[Federal Register: June 11, 2008 (Volume 73, Number 113)]
[Rules and Regulations]
[Page 33013-33018]
[DOCID:fr11jn08-13]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2007-1021; FRL-8365-6]

Flutolanil; Pesticide Tolerances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This regulation establishes tolerances for indirect or
inadvertent residues of flutolanil in or on wheat and soybeans. Nichino
America, Inc. requested these tolerances under the Federal Food, Drug,
and Cosmetic Act (FFDCA).

DATES: This regulation is effective June 11, 2008. Objections and
requests for hearings must be received on or before August 11, 2008,
and must be filed in accordance with the instructions provided in 40
CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPP-2007-1021. To access the
electronic docket, go to http://www.regulations.gov, select ``Advanced
Search,'' then ``Docket Search.'' Insert the docket ID number where
indicated and select the ``Submit'' button. Follow the instructions on
the regulations.gov website to view the docket index or access
available documents. All documents in the docket are listed in the
docket index available in regulations.gov. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (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 in the electronic docket at http://www.regulations.gov, or,
if only available in hard copy, at the OPP Regulatory Public Docket in
Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr.,
Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m.,
Monday through Friday, excluding legal holidays. The Docket Facility
telephone number is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Lisa Jones, Registration Division
(7505P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone
number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
Potentially affected entities may include, but are not limited to those
engaged in the following activities:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    This listing is not intended to be exhaustive, but rather to
provide a guide for readers regarding entities likely to be affected by
this action. Other types of entities not listed in this unit could also
be affected. The North American Industrial Classification System
(NAICS) codes have been provided to assist you and others in
determining whether this action might apply to certain entities. If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed under FOR FURTHER
INFORMATION CONTACT.

B. How Can I Access Electronic Copies of this Document?

    In addition to accessing an electronic copy of this Federal
Register document through the electronic docket at http://
www.regulations.gov, you may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr. You may also access a
frequently updated electronic version of EPA's tolerance regulations at
40 CFR part 180 through the Government Printing Office's pilot e-CFR
site at http://www.gpoaccess.gov/ecfr.

C. Can I File an Objection or Hearing Request?

    Under section 408(g) of FFDCA, any person may file an objection to
any aspect of this regulation and may also request a hearing on those
objections. You must file your objection or request a hearing on this
regulation in accordance with the instructions

provided in 40 CFR part 178. To ensure proper receipt by EPA, you must
identify docket ID number EPA-HQ-OPP-2007-1021 in the subject line on
the first page of your submission. All requests must be in writing, and
must be mailed or delivered to the Hearing Clerk as required by 40 CFR
part 178 on or before August 11, 2008.
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing that does not contain any CBI for inclusion in the public
docket that is described in ADDRESSES. Information not marked
confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA
without prior notice. Submit this copy, identified by docket ID number
EPA-HQ-OPP-2007-1021, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     Mail: Office of Pesticide Programs (OPP) Regulatory Public
Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001.
     Delivery: OPP Regulatory Public Docket (7502P),
Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South
Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only
accepted during the Docket's normal hours of operation (8:30 a.m. to 4
p.m., Monday through Friday, excluding legal holidays). Special
arrangements should be made for deliveries of boxed information. The
Docket Facility telephone number is<PHONE_NUMBER>.

II. Petition for Tolerance

    In the Federal Register of March 12, 2008 (73 FR 13225) (FRL-8354-
6), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21
U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP
0F6159) by Nichino America, Inc., 4550 New Linden Hill Road, Suite 501,
Wilmington, DE 19808. The petition requested that 40 CFR 180.484 be
amended by establishing tolerances for indirect or inadvertent residues
of the fungicide flutolanil, N-(3-(1-methylethoxy)phenyl)-2-
(trifluoromethyl)benzamide, and its metabolite, M-4, desisopropyl
flutolanil N-(3-hydroxyphenyl)-2-(trifluromethyl)benzamide, expressed
as 2-(trifluoromethyl) benzoic acid and calculated as flutolanil, in or
on soybean forage at 9.0 parts per million (ppm), soybean hay at 2.0
ppm, soybean seed at 0.20 ppm, wheat bran at 0.3 ppm, wheat forage at
2.0 ppm, wheat grain at 0.10 ppm, wheat hay at 1.0 ppm, and wheat straw
at 0.30 ppm.
    That notice referenced a summary of the petition prepared by
Nichino America, Inc., the registrant, which is available to the public
in the docket, http://www.regulations.gov. One comment was received on
the notice of filing. EPA's response to these comments is discussed in
Unit IV.C.
    Based upon review of the data supporting the petition, EPA has
revised all proposed tolerances except for soybean seed. The reasons
for these changes are explained in Unit IV.D.
    The time-limited tolerances exemptions for rice, grain; rice,
straw; rice, bran; and rice, hulls are removed from 40 CFR 180.484
because the expiration date of December 31, 2000 has passed.

III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a
tolerance (the legal limit for a pesticide chemical residue in or on a
food) only if EPA determines that the tolerance is ``safe.'' Section
408(b)(2)(A)(ii) of FFDCA defines ``safe'' to mean that ``there is a
reasonable certainty that no harm will result from aggregate exposure
to the pesticide chemical residue, including all anticipated dietary
exposures and all other exposures for which there is reliable
information.'' This includes exposure through drinking water and in
residential settings, but does not include occupational exposure.
Section 408(b)(2)(C) of FFDCA requires EPA to give special
consideration to exposure of infants and children to the pesticide
chemical residue in establishing a tolerance and to ``ensure that there
is a reasonable certainty that no harm will result to infants and
children from aggregate exposure to the pesticide chemical residue. . .
.''
    Consistent with section 408(b)(2)(D) of FFDCA, and the factors
specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the
available scientific data and other relevant information in support of
this action. EPA has sufficient data to assess the hazards of and to
make a determination on aggregate exposure for the petitioned-for
tolerances for indirect or inadvertent residues of flutolanil, N-(3-(1-
methylethoxy)phenyl)-2-(trifluoromethyl)benzamide, and its metabolites
converted to 2-(trifluoromethyl) benzoic acid and calculated as
flutolanil, in or on soybean forage at 8.0 ppm, soybean hay at 2.5 ppm,
soybean seed at 0.20 ppm, wheat forage at 2.5 ppm, wheat grain at 0.05
ppm, wheat hay at 1.2 ppm, wheat straw at 0.20 ppm, and wheat bran at
0.20 ppm. EPA's assessment of exposures and risks associated with
establishing tolerances follows.

A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its
validity, completeness, and reliability as well as the relationship of
the results of the studies to human risk. EPA has also considered
available information concerning the variability of the sensitivities
of major identifiable subgroups of consumers, including infants and
children.
    The toxicology studies conducted on flutolanil demonstrate few or
no biologically significant toxic effects. Liver effects in rats
included increases in absolute and relative liver weight in the absence
of clinical chemistry and/or histopathology findings. In dogs, there
was an elevation in alkaline phosphatase and cholesterol levels
together with dose-related increases in absolute and relative liver
weights, slightly enlarged livers, and an increase in severity of
glycogen deposition. The increased liver weights are considered to be
an adaptive response to flutolanil treatment and not an adverse effect.
Based on the lack of evidence of carcinogenicity and the lack of
evidence of mutagenicity, flutolanil is classified as ``not likely to
be carcinogenic to humans''.
    Flutolanil is not neurotoxic, and it is not a developmental or
reproductive toxicant. No maternal, reproductive, or developmental
toxicity was observed at the limit dose. There was no evidence for
increased susceptibility of rat or rabbit fetuses to in utero exposure
or rat pups to post-natal exposure to flutolanil. No toxic effects were
observed in studies in which flutolanil was administered by the dermal
route of exposure at the limit dose.
    Specific information on the studies received and the nature of the
adverse effects caused by flutolanil as well as the no-observed-
adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-
level (LOAEL) from the toxicity studies can be found at http://
www.regulations.gov in the document ``Flutolanil, Human Health Risk
Assessment. Requests for Inadvertent or Indirect Tolerances for use on
soybean, wheat, corn and cotton, November 27, 2007'' beginning on page
7 in docket ID number EPA-HQ-OPP-2007-1021.

B. Toxicological Endpoints

    For hazards that have a threshold below which there is no
appreciable risk, a toxicological point of departure (POD) is
identified as the basis for

derivation of reference values for risk assessment. The POD may be
defined as the highest dose at which no adverse effects are observed
(the NOAEL) in the toxicology study identified as appropriate for use
in risk assessment. However, if a NOAEL cannot be determined, the
lowest dose at which adverse effects of concern are identified (the
LOAEL) or a Benchmark Dose (BMD) approach is sometimes used for risk
assessment. Uncertainty/safety factors (UFs) are used in conjunction
with the POD to take into account uncertainties inherent in the
extrapolation from laboratory animal data to humans and in the
variations in sensitivity among members of the human population as well
as other unknowns. Safety is assessed for acute and chronic dietary
risks by comparing aggregate food and water exposure to the pesticide
to the acute population adjusted dose (aPAD) and chronic population
adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the
POD by all applicable UFs. Aggregate short-term, intermediate-term, and
chronic-term risks are evaluated by comparing food, water, and
residential exposure to the POD to ensure that the margin of exposure
(MOE) called for by the product of all applicable UFs is not exceeded.
This latter value is referred to as the Level of Concern (LOC).
    For non-threshold risks, the Agency assumes that any amount of
exposure will lead to some degree of risk. Thus, the Agency estimates
risk in terms of the probability of an occurrence of the adverse effect
greater than that expected in a lifetime. For more information on the
general principles EPA uses in risk characterization and a complete
description of the risk assessment process, see http://www.epa.gov/
pesticides/factsheets/riskassess.htm.
    A summary of the toxicological endpoints for flutolanil used for
human risk assessment is shown in the following table.

     Table 1.--Summary of Toxicological Doses and Endpoints for Flutolanil for Use in Human Risk Assessment
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                                        Point of Departure and
          Exposure/Scenario               Uncertainty/Safety     RfD, PAD, LOC for Risk  Study and Toxicological
                                               Factors                 Assessment                Effects
----------------------------------------------------------------------------------------------------------------
Acute dietary (all populations)                                                          No appropriate
                                                                                toxicological endpoint
                                                                                attributable to a
                                                                                single exposure (dose)
                                                                                was identified from
                                                                                the oral toxicity
                                                                                studies including
                                                                                developmental toxicity
                                                                                studies in rats and
                                                                                rabbits.
----------------------------------------------------------------------------------------------------------------
Chronic dietary (all populations)      NOAEL = 50 mg/kg/day     Chronic RfD = 0.5 mg/kg/ 2-year chronic study in
                                       UFA = 10x..............   day                      dogs, MRID no.
                                       UFH = 10x..............  cPAD = 0.5 mg/kg/day...   40342922
                                       FQPA SF = 1x...........                           LOAEL = 250 mg/kg/day
                                                                                based on increased
                                                                                incidence of clinical
                                                                                toxic signs (emesis,
                                                                                salivation, and soft
                                                                                stool)
----------------------------------------------------------------------------------------------------------------
Cancer (oral, dermal, inhalation)         ``Not likely to be carcinogenic to humans'' based on the absence of
                                           significant tumor increases in two adequate rodent carcinogenicity
                                                                        studies.
----------------------------------------------------------------------------------------------------------------
UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members
  of the human population (intraspecies). UFL = use of a LOAEL to extrapolate a NOAEL. UFS = use of a short-term
  study for long-term risk assessment. UFDB = to account for the absence of data or other data deficiency. FQPA
  SF = FQPA Safety Factor. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. MOE =
  margin of exposure. LOC = level of concern.

C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary
exposure to flutolanil and metabolites, EPA considered exposure under
the petitioned-for tolerances as well as all existing flutolanil
tolerances in (40 CFR 180.484). EPA assessed dietary exposures from
flutolanil in food as follows:
    i. Acute exposure. Quantitative acute dietary exposure and risk
assessments are performed for a food-use pesticide, if a toxicological
study has indicated the possibility of an effect of concern occurring
as a result of a 1-day or single exposure.
    No such effects were identified in the toxicological studies for
flutolanil; therefore, a quantitative acute dietary exposure assessment
is unnecessary.
    ii. Chronic exposure. In conducting the chronic dietary exposure
assessment EPA used the food consumption data from the United States
Department of Agriculture (USDA) 1994-1996 and 1998 CSFII. As to
residue levels in food, EPA assumed that tolerance-level residues were
used for all crops.
    iii. Cancer. Flutolanil has been classified as ``Not likely to be
Carcinogenic to Humans'' therefore a cancer dietary exposure assessment
was not performed.
    2. Dietary exposure from drinking water. The Agency used screening
level water exposure models in the dietary exposure analysis and risk
assessment for flutolanil in drinking water. These simulation models
take into account data on the physical, chemical, and fate/transport
characteristics of flutolanil. Further information regarding EPA
drinking water models used in pesticide exposure assessment can be
found at http://www.epa.gov/oppefed1/models/water/index.htm.
    The Agency used the First Approximation Rice Model (FARM) to
estimate pesticide concentrations in surface water after applying
flutolanil on rice and Screening Concentrations in Ground Water (SCI-
GROW), which predicts pesticide concentrations in ground water. In
general, EPA will use Generic Expected Environmental Concentrations
(GENEEC) (a Tier 1 model) before using Pesticide Root Zone/Exposure
Analysis Modeling System (PRZM/EXAMS) (a Tier 2 model) for a screening-
level assessment for surface water, but given the unique hydrological
issues arising from pesticide application to rice paddies, EPA used the
FARM rather than GENEEC or PRZM/EXAMS for surface water estimates.
    Based on the SCI-GROW model, and the FARM (to estimate pesticide
concentrations in surface water after applying flutolanil on rice) the
estimated environmental concentrations (EECs) of flutolanil for acute
exposures are estimated to be 3.8 parts per billion (ppb) for surface
water and 0.34 ppb for ground water. The EECs for chronic exposures are
estimated to be 3.8 ppb for surface water and 0.34 ppb for ground
water.
    Modeled estimates of drinking water concentrations were directly
entered into the dietary exposure model. For chronic dietary risk
assessment, the

water concentration of value 3.8 ppb was used to access the
contribution to drinking water.
    3. From non-dietary exposure. The term ``residential exposure'' is
used in this document to refer to non-occupational, non-dietary
exposure (e.g., for lawn and garden pest control, indoor pest control,
termiticides, and flea and tick control on pets).
    Flutolanil is currently registered for the following uses that
could result in residential exposures: Turf grass and ornamental
plants. Although residential (non-occupational) exposure exists, a
quantitative exposure assessment was not conducted since no
toxicological endpoint attributable to acute, short-term or
intermediate-term exposure have been identified and the current use
pattern does not indicate chronic or long-term exposure (6 or more
months of continuous exposure) potential.
    4. Cumulative effects from substances with a common mechanism of
toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when
considering whether to establish, modify, or revoke a tolerance, the
Agency consider ``available information'' concerning the cumulative
effects of a particular pesticide's residues and ``other substances
that have a common mechanism of toxicity.''
    EPA has not found flutolanil to share a common mechanism of
toxicity with any other substances, and flutolanil does not appear to
produce a toxic metabolite produced by other substances. For the
purposes of this tolerance action, therefore, EPA has assumed that
flutolanil does not have a common mechanism of toxicity with other
substances. For information regarding EPA's efforts to determine which
chemicals have a common mechanism of toxicity and to evaluate the
cumulative effects of such chemicals, see EPA's website at http://
www.epa.gov/pesticides/cumulative.

D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(c) of FFDCA provides that EPA
shall apply an additional tenfold (10X) margin of safety for infants
and children in the case of threshold effects to account for prenatal
and postnatal toxicity and the completeness of the database on toxicity
and exposure (MOE) unless EPA determines based on reliable data that a
different margin of safety will be safe for infants and children. This
additional margin of safety is commonly referred to as the FQPA safety
factor (SF). In applying this provision, EPA either retains the default
value of 10X, or uses a different additional safety factor when
reliable data available to EPA support the choice of a different
factor.
    2. Prenatal and postnatal sensitivity. There was no evidence of
increased susceptibility of rat or rabbit fetuses to in utero exposure
or rat pups to post-natal exposure to flutolanil. Flutolanil is not
neurotoxic, and it is not a developmental or reproductive toxicant. No
maternal, reproductive, or developmental toxicity was observed at the
limit dose.
    3. Conclusion. EPA has determined that reliable data show the
safety of infants and children would be adequately protected if the
FQPA SF were reduced to 1X. That decision is based on the following
findings:
    i. The toxicity database for flutolanil is complete.
    ii. There is no indication that flutolanil is a neurotoxic chemical
and there is no need for a developmental neurotoxicity study or
additional UFs to account for neurotoxicity.
    iii. There is no evidence that flutolanil results in increased
susceptibility in in utero rats or rabbits in the prenatal
developmental studies or in young rats in the 2-generation reproduction
study.
    iv. There are no residual uncertainties identified in the exposure
data bases. The dietary food exposure assessments were performed based
on 100 percent crop treated (PCT) and tolerance-level residues.
     EPA made conservative (protective) assumptions in the ground water
and surface water modeling used to assess exposure to flutolanil in
drinking water. The level of residential exposure was not assessed as
flutolanil was found to have no toxic endpoints corresponding to the
duration of exposures in the residential setting. These assessments
will not underestimate the exposure and risks posed by flutolanil.

E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic pesticide exposures are
safe by comparing aggregate exposure estimates to the aPAD and cPAD.
The aPAD and cPAD represent the highest safe exposures, taking into
account all appropriate SFs. EPA calculates the aPAD and cPAD by
dividing the POD by all applicable UFs. For linear cancer risks, EPA
calculates the probability of additional cancer cases given the
estimated aggregate exposure. Short-term, intermediate-term, and
chronic-term risks are evaluated by comparing the estimated aggregate
food, water, and residential exposure to the POD to ensure that the MOE
called for by the product of all applicable UFs is not exceeded.
    1. Acute risk. No appropriate endpoint attributable to a single
exposure (dose) was identified from oral toxicity studies for the
general population or for females aged thirteen years or older.
Flutolanil is not expected to pose an acute risk.
    2. Chronic risk. Using the exposure assumptions described in this
unit for chronic exposure, EPA has concluded that exposure to
flutolanil and metabolites from food and water will utilize 1% of the
cPAD for the most highly exposed population subgroup (infants less than
one year old). Based on the use pattern, chronic residential exposure
to residues of flutolanil is not expected.
    3. Short and intermediate-term risk. Short-term and intermediate-
term aggregate exposure assessment takes into account residential
exposure plus chronic exposure to food and water (considered to be a
background exposure level).
     Because no flutolanil toxicity from short-term or intermediate-
term dermal and inhalation exposure was identified, flutolanil is not
expected to pose a short-term or intermediate-term dermal or inhalation
risk.
    4. Aggregate cancer risk for U.S. population. EPA has classified
flutolanil as ``not likely'' to be a human carcinogen.
    5. Determination of safety. Based on these risk assessments, EPA
concludes that there is a reasonable certainty that no harm will result
to the general population, or to infants and children from aggregate
exposure to flutolanil residues.

IV. Other Considerations

A. Analytical Enforcement Methodology

    An adequate common moiety high performance liquid chromatography/
mass spectrometry (HPLC/MS) method (Method AU/95R/04) is available
which determines residues of flutolanil and metabolites as 2-
trifluoromethyl benzoic acid (2-TFBA). The method may be requested
from: Chief, Analytical Chemistry Branch, Environmental Science Center,
701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-
2905; e-mail address<EMAIL_ADDRESS>
B. International Residue Limits

    Codex maximum residue limits (MRLs) are established for residues of
flutolanil per se in rice commodities at 1-10 ppm, and in livestock
commodities at 0.05-0.2 ppm. There are no wheat or soybean Codex MRL's.

Codex MRL's differ from established tolerances for the following
commodities: Rice, grain; cattle, goat and hog kidney, and cattle, goat
and hog liver. No Canadian or Mexican MRLs have been established for
flutolanil.
    The Agency's tolerance levels are based on analyses of the residue
field trial data using EPA's Tolerance Spreadsheet in accordance with
the Agency's Guidance for Setting Pesticide Tolerances Based on Field
Trial Data, Standard Operating Procedure (SOP).

C. Response to Comments

    One comment was received from a private citizen objecting to the
establishment of tolerances for flutolanil. The commenter criticized
EPA's reliance on toxicology testing on animals. The Agency has
received, and responded to, similar comments from this commenter on
numerous previous occasions. Refer to Federal Register 70 FR 37686
(June 30, 2005), 70 FR 1354 (January 7, 2005) and, 69 FR 63096 (October
29, 2004) for the Agency's response to these objections.

D. Revisions to Petitioned-For Tolerances

    Based upon review of the data supporting the petition, EPA
determined that the proposed tolerances should be revised as follows:
Soybean, forage decreased from 9.0 ppm to 8.0 ppm; soybean, hay
increased from 2.0 ppm to 2.5 ppm; wheat, forage increased from 2.0 ppm
to 2.5 ppm; wheat, grain decreased from 0.1 ppm to 0.05 ppm; wheat, hay
increased from 1.0 ppm to 1.2 ppm; wheat, straw decreased from 0.3 ppm
to 0.20 ppm; and wheat, bran decreased from 0.3 ppm to 0.20 ppm. EPA
revised these tolerance levels based on analysis of the residue field
trial data using the Agency's Tolerance Spreadsheet in accordance with
the Agency's Guidance for Setting Pesticide Tolerances Based on Field
Trial Data Standard Operating Procedure (SOP).

V. Conclusion

    Therefore, tolerances are established for indirect or inadvertent
residues of flutolanil, N-(3-(1-methylethoxy)phenyl)-2-
(trifluoromethyl)benzamide, and its metabolites converted to 2-
(trifluoromethyl) benzoic acid and calculated as flutolanil, in or on
soybean, forage at 8.0 ppm, soybean, hay at 2.5 ppm, soybean, seed at
0.20 ppm, wheat, forage at 2.5 ppm, wheat, grain at 0.05 ppm, wheat,
hay at 1.2 ppm, wheat, straw at 0.20 ppm, and wheat, bran at 0.20 ppm.
    Additionally, expired time-limited tolerances for rice, grain;
rice, straw; rice, bran; and rice, hulls are removed from 40 CFR part
180.484:

VI. Statutory and Executive Order Reviews

    This final rule establishes tolerances under section 408(d) of
FFDCA in response to a petition submitted to the Agency. The Office of
Management and Budget (OMB) has exempted these types of actions from
review under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993). Because this final rule has been
exempted from review under Executive Order 12866, this final rule is
not subject to Executive Order 13211, Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use (66 FR
28355, May 22, 2001) or Executive Order 13045, entitled Protection of
Children from Environmental Health Risks and Safety Risks (62 FR 19885,
April 23, 1997). This final rule does not contain any information
collections subject to OMB approval under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., nor does it require any special
considerations under Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994).
    Since tolerances and exemptions that are established on the basis
of a petition under section 408(d) of FFDCA, such as the tolerance in
this final rule, do not require the issuance of a proposed rule, the
requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.) do not apply.
    This final rule directly regulates growers, food processors, food
handlers, and food retailers, not States or tribes, nor does this
action alter the relationships or distribution of power and
responsibilities established by Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such, the Agency has determined that
this action will not have a substantial direct effect on States or
tribal governments, on the relationship between the national government
and the States or tribal governments, or on the distribution of power
and responsibilities among the various levels of government or between
the Federal Government and Indian tribes. Thus, the Agency has
determined that Executive Order 13132, entitled Federalism (64 FR
43255, August 10, 1999) and Executive Order 13175, entitled
Consultation and Coordination with Indian Tribal Governments (65 FR
67249, November 9, 2000) do not apply to this final rule. In addition,
this final rule does not impose any enforceable duty or contain any
unfunded mandate as described under Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Public Law 104-4).
    This action does not involve any technical standards that would
require Agency consideration of voluntary consensus standards pursuant
to 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).

VII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and to
the Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of this final rule in the Federal
Register. This final rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: May 29, 2008.
Lois A. Rossi,
Director, Registration Division, Office of Pesticide Programs.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 180--[AMENDED]

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

0
2. Section 180.484 is amended by removing paragraph (a)(2), removing
the heading to paragraph (a)(1), redesignating paragraph (a)(1) as
paragraph (a) and revising paragraph (d) to read as follows:

Sec.  180.484  Flutolanil (N-(3-(1-methylethoxy)phenyl)-2-
(trifluoromethyl)benzamide); tolerances for residues.

* * * * *
    (d) Indirect or inadvertent residues. Tolerances are established
for the indirect or inadvertent residues of the fungicide flutolanil,
N-(3-(1-methylethoxy)phenyl)-2-(trifluoromethyl)benzamide, and its
metabolites converted to 2-(trifluoromethyl) benzoic acid and

calculated as flutolanil, in or on the following commodities:

------------------------------------------------------------------------
              Commodity                        Parts per million
------------------------------------------------------------------------
Soybean, forage.....................                                 8.0
Soybean, hay........................                                 2.5
Soybean, seed.......................                                0.20
Wheat, bran.........................                                0.20
Wheat, forage.......................                                 2.5
Wheat, grain........................                                0.05
Wheat, hay..........................                                 1.2
Wheat, straw                                                        0.20
------------------------------------------------------------------------

[FR Doc. E8-13000 Filed 6-10-08; 8:45 am]

BILLING CODE 6560-50-S


[Federal Register Volume 83, Number 189 (Friday, September 28, 2018)]
[Notices]
[Page 49089]
[FR Doc No: 2018-21111]

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

ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL-9041-5]

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 09/17/2018 Through 09/21/2018
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. 20180220, Draft Supplement, USFS, ID, Clear Creek Integrated
Restoration Project, Comment Period Ends: 11/13/2018, Contact: Zoanne
Anderson<PHONE_NUMBER>.
EIS No. 20180221, Draft, HUD, VA, Ohio Creek Watershed Project, Comment
Period Ends: 11/13/2018, Contact: Kerry Johnson<PHONE_NUMBER>.
EIS No. 20180222, Draft, USFS, BLM, ID, Proposed East Smoky Panel Mine
Project at Smoky Canyon Mine, Comment Period Ends: 12/26/2018, Contact:
Kyle Free<PHONE_NUMBER>.
EIS No. 20180223, Draft Supplement, GSA, CA, San Ysidro Land Port of
Entry Improvements Project, Comment Period Ends: 11/13/2018, Contact:
Osmahn A. Kadri<PHONE_NUMBER>.
EIS No. 20180224, Draft, USACE, CT, New Haven Harbor Navigation
Improvement Project, Draft Integrated Feasibility Report and
Environmental Impact Statement, Comment Period Ends: 11/15/2018,
Contact: Todd Randall<PHONE_NUMBER>.
EIS No. 20180225, Final, USFS, CA, Strategic Community Fuelbreak
Improvement Project, Review Period Ends: 10/29/2018, Contact: Nic
Elmquist<PHONE_NUMBER>.
EIS No. 20180226, Final, USN, WA, EA-18G ``Growler'' Airfield
Operations at Naval Air Station Whidbey Island Complex, WA, Review
Period Ends: 10/29/2018, Contact: Lisa Padgett<PHONE_NUMBER>.

Amended Notices

EIS No. 20180178, Draft, NHTSA, REG, Draft EIS for The Safer Affordable
Fuel-Efficient (SAFE) Vehicles Rule for Model Year 2021-2026 Passenger
Cars and Light Trucks, Comment Period Ends: 10/26/2018, Contact: Ken
Katz<PHONE_NUMBER>.

    Revision to FR Notice Published 08/10/2018; Extending the Comment
Period from 09/24/2018 to 10/26/2018.

EIS No. 20180207, Final, USACE, NE, Missouri River Recovery Management
Plan, Review Period Ends: 10/22/2018, Contact: Tiffany Vanosdall 402-
995-2695.

    Revision to FR Notice Published 9/7/2018; Extending the Review
Period from 10/09/2018 to 10/22/2018.

    Dated: September 24, 2018.
Robert Tomiak,
Director, Office of Federal Activities.
[FR Doc. 2018-21111 Filed 9-27-18; 8:45 am]
 BILLING CODE 6560-50-P


40 CFR 194.23 Models and Computer Codes

EPA Question

Please supplement the screening argument with a discussion of the impact of exothermic reactions in the waste panels.

DOE Response (from DOE Response Package 5 (DOE RP5 2015b))

It is clear that the event of February 14, 2014, has no effect on compliance with 40 CFR 191 Subparts B and C (or the CRA-2014), primarily because it occurred during the operational timeframe and not the post-closure disposal period. Additionally, this accident was the result of operational and administrative deficiencies and should not be considered a normally anticipated event. Procedural changes and safeguards will be implemented to assure that such incompatibilities will not occur within waste drums in the future. For these reasons, the screening argument has not been changed to assume that such events will occur in the future. The screening argument will, however, be changed to describe the incident and the processes that are understood to have occurred. This event and resulting administrative changes needs to be considered as operational period activities and have no bearing upon the long-term conditions within the repository.

With regard to this specific event, while nitrate is not depleted by anoxic conditions, it does react with cellulose and will likely be reacting during the operational phase of the repository until the nitrate salts are depleted. However, rather than resulting in a thermal runaway, the more likely scenario of nitrate depletion, which has been observed in sibling containers being stored and monitored at LANL, is by smooth oxidation that does not give rise to a thermal runaway. These reactions reduce the nitrate salts, with a concomitant oxidation of the cellulose, to produce carbon and nitrogen oxides and other products of combustion. Although not seen in the gas phase, metal oxides are also produced. The heat of reaction on these monitored drums has not been detected by the external thermocouples because it is dissipated as fast as it is formed. However, the gaseous products are easily detected by gas chromatography, so it is clear that the reaction is ongoing but the rate is slow and therefore the impact is small, resulting in no loss of containment. While the oxidation by nitrate does produce heat, this heat load is already bounded by the CPR being converted to gas (the calorie release from the nitrate oxidation of cellulose is very similar to the calorie release from the air oxidation of cellulose). It is expected that the exothermic heat load from these reactions will be fairly small compared to the heat capacity of the quantity of salt in the repository. The impact of exothermic reactions from the presence of waste with nitrate salts is expected to be insignificant and is not included in PA.
The following text from Appendix SCR-2014 presents an updated screening argument for FEP W72 Exothermic Reactions has been provided to reflect the February 2014 event. Changes are shown in blue font.

SCR-<IP_ADDRESS> FEP Numbers: W29, W30, W31, W72, and W73
FEP Titles: Thermal Effects on Material Properties (W29) Thermally-Induced Stress Changes (W30) Differing Thermal Expansion of Repository Components (W31) Exothermic Reactions (W72) Concrete Hydration (W73)

SCR-<IP_ADDRESS>.1 Screening Decision: SO-C

The effects of Thermally-Induced Stress, Differing Thermal Expansion of Repository Components, and Thermal Effects on Material Properties in the repository have been eliminated from PA calculations on the basis of low consequence to performance of the disposal system.

The thermal effects of Exothermic Reactions, including Concrete Hydration, have been eliminated from PA calculations on the basis of low consequence to the performance of the disposal system.

SCR-<IP_ADDRESS>.2 Summary of New Information

This FEP has been updated to include the most recent inventory information as presented in Van Soest (2012). Thermal calculations have been updated with the updated quantities of reactants and provided below. Additionally, planned Salt Disposal Investigations (SDI) experiments as detailed in Patterson (2011) or the Salt Defense Disposal Investigations (SDDI) (Franco 2012) will place heaters in newly excavated tunnels in the northern experimental region of the WIPP. Mining has been completed, but heater tests have not yet commenced. An evaluation conducted by Kuhlman (2011) for the SDI planned change notice (PCN) shows that any thermal pulse from these experiments will be very minimal, on the order of 0.02 °C or less. Therefore, the screening argument and decision for this FEP is unaffected by the conduct of these experiments.

On February 14, 2014, an exothermic reaction involving the mixture of the organic materials (Swheat Scoop(R) absorbent and/or neutralizer) and nitrate salts occurred inside a waste drum emplaced in Room 7 of Panel 7. This exothermic reaction resulted in pressurization of the drum, failure of the drum locking ring, and displacement of the drum lid. The visual evidence associated with the identified breach was consistent with an exothermic reaction within the drum. This reaction led to pressure buildup of combustible gases within the drum. The drum lid extruded beyond the lid retention ring, deflected the lid, and resulted in rapid release of the materials from the drum. The combustible gases and solids ignited, which then spread to other combustible materials within the waste array, i.e., fiberboard and polyethylene slip sheets, reinforcement plates, stretch wrap, cardboard stiffeners and polypropylene super sack fabric. The cause of this event has been identified by the Accident Investigation Board (DOE 2015) as being a specific deficiency that, "if corrected, would prevent recurrence of the same accident."

SCR-<IP_ADDRESS>.3 Screening Argument

Thermally induced stress could result in pathways for groundwater flow in the DRZ, in the anhydrite layers and MBs, and through seals, or it could enhance existing pathways. Conversely, elevated temperatures will accelerate the rate of salt creep and mitigate fracture development. Thermal expansion could also result in uplift of the rock and ground surface overlying the repository, and thermal buoyancy forces could lift the waste upward in the salt rock.

The distributions of thermal stress and strain changes depend on the induced temperature field and the differing thermal expansion of components of the repository, which depends on the components' elastic properties. Thermal effects on material properties (such as permeability and porosity) could potentially affect the behavior of the repository.

Exothermic reactions expected in the WIPP repository include MgO hydration, MgO carbonation, aluminum (Al) corrosion, and cement hydration[1] (Bennett et al. 1996). Wang (1996) has shown that the temperature rise by an individual reaction is proportional to , where V is the maximum rate of brine inflow into a waste panel for a reaction limited by brine inflow (or a specified maximum reaction rate for a reaction limited by its own kinetics) and M is the quantity of the reactant. MgO hydration, cement hydration, and Al corrosion are assumed to be limited by brine inflow because they all consume water and have high reaction rates. The amounts of reactants are tabulated in Table SCR-3.

1Only materials in the waste are included in these calculations. Other materials such as concrete in shaft seals have not been included because their effects occur prior to final repository closure or shortly thereafter and have no impact on repository performance.

   Table SCR-3. Changes in Inventory Quantities from the CCA to the CRA-2014

                              SCR-1.1.1 Inventory
                                      CCA
                                   CRA-2004
                                   CRA-2009
                                   CRA-2014
MgO (tons)
85,600a
72,760 (because of the elimination of mini-sacks)a
59,385e
51,430h
Cellulosics (tons)
5,940b
8,120c
8,907f
5,127i
Plastics (tons)
3,740b
8,120c
10,180f
10,487i
Rubber (tons)
1,100b
1,960c
1,885f
1,379i
Aluminum alloys (tons)
1,980b
1,960c
2,030f
504i
Cement (tons)
8,540b
9,971d
13,888g
11872j
a U.S. DOE (2000a)
b U.S. DOE (1996b). Only CH-TRU wastes are considered. Total volume of CH-TRU wastes is 1.1 x 105 m3. This is not scaled to WIPP disposal volume.
c Appendix DATA-2004, Attachment F. Only CH-TRU wastes are considered. Total volume of CH-TRU waste is 1.4 x 105 m3. This is not scaled to WIPP disposal volume.
d This estimate is derived from data in Leigh (2003) and includes both reacted and unreacted cement (1.2 x 107 kg x 1.4 x 105/168485/1000 kg/ton = 9971 tons cement).
e This estimate is derived by assuming that Panel 1 has an MgO excess factor of 1.95, three panel equivalents have a 1.67 excess factor, and the remaining 6 panel equivalents have a 1.2 excess factor, resulting in a 1.416 projected excess factor for a full repository. The projected excess factor is then multiplied by the equivalent cellulose value of 28,098 x (40.3/27) (the MgO molar ratio).
f This value is derived using material densities reported in Leigh et al. (2005b), and total CH-TRU waste volume (1.45 x 105 m3 reported in Leigh et al. (2005a)).
g This value is derived from data in Leigh (2003) and Leigh et al. (2005a). ((1.2 x 107 kg) x 39/29 x (1.45 x 105)/168485/1000 kg/ton = 13,888 tons cement).
h This estimate is derived by assuming that Panel 1 has an MgO excess factor of 1.95, three panel equivalents have a 1.67 excess factor, and the remaining 6 panel equivalents have a 1.2 excess factor, resulting in a 1.416 projected excess factor for a full repository. The projected excess factor is then multiplied by the equivalent cellulose value of 24,334 x (40.3/27) (the MgO molar ratio).
i This value is derived from Van Soest (2012) and contains CH, RH, packaging, and emplacement materials.
j This value is derived from Van Soest (2012) and contains reacted and unreacted cements for both CH and RH wastes.

Similarly, MgO carbonation, which consumes CO2, is limited by CO2 generation from microbial degradation. Given a biodegradation rate constant, the total CO2 generated per year is proportional to the total quantity of biodegradable materials in the repository. For the LANL drums, the mass of added desiccant is a small fraction of the total mass of CPR in the repository, and will not have a significant impact on long-term performance. Using the computational methods in Wang and Brush (1996a and 1996b), the inventory of biodegradable materials has been changed from 23,884 (8,120 + 1.7 x 8,120 + 1,960) tons for the CRA-2004[2] to 28,098 (8,907 + 1.7 x 10,180 + 1,885) tons of equivalent cellulosic materials for the CRA-2009.[1] For the CRA-2014, this value changes to 24,334 (5,127 + 1.7 x 10,487 + 1,379) tons of equivalent cellulosic materials. This decrease in biodegradable materials corresponds to a proportional decrease in CO2 generation, all other factors (such as brine saturation) being equal. For MgO carbonation and microbial degradation, the calculated temperature rises have been updated for the changes in both microbial gas generation and waste inventory and are presented in Table SCR-4. Temperature rises ([o]C) by exothermic reactions are revised as follows.

CCA conditions following a drilling event show that Al corrosion could, at most, result in a short-lived (two years) temperature increase of about 6 °C (10.8 °F) above ambient room temperature (about 27 °C (80 °F)) (Bennett et al. 1996). A temperature rise of 6 °C (10.8 °F) represented the maximum that could occur as a result of any combination of exothermic reactions occurring simultaneously. Revised maximum temperature rises by exothermic reactions for CRA-2014 are still less than 12 ºC (22 °F) (as shown in Table SCR-4). Such small temperature changes cannot affect material properties. Thus, thermal effects on material properties in the repository have been eliminated from PA calculations on the basis of low consequence to the performance of the disposal system.

             Table SCR-4. CCA and CRA Exothermic Temperature Rises

                                   Reactant
                                     CCAa
                                   CRA-2004a
                                   CRA-2009a
                                   CRA-2014a
MgO hydration
                                   < 4.5
                                   < 4.7
                                   < 4.2
                                   < 3.9
MgO carbonation
                                   < 0.6
                                   < 0.7
                                   < 0.6
                                   < 0.6
Microbial degradation
                                   < 0.8
                                   < 1.4
                                   < 1.5
                                   < 1.4
Aluminum corrosion
                                   < 6.0
                                   < 6.8
                                   < 6.9
                                   < 3.4
Cement hydration
                                   < 2.0
                                   < 2.5
                                   < 3.0
                                   < 2.7
a All values are in degrees Celsius.

All potential sources of heat and elevated temperature have been evaluated and found not to produce high enough temperature changes to affect the repository's performance. Sources of heat within the repository include radioactive decay and exothermic chemical reactions such as backfill hydration and metal corrosion. The rates of these exothermic reactions are limited by the availability of brine in the repository. In general, the various sources of heat are not great enough to jeopardize the performance of the disposal system.

These changes have been added to Enclosure 4, CRA-2014 Errata Tracking.

2 The 1.7 molar conversion rate for plastic is based on analyses presented in Wang and Brush (1996a and 1996b).

EPA Evaluation of Response

Response incomplete. The acknowledgment in the Summary of New Information for this FEP that an exothermic reaction did inadvertently occur in the WIPP waste region is appropriate. However, the chemical incompatibilities that resulted in the exothermic reaction are potentially present in other waste drums that remain in the repository from the same waste stream as the drum that experienced the reaction. The potential that exothermic reactions could occur in those drums in the post-closure environment needs to be addressed in this FEP.
Additional Information Needed: In the future DOE needs to supplement the screening argument for this FEP with a discussion of the effects on WIPP performance of the potential that exothermic reactions could occur in the post-closure environment.

2-32-S22 FEP W73 Concrete Hydration.
40 CFR 194.23 Models and Computer Codes

EPA Question

Please supplement the screening argument with a discussion of the impact on the PA based on a reduced concrete inventory due to DOE now using Option D concrete monoliths in the panel closure system. Update the analysis to include where explosion walls are or will be installed.

DOE Response (from DOE Response Package 5 (DOE RP5 2015b))

The concrete evaluated within the screening argument reflects only that concrete intrinsic to WIPP waste, and does not consider concrete hydration due to panel closures or other engineered repository elements. Concrete hydration as it relates to this FEP is solely due to cement (or concrete) within the waste (see for example Table SCR-3 in Appendix SCR-2014). The reason that concrete hydration from panel closures has not been included in this analysis is because any related thermal rise is considered a short-term phenomenon that will only exist during the operational period, or at the very earliest part of the post-closure disposal period. Now that concrete will not be used in the panel closure system, concrete hydration from engineered elements of the repository is even less important. The same can be said for any explosion walls currently emplaced or that will be emplaced in the future. These elements, which consist of concrete blocks with mortar joints, have no effect on the long-term performance of the repository. What small amount of cement mortar used will have long been reacted during the operational period and will not have any thermal effect during the disposal period.

EPA Evaluation of Response

Response complete and sufficient. Potential impact on WIPP PA is low.

2-32-S23 FEP W110 Panel Closure Physical Properties.
40 CFR 194.23 Models and Computer Codes

EPA Question

Please update the screening argument to provide a description of the as-emplaced properties of the ROM salt now that in situ testing has been completed.

DOE Response (from DOE Response Package 4 (DOE RP4 2015a))

Consistent with the DOE's response to EPA comment 2-32-G1, this type of information is best left in the supporting documentation, rather than within the screening document. The results of in situ testing have not been documented at this time. At this point, the screening argument and decision remain unchanged.

EPA Evaluation of Response

Response incomplete. In the future the screening argument for this FEP needs to include references to supporting documentation where the as-emplaced properties of the ROM salt are described.
Additional Information Needed: In the future DOE needs to include references in the screening argument for this FEP to supporting documentation where the as-emplaced properties of the ROM salt are described.

2-32-S24 FEP W111 Panel Closure Chemical Composition.
40 CFR 194.23 Models and Computer Codes

EPA Question

Please update the screening argument to include the chemical composition of the steel bulkheads that are part of the panel closure design.

DOE Response (from DOE Response Package 5 (DOE RP5 2015b))

Steel (iron) bulkheads have been used in each panel for ventilation control and are not considered part of the engineered panel closure system. Their presence is primarily to control ventilation during construction of the ROMPCS. In cases where a block explosion wall has already been emplaced as part of the partial closure process for some panels, a steel bulkhead will not be used, as the block wall will serve as the ventilation barrier. In cases where the block walls exist, ROM salt will be placed directly against the wall. In cases where the steel bulkhead is used, the ROM salt will have a safe stand-off distance so as not to collapse or compromise the steel bulkhead. In either case, these engineered features are not considered long-term functional elements of the ROMPCS, and are not factored into PA parameters used to represent the closures.

Steel (iron) bulkheads are used throughout the mine for ventilation controls, and may or may not be removed prior to repository closure. Any additional iron mass associated with steel bulkheads used in construction of the ROMPCS is inconsequential to repository performance because modeling predictions show un-degraded iron at the end of the 10,000-year performance period (see DOE response to comment 1-23-5). That is, considering only the iron-based alloys in the waste and waste containers results in a significant portion of the iron inventory un-degraded. Therefore, slightly increasing the iron inventory due to additional steel bulkheads or other facility elements will result in even more un-degraded iron at the end of the performance period. Because of this, and the fact that the steel bulkhead is not considered a PCS element, this FEP remains unchanged.

EPA Evaluation of Response

Response is adequate. FEPs are intended to address repository features that are included in PA as well as those that are not. The bulkheads have been described to EPA as part of the panel closure system. They are large features that will be within waste panels and their presence needs to be acknowledged in the FEPs baseline. EPA accepts the conclusion that increases in iron inventory due to the bulkheads will be small and do not change repository performance, but the presence of the bulkheads, their chemical composition, and their potential impact on WIPP performance should be described in the next FEP baseline.

2-32-S25 FEP W113 CONSOLIDATION OF PANEL CLOSURES.
40 CFR 194.23 Models and Computer Codes

EPA Question

Please supplement the screening argument with information on consolidation specific to the ROM salt in the ROMPCS. Such a discussion can be found in Camphouse et al. (2012, Section 2.0. ERMS 557396).

DOE Response (from DOE Response Package 4 (DOE RP4 2015a))

Consistent with the DOE's response to EPA comment 2-32-G1, this type of information is best left in the supporting documentation, rather than within the screening document. The screening argument in Appendix SCR-2014 states in Section SCR-<IP_ADDRESS>.3: "Consolidation of shaft seals, consolidation of the ROM salt PCS, mechanical degradation of shaft seals, and mechanical degradation of panel closures are accounted for in PA calculations through the permeability ranges assumed for the seal and closure systems (Appendix PA-2014, Section PA-4.2.7 and Section PA-4.2.8)." Appendix PA, Section PA-4.2.8 then cites Camphouse et al. (2012) for more discussion on the ROMPCS consolidation.

EPA Evaluation of Response

Response is complete and sufficient.

2-32-S26 FEP W115 Chemical Degradation of Panel Closures.
40 CFR 194.23 Models and Computer Codes

EPA Question

The screening decision for this FEP was changed from UP (screened in) to SO-P (screened out  -  low probability). Please supplement the screening argument with a discussion of the chemical degradation of the steel bulkheads, which are part of the ROM salt panel closure system. Please also provide technical justification for the changed screening decision in light of the presence of the bulkheads.

DOE Response (from DOE Response Package 5 (DOE RP5 2015b))

As explained in the response to 2-32-S24, the steel bulkhead is not considered an engineered element of the ROMPCS and is only important to control ventilation during construction of the closure. Degradation of the steel bulkhead will proceed throughout the performance period, as it will for all steel in the repository. This has no effect on the long-term properties of the ROMPCS and is not included in PA. However, degradation of steel within the repository is represented in PA and is a desirable process that serves to maintain a reducing chemical environment, which in turn supports lower actinide solubility.

EPA Evaluation of Response

Response is adequate. The bulkheads have been presented to EPA as part of the panel closure system and a discussion of their degradation is a logical part of this FEP. As explained in the EPA assessment of the response to 2-32-S24, the steel bulkheads are present in the waste region and their chemical degradation should be acknowledged in the next FEPs baseline.

Source Citation for EPA FEP Completeness Questions

EPA (U.S. Environmental Protection Agency) 2015. Second Set of Completeness Comments for CRA 2014. Letter from Jonathan Edwards (EPA) to Jose Franco (DOE). U.S. Environmental Protection Agency, Washington D.C. Docket No: EPA-HQ-OAR-2014-0609. February 27, 2015. (Second Completeness Letter).

Source Citations for DOE Completeness Question Response Packages

DOE RP4 (U.S. Department of Energy) 2015a. Response to Environmental Protection Agency Letters Dated December 17, 2014 and February 27, 2015 Regarding the 2014 Compliance Recertification Application. Letter from Jose Franco (DOE) to Jonathan Edwards (EPA). Docket No: EPA-HQ-OAR-2014-0609.  Department of Energy, Carlsbad Field Office, Carlsbad, New Mexico. May 29, 2015. (Fourth Response Package).

DOE RP5 (U.S. Department of Energy) 2015b. Response to Environmental Protection Agency Letters Dated February 27, 2015 and June 5, 2015 Regarding the 2014 Compliance Recertification Application. Letter from Dana Bryson (DOE) to Jonathan Edwards (EPA). Docket No: EPA-HQ-OAR-2014-0609. Department of Energy, Carlsbad Field Office, Carlsbad, New Mexico. July 15, 2015. (Fifth Response Package).


[Federal Register Volume 79, Number 96 (Monday, May 19, 2014)]
[Notices]
[Page 28710]
[FR Doc No: 2014-11466]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Headwaters Wind Farm LLC; Docket No. ER14-1933-000]

Supplemental Notice That Initial Market-Based Rate Filing
Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding of
Headwaters Wind Farm LLC's application for market-based rate authority,
with an accompanying rate tariff, noting that such application includes
a request for blanket authorization, under 18 CFR Part 34, of future
issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR Part 34, of future issuances of securities and assumptions of
liability, is June 2, 2014.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
5 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426.
    The filings in the above-referenced proceeding are accessible in
the Commission's eLibrary system by clicking on the appropriate link in
the above list. They are also 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 email notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please email<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

    Dated: May 12, 2014.
Kimberly D. Bose,
Secretary.
[FR Doc. 2014-11466 Filed 5-16-14; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 50 (Wednesday, March 17, 2021)]
[Notices]
[Pages 14661-14664]
[FR Doc No: 2021-05448]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91299; File No. SR-Phlx-2021-03]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing
of Amendment No. 1 and Order Granting Accelerated Approval of a
Proposed Rule Change, as Modified by Amendment No. 1, To Modify Phlx
Options 8, Section 26, ``Trading Halts, Business Continuity and
Disaster Recovery''

March 11, 2021.

I. Introduction

    On January 7, 2021, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ a proposed rule change to
modify Phlx Options 8, Section 26 (Trading Halts, Business Continuity
and Disaster Recovery) to make available an audio and video
communication program to serve as a ``virtual trading crowd'' in the
event the physical trading floor becomes unavailable, the back-up
trading floor becomes inoperable or the Exchange otherwise determines
not to operate its back-up trading floor. The proposed rule change was
published in the Federal Register on January 14, 2021.\3\ On February
26, 2021, pursuant to Section 19(b(2) of the Act,\4\ the Commission
designated a longer period within which to either approve the proposed
rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ On March 2, 2021, the Exchange filed Amendment No. 1 to the
proposed rule change, which replaced and superseded the proposed rule
change.\6\ This order approves the proposed rule change, as modified by
Amendment No. 1.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 90880 (January 8,
2021), 86 FR 3217 (``Notice'').
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 91220, 86 FR 12733
(March 4, 2021). The Commission designated April 14, 2021, as the
date by which it should approve, disapprove, or institute
proceedings to determine whether to disapprove the proposed rule
change.
    \6\ In Amendment No. 1, the Exchange made technical corrections
and revisions to the proposed rule text for readability and
consistency. Amendment No. 1 is available on the Commission's
website at: https://www.sec.gov/comments/sr-phlx-2021-03/srphlx202103-8436948-229661.pdf.
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II. Description of the Proposed Rule Change, as Modified by Amendment
No. 1

    Options 8, Section 26(g)(1) currently provides that if the physical
location designated as the ``Trading Floor'' becomes unavailable, Phlx
will enact its Business Continuity Plan (``BCP'') and designate the
Philadelphia Navy Yard as its ``Back-Up Trading Floor.'' Further, in
the event that the Back-Up Trading Floor becomes inoperable, the
Exchange will only operate its electronic market and will not operate a
Trading Floor.\7\ The Exchange will operate only its electronic market
until the Exchange's Trading Floor facility is operational.\8\ Open
outcry trading will not be available in the interim.\9\
---------------------------------------------------------------------------

    \7\ See Phlx Options 8, Section 26(g)(2).
    \8\ Id.
    \9\ Id.
---------------------------------------------------------------------------

    On March 17, 2019, Phlx closed the Trading Floor as a result of
precautions taken with respect to COVID-19 and operated in an all-
electronic configuration during that time.\10\ Due to the uncertainty
related to the ongoing pandemic, which includes the possibility of
having to close the Trading Floor again, the Exchange now has proposed
to adopt Options 8, Section 26(g)(3) to permit open outcry trading to
take place in an audio and video communication program to serve as a
``virtual trading crowd'' if the Trading Floor becomes unavailable, the
Back-Up Trading Floor becomes inoperable or the Exchange otherwise
determines not to operate its Back-Up Trading Floor.\11\ The Exchange
represents that if it were to determine to use the virtual trading
crowd in a more permanent manner for reasons other than business
continuity purposes, the Exchange would submit a separate rule filing
to the Commission.\12\
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    \10\ See Notice, supra note 3, 86 FR at 3218.
    \11\ Phlx also proposes to update Options 8, Section 26(g)(1)
and (2) to specify the availability of the virtual trading crowd in
the event the Trading Floor and/or Back-Up Trading floor is
unavailable, or the Exchange otherwise determines not to operate its
Back-Up Trading Floor. See proposed Options 8, Section 26(g)(1) and
(2).
    \12\ See Notice, supra note 3, 86 FR at 3218, n.8.
---------------------------------------------------------------------------

    In the program, the Exchange would create virtual trading crowds,
in each of which the Exchange would determine which options class(es)
will be available for trading.\13\ Phlx members would access a virtual
trading crowds via ``zones.'' \14\ Similar to the Trading Floor,

multiple classes may trade in a single virtual trading crowd, available
for trading in a single zone.\15\ The Exchange may designate one or
more zones.\16\ The Exchange will assign each Floor Market Maker to a
zone and Floor Brokers may determine in which zone(s) they will be
present.\17\ The Exchange believes that the proposed configuration of
the virtual trading crowd is a practical replication of the structure
of the Trading Floor that will allow market participants to interact in
nearly the same manner as they do on the Trading Floor.\18\
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    \13\ The Exchange states that this is similar to the Exchange's
authority with respect to open outcry trading on the Trading Floor.
See id., 86 FR at 3218.
    \14\ See proposed Options 8, Section 26(g)(3)(B)(3). A ``zone''
is a virtual room representing a virtual trading crowd. See Notice,
supra note 3, 86 FR at 3218, n.11.
    \15\ See proposed Options 8, Section 26(g)(3)(B)(3).
    \16\ Id.
    \17\ Id. The Exchange states that this arrangement is similar to
the arrangement of the Trading Floor. See Notice, supra note 3, 86
FR at 3218, n.11.
    \18\ See id., 86 FR at 3223.
---------------------------------------------------------------------------

    All Options 8 Rules will apply to open outcry trading in the
virtual trading crowd in the same manner as they apply to open outcry
trading on the Trading Floor, except as otherwise provided for in
proposed Options 8, Section 26(g)(3)(F), described below. Proposed
Options 8, Section 26(g)(3)(A) lists certain terms in the Rules related
to open outcry trading on the Trading Floor that will be deemed to
refer to corresponding terms related to open outcry trading in the
virtual trading crowd. Specifically:
     References in the Rules to the ``floor,'' ``trading
floor,'' and ``Exchange floor'' (and any other terms with the same
meaning) will be deemed to refer to the virtual trading crowd; and
     References in the Rules to ``physical presence'' or ``on-
floor'' or ``floor'' (and any other terms with the same meaning) will
be deemed to refer to ``presence'' in a virtual trading crowd.
    The Exchange represents that access to the virtual trading crowd
will be substantially similar to access to the Trading Floor.\19\
Access to the virtual trading crowd will be limited to members and
member organizations, clerks, Exchange employees, and any other persons
the Exchange authorizes admission to the virtual trading crowd.\20\ The
Exchange will provide access to the virtual trading crowd to members
the Exchange has approved to perform a Trading Floor function
(including Floor Brokers and Floor Market Makers).\21\ Every member and
the member's employees in the virtual trading crowd must consent to
video and audio recording in order to participate in the virtual
trading crowd.\22\
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    \19\ See Notice, supra note 3, 86 FR at 3219. The Exchange
states that, currently, admission to the Trading Floor is limited to
members and member organizations, Exchange employees, clerks
employed by members and member organizations, inactive nominees, and
Exchange visitors that receive authorized admission to the Trading
Floor pursuant to Exchange policy, and any other persons that the
Exchange authorizes admission to the Trading Floor. See id.
    \20\ See proposed Options 8, Section 26(g)(3)(B). The Exchange
states that it is not proposing to amend its membership requirements
with respect to the virtual trading crowd. See Notice, supra note 3,
86 FR at 3219. Persons and entities may apply to become a Phlx
member by complying with the membership requirements described
within Phlx General 3 (Membership and Access). Id.
    \21\ See Notice, supra note 3, 86 FR at 3219.
    \22\ See proposed Options 8, Section 26(g)(3)(B)(1).
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    Members will be required to join the virtual trading crowd via a
computer and either computer audio, cell phone, or hard-wired phone, as
determined by the Exchange.\23\ Every member must be identified within
the chat by name in place of a badge requirement.\24\ Any unidentified
attendee will be removed from the virtual trading crowd.\25\ Every
member in the virtual trading crowd must provide Market Operations with
a contact number where Market Operations will be able to reach them
during the trading day.\26\ The contact number may not be the same
number that is being used to connect to the virtual trading crowd.\27\
Floor members will be responsible for maintaining updated contact
information.\28\
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    \23\ See proposed Options 8, Section 26(g)(3)(B)(2). Phlx states
that it will send a password-protected invitation to each floor
participant permitted access to the virtual trading crowd. See
Notice, supra note 3, 86 FR at 3220.
    \24\ See proposed Options 8, Section 26(g)(3)(B). The Exchange
states that members would be required to join the virtual trading
crowd in a manner that clearly identifies the member or member's
employee. See Notice, supra note 3, 86 FR at 3219.
    \25\ Id. The Exchange represents that it will have an audit
trail of the telephone numbers that have joined each remote
conferencing session in order to ensure that only members join the
remote conferencing feature. See id., 86 FR at 3220.
    \26\ See proposed Options 8, Section 26(g)(3)(B)(2).
    \27\ See id.
    \28\ See id.
---------------------------------------------------------------------------

    Members and member organizations may use any equipment to access
the virtual trading crowd and do not need to register devices they use
while in the virtual trading crowd.\29\ Notwithstanding Options 8,
Section 28(g) and Options 8, Section 30(e), members and member
organizations would be permitted remote access to the Options Floor
Based Management System (``FBMS'') when the virtual trading floor is
enacted for purposes of executing transactions which require exposure
in open outcry.\30\
---------------------------------------------------------------------------

    \29\ See proposed Options 8, Section 26(g)(3)(C). The Exchange
represents that Options 8, Section 38 (Communications and Equipment)
will otherwise apply in the same manner to the virtual trading crowd
as it does to the Trading Floor (to the extent the context
requires). See Notice, supra note 3, 86 FR at 3220.
    \30\ See proposed Options 8, Section 26(g)(3)(C). The Exchange
states that floor members must use Exchange-provided FBMS, to the
extent applicable, while transacting in the virtual trading crowd.
See Notice, supra note 3, 86 FR at 3220. The Exchange also
represents that all FBMS order and transaction data, as well as
compliance checks, available on the Trading Floor will continue to
be available in the virtual trading crowd. See id., 86 FR at 3219.
---------------------------------------------------------------------------

    The Exchange may determine to require any Floor Market Maker or
Floor Broker in a virtual trading crowd that attempts trades against an
order represented for execution to express its bid or offer in a chat
available in the remote conferencing feature.\31\ Chats will be visible
to all participants in a zone and will not be permitted directly
between individual participants.\32\ The Exchange states that it will
require members to utilize the chat function if Surveillance determines
that increased volume or activity in the virtual trading crowd warrant
mandatory use of the chat feature for members to maintain a fair and
orderly market.\33\
---------------------------------------------------------------------------

    \31\ See proposed Options 8, Section 26(g)(3)(D).
    \32\ See proposed Options 8, Section 26(g)(3)(D). The Exchange
will retain records of the chats, consents, and any other records
related to the virtual trading crowd that are subject to the
Exchange's record retention obligations under the Act. See proposed
Options 8, Section 26(g)(3)(E).
    \33\ See Notice, supra note 3, 86 FR at 3221. The Exchange
believes that the chat tool will benefit virtual trading crowd
participants due to the limitations of communication software (such
as limitations on how many people may be heard at the same time in a
virtual trading crowd or potential buffering or echoing). See id.,
86 FR at 3220-21.
---------------------------------------------------------------------------

    Furthermore, the Exchange proposes to set forth the following open
outcry requirements in the virtual trading crowd: \34\
---------------------------------------------------------------------------

    \34\ See proposed Options 8, Section 26(g)(3)(F)(1)a.-g.
---------------------------------------------------------------------------

     Prior to speaking on remote conferencing, each member must
announce themselves each time.
     If a member experiences a technical issue accessing the
remote conferencing, the Exchange will not be responsible for
unexecuted trades.
     Floor Market Maker quotes will be considered firm in the
event the Floor Market Maker is disconnected from the virtual trading
crowd and the parties have a Meeting of the Minds with respect to the
terms of the transaction. A ``Meeting of the Minds'' means the contra-
side(s) verbally confirmed participation in the trade. In the event
that a Floor Market Maker is disconnected from the virtual trading
crowd, a Floor Market Maker quote would not be considered firm if the
quote were provided and the parties did not have a Meeting of the Minds
with respect to the terms of the transaction.\35\
---------------------------------------------------------------------------

    \35\ Floor Market Maker quotes on the Trading Floor are
considered firm when announced in open outcry and once accepted the
transaction may be effectuated within FBMS. See Notice, supra note
3, 86 FR at 3221. Additionally, a Floor Market Maker that
experiences issues with internet connection, makes an error or
otherwise is unaware of recent news in a particular option, would be
held to a quote verbalized in open outcry. See id.

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

     FLEX Trade tickets must be sent by email to the Phlx
Correction Post.
     A break-out room may be utilized to declare a dispute or
otherwise notify an Options Floor Official of any required
notifications.\36\
---------------------------------------------------------------------------

    \36\ The Exchanges states that it would establish a break-out
room within the remote conferencing for each dispute. See id.
---------------------------------------------------------------------------

     A member may not permit any other unauthorized person to
gain audio or video access to the virtual trading crowd. A member shall
not record any trading sessions.
Technical Amendments
    The Exchange proposes to amend Options 8, Section 22 (Execution of
Options Transactions on the Trading Floor) to correct two incorrect
citations to Options 8, Section 35 in Options 8, Sections 22(b) and
(c).

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
change, as modified by Amendment No. 1, is consistent with the
requirements of the Act,\37\ and the rules and regulations thereunder
applicable to a national securities exchange.\38\ In particular, the
Commission finds that the proposed rule change, as modified by
Amendment No. 1, is consistent with Section 6(b)(5) of the Act,\39\
which requires, among other things, that the rules of a national
securities exchange be designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
to remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest.
---------------------------------------------------------------------------

    \37\ 15 U.S.C. 78f.
    \38\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \39\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    As discussed above, Phlx proposes to adopt rules to enable a
virtual trading crowd for open outcry trading when the Trading Floor
and Back-Up Trading Floor are unavailable. This would allow trading on
the Exchange to occur more similarly to physical floor trading than the
current rules for all-electronic trading in situations when the floor
becomes inoperable. Among other things, the Exchange believes that the
proposed enhancement to its BCP through the implementation of a virtual
trading crowd environment would ameliorate some of the features in open
outcry trading that are difficult to replicate in an all-electronic
environment, particularly the segment of trading strategies that
benefit from human interactions to negotiate pricing and to facilitate
executions of large orders and high-risk and complicated trading
strategies.\40\ The Exchange believes that the proposed rule change may
facilitate continued trading of these orders if and when the Trading
Floor and Back-Up Trading Floor are unavailable. As a result, the
Exchange believes that providing continuous access to open outcry
trading in these circumstances will remove impediments to a free and
open market and will ultimately benefit investors, particularly those
executing high-risk and complex trading strategies.
---------------------------------------------------------------------------

    \40\ See Notice, supra note 3, 86 FR at 3222.
---------------------------------------------------------------------------

    The Commission finds that the proposed implementation of the
virtual trading crowd for BCP purposes is consistent with the Act. The
Commission believes that the proposed virtual trading crowd will allow
the Exchange to provide a trading environment to floor members that is
reasonably designed to facilitate open outcry trading when
circumstances restrict physical human interaction on the Trading Floor
and Back-Up Trading Floor. The Commission notes that the Exchange has
conducted several town halls with floor members on the virtual trading
crowd and made the functionality available for testing so that the
Exchange will be ready to implement it if necessary. The Exchange
states that it has received positive feedback from floor members
regarding the tool and will continue to make updates as necessary and
appropriate in response to member feedback.\41\ As a result, the
Commission finds that the virtual trading crowd is reasonably designed
to allow continuous access to open outcry trading, which will remove
impediments to a free and open market and may ultimately benefit
investors, particularly those facilitating executions of large orders
and complex trading strategies.
---------------------------------------------------------------------------

    \41\ See id., 86 FR at 3222.
---------------------------------------------------------------------------

    Additionally, the design of the virtual trading zones to closely
replicate the arrangement of the physical trading floor will facilitate
the rollout of the virtual trading crowd to floor members and help
remove impediments to a free and open market when the Trading Floor and
Back-Up Trading Floor become unavailable. Virtual trading zones will
provide floor members the ability to interact in a substantially
similar way as they do on the Trading Floor. Furthermore, the proposed
chat functionality, which is not otherwise available on the Trading
Floor, is reasonably designed to create a virtual environment that
promotes fair and orderly markets by providing floor participants with
an additional tool to communicate with one another to the extent
necessary given the potential inherent limitations of communication
software.
    Finally, the Commission finds that the design of the virtual
trading crowd will help prevent fraudulent and manipulative acts and
practices, and promote just and equitable principles of trade by
requiring that the Rules and regulatory requirements apply in the
substantially the same manner as open outcry on the Trading Floor.
Specifically, the Exchange represents that all Rules related to open
outcry trading, including within Options 8, will apply to open outcry
trading in a virtual trading crowd, except as otherwise provided for in
proposed Options 8, Section 26(g)(3)(F).\42\ Floor members
participating in a virtual trading crowd will be subject to the same
regulatory requirements on the virtual trading floor as they are on the
Trading Floor, including those set forth in General 8.\43\ Orders in
the virtual trading crowd must be systematized and represented, and
transactions reported, in the same manner as on the Trading Floor.\44\
The Exchange also requires that floor members use Exchange-provided
FBMS, to the extent applicable, while transacting in the virtual
trading crowd, and represents that all FBMS order and transaction data,
as well as compliance checks, available on the Trading Floor will
continue to be available in the virtual trading crowd.\45\ In addition,
Phlx Surveillance staff will remotely surveil transactions in the
virtual trading crowd, in real-time, and an Options Floor Official will
be present in each virtual trading crowd.\46\ Moreover, the Exchange
represents that it will retain records of the chats, consents, and any
other records related to the virtual trading consistent with the
Exchange's record retention obligations under the Act.\47\
---------------------------------------------------------------------------

    \42\ See supra notes 21-26; 30-32 and accompanying text.
    \43\ See id., 86 FR at 3223.
    \44\ See id.
    \45\ See id., 86 FR at 3219.
    \46\ See id., 86 FR at 3223. The Exchange also represents that
the Floor Surveillance Procedures will be updated to account for the
video conferencing and chat requirements, as well as any changes to
surveil a virtual trading crowd. See id.
    \47\ See id., 86 FR at 3223.

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

IV. Solicitation of Comments on Amendment No. 1

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether Amendment No. 1
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-Phlx-2021-03 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 No. SR-Phlx-2021-03. The file
numbers 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 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. 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 publicly available. All submissions
should refer to File No. SR-Phlx-2021-03 and should be submitted on or
before April 7, 2021.

V. Accelerated Approval of Proposed Rule Change, as Modified by
Amendment No. 1

    The Commission finds good cause for approving the proposed rule
change, as amended by Amendment No. 1, prior to the 30th day after the
date of publication of notice in the Federal Register. In Amendment No.
1, the Exchange made technical corrections and revisions to the
proposed rule text for readability and consistency.\48\ The Commission
notes that Amendment No. 1 does not change the substance of the
proposed rule change, but merely adds detail and clarification to
several items of the proposal. Accordingly, the Commission finds good
cause for approving the proposed rule change, as amended, on an
accelerated basis, pursuant to Section 19(b)(2) of the Act.\49\
---------------------------------------------------------------------------

    \48\ See Amendment No. 1, supra note 6.
    \49\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\50\ that the proposed rule change, as modified by Amendment No. 1
(SR-Phlx-2021-03), be, and hereby is, approved on an accelerated basis.
---------------------------------------------------------------------------

    \50\ Id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\51\
---------------------------------------------------------------------------

    \51\ 17 CFR 200.30-3(a)(57) and (58).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-05448 Filed 3-16-21; 8:45 am]
BILLING CODE 8011-01-P