
proposes that to the extent there is a conflict between applying the
current table within subparagraph (d)(6) and the rule text within
subparagraph (d)(5), the greater interval would apply. To reflect this
within the Rules, the Exchange proposes to amend the table in
subparagraph (d)(6) to specify what the greater interval would be, and
thus the interval the Exchange would apply, in the event of any
possible conflict between the two rule provisions. Specifically, the
proposed rule change amends the table as follows:

----------------------------------------------------------------------------------------------------------------
                                                                   Share price
                 Average daily  --------------------------------------------------------------------------------
     Tier            volume                         $25 to less     $75 to less    $150 to less       $500 or
                                  Less than $25      than $75        than $150       than $500        greater
----------------------------------------------------------------------------------------------------------------
1.............  Greater than     $0.50 for             $1.00 for       $1.00 for           $5.00           $5.00
                 5,000.           strikes less      strikes less    strikes less
                                  than $100 in         than $150       than $150
                                  Short Term
                                  Option Series
                                  Program
                                  classes and
                                  classes that
                                  trade in $1
                                  increments in
                                  non-Short Term
                                  Options.
                                 $1.00 for             $2.50 for       $2.50 for  ..............  ..............
                                  strikes                strikes         strikes
                                  between $100      greater than    greater than
                                  and $150 for              $150            $150
                                  classes that
                                  do not
                                  otherwise
                                  trade in $1.00
                                  increments in
                                  non-Short Term
                                  Options.
                                 $2.50 for        ..............  ..............  ..............  ..............
                                  strikes
                                  greater than
                                  $150.
2.............  Greater than     $1.00 for             $1.00 for       $1.00 for           $5.00          $10.00
                 1,000 to 5,000.  strikes less      strikes less    strikes less
                                  than $150.           than $150       than $150
                                 $2.50 for             $2.50 for       $2.50 for  ..............  ..............
                                  strikes                strikes         strikes
                                  greater than      greater than    greater than
                                  $150.                     $150            $150
3.............  0 to 1,000.....  $2.50..........           $5.00           $5.00           $5.00          $10.00
----------------------------------------------------------------------------------------------------------------

    Below are some examples to demonstrate the application of the
proposed table:
    Example 1: Assume a Tier 1 stock that closed on the last day of Q1
with a quarterly share price higher than $75 but less than $150.
Therefore, utilizing the current table within subparagraph (d)(6), the
interval would be $1.00 for strikes added during Q2 even for strikes
above $150. However, subparagraph (d)(5) provides that the Exchange may
list a Short Term Option Series at $2.50 intervals where the strike
price is above $150. In other words, there is a potential conflict
between the permitted strike intervals above $150 during Q2. In this
example, current subparagraph (d)(6) would specify a $1.00 interval
whereas current subparagraph (d)(5) would specify a $2.50 interval.
Consistent with selecting the greater interval (from current
subparagraph (d)(5)), the permissible strike interval in this scenario
would be $2.50 as set forth in the proposed table. Therefore, during
Q2, the following strikes would be eligible to list: $152.50 and
$157.50. For strikes less than $150, the following strikes would be
eligible to list during Q2: $149 and $148 because Short Term Option
Series with expiration dates more than 21 days from the listing date as
well as Short Term Option Series with expiration dates less than 21
days from the listing date would both be eligible to list $1 intervals
pursuant to both subparagraphs (d)(5) and (d)(6).
    Example 2: Assume a Tier 2 stock that closed on the last day of Q1
with a quarterly share price less than $25. Therefore, utilizing the
current table within subparagraph (d)(6), the interval would be $1.00
for strikes added during Q2 even for strikes above $25. However,
subparagraph (d)(5) provides that the Exchange may list a Short Term
Option Series at $0.50 intervals where the strike is less than $100, at
$1.00 intervals where the strike price is between $100 and $150, and at
$2.50 intervals where

the strike price is above $150. In other words, there is a potential
conflict between the permitted strike intervals below $100 and above
$150 during Q2. In this example, current subparagraph (d)(6) would
specify a $1.00 interval for strikes below $100 whereas current
subparagraph (d)(5) would specify a $0.50 interval. Consistent with
selecting the greater interval (from current subparagraph (d)(6)), the
permissible strike interval in this scenario for strikes below $100
would be $1.00 as set forth in the proposed table. For strikes between
$100 and $150, there is no conflict, as both provisions would provide
$1.00 intervals for those strikes. For strikes above $150, current
subparagraph (d)(6) would specify a $1.00 interval for strikes above
$150 whereas current subparagraph (d)(5) would specify a $2.50
interval. Consistent with selecting the greater interval (from current
subparagraph (d)(5)), the permissible strike interval in this scenario
for strikes above $150 would be $2.50 as set forth in the proposed
table.
    Example 3: Assume a Tier 3 stock that closed on the last day of Q1
with a quarterly share price less than $25. Therefore, utilizing the
current table within subparagraph (d)(6), the interval would be $2.50
for all strikes added during Q2. However, subparagraph (d)(5) provides
that the Exchange may list a Short Term Option Series at $0.50
intervals where the strike price is less than $100, $1.00 intervals
where the strike price is between $100 and $150, and $2.50 intervals
where the strike price is above $150. In other words, there is a
potential conflict between the permitted strike intervals below $150
during Q2 (there is no conflict for strikes above $150, as both
provisions provide for a $2.50 strike interval). Consistent with
selecting the greater interval (from current subparagraph (d)(6)), the
permissible strike interval in this scenario for strikes below $150
would be $2.50 as set forth in the proposed table.\8\
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    \8\ The Exchange made similar corresponding changes to the table
for tier 1 and tier 2 stocks with prices $25 to less than $75 and
$75 to less than $150, with all potential conflicts between current
subparagraphs (d)(5) and (d)(6) resolved to apply the greater
interval.
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    Third, the Exchange proposes to delete the last sentence of the
introductory paragraph of subparagraph (d)(6), which states ``[t]he
below table indicates the applicable strike intervals and supersedes
subparagraph (d)(4) above, which permits additional series to be opened
for trading on the Exchange when the Exchange deems it necessary to
maintain an orderly market, to meet customer demand or when the market
price of the underlying security moves substantially from the exercise
price or prices of the series already opened.'' The table within
subparagraph (d)(6) supersedes other rules pertaining to strike
intervals, but the table does not supersede rules governing the
addition of options series. Therefore, the table within subparagraph
(d)(6) and the rule text of subparagraph (d)(4) do not conflict with
each other. Deleting the reference to subparagraph (d)(4) will avoid
potential confusion.
    Fourth, the Exchange proposes to delete subparagraph (d)(6)(D),
which states ``[n]otwithstanding the limitations imposed by this
subparagraph (d)(6), this subparagraph (d)(6) does not amend the range
of strikes for Short Term Option Series may be listed pursuant to
subparagraph (d)(5) above.'' While the range limitations continue to be
applicable within subparagraph (d)(6), the strike ranges do not
conflict with the strike intervals and therefore the sentence is not
necessary. Removing this provision will avoid potential confusion.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\9\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \10\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \11\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. The Exchange believes the Strike Proposal
continues to limit the intervals between strikes listed in the Short
Term Option Series Program that have an expiration date more than
twenty-one days.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
    \11\ Id.
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    In particular, the Exchange's proposed addition to the first
sentence of Rule 4.5(d)(6) is consistent with the Act because it
clarifies that the only permitted intervals are as specified in the
table within that subparagraph, as amended. The Exchange believes this
proposed rule change will bring greater transparency to the rule. The
proposed rule change to amend the table within Rule 4.5(d)(6) to
address potential conflicts between that subparagraph and subparagraph
(d)(5) with respect to the correct strike interval is consistent with
the Act because it protects investors and the public interest by adding
transparency to the manner in which the Exchange implements its listing
rules and removes potential uncertainty. The proposed rule text
specifies the applicable intervals when there is a conflict between the
rule text within subparagraphs (d)(5) and (d)(6), thereby providing
certainty as to the outcome. The table within subparagraph (d)(6)
impacts strike intervals and supersedes other strike interval rules but
does not supersede the addition of option series. Therefore,
subparagraph (d)(4) regarding the addition of option series does not
conflict with the table in subparagraph (d)(6). Deleting the last
sentence of the introductory paragraph of Rule 4.5(d)(6) that includes
the reference to subparagraph (d)(4) is therefore consistent with the
Act. Similarly, deleting Rule 4.5(d)(6)(D) is consistent with the Act
because while the range limitations continue to be applicable, the
strike ranges do not conflict with strike intervals, rendering the
sentence unnecessary. Deletion of this provision will avoid potential
confusion.
    The Strike Interval Proposal was designed to reduce the density of
strike intervals that would be listed in later weeks, within the Short
Term Option Series Program, by utilizing limitations for intervals
between strikes which have an expiration date more than twenty-one days
from the listing date. The Exchange's proposal intends to continue to
remove certain strike intervals where there exist clusters of strikes
whose characteristics closely resemble one another and, therefore, do
not serve different trading needs,\12\ rendering these strikes less
useful. Also, the Strike Interval Proposal continues to reduce the
number of strikes listed on the Exchange, allowing Market-Makers to
expend their capital in the options market in a more efficient manner,

thereby improving overall market quality on the Exchange.
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    \12\ For example, two strikes that are densely clustered may
have the same risk properties and may also be the same percentage
out-of-the-money.
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    Additionally, by applying the greater interval would control as
between the rule text within current Rule 4.5(d)(5) and (d)(6), the
Exchange is reducing the number of strikes listed in a manner
consistent with the intent of the Strike Interval Proposal, which was
to reduce strikes which were farther out in time. The result of this
clarification is to select wider strike intervals for Short Term Option
Series in equity options which have an expiration date more than
twenty-one days from the listing date. This rule change would harmonize
strike intervals as between inner weeklies (those having less than
twenty-one days from the listing date) and outer weeklies (those having
more than twenty-one days from the listing date) so that strike
intervals are not widening as the listing date approaches.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Strike Interval Proposal
continues to limit the number of Short Term Option Series Program
strike intervals available for quoting and trading on the Exchange for
all Trading Permit Holders.
    The Exchange believes adding clarifying language to the first
sentence of Rule 4.5(d)(6) regarding which parameter the table within
that provision amends within the Short Term Option Series Program will
bring greater transparency to the rules. Amending the table within
subparagraph (d)(6) to address potential conflicts as between the rule
text of Rule 4.5(d)(5) and (d)(6) will bring greater transparency to
and reduce potential confusion regarding the manner in which the
Exchange implements its listing rules. Deleting the last sentence of
the first paragraph of the introductory paragraph of Rule 4.5(d)(6)
that references subparagraph (d)(4) does not impose an undue burden on
competition and will avoid potential confusion because the table within
Rule 4.5(d)(6) impacts strike intervals and supersedes other rules
pertaining to strike intervals, but the table does not supersede rules
governing the addition of options series, such as Rule 4.5(d)(4).
Deleting Rule 4.5(d)(6)(D) will also avoid any potential confusion
because, while the range limitations continue to be applicable, the
strike ranges do not conflict with strike intervals and are not
necessary.
    While this proposal continues to limit the intervals of strikes
listed on the Exchange, the Exchange continues to balance the needs of
market participants by continuing to offer a number of strikes to meet
a market participant's investment objective. The Exchange's Strike
Interval Proposal does not impose an undue burden on intermarket
competition as this Strike Interval Proposal does not impact the
listings available at another self-regulatory organization.

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

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

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

    Because the foregoing proposed rule change does not: (i)
significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days after the date of the filing, or such
shorter time as the Commission may designate, it has become effective
pursuant to 19(b)(3)(A) of the Act \13\ and Rule 19b-4(f)(6) \14\
thereunder.
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    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \15\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\16\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has
requested that the Commission waive the 30-day operative delay so that
the Exchange may implement the proposed rule change on August 1, 2022--
the same time other exchanges are implementing the same change.\17\ The
Exchange states that implementing the proposal simultaneously with
other option exchanges will promote the protection of investors by
harmonizing the strike listing methodology across exchanges. For these
reasons, the Commission believes that waiver of the 30-day operative
delay is consistent with the protection of investors and the public
interest. Accordingly, the Commission hereby waives the operative
delay.\18\
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    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 17 CFR 240.19b-4(f)(6)(iii).
    \17\ The Commission recently approved a substantially similar
proposal. See Securities Exchange Act Release No. 95085 (June 10,
2022), 87 FR 36353 (June 16, 2022) (SR-ISE-2022-10) (Order Approving
a Proposed Rule Change, as Modified by Amendment No. 1, to Amend ISE
Options 4, Section 5, Series of Options Contracts Open for Trading).
    \18\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    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.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-CBOE-2022-040 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CBOE-2022-040. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the

Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549 on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change. Persons submitting comments are cautioned that we do
not redact or edit personal identifying information from comment
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
CBOE-2022-040, and should be submitted on or before August 26, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12), (59).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-16763 Filed 8-4-22; 8:45 am]
BILLING CODE 8011-01-P


the project costs, if any. For recipients of financial assistance
agreements that capitalize revolving loan programs, the total amount is
the total procurement dollars in the amount of identified loans equal
to the capitalization grant amount.
    (b) Ineligible project costs. If all project costs attributable to
MBE and WBE participation are not eligible for funding under the EPA
financial assistance agreement, the recipient may choose to report the
percentage of MBE and WBE participation based on the total eligible and
non-eligible costs of the project.
    (c) Joint ventures. For joint ventures, MBE and WBE participation
consists of the portion of the dollar amount of the joint venture
attributable to the MBE or WBE. If an MBE's or WBE's risk of loss,
control or management responsibilities is not commensurate with its
share of the profit, the Agency may direct an adjustment in the
percentage of MBE or WBE participation.
    (d) Central Purchasing or Procurement Centers. A recipient must
report MBE and WBE participation from its central purchasing or
procurement centers.
    (e) Brokers. A recipient may not count expenditures to a MBE or WBE
that acts merely as a broker or passive conduit of funds, without
performing, managing, or supervising the work of its contract or
subcontract in a manner consistent with normal business practices.
    (1) Presumption. If 50% or more of the total dollar amount of a MBE
or WBE's prime contract is subcontracted to a non-DBE, the MBE or WBE
prime contractor will be presumed to be a broker, and no MBE or WBE
participation may be reported.
    (2) Rebuttal. The MBE or WBE prime contractor may rebut this
presumption by demonstrating that its actions are consistent with
normal practices for prime contractors in its business and that it will
actively perform, manage and supervise the work under the contract.
    (f) MBE or WBE Truckers/Haulers. A recipient may count expenditures
to an MBE or WBE trucker/hauler only if the MBE or WBE trucker/hauler
is performing a commercially useful function. The following factors
should be used in determining whether an MBE or WBE trucker/hauler is
performing a commercially useful function:
    (1) The MBE or WBE must be responsible for the management and
supervision of the entire trucking/hauling operation for which it is
responsible on a particular contract, and there cannot be a contrived
arrangement for the purpose of meeting MBE or WBE objectives.
    (2) The MBE or WBE must itself own and operate at least one fully
licensed, insured, and operational truck used on the contract.

Appendix A to Part 33--Term and Condition

    Each procurement contract signed by an EPA financial assistance
agreement recipient, including those for an identified loan under an
EPA financial assistance agreement capitalizing a revolving loan
fund, must include the following term and condition:
    The contractor shall not discriminate on the basis of race,
color, national origin or sex in the performance of this contract.
The contractor shall carry out applicable requirements of 40 CFR
part 33 in the award and administration of contracts awarded under
EPA financial assistance agreements. Failure by the contractor to
carry out these requirements is a material breach of this contract
which may result in the termination of this contract or other
legally available remedies.

PART 35--[AMENDED]

Subpart E--[Amended]

0
6. The authority citation for part 35, subpart E, continues to read as
follows:

    Authority: Secs. 109(b), 201 through 205, 207, 208(d), 210
through 212, 215 through 217, 304(d)(3), 313, 501, 511, and 516(b)
of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.

Sec.  35.936-7  [Removed]

0
7. Section 35.936-7 is removed.

Sec.  35.938-9  [Amended]

0
8. Section 35.938-9 is amended by removing and reserving paragraph
(b)(2).

Subpart K--[Amended]

0
9. The authority citation for part 35, subpart K, continues to read as
follows:

    Authority: Secs. 205(m), 501(a) and title VI of the Clean Water
Act, as amended, 42 U.S.C. 1285(m), 33 U.S.C. 1361(a), 33 U.S.C.
1381-1387.

Sec.  35.3145  [Amended]

0
10. Section 35.3145 is amended by removing paragraphs (d) and (e).

Subpart L--[Amended]

0
11. The authority citation for part 35, subpart L, continues to read as
follows:

    Authority: Section 1452 of the Safe Drinking Water Act, as
amended, 42 U.S.C. 300j-12.

Sec.  35.3575  [Amended]

0
12. Section 35.3575(d) is removed and reserved.

Subpart M--[Amended]

0
13. The authority citation for part 35, subpart M, continues to read as
follows:

    Authority: 42 U.S.C. 9617(e); sec. 9(g), E.O. 12580, 52 FR 2923,
3 CFR, 1987 Comp., p. 193.

Sec.  35.4170  [Amended]

0
14. Section 35.4170(b) is removed and reserved.

Sec.  35.4205  [Amended]

0
15. Section 35.4205(g) is removed.

Sec.  35.4240  [Amended]

0
16. Section 35.4240(e) is removed and reserved.

Subpart O--[Amended]

0
17. The authority citation for part 35, subpart O, continues to read as
follows:

    Authority: 42 U.S.C. 9601 et seq.

Sec.  35.6015  [Amended]

0
18. Section 35.6015(a) is amended by removing the definitions for
``Minority Business Enterprise (MBE)'' and ``Women's Business
Enterprise (WBE)''.

Sec.  35.6550  [Amended]

0
19. Section 35.6550(a)(8) is removed and reserved.

Sec.  35.6580  [Amended]

0
20. Section 35.6580 is removed.

Sec.  35.6610  [Amended]

0
21. Section 35.6610(c) is removed and reserved.

Sec.  35.6665  [Removed]

0
22. Section 35.6665 is removed.

PART 40--[Amended]

0
21. The authority citation for part 40 is revised to read as follows:

    Authority: 7 U.S.C. 136 et seq.; 15 U.S.C. 2609 et seq.; 33
U.S.C. 1254 et seq. and 1443; 42 U.S.C. 241 et seq., 300f et seq.,
1857 et seq., 1891 et seq., and 6901 et seq.

Sec.  40.145-3  [Amended]

0
22. Section 40.145-3(c) is removed and reserved.

 [FR Doc. E8-6003 Filed 3-25-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Notices]
[Pages 16434-16435]
[FR Doc No: 2011-6885]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2011-0171]

Merchant Marine Personnel Advisory Committee

AGENCY: Coast Guard, DHS.

ACTION: Committee Management; Notice of Committee Establishment.

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

SUMMARY: The Secretary of Homeland Security has determined that the
establishment of the Merchant Marine Personnel Advisory Committee
(MERPAC) is necessary and in the public interest in connection with the
performance of duties of the U. S. Coast Guard.
    Name of Committee: Merchant Marine Personnel Advisory Committee.

ADDRESSES: If you desire to submit comments on this action, they must
be submitted by April 22, 2011. Comments must be identified by (USCG-
2011-0171) and may be submitted by using one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand Delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on the
establishment of the MERPAC, call or e-mail Mark C. Gould, Commandant
(CG-5221), Attention MERPAC, U.S. Coast Guard, 2100 Second St., SW.,
STOP 7126, Washington, DC 20593-7126; e-mail<EMAIL_ADDRESS>
fax:<PHONE_NUMBER>. If you have questions on viewing or submitting
material to the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have
provided.

Submitting Comments

    If you submit a comment, please include the docket number for this
notice (USCG-2011-0171), indicate the specific section of this document
to which each comment applies, and provide a reason for each suggestion
or recommendation. You may submit your comments and material online
(via http://www.regulations.gov) or by fax, mail, or hand delivery, but
please use only one of these means. If you submit a comment online via
http://www.regulations.gov, it will be considered received by the Coast
Guard when you successfully transmit the comment. If you fax, hand
deliver, or mail your comment, it will be considered as having been
received by the Coast Guard when it is received at the Docket
Management Facility. We recommend that you include your name and a
mailing address, an e-mail address, or a telephone number in the body
of your document so that we can contact you if we have questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Notice'' and insert ``USCG-2011-0171'' in the ``Keyword'' box. Click
``Search'' then click on the balloon shape in the ``Actions'' column.
If you submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2011-0171'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
You may also visit the Docket Management Facility in Room W12-140 on
the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. We have an
agreement with the Department of Transportation to use the Docket
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).

Establishment of the Committee

    For the reasons set forth below, the Secretary of Homeland Security
has determined that the establishment of the MERPAC is necessary and in
the public interest. This determination follows consultation with the
Committee Management Secretariat, General Services Administration.
    The MERPAC is being established in accordance with the provisions
of the Federal Advisory Committee Act (FACA) 5 U.S.C. App. (Pub. L. 92-
463). The MERPAC will act in an advisory capacity to the Secretary of
the Department of Homeland Security through the Commandant of the Coast
Guard and the Director of Commercial Regulations and Standards on
matters relating to personnel in the U.S. merchant marine, including
but not limited to training, qualifications, certification,
documentation, and fitness standards. The MERPAC will provide focused
recommendations to relevant maritime personnel issues and we anticipate
that it will be very responsive to the Coast Guard's need for
recommendations on short turn-around issues. The Committee's unique
industry perspective will provide critical support to the Coast Guard's
efforts to ensure the safety of the U.S. merchant marine. This
information would otherwise have to be drawn from the broad population
involved in merchant vessel personnel matters. There is no other
current entity which can provide the level of technical expertise and
experience that is afforded by this advisory committee.

Balanced Membership Plans

    The Committee membership is mandated by its charter and consists of
nineteen (19) members appointed by the Secretary of Homeland Security
as follows: a. Nine active U.S. Merchant

Mariners including: (1) Three deck officers who represent the viewpoint
of merchant marine deck officers, two of whom shall be licensed for
oceans any gross tons, one of whom shall be licensed for inland or
river route with a limited or unlimited tonnage, two of whom must have
master's license or a master of towing vessels license, and one of whom
must have significant tanker experience; and, to the extent
practicable, one of these deck officers shall represent the point of
view of labor and another shall represent a management perspective; (2)
three engineering officers who represent the viewpoint of merchant
marine engineering officers, two of whom shall be licensed as chief
engineer any horsepower, one of whom shall be licensed as either a
limited chief engineer or a designated duty engineer; and, to the
extent practicable, one of these engineers shall represent a labor
point of view and another shall represent a management perspective; (3)
two unlicensed seamen, including one who represents the viewpoint of
Able-Bodied Seamen and one who represents the viewpoint of Qualified
Members of the Engine Department; and (4) one Pilot who represents the
viewpoint of merchant marine pilots. b. Six Marine Educators,
including: (1) Three who represent the viewpoint of Maritime Academies,
two of whom shall represent State Maritime Academies, and one of whom
may represent either the State Maritime Academies or the Federal
Maritime Academy; and (2) three who represent the viewpoint of other
maritime training institutions, one of whom shall represent the
viewpoint of the small vessel industry. c. Two individuals who
represent the viewpoint of shipping companies employed in ship
operation management. d. Two members who are drawn from the general
public.
    Duration: Continuing.
    Responsible DHS Officials: MERPAC will provide advice and
recommendations to the Secretary of the Department of Homeland Security
through the Director of Commercial Regulations and Standards, United
States Coast Guard and the Commandant of the Coast Guard.

    Dated: March 17, 2011.
J.G. Lantz,
Director of Commercial Regulations and Standards.
[FR Doc. 2011-6885 Filed 3-22-11; 8:45 am]
BILLING CODE 9110-04-P


 US EPA Public Hearings on Particulate Standards Rajiv Bhatia, MD, MPH Director of Environmental Health San Francisco Department of Public Health San Francisco Vehicle Volumes Freeway Impacts on Outdoor Air ( vs) Distance from Edge of Freew ay 0%

10% 20% 30% 40% 50% 60% 70% 80% 90%

1 00% 0 1 00 200 300 400 500 Distan ce from Ed g e o f F re eway ( m)

Impacts Normalized to Receptor at 20 Meters from Edge of Freeway Decrease In Concentration of Freeway Diesel PM Emissions With Distance ( meters)

Source California Air Resources Board Air Quality Land Use Handbook February 17, 2005 Standard Setting, Economic Analysis, Ethics, and Environmental Justice

Health costs and regulatory costs borne by different groups

Standard setting must prevent disparate impacts

Standard setting should not compromise health

Protective regulatory standards will enable their feasibility


[Federal Register Volume 78, Number 23 (Monday, February 4, 2013)]
[Rules and Regulations]
[Pages 7672-7674]
[FR Doc No: 2013-02237]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2012-0435; FRL-9775-2]

Approval and Promulgation of Implementation Plans; Texas;
Beaumont/Port Arthur Ozone Maintenance Plan Revision to Approved Motor
Vehicle Emissions Budgets

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is approving a revision to the Beaumont/Port Arthur (BPA)
1997 8-hour ozone maintenance air quality State Implementation Plan
(SIP) which replaces the previously approved motor vehicle emissions
budgets (budgets) with budgets developed using EPA's Motor Vehicle
Emissions Simulator (MOVES) 2010a emissions model. The BPA 1997 8-hour
ozone maintenance area consists of Hardin, Jefferson, and Orange
Counties in Texas.

DATES: This final rule is effective on March 6, 2013.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R06-OAR- 2012-0435. All documents in the docket
are listed at www.regulations.gov. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, is not
placed on the Internet and will be publicly available only in hard copy
form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 Freedom
of Information Act (FOIA) Review Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal holidays. Contact the person
listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr.
Bill Deese at<PHONE_NUMBER> to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during
official business hours, by appointment, at the Texas Commission on
Environmental Quality, Office of Air Quality, 12124 Park 35 Circle,
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Riley, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>;
fax number<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. What is the background for this action?
II. What public comments were received?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    The background for today's action is discussed in detail in our
September 19, 2012 proposal (77 FR 58058). In that notice, we proposed
to approve a revision to the BPA 1997 8-hour ozone maintenance air
quality SIP by replacing the previously approved motor vehicle
emissions budgets, developed with EPA's MOBILE 6.2 model, with budgets
developed using EPA's more current Motor Vehicle Emissions Simulator
(MOVES) 2010a emissions model. At the time of our proposal, Texas had
provided for public review and comment of the SIP revision at the state
level. Subsequently, the State adopted the revision and submitted it to
us on December 10, 2012.
    An air quality maintenance plan is required to show that an area
will continue to maintain attainment of the applicable standard taking
into account projections of future emissions. Our approval means that
EPA is finding that Beaumont's ozone air quality maintenance plan still
demonstrates that the area will maintain attainment of the 1997 ozone
national ambient air quality standard through the year 2021 while
taking into account the revised emissions from the MOVES model. The
motor vehicle emissions budgets are the amount of emissions from on-
road motor vehicles that are consistent with the maintenance plan. Once
EPA approves the submitted budgets, they must be used by local, state
and Federal agencies in determining whether transportation activities
conform to the SIP as required by section 176(c) of the Clean Air Act
(CAA) and 40 CFR 93.102.

II. What public comments were received?

    The State public comment period for this SIP revision was from June
29, 2012, until August 3, 2012. A public hearing was offered but was
not requested. No public comments were received by Texas during the
comment period.
    The Federal Register proposing approval of this SIP revision was
published on September 19, 2012, and the public comment period closed
on October 19, 2012. EPA received three comment letters. However, one
comment letter is not related to EPA's proposal and is outside the
scope of this action. Therefore, EPA is responding only to the two
comments that are relevant to this action. Those comments expressed
support of EPA's approval of this SIP revision and were submitted by
the Texas Commission on Environmental Quality, Austin; Executive
Director, and the 8-Hour Ozone SIP Coalition, Austin; Project
Coordinator. EPA appreciates the support for this action. The comment
letters are available for review in the docket for this rulemaking.

III. What action is EPA taking?

    EPA is approving as a SIP revision new MOVES2010a-based budgets for
the Beaumont/Port Arthur 1997 ozone maintenance area because the
submitted budgets will continue to keep emissions below the attainment
level and maintain air quality. On the effective date of this
rulemaking, the submitted MOVES2010a budgets will replace the existing,
MOBILE6.2-based budgets in the state's 1997 8-hour ozone maintenance
plan and will be used in future transportation conformity analyses for
the area. The previously approved MOBILE6.2 budgets will no longer be
applicable for transportation conformity purposes.

       Beamont/Port Arthur MOVES2010a-Based 8-Hr Ozone MVEBs (tpd)
------------------------------------------------------------------------
                   Budget year                     NOX MVEB    VOC MVEB
------------------------------------------------------------------------
2021............................................        9.7         3.9
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 20, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Ozone,
Volatile organic compounds.

    Dated: January 16, 2013.
Ron Curry,
Regional Administrator, Region 6.
    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

0
2. Section 52.2270(e) is amended by adding an entry for On-Road Mobile
Source Emissions Inventory and Motor Vehicle Emissions Budget Update at
the end of the second table titled ``EPA Approved Nonregulatory
Provisions and Quasi-Regulatory Measures in the Texas SIP'' as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *
* * * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                                             State
                                        Applicable        submittal/
      Name of SIP provision           geographic or        effective     EPA approval date         Comments
                                    nonattainment area       date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
On-Road Mobile Source Emissions    Beaumont/Port            12/10/2012  2/4/2013 [Insert     MOVES update to
 Inventory and Motor Vehicle        Arthur, TX.                          citation of          motor vehicle
 Emissions Budget Update.                                                publication in       emissions budgets.
                                                                         Federal Register].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2013-02237 Filed 2-1-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 180 (Wednesday, September 16, 2020)]
[Notices]
[Pages 57853-57856]
[FR Doc No: 2020-19881]

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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2018-0640; FRL-10014-54-Region 4]

 Florida's Request To Assume Administration of a Clean Water Act
Section 404 Program

AGENCY: Environmental Protection Agency.

ACTION: Notice and request for comments.

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

SUMMARY: The Clean Water Act (CWA) established the Section 404 program,
under which the U.S. Army Corps of Engineers (Corps) may issue permits
for the discharge of dredged or fill material into ``waters of the
United States,'' as identified in the CWA. Section 404(g)(1) of the CWA
authorizes states and tribes to administer their own permit program for
the discharge of dredged or fill material into navigable waters, other
than those waters that the CWA reserves as subject to Corps
jurisdiction. On August 20, 2020, the Environmental Protection Agency
(EPA) received from the Governor of the State of Florida, a complete
program submission for regulating discharges of dredged or fill
material into waters within the jurisdiction of the State in accordance
with the CWA. Pursuant to CWA Section 404(h) and EPA's implementing
regulations, EPA will hold public hearings and is opening a 45-day
comment period. EPA is also initiating a programmatic consultation
under Section 106 of the National Historic Preservation Act (NHPA) and
is soliciting comments pursuant to NHPA implementing regulations during
the 45-day comment period.

DATES: Comments on EPA's decision to approve or disapprove under CWA
Section 404 must be received on or before November 2, 2020. Comments
associated with the consultation under section 106 of the NHPA may also
be submitted on or before November 2, 2020. EPA intends to approve or
disapprove the State of Florida's request to assume administration of a
CWA Section 404 program by December 17, 2020.

ADDRESSES: You may send comments on both actions (Florida's request to
assume a CWA Section 404 program and EPA's consultation under NHPA
section 106), identified by Docket ID No. EPA-HQ-OW-2018-0640, by any
of the following methods:
     www.regulations.gov: Follow the on-line instructions for
submitting comments and accessing the docket and materials related to
this notice.
     Email<EMAIL_ADDRESS>     Mail: Mr. Kelly Laycock, Oceans, Wetlands and Streams
Protection Branch, USEPA Region 4, 61 Forsyth St. SW, Atlanta, GA
30303.
    Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OW-2018-0640 for these actions. Comments received may be
posted without change to https://www.regulations.gov/, including any
personal information provided.
    Out of an abundance of caution for members of the public and our
staff, the EPA Docket Center and Reading Room are open by appointment
only, to reduce the risk of transmitting COVID-19. Our Docket Center
staff will continue to provide remote customer service via email,
phone, and webform. We encourage the public to submit comments via
https://www.regulations.gov/ or email at<EMAIL_ADDRESS>as
there may be a delay in processing mail and faxes. Hand deliveries and
couriers may be received by scheduled appointment only. For further
information on the EPA Docket Center services and the current status,
please visit us online at https://www.epa.gov/dockets.
    The virtual hearings will be held on October 21, 2020 and October
27, 2020. The hearing held on October 21, 2020 will convene at 9:00
a.m. and will conclude no later than 12:00 p.m. EDT. The hearing held
on October 27, 2020 will convene at 5:00 p.m. EDT and will conclude not
later than 8:00 p.m. EDT. For information about registration for these
virtual public hearings, please see https://www.epa.gov/aboutepa/about-epa-region-4-southeast.

FOR FURTHER INFORMATION CONTACT: Mr. Kelly Laycock, Oceans, Wetlands
and Streams Protection Branch, USEPA Region 4, 61 Forsyth St. SW,
Atlanta, GA 30303;<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The State's submission may be read online
through the Federal eRulemaking Portal, Docket No. EPA-HQ-OW-2018-0640,
the EPA's Docket Center, available at https://www.regulations.gov. The
State's submission is also on file and may be inspected and copied (for
a per page charge) at the EPA Docket Center Reading Room located at WJC
West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC
20004. Due to COVID-19, access to the EPA Docket Center Reading Room
will be allowed by appointment only. Procedures to make an appointment
to visit the EPA Docket Center Reading Room can be found at https://www.epa.gov/dockets/epa-docket-center-reading-room.

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments?
    C. How can I participate in the virtual public hearing?
II. Background
    A. Clean Water Act Section 404(g)
    B. National Historic Preservation Act Section 106 Consultation
    C. Endangered Species Act Consultation

I. General Information

A. Does this action apply to me?

    States and tribes that have assumed or are considering assuming the
administration of a CWA Section 404 dredged or fill material permitting
program as well as regulated entities and members of the public in the
State of Florida may be interested in providing input on the issues
described in this document.
    Tribal and State Historic Preservation Offices as well as members
of the public with knowledge of or interest in the identification (and
location) of historic properties in the State of Florida, the effects
of discharges from dredged or fill activities into waters of the United
States on these historic properties, or ways to mitigate or avoid
adverse effects of such discharges may be interested in commenting on
EPA's consultation on this action under section 106 of the NHPA.

B. What should I consider as I prepare my comments?

    Comments may consider whether the state program meets the
requirements of Section 404(g) of the CWA and its implementing
regulations. Comments may also consider the impacts of EPA's approval
or disapproval of Florida's request on historic sites located within
the State of Florida in accordance with section 106 of the NHPA.
    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2018-
0640, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. EPA may publish
any comment received to its public docket. Do not submit to EPA's
docket any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
    Multimedia submissions (audio, video, etc.) must be accompanied by
a written comment. The written comment

is considered the official comment and should include discussion of all
points you wish to make. EPA will generally not consider comments or
comment contents located outside of the primary submission (i.e. on the
web, cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The EPA Docket Center and Reading Room are open by appointment
only, to reduce the risk of transmitting COVID-19. Our Docket Center
staff will continue to provide remote customer service via email,
phone, and webform. We encourage the public to submit comments via
https://www.regulations.gov/ as there may be a delay in processing mail
and faxes. Hand deliveries or couriers will be received by scheduled
appointment only. For further information and updates on EPA Docket
Center services, please visit us online at https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our federal partners so that we can respond
rapidly as conditions change regarding COVID-19.

C. How can I participate in the virtual public hearing?

    EPA is deviating from its typical approach because the President
has declared a national emergency. Because of current CDC
recommendations, as well as state and local orders for social
distancing to limit the spread of COVID-19, EPA cannot hold in-person
public meetings at this time.
    The virtual hearings will be held on October 21, 2020 and October
27, 2020. The hearing held on October 21, 2020 will convene at 9:00
a.m. and will conclude no later than 12:00 p.m. EDT. The hearing held
on October 27, 2020 will convene at 5:00 p.m. EDT and will conclude not
later than 8:00 p.m. EDT.
    EPA will begin pre-registering speakers and listen-only attendees
for the hearings upon publication of this notice in the Federal
Register. For a link to the on-line registration page, please visit
https://www.epa.gov/aboutepa/about-epa-region-4-southeast. Immediately
following registration, you will receive an email confirming your
registration and providing a unique link to the webinar. Speakers will
be signed up to speak in the order that their registration is received.
The last day to pre-register to speak at a hearing will be October 9,
2020. On October 20, 2020, EPA will post a general agenda for the
hearing that will list the order of pre-registered speakers and their
approximate timeslots at: https://www.epa.gov/aboutepa/about-epa-region-4-southeast. Please note that timeslots will be estimated and
speakers are encouraged to join the webinar at least 15 minutes prior
to the start of their estimated speaking time.
    EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
    Oral comments shall be limited to no more than five (5) minutes.
EPA recommends that commenters prepare their oral statement in advance
to ensure it can be completed within five minutes. EPA also recommends
that commenters also submit the text of their oral comments (with any
relevant supplementary information) as written comments to the
rulemaking docket. EPA encourages commenters to provide EPA with a copy
of their oral testimony electronically (via email) by emailing it to
Mr. Kelly Laycock at<EMAIL_ADDRESS>    EPA may ask clarifying questions during the oral testimony but will
not respond to the comments at that time. Written statements and
supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing. The proceedings of the
hearings will be recorded. After the public hearing, verbatim
transcripts of the sessions will be included in the rulemaking docket.
    Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/aboutepa/about-epa-region-4-southeast. While EPA expects the hearing to go forward as set forth
above, please monitor our website to determine if there are any
updates. EPA does not intend to publish a document in the Federal
Register announcing updates.
    To request services for special accommodations, please pre-register
for the hearing with Mr. Kelly Laycock at<EMAIL_ADDRESS>and
describe your needs by October 7, 2020. EPA will seek to arrange
special accommodations as needed to support hearing participation if
given advanced notice.

II. Background

A. Clean Water Act Section 404(g)

    The CWA established the Section 404 program, under which the
Secretary of the Army, acting through the Chief of Engineers of the
Corps, may issue permits for the discharge of dredged or fill material
into waters of the United States as identified in the CWA. Section
404(g)(1) of the CWA provides states and tribes the option of
submitting to EPA a request to assume administration of a CWA Section
404 program in certain waters within state or tribal jurisdiction.
    The regulations establishing the requirements for the approval of
state or tribal programs under section 404 of the CWA were published in
the Federal Register, at 53 FR 20764, (June 6, 1988) (40 CFR parts 232
and 233), and can be accessed at https://www.epa.gov/cwa404g/statutory-and-regulatory-requirements-assumption-under-cwa-section-404. ``State
regulated waters'' are defined in 40 CFR 232.2 as ``those waters of the
United States in which the Corps suspends the issuance of Section 404
permits upon approval of a state's section 404 permit program by the
Administrator under section 404(h). The program cannot be transferred
for those waters which are presently used, or are susceptible to use in
their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce shoreward to their ordinary
high water mark, including all waters which are subject to the ebb and
flow of the tide shoreward to the high tide line, including wetlands
adjacent thereto.'' The Corps retains CWA Section 404 permitting
authority over waters of the United States within ``Indian country'' as
that term is defined at 18 U.S.C. 1151, unless a tribe has assumed the
404 program within Indian country. See 40 CFR 233.1(b).
    A state application to administer a Section 404 program must
include the following: (a) A letter from the Governor of the state
requesting program approval; (b) a complete program description as set
forth in 40 CFR 233.11; (c) an Attorney General's statement or a
statement from the attorney for those state or interstate agencies
which have independent legal counsel, as set forth in 40 CFR 233.12;
(d) a Memorandum of Agreement with the EPA Regional Administrator, as
set forth in 40 CFR 233.13; (e) a Memorandum of Agreement with the
Secretary of the Army, as set forth in 40 CFR 233.14; and (f) copies of
all applicable state statutes and regulations, including those
governing applicable

state administrative procedures. 40 CFR 233.10.
    EPA has reviewed the State of Florida's program submission and
consistent with 40 CFR 233.15 has determined that it is a complete
request for State program approval that meets the submittal
requirements of 40 CFR 233.10. The Governor's request proposes that
FDEP administer a permit program for regulated activities in waters
regulated by the State under section 404(g)(1), as identified in the
Memorandum of Agreement with the Secretary of the Army, in accordance
with section 404 of the CWA. The main statutory and regulatory
authorities to administer and enforce the State 404 program can
currently be found in the State's submission to assume the program and
are available on FDEP's web page at https://floridadep.gov/water/water/content/water-resource-management-rules.
    The State 404 program would provide for the issuance of general
permits and individual permits. The State has adopted 38 general
permits which are listed in 62-331 F.S. as part of their package
submittal. A complete description of the individual permit process and
the standards for granting of an individual permit are found at 62-331
F.S. In addition, there are standard requirements for all regulated
activities in State-assumed waters. No permit shall be issued in
certain specified circumstances, including when the permit does not
comply with the requirements of the CWA or implementing regulations,
including the CWA Section 404(b)(1) Guidelines. 40 CFR 233.20.
Florida's laws outline a number of requirements applicable to State 404
permits, including that ``no dredge or fill activity shall be permitted
if there is a practicable alternative to the proposed activity which
would have less adverse impact on the aquatic ecosystem, so long as the
alternative does not have other significant adverse environmental
consequences,'' and an individual permit cannot be issued if it
``[c]auses or contributes to violations of any applicable State water
quality standard, except when temporarily within a mixing zone proposed
by the applicant and approved . . .'' by FDEP at 62-331.053 F.S.
    Currently, Florida operates the Environmental Resource Permit
program (ERP), which regulates the disposal of dredged or fill material
into waters of the State under State law. State-regulated activities
under ERP that go beyond the purview of the CWA are not subject to EPA
approval or oversight under 40 CFR part 233.
    The Memorandum of Agreement between FDEP and the Secretary of the
Army, available in the docket for this action, identifies procedures
for the transfer of all pending permit applications for discharges into
the waters assumed by the State. 40 CFR 233.14. Pursuant to the
Memorandum of Agreement, existing Section 404 permits already issued by
the Corps as of the effective date of State assumption will remain with
the Corps during the already approved lifespan of that permit.
    The Regional Administrator is required to approve a state request
to assume the Section 404 program unless the state program does not
meet the requirements of Section 404(h) of the CWA and its implementing
regulations. Among other authorities, the state must have: (1) Adequate
authority to issue permits which comply with all pertinent requirements
of the CWA, including but not limited to, the Section 404(b)(1)
Guidelines, and which may be issued for fixed terms not to exceed 5
years; (2) adequate authority, including civil and criminal penalties,
to abate violations of the permit or permit program; and (3) authority
to ensure that the Administrator, the public, and any other affected
state or tribe are given notice of each permit application and that the
public and affected states and tribes are provided an opportunity for
public hearing before a ruling on each such application. 33 U.S.C.
1344(h)(1).
    The procedures for EPA's review and approval or disapproval of a
state Section 404 program are outlined in 40 CFR 233.15. In summary,
once a state submits an assumption package that is complete, a 120-day
statutory review period commences, which may be extended by mutual
agreement of the state and EPA. EPA shall provide copies of a complete
assumption package within 10 days of receipt to the Corps, the National
Marine Fisheries Service (NMFS), and the United States Fish and
Wildlife Service (USFWS) for review and comment. Within 90 days of
EPA's receipt of a complete program submission, the Corps, FWS, and
NMFS shall submit to EPA any comments on the state program. EPA shall
publish notice of the state's application in the Federal Register,
state newspapers, and via mail to interested parties. EPA shall provide
for a public comment period of not less than 45 days as well as a
public hearing not less than 30 days after such notice is published in
the Federal Register. EPA shall also provide notice of an opportunity
to consult to federally recognized Indian tribes in the state.
    Within 120 days of receipt of a complete program submission (unless
EPA and the state extend the statutory review period), EPA shall
approve or disapprove the program based on whether the state's program
fulfills the requirements of the Act and 40 CFR part 233, taking into
consideration all comments received. EPA will prepare a summary of
significant comments received and responses to these comments, as well
as respond individually to comments received from the Corps, USFWS, and
NMFS.
    If EPA approves Florida's program, EPA will notify the State and
the Corps and publish notice in the Federal Register. Transfer of the
program to the State is not effective until this notice is published.
EPA may only disapprove the State's program if it is inconsistent with
the requirements of the CWA and 40 CFR part 233. If EPA disapproves the
State's program it shall notify the State of the reasons for the
disapproval and of any revisions or modifications to the State's
program which are necessary to obtain approval. If the State resubmits
a program submission remedying the identified problem areas, the
approval procedure and statutory review period shall begin upon receipt
of the revised submission. EPA maintains oversight of State-issued
permits pursuant to 40 CFR 233.50.
    If EPA approves this program, EPA will also codify the approved
program in 40 CFR 233 subpart H.

B. National Historic Preservation Act Section 106 Consultation

    In accordance with 36 CFR 800.2(d), EPA is providing information
and seeking comment on EPA's potential approval of Florida's request to
assume a CWA Section 404 program and any potential effects of such
approval on historic properties. The National Historic Preservation Act
of 1966, as amended, (NHPA) establishes historic preservation as a
federal agency policy and provides for the identification and
protection of historic properties and resources. Section 106 of the
NHPA requires federal agencies to take into account the effects of
their undertakings on historic properties that are listed or eligible
for listing on the National Register of Historic Places and provide the
Advisory Council on Historic Preservation (ACHP) a reasonable
opportunity to comment with regard to such undertakings. The approval
of the State of Florida's request to assume the CWA Section 404 program
would be an undertaking pursuant to 36 CFR 800.16(y), and therefore, in
accordance with Section 106 of the NHPA and the ACHP's implementing
regulations at 36 CFR part 800, EPA has initiated consultation
regarding this undertaking.

EPA has invited the ACHP, FDEP, the State Historic Preservation Officer
(SHPO), and Indian tribes with interests in the State of Florida to
participate as consulting parties.
    The State's administration of the Section 404 program and its
issuance of permits over time has the potential to affect historic
properties, including cultural resources or historic properties of
religious and cultural significance. FDEP and the SHPO have entered
into an Operating Agreement which sets forth a process to identify
historic properties that may be impacted by Florida's issuance of
Section 404 permits, and to develop recommendations for resolving
adverse effects. As discussed in the State's Operating Agreement, such
effects could potentially include, but are not limited to, the
following:
    i. Physical destruction of or damage to all or part of the
property, including inundation;
    ii. Alteration of a property, including restoration,
rehabilitation, repair, maintenance, stabilization, hazardous material
remediation, and provision of handicapped access;
    iii. Change of the character of the property's use or of physical
features within the property's setting, or impacts to the landscape
that contribute to its historic significance;
    iv. Introduction of visual, atmospheric or audible elements that
diminish the integrity of the property's significant historic features;
and
    v. Neglect of a property which causes its deterioration, except
where such neglect and deterioration are recognized qualities of a
property of religious and cultural significance to an Indian Tribe.
    Pursuant to the Operating Agreement, if the parties cannot reach
agreement on the determination or resolution of effects, they may
forward any outstanding issues to EPA for decision-making consistent
with EPA's permitting review authorities under 40 CFR 233.50. The
Operating Agreement provides comprehensive procedures for assessing the
effects of Florida's 404 program on historic properties and therefore
will considerably inform EPA's Section 106 consultation.
    EPA solicits comments on this undertaking and any potential effects
on historic properties at the Federal eRulemaking Portal, Docket No.
EPA-HQ-OW-2018-0640. The comment period closes November 2, 2020.

C. Endangered Species Act Consultation

    The Endangered Species Act (ESA) Section 7 directs each federal
agency to ensure, in consultation with the USFWS and NMFS, that ``any
action authorized, funded, or carried out by such agency . . . is not
likely to jeopardize the continued existence of'' listed species or
result in the destruction or adverse modification of designated
critical habitat. 16 U.S.C. 1536(a)(2). EPA views consultation under
ESA Section 7 to be required if a decision to approve a state or tribal
CWA Section 404 program may affect ESA-listed species or designated
critical habitat. EPA's position is set forth in a memorandum issued by
David P. Ross, Assistant Administrator for the Office of Water, dated
August 27, 2020, following the consideration of comments received
during a public participation process that is outside of the scope of
this notice. Accordingly, EPA is conducting ESA Section 7 consultation
during the Agency's review of the State of Florida's request to assume
administration of a CWA Section 404 program because EPA has determined
that the Agency's potential approval of the program may affect ESA-
listed species or designated critical habitat. See https://www.epa.gov/cwa404g/consultation-cwa-section-404-program-requests-endangered-species-act-and-national-historic for more information regarding EPA's
position on ESA Section 7 consultation under CWA Section 404(g).

    Dated: September 2, 2020.
Mary Walker,
Regional Administrator, EPA Region 4.
[FR Doc. 2020-19881 Filed 9-15-20; 8:45 am]
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