[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48768-48770]
[FR Doc No: 2022-17106]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Petition for Exemption from the Federal Motor Vehicle Theft
Prevention Standard; Ford Motor Company

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Grant of petition for exemption.

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SUMMARY: This document grants in full the Ford Motor Company (Ford)
petition for exemption from the Federal Motor Vehicle Theft Prevention
Standard (theft prevention standard) for its Bronco vehicle line
beginning in model year (MY) 2023. The petition is granted because the
agency has determined that the antitheft device to be placed on the
line as standard equipment is likely to be as effective in reducing and
deterring motor vehicle theft as compliance with the parts-marking
requirements of the theft prevention standard. Ford also requested
confidential treatment for specific information in its petition.
Therefore, no confidential information provided for purposes of this
notice has been disclosed.

DATES: The exemption granted by this notice is effective beginning with
the 2023 model year.

FOR FURTHER INFORMATION CONTACT: Carlita Ballard, Office of
International Policy, Fuel Economy, and Consumer Programs, NHTSA, West
Building, W43-439, NRM-310, 1200 New Jersey Avenue SE, Washington, DC
20590. Ms. Ballard's phone number is<PHONE_NUMBER>. Her fax number is
(202) 493-2990.

SUPPLEMENTARY INFORMATION: Under 49 U.S.C. chapter 331, the Secretary
of Transportation (and the National Highway Traffic Safety
Administration (NHTSA) by delegation) is required to promulgate a theft
prevention standard to provide for the identification of certain motor
vehicles and their major replacement parts to impede motor vehicle
theft. NHTSA promulgated regulations at 49 CFR part 541 (theft
prevention standard) to require parts-marking for specified passenger
motor vehicles and light trucks. Pursuant to 49 U.S.C. 33106,
manufacturers that are subject to the parts-marking requirements may
petition the Secretary of Transportation for an exemption for a line of
passenger motor vehicles equipped with an antitheft device as standard
equipment that the Secretary decides is likely to be as effective in
reducing and deterring motor vehicle theft as compliance with the
parts-marking requirements. In accordance with this statute, NHTSA
promulgated 49 CFR part 543, which establishes the process through
which manufacturers may seek an exemption from the theft prevention
standard.
    49 CFR 543.5 provides general submission requirements for petitions
and states that each manufacturer may petition NHTSA for an exemption
of one vehicle line per model year. Among other requirements,
manufacturers must identify whether the exemption is sought under
section 543.6 or section 543.7. Under section 543.6, a manufacturer may
request an exemption by providing specific information about the
antitheft device, its capabilities, and the reasons the petitioner
believes the device to be as effective at reducing and deterring theft
as compliance with the parts-marking requirements. Section 543.7
permits a manufacturer to request an exemption under a more streamlined
process if the vehicle line is equipped with an antitheft device (an
``immobilizer'') as standard equipment that complies with one of the
standards specified in that section.\1\
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    \1\ 49 CFR 543.7 specifies that the manufacturer must include a
statement that their entire vehicle line is equipped with an
immobilizer that meets one of the following standards:
    (1) The performance criteria (subsection 8 through 21) of C.R.C,
c. 1038.114, Theft Protection and Rollaway Prevention (in effect
March 30, 2011), as excerpted in appendix A of [part 543];
    (2) National Standard of Canada CAN/ULC-S338-98, Automobile
Theft Deterrent Equipment and Systems: Electronic Immobilization
(May 1998);
    (3) United Nations Economic Commission for Europe (UN/ECE)
Regulation No. 97 (ECE R97), Uniform Provisions Concerning Approval
of Vehicle Alarm System (VAS) and Motor Vehicles with Regard to
Their Alarm System (AS) in effect August 8, 2007; or
    (4) UN/ECE Regulation No. 116 (ECE R116), Uniform Technical
Prescriptions Concerning the Protection of Motor Vehicles Against
Unauthorized Use in effect on February 10, 2009.
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    Section 543.8 establishes requirements for processing petitions for
exemption from the theft prevention standard. As stated in section
543.8(a), NHTSA processes any complete exemption petition. If NHTSA
receives an incomplete petition, NHTSA will notify the petitioner of
the deficiencies. Once NHTSA receives a complete petition the agency
will process it and, in accordance with section 543.8(b), will grant
the petition if it determines that, based upon substantial evidence,
the standard equipment antitheft device is likely to be as effective in
reducing and deterring motor vehicle theft as compliance with the
parts-marking requirements of part 541.
    Section 543.8(c) requires NHTSA to issue its decision either to
grant or to deny an exemption petition not later than 120 days after
the date on which

a complete petition is filed. If NHTSA does not make a decision within
the 120-day period, the petition shall be deemed to be approved and the
manufacturer shall be exempt from the standard for the line covered by
the petition for the subsequent model year.\2\ Exemptions granted under
part 543 apply only to the vehicle line or lines that are subject to
the grant and that are equipped with the antitheft device on which the
line's exemption was based, and are effective for the model year
beginning after the model year in which NHTSA issues the notice of
exemption, unless the notice of exemption specifies a later year.
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    \2\ 49 U.S.C. 33106(d).
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    Sections 543.8(f) and (g) apply to the manner in which NHTSA's
decisions on petitions are to be made known. Under section 543.8(f), if
the petition is sought under section 543.6, NHTSA publishes a notice of
its decision to grant or deny the exemption petition in the Federal
Register and notifies the petitioner in writing. Under section
543.8(g), if the petition is sought under section 543.7, NHTSA notifies
the petitioner in writing of the agency's decision to grant or deny the
exemption petition.
    This grant of petition for exemption considers Ford Motor
Corporation's (Ford) petition for its Bronco vehicle line beginning in
MY 2023.

I. Specific Petition Content Requirements Under 49 CFR 543.6

    Pursuant to 49 CFR part 543, Exemption from Vehicle Theft
Prevention, Ford petitioned for an exemption for its specified vehicle
line from the parts-marking requirements of the theft prevention
standard, beginning in MY 2023. Ford petitioned under 49 CFR 543.6,
Petition: Specific content requirements, which, as described above,
requires manufacturers to provide specific information about the
antitheft device installed as standard equipment on all vehicles in the
line for which an exemption is sought, the antitheft device's
capabilities, and the reasons the petitioner believes the device to be
as effective at reducing and deterring theft as compliance with the
parts-marking requirements.
    More specifically, section 543.6(a)(1) requires petitions to
include a statement that an antitheft device will be installed as
standard equipment on all vehicles in the line for which the exemption
is sought. Under section 543.6(a)(2), each petition must list each
component in the antitheft system, and include a diagram showing the
location of each of those components within the vehicle. As required by
section 543.6(a)(3), each petition must include an explanation of the
means and process by which the device is activated and functions,
including any aspect of the device designed to: (1) facilitate or
encourage its activation by motorists; (2) attract attention to the
efforts of an unauthorized person to enter or move a vehicle by means
other than a key; (3) prevent defeating or circumventing the device by
an unauthorized person attempting to enter a vehicle by means other
than a key; (4) prevent the operation of a vehicle which an
unauthorized person has entered using means other than a key; and (5)
ensure the reliability and durability of the device.\3\
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    \3\ 49 CFR 543.6(a)(3).
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    In addition to providing information about the antitheft device and
its functionality, petitioners must also submit the reasons for their
belief that the antitheft device will be effective in reducing and
deterring motor vehicle theft, including any theft data and other data
that are available to the petitioner and form a basis for that
belief,\4\ and the reasons for their belief that the agency should
determine that the antitheft device is likely to be as effective as
compliance with the parts-marking requirements of part 541 in reducing
and deterring motor vehicle theft. In support of this belief, the
petitioners should include any statistical data that are available to
the petitioner and form the basis for the petitioner's belief that a
line of passenger motor vehicles equipped with the antitheft device is
likely to have a theft rate equal to or less than that of passenger
motor vehicles of the same, or a similar, line which have parts marked
in compliance with part 541.\5\
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    \4\ 49 CFR 543.6(a)(4).
    \5\ 49 CFR 543.6(a)(5).
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    The following sections describe Ford's petition information
provided pursuant to 49 CFR part 543, Exemption from Vehicle Theft
Prevention. To the extent that specific information in Ford's petition
is subject to a properly filed confidentiality request, that
information was not disclosed as part of this notice.\6\
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    \6\ 49 CFR 512.20(a).
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II. Ford's Petition for Exemption

    In a petition dated April 7, 2022, Ford requested an exemption from
the parts-marking requirements of the theft prevention standard for its
Bronco vehicle line beginning with MY 2023.
    In its petition, Ford provided a detailed description and diagram
of the identity, design, and location of the components of the
antitheft device for the Bronco vehicle line. Ford stated that its MY
2023 Bronco vehicle line will be installed with a passive, transponder
based, electronic engine immobilizer antitheft device as standard
equipment. Specifically, Ford stated that its vehicle line will be
installed with the Intelligent Access with Push Button Start (IAwPB).
Key components of the IAwPB device will include an Intelligent Access
electronic Push-Button Start key fob, keyless ignition system, radio
transceiver module, body control module (BCM), powertrain control
module (PCM), and an anti-lock braking system module (ABS). Ford also
stated that its vehicle line will be equipped with a hood release,
counterfeit resistant VIN label, secondary VINs inscribed on the body
and a cabin accessible with a valid keycode as standard antitheft
features.
    Ford further stated that its Bronco vehicle line will also be
offered with a perimeter alarm system \7\ as optional equipment which
will activate a visible and audible alarm whenever unauthorized access
is attempted. Some additional features of the antitheft device include:
encrypted communication between the transponder, BCM control function
and the PCM; ``virtually impossible'' key duplication; and shared
security data between the body control module/remote function actuator
and the powertrain control module. NHTSA has previously approved the
IAwPB antitheft system as standard equipment for the Ford Bronco Sport
vehicle line. The IAwPB system is described in the grant of petition
for exemption published in the Federal Register on August 12, 2020.
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    \7\ Ford also stated that it will offer an audible and visible
alarm as optional equipment on its Bronco line. Per 49 U.S.C. 33106
(b), manufacturers may petition NHTSA for an exemption ``for a line
of passenger motor vehicles equipped as standard equipment with an
antitheft device that [NHTSA] decides is likely to be as effective
in reducing and deterring motor vehicle theft as compliance with''
the Theft Prevention Standard (emphasis added). Per 49 U.S.C.
33106(a)(2), ``standard equipment'' means equipment already
installed in a motor vehicle when it is delivered from the
manufacturer and not an accessory or other item that the first
purchaser customarily has the option to have installed. Therefore,
for purposes of Ford's petition, NHTSA is only considering the
device equipped on the vehicle as standard equipment.
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    Pursuant to section 543.6(a)(3), Ford explained that its system is
automatically activated/armed when the ``StartStop'' button is pressed,
shutting off the engine. Ford stated that the device is deactivated
when a start sequence is completed and engine start is successful. Ford
further stated that the vehicle engine can only be started when the key
is present in the vehicle

and the ``StartStop'' button inside the vehicle is pressed. Ford stated
that when the ``StartStop'' button is pressed, the transceiver module
will read a key code and transmit an encrypted message to the control
module to determine key validity and engine start by sending a separate
encrypted message to the BCM and the PCM. The powertrain will function
only if the key code matches the unique identification key code
previously programmed into the BCM. Ford stated that the two modules
must be matched together in order for the vehicle to start. If the
codes do not match, the powertrain engine starter, spark, and fuel will
be disabled. Ford further stated that any attempt to operate the
vehicle without transmission of the correct code to the electronic
control (i.e., short circuiting the ``StartStop'' button) module will
be ineffective.
    As required in section 543.6(a)(3)(v), Ford provided information on
the reliability and durability of its proposed device. To ensure
reliability and durability of the device, Ford stated that it conducted
tests on the antitheft device which complied with its own specific
standards. Additionally, Ford stated that its antitheft device has no
moving parts (i.e., BCM, PCM, and electrical components) to perform
system functions, which eliminate the possibility of physical damage or
deterioration from normal use; and mechanically overriding the device
to start the vehicle is also impossible. In further addressing the
reliability and durability of its device, Ford stated that its Bronco
vehicle line will also be equipped with several other standard
antitheft features common to Ford vehicles, (i.e., hood release located
inside the vehicle, counterfeit resistant VIN labels, secondary VINs,
and cabin accessibility only with the use of a valid key fob).
    Ford stated that the antitheft system installed in its 2023 MY Ford
Bronco vehicles is similar to the system that was offered in the 2021
MY Ford Bronco Sport vehicles equipped with the IAwPB. The Bronco Sport
vehicle line was granted a parts-marking exemption by NHTSA (85 FR
48759, August 12, 2020) beginning with its MY 2021 vehicles.
    Ford believes that the Ford Bronco would have a similar theft rate
to the Ford Bronco Sport. Ford specifically stated that the Bronco
Sport vehicle line is comparable with the Ford Bronco in vehicle
segment, size and equipment and since the IAwPB system is the primary
theft deterrent on Ford vehicles, Ford believes that the Ford Bronco
will likely have a very low theft rate based on the comparable Ford
Bronco Sport average theft rate of approximately 0.5/1000. Ford also
stated that its Ford Bronco Sport reported theft rates (thefts per
thousand vehicles) that are lower than the ``all vehicle theft rate''
in each calendar year published.

III. Decision To Grant the Petition

    Pursuant to 49 U.S.C. 33106 and 49 CFR 543.8(b), the agency grants
a petition for exemption from the parts-marking requirements of part
541, either in whole or in part, if it determines that, based upon
substantial evidence, the standard equipment antitheft device is likely
to be as effective in reducing and deterring motor vehicle theft as
compliance with the parts-marking requirements of part 541. The agency
finds that Ford has provided adequate reasons for its belief that the
antitheft device for its vehicle line is likely to be as effective in
reducing and deterring motor vehicle theft as compliance with the
parts-marking requirements of the theft prevention standard. This
conclusion is based on the information Ford provided about its
antitheft device. NHTSA believes, based on Ford's supporting evidence,
that the antitheft device described for its vehicle line is likely to
be as effective in reducing and deterring motor vehicle theft as
compliance with the parts-marking requirements of the theft prevention
standard.
    The agency concludes that Ford's antitheft device will provide four
types of performance features listed in section 543.6(a)(3): promoting
activation; preventing defeat or circumvention of the device by
unauthorized persons; preventing operation of the vehicle by
unauthorized entrants; and ensuring the reliability and durability of
the device.
    The agency notes that 49 CFR part 541, Appendix A-1, identifies
those lines that are exempted from the theft prevention standard for a
given model year. 49 CFR 543.8(f) contains publication requirements
incident to the disposition of all part 543 petitions. Advanced
listing, including the release of future product nameplates, the
beginning model year for which the petition is granted and a general
description of the antitheft device is necessary in order to notify law
enforcement agencies of new vehicle lines exempted from the parts-
marking requirements of the theft prevention standard.
    If Ford decides not to use the exemption for its requested vehicle
line, the manufacturer must formally notify the agency. If such a
decision is made, the line must be fully marked as required by 49 CFR
541.5 and 541.6 (marking of major component parts and replacement
parts).
    NHTSA notes that if Ford wishes in the future to modify the device
on which this exemption is based, the company may have to submit a
petition to modify the exemption. Section 543.8(d) states that a part
543 exemption applies only to vehicles that belong to a line exempted
under this part and equipped with the antitheft device on which the
line's exemption is based. Further, section 543.10(c)(2) provides for
the submission of petitions ``to modify an exemption to permit the use
of an antitheft device similar to but differing from the one specified
in the exemption.''
    The agency wishes to minimize the administrative burden that
section 543.10(c)(2) could place on exempted vehicle manufacturers and
itself. The agency did not intend in drafting part 543 to require the
submission of a modification petition for every change to the
components or design of an antitheft device. The significance of many
such changes could be de minimis. Therefore, NHTSA suggests that if
Ford contemplates making any changes, the effects of which might be
characterized as de minimis, it should consult the agency before
preparing and submitting a petition to modify.
    For the foregoing reasons, the agency hereby grants in full Ford's
petition for exemption for the Bronco vehicle line from the parts-
marking requirements of 49 CFR part 541, beginning with its MY 2023
vehicles.
    Issued under authority delegated in 49 CFR 1.95, 501.5 and 501.8.

Jane H. Doherty,
Director, Office of International Policy, Fuel Economy & Consumer
Standards.
[FR Doc. 2022-17106 Filed 8-9-22; 8:45 am]
BILLING CODE 4910-59-P


[Federal Register Volume 80, Number 12 (Tuesday, January 20, 2015)]
[Rules and Regulations]
[Pages 2605-2606]
[FR Doc No: 2015-00712]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2015-0008]

Drawbridge Operation Regulation; Mississippi River, Sabula, IA

AGENCY: Coast Guard, DHS.

ACTION: Notice of deviation from drawbridge regulations.

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SUMMARY: The Coast Guard has issued a temporary deviation from the
operating schedule that governs the Sabula Railroad Drawbridge across
the Mississippi River, mile 535.0, at Sabula, Iowa. This deviation is
necessary for scheduled maintenance on the bridge. This deviation
allows the bridge to open on signal if at least 24 hours advance notice
is given.

DATES: This deviation is effective from 4 p.m. January 9, 2015, until 9
a.m. March 1, 2015.

ADDRESSES: The docket for this deviation, (USCG-2015-0008) is available
at http://www.regulations.gov. Type the docket number in the ``SEARCH''
box and click ``SEARCH.'' Click on Open Docket Folder on the line
associated with this deviation. You may also visit the Docket
Management Facility in Room W12-140 on the ground floor of the
Department of Transportation, West Building, 1200 New Jersey Avenue
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal Holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary

deviation, call or email Eric A. Washburn, Bridge Administrator,
Western Rivers, Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>If you have questions on viewing the docket,
call Cheryl F. Collins, Program Manager, Docket Operations, telephone
202-366-9826.

SUPPLEMENTARY INFORMATION: The Canadian Pacific Railroad requested a
temporary deviation for the Sabula Railroad Drawbridge, across the
Upper Mississippi River, mile 535.0, at Sabula, Iowa to open on signal
if at least 24 hours advance notice is given for 51 days from 4 p.m.,
January 9, 2015, to 9 a.m., March 1, 2015 for scheduled maintenance on
the bridge. The Sabula Railroad Drawbridge currently operates in
accordance with 33 CFR 117.5, which states the general requirement that
drawbridge shall open on signal.
    There are no alternate routes for vessels transiting this section
of the Upper Mississippi River.
    Winter conditions on the Upper Mississippi River coupled with the
closure of Army Corps of Engineer's Lock No. 12 (Mile 556.7 UMR) and
Lock No. 13 (Mile 522.5 UMR) from 7:30 a.m. December 15, 2015 until 11
a.m., March 4, 2015 will preclude any significant navigation demands
for the drawspan opening.
    The Sabula Railroad Drawbridge, in the closed-to-navigation
position, provides a vertical clearance of 18.1 feet above normal pool.
Navigation on the waterway consists primarily of commercial tows and
recreational watercraft and will not be significantly impacted. This
temporary deviation has been coordinated with waterway users. No
objections were received.
    In accordance with 33 CFR 117.35(e), the drawbridge must return to
its regular operating schedule immediately at the end of the effective
period of this temporary deviation. This deviation from the operating
regulations is authorized under 33 CFR 117.35.

    Dated: January 9, 2015.
Eric A. Washburn,
Bridge Administrator, Western Rivers.
[FR Doc. 2015-00712 Filed 1-16-15; 8:45 am]
BILLING CODE 9110-04-P


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY

2565 PLYMOUTH ROAD

ANN ARBOR, MICHIGAN 48105-2498

OFFICE OF

AIR AND RADIATION

MEMORANDUM

SUBJECT:	Truck and Trailer Roof Height Match Analysis

FROM:		Amy Kopin

TO:		The Docket

DATE:		August 9, 2010

The aerodynamic performance of a combination truck is dependent on many
factors, including tractor and trailer size and design, the gap between
the tractor and trailer, vehicle speed, the height difference between
the cab and trailer roofs, and many others.  To assess the aerodynamic
performance of combinations trucks more accurately, certain aspects of
the truck need to be defined, including the use of a standardized
trailer during testing.  We are proposing that the standardized trailer
be determined by the roof height definition of the regulatory
subcategories, including low, mid, and high roof designs.

Many tractors have roof fairings installed to improve aerodynamic
performance.  The height of the roof fairing is designed to minimize the
height differential between the tractor and typical trailer to maintain
a smooth, attached airflow over the vehicle and reduce the air flow
disruption, or drag.  Low roof tractors are designed to carry
platform-type trailers, which can include flatbed or low-boy trailers.
Mid roof tractors are designed to carry tanker-type trailers, which can
include liquid and other bulk trailers.  High roof tractors are designed
to pull box-type trailers, which can include dry van trailers and
refrigerated van trailers.  However, we recognize that during actual
operation tractors may pull trailers that do not provide the optimal
roof height that matches the tractor and reduces drag.  In this
memorandum, this situation will be referred to as a “mismatch.”  In
order to assess how often truck and trailer mismatches are found, we
conducted a study based on observations of traffic across the U.S.  The
purpose of this memo is to describe how this study was carried out, and
to present the results.

The intent of the study was to sample traffic in various locations
throughout the U.S.   Originally, it was thought that truck weigh
stations might provide good sources of this information, however, the
best way to assess the height match of tractors and trailers currently
in use would be through individual counts in person, and there was not
sufficient data from truck stops to determine the trailer height.  To
avoid the need to physically travel to different sites across the
country to count trucks, which would be cost prohibitive, we determined
it was possible to sample traffic through the use of traffic cameras.
Nearly every state has a number of traffic cameras available for public
viewing.  Some states offer a large number of available cameras for
their drivers and visitors to view; Figure 1 shows an example of the
numerous available traffic cameras in Oregon.

Figure   SEQ Figure \* ARABIC  1  Example of Available Cameras - Oregon

Source: http://www.tripcheck.com/Pages/CamerasEntry.asp

In many cases, cameras are close enough to the road to easily determine
if the tractor and trailer roof heights match; only cameras offering
these close-up views were used in this study.  Each camera used in this
study was carefully selected to provide a clear view of the truck and
trailer roof height; an example is shown below in   REF _Ref268011000 \h
 Figure 2 .  Cameras were observed between 9 AM and 6 PM as long as
clear pictures could be observed (i.e. sufficient daylight was available
to see the truck and trailer roofs and/or clement weather conditions
were present that did not obscure camera views).  Data was taken in the
last week of January, 2010 and continued through the first week of
February, 2010.  The data was taken such that at least one hundred
consecutive truck and trailer combinations were recorded from each
camera

Figure   SEQ Figure \* ARABIC  2   Sample Image from an Oregon Camera

The study sampled images from 33 real-time traffic cameras, collecting
data on more than 4,000 tractor-trailer combinations.  Where possible,
traffic passing in both directions was used in this study.  The process
consisted of keeping count of whether or not the tractor and trailer
roof height profiles matched.  A combination was considered to be a
match if the height of the tractor roof was within a few inches of the
height of the trailer roof, for example: if a tall trailer was hauling a
tall container (as shown in   REF _Ref268011000 \h  Figure 2 ), a medium
roof tractor was hauling a tanker, and a low roof tractor was hauling a
flatbed trailer.  If the combination didn’t match, a note was made as
to what the combination was (e.g. high roof tractor with flatbed, etc.)
Notes were also made if a tractor was empty (not hauling a trailer) or
was hauling an empty flatbed trailer.  The locations used in this study
cover 22 states across the United States, and a number of main highways,
see   REF _Ref268012020 \h  Figure 3 .  Across this broad geographic
range, we found that the cameras are located within predominately
well-populated areas, since the primary intent of these cameras is for
the public to have access to real-time traffic congestion data, which is
typically not a problem in less well-populated areas.

Figure   SEQ Figure \* ARABIC  3  Location of Cameras Where Traffic was
Observed

Based on the data gathered, approximately 95% of trucks were
“matched” per our definition (e.g. box trailers were pulled by high
roof tractors and flatbed trailers were pulled with low roof tractors).
In general, the occurrence of a truck being lower than the trailer (e.g.
day cab and tall container) was over seven times as likely as a truck
being higher than the trailer (e.g. high roof truck and flatbed
trailer).  The amount of mismatch varied depending on the type of
location surveyed, for example over 99% of the tractors were in matched
configurations in Indiana at the I-80/I-94/I-65 interchange, which is
representative of long-haul operation.  On the other hand, in metro New
York City, the match percentage was just over 90%, in which case every
mismatched combination consisted of a day cab and a tall container,
REF _Ref268012257 \h  Figure 4  shows the approximate locations of these
traffic cameras.

Figure   SEQ Figure \* ARABIC  4  Map of Lowest and Highest Mismatch
Percentage Found in this Study

 In addition, this study also looked at the number of trucks without
trailers or trucks hauling empty flatbeds, although the number of empty
box trailers is unknown.  It was found that of all the data included in
this study (match and mismatch counts) that approximately 3% of the
tractors were traveling without a trailer or with an empty flatbed; the
ratio between no trailer and empty flatbed trailer was approximately 50
percent.

References:

State	Website

Alabama	  HYPERLINK "http://www.dot.state.al.us/"  www.dot.state.al.us

Arizona	  HYPERLINK "http://www.az511.gov/"  www.az511.gov

California	  HYPERLINK "http://video.dot.ca.gov/"
http://video.dot.ca.gov

Colorado	  HYPERLINK "http://www.cotrip.org/"  www.cotrip.org

Delaware	  HYPERLINK "http://www.deldot.gov/"  www.deldot.gov

Florida	  HYPERLINK "http://www.fl511.com/"  www.fl511.com

Iowa	  HYPERLINK "http://hb.511ia.org/main.jsf"
http://hb.511ia.org/main.jsf

Kansas	  HYPERLINK "http://www.kcscout.net/"  http://www.kcscout.net

Kentucky/Ohio	  HYPERLINK "http://www.artimis.org/camaccess1.html"
www.artimis.org/camaccess1.html

Maine	http://maineturnpike.com/traffic_cams/traffic_cams.php

Massachusetts	  HYPERLINK "http://www1.eot.state.ma.us/"
http://www1.eot.state.ma.us/

Michigan	  HYPERLINK
"http://mdotwas1.mdot.state.mi.us/public/drive/rtt.cfm" \l "1"
http://mdotwas1.mdot.state.mi.us/public/drive/rtt.cfm#1

Minnesota	http://www.dot.state.mn.us/tmc/trafficinfo/cameras_map.html

Mississippi	  HYPERLINK "http://www.mstraffic.com/"  www.mstraffic.com

New York	  HYPERLINK "http://cameras.nysdot.gov/"
http://cameras.nysdot.gov/

New York	  HYPERLINK "http://peacebridge.com/"  http://peacebridge.com

North Carolina	  HYPERLINK
"http://www.greensboro-nc.gov/departments/GDOT/trafficinfo/"
http://www.greensboro-nc.gov/departments/GDOT/trafficinfo/

Ohio	  HYPERLINK "http://buckeyetraffic.org/"  http://buckeyetraffic.org

Oklahoma	  HYPERLINK "http://www.oktraffic.org/"  www.oktraffic.org

Oregon	  HYPERLINK "http://www.tripcheck.com/"  http://www.tripcheck.com

Tennessee	  HYPERLINK "http://www.tdot.state.tn.us/tdotsmartway/"
http://www.tdot.state.tn.us/tdotsmartway/

Texas	  HYPERLINK "http://amaits.dot.state.tx.us/AMA-ITS/default.htm"
http://amaits.dot.state.tx.us/AMA-ITS/default.htm

Texas	  HYPERLINK "http://www.transguide.dot.state.tx.us/"
www.transguide.dot.state.tx.us


[Federal Register Volume 86, Number 156 (Tuesday, August 17, 2021)]
[Proposed Rules]
[Pages 45947-45950]
[FR Doc No: 2021-17546]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2020-0385; FRL-8826-01-R5]

Air Plan Approval; Michigan; Sulfur Dioxide Clean Data
Determination for St. Clair

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to make
a determination that the St. Clair sulfur dioxide (SO2)
nonattainment area has attained the 2010 primary SO2
National Ambient Air Quality Standard (2010 SO2 NAAQS). If
finalized, this determination would suspend certain requirements for
the nonattainment area for as long as the area continues to attain the
2010 SO2 NAAQS.

DATES: Comments must be received on or before September 16, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2020-0385 at http://www.regulations.gov, or via email to
<EMAIL_ADDRESS>For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mary Portanova, Environmental
Engineer, Control Strategies Section, Air Programs Branch (AR18J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>The EPA
Region 5 office is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays and facility closures due to COVID-
19.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

I. Background

    The St. Clair area was designated nonattainment for the 2010
SO2 NAAQS on July 12, 2016 (81 FR 45039), based on air
quality modeling showing violations of the standard. The two
SO2-emitting facilities in the St. Clair area are DTE
Energy-Belle River (Belle River plant) and DTE Energy-St. Clair (St.
Clair plant), which are both coal-fired power plants. The nonattainment
area consists of a portion of southeastern St. Clair County, Michigan,
located northeast of Detroit. The nonattainment area shares a border
with Ontario, Canada along the St. Clair River. (See the area's
complete boundary description at 40 CFR 81.323).
    The Michigan Department of Environment, Great Lakes, and Energy
(EGLE) was required to prepare a nonattainment State Implementation
Plan (NA SIP) by March 12, 2018 to bring the St. Clair area into
attainment by the attainment date of September 12, 2021, but EGLE did
not submit a complete NA SIP for the St. Clair area by the March 12,
2018 deadline. On September 20, 2019 (84 FR 49462), EPA issued a
finding of failure to submit (FFS) a SIP required for attainment of the
2010 SO2 NAAQS.
    EGLE has informed EPA that DTE intends to close the St. Clair plant
in 2022, and use a new natural gas power plant, already under
construction, to generate electric power in its place. This plant
closure and replacement is expected to result in a large SO2
emission reduction for the area, but the expected SO2
reductions would not occur in time to be a timely element of the
required 2018 NA SIP for the St. Clair area. Nevertheless, the
September 20, 2019 FFS resulted in the initiation of an 18-month clock
toward imposition of sanctions for the state under CAA section 179,
unless an approvable SO2 SIP is submitted and deemed
complete by EPA. (See 40 CFR 52.31(d)(5)). In addition, the FFS started
a two-year clock by which EPA is required under CAA section 110(c) to
promulgate a Federal Implementation Plan (FIP) for the area, unless the
state submits and

EPA approves a SIP for the area before that date.
    In the meantime, EGLE obtained air quality monitoring data in the
St. Clair area which had not been available before the St. Clair area
was designated nonattainment. On July 24, 2020, EGLE submitted a
request that EPA make a determination under the Clean Air Act (CAA) and
EPA's Clean Data Policy, based on both local monitored air quality data
and a new dispersion modeling analysis, that the St. Clair
nonattainment area has attained the 2010 SO2 NAAQS (Clean
Data Determination). Approval of EGLE's request would suspend the
requirement for the state to submit certain planning elements otherwise
required under CAA section 172(c) for a NA SIP for the St. Clair area,
and suspend the sanctions and FIP clocks, for so long as the area
continues to attain the 2010 SO2 NAAQS. EGLE would still be
required to submit an emissions inventory (EI) required by CAA section
172(c)(3) and a nonattainment new source review (NNSR) program required
by CAA section 172(c)(5), in order to avoid sanctions. EGLE submitted
the St. Clair area's EI and NNSR verification to EPA on June 30, 2021.

II. Clean Data Determinations

    Following enactment of the CAA Amendments of 1990, EPA discussed
its interpretation of the requirements for implementing the NAAQS in
the General Preamble for the Implementation of title I of the CAA
Amendments of 1990 (General Preamble), 57 FR 13498, 13564 (April 16,
1992). In 1995, based on the interpretation of CAA sections 171, 172,
and 182 in the General Preamble, EPA set forth what has become known as
its ``Clean Data Policy'' for the 1-hour ozone NAAQS. Under the Clean
Data Policy, for a nonattainment area that can demonstrate attainment
of the standard before implementing CAA nonattainment measures, EPA
interprets the requirements of the CAA that are specifically designed
to help an area achieve attainment, such as attainment demonstrations,
implementation of reasonably available control measures, including
reasonably available control technology (RACM/RACT), reasonable further
progress (RFP) demonstrations, emissions limitations and control
measures as necessary to provide for attainment, and contingency
measures, to be suspended for so long as air quality continues to meet
the standard. See the May 10, 1995 memorandum from John S. Seitz,
Director, Office of Air Quality Planning and Standards, entitled,
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment areas Meeting the Ozone National
Ambient Air Quality Standard.'' In an April 23, 2014 memorandum from
Steve Page, Director of the EPA's Office of Air Quality Planning and
Standards, to the EPA Air Division Directors entitled, ``Guidance for
1-hr SO2 Nonattainment Area SIP Submissions'' (2014
SO2 Nonattainment Area Guidance), EPA provides guidance and
a rationale for the application of the Clean Data Policy to the 2010 1-
hour primary SO2 NAAQS.
    A state may notify EPA that it believes a nonattainment area is
attaining the 2010 SO2 NAAQS and request a clean data
determination under EPA's Clean Data Policy. EPA will determine whether
the area has attained the 2010 SO2 NAAQS based on available
information, including available air quality monitoring data and air
quality dispersion modeling information for the affected area. If the
determination of attainment is granted, then requirements for the area
such as a nonattainment SIP submittal or reasonable further progress
measures are suspended for so long as the area continues to attain the
NAAQS. Provided the area has submitted a complete EI and NNSR program,
sanctions for failing to timely submit a SIP are also suspended for so
long as the area remains in attainment.
    However, the suspension of the obligations to submit attainment
planning related SIPs is only appropriate where the area remains in
attainment of the NAAQS. EPA is proposing to require EGLE to submit
annual statements by July 1 to EPA, to address whether the St Clair
area has continued to attain the 2010 SO2 NAAQS. EPA expects
that these statements could include such information as available air
quality monitoring data or an assessment of changes in facility
emissions or operations and whether these changes warrant updated
modeling. If EPA does not receive credible information indicating that
the area continues to attain the SO2 NAAQS, EPA will propose
to rescind the St. Clair area's clean data determination, the
finalization of which would lift the suspension of its attainment
planning requirements and would reinstate the sanctions and FIP clocks
with their original deadlines.
    The determination of attainment under the Clean Data Policy does
not serve to alter the area's nonattainment designation. Clean data
determinations are not redesignations to attainment. For EPA to
redesignate an area to attainment, the area must meet the requirements
of CAA section 107(d)(3) and demonstrate maintenance as required by CAA
section 175A.

III. Analysis of EGLE's Request

    EGLE's July 24, 2020 request for a clean data determination
included local monitoring data and a dispersion modeling analysis for
the St. Clair nonattainment area. The 2014 SO2 Nonattainment
Area Guidance states that when air agencies provide monitoring and/or
modeling to support clean data determinations, the monitoring data
provided by the state should follow EPA's ''SO2 NAAQS
Designations Source-Oriented Monitoring Technical Assistance Document''
(SO2 Monitoring TAD) and the modeling provided by the state
should follow EPA's ``SO2 NAAQS Designations Modeling
Technical Assistance Document'' (SO2 Modeling TAD).
    The Monitoring TAD was provided by EPA to assist states in siting
monitors to characterize ambient air quality impacted by significant
SO2 sources, with the goal to identify peak SO2
concentrations attributable to those sources. Collaboration with other
stakeholders such as affected industry was encouraged in the Monitoring
TAD. The Monitoring TAD suggests that existing industry monitoring
operations could be found to meet the necessary requirements to produce
data of appropriate quality for comparison to the NAAQS. Industrial
monitors should be appropriately sited and operated in a manner largely
equivalent to those monitors operated elsewhere in the State and Local
Air Monitoring Stations (SLAMS) network, meeting applicable criteria in
40 CFR part 58, appendices A, C, and E and reporting their data to the
Air Quality Subsystem (AQS).
    EGLE's July 24, 2020 submittal included three years of monitoring
data from two industrial monitors located in the St. Clair
nonattainment area, near the power plants. DTE installed the two
SO2 monitors in the St. Clair nonattainment area in 2016 to
evaluate SO2 impacts from the two facilities. The monitors
were sited using dispersion modeling to help identify the locations of
predicted maximum SO2 concentrations. Considering the
monitor siting guidance in the Monitoring TAD, EPA believes that these
monitors' locations adequately represent the locations of potential
maximum SO2 impacts from the two power plants. One monitor,
known as the Remer monitor, is sited near the St. Clair River, between
and slightly north of the two power plants, about one kilometer (km)
from each plant. Previously modeled

maximum SO2 concentrations have been predicted at or near
this location. The other monitor, known as the Mills monitor, is sited
3 km west of the Belle River plant, so that it can capture the worst-
case combined impacts when winds are blowing from the St. Clair plant
toward the Belle River plant.
    EPA reviewed the ambient air monitoring data for the 2017-2019
period, which were the three most recent full calendar years of data
available. Ambient and quality assurance data for these two monitoring
sites are recorded in EPA's AQS database. EGLE and EPA have reviewed
the data and have determined that this data meets completeness and data
quality indicators confirm that the data is suitable to be used in
support of a clean data determination for the St. Clair area.
    The data cited by EGLE in its request show attainment of the 2010
SO2 NAAQS at both monitors for the 2017-2019 time period,
with three-year average 99th percentile daily maximum 1-hour
concentrations (design values) of 54 and 45 parts per billion (ppb),
which are below the 2010 SO2 NAAQS of 75 ppb. Data for 2020
indicate that the monitors have continued to show attainment. Table 1
shows the 2017-2020 SO2 monitoring results for the St. Clair
area monitors.

                                              Table 1--2017-2020 Monitored SO2 Values in the St. Clair Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Annual 99th percentile (ppb)                      2017-2019       2018-2020
                         Monitor                         ----------------------------------------------------------------  design value    design value
                                                               2017            2018            2019            2020            (ppb)           (ppb)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mills Monitor...........................................              46              50              40              29              45              40
Remer Monitor...........................................              51              65              45              25              54              45
--------------------------------------------------------------------------------------------------------------------------------------------------------

    EPA also reviewed the dispersion modeling analysis for the St.
Clair area which EGLE submitted on July 24, 2020. The SO2
Modeling TAD outlines modeling approaches for SO2 NAAQS
attainment status designations and states that, for the purposes of
modeling to characterize air quality for use in SO2
designations, EPA recommends using a minimum of the most recent three
years of actual emissions data and concurrent meteorological data to
allow the modeling to simulate what a monitor would observe.
    EGLE's analysis followed the Modeling TAD and modeled the impacts
of the Belle River and St. Clair plants in the St. Clair nonattainment
area. EGLE used the actual 2017-2019 hourly SO2 emissions
for the Belle River and St. Clair plants as measured by continuous
emissions monitor (CEM) data. EGLE also characterized the buildings at
the two plants using the AERMOD component BPIPPRM, to address building
downwash. There were no additional nearby sources that were expected to
produce a significant SO2 concentration gradient in the
nonattainment area.
    To model the St. Clair nonattainment area, EGLE used EPA's AERMOD
model, version 19191, with meteorological data for 2017-2019 from the
Oakland County International Airport (Pontiac), located 75 km to the
west of the St. Clair plants. This meteorological data set is
considered to be representative of the St. Clair area. The area was
modeled as rural, based on local land use characteristics. Terrain
information was included in the modeling analysis. The nonattainment
area is flat and mostly residential or agricultural. The river valley
is not deep, although some wind channeling could occur. The
geographical and topographical features of the area are not considered
to significantly impact air pollution transport. The St. Clair modeling
analysis used a nested receptor grid with resolution from 50 meters
near the facilities to 100 meters in the central portion, and then 250
meters to the edge of the modeling domain, 10 km from the power plants.
    For a background concentration for the modeling analysis, EGLE used
monitored SO2 data from Michigan's SO2 monitor in
Port Huron, located 21 km to the north of the St. Clair plants. The
Port Huron monitor has an SO2 design value of 67 ppb for
2017-2019. EGLE determined its background concentration using a
temporally varying approach to characterize background SO2
emissions, based on the 99th percentile monitored concentrations by
season and hour of day. In this analysis, EGLE used data measured when
winds were blowing from wind direction sectors which were chosen to
avoid double-counting emissions from the St. Clair and Belle River
plants and to avoid overestimating impacts from sources which are
located in Canada, 3-5 km east of Port Huron but 15-20 km from the St.
Clair area. The Modeling TAD provides for this approach. At such
distances, the Canadian sources are not expected to provide a
significant concentration gradient in the St. Clair area. The modeling
analysis' results match well with the monitored values near the St.
Clair plants, which suggests that the modeling analysis is not missing
significant additional ambient contributions at those locations.
Therefore, EPA concurs with the background values EGLE used in its
analysis. The background concentrations for the St. Clair modeling
analysis were determined to vary from 1.3 to 6.5 ppb, with an average
value of 2.4 ppb.
    The state's modeling resulted in a three-year maximum predicted
99th percentile daily maximum 1-hour concentration of 64.4 ppb,
including background. This design value was predicted at a receptor
located very near the St. Clair plant. As the predicted design value is
below the 2010 SO2 NAAQS of 75 ppb, the state's modeling
demonstrates attainment of the 2010 SO2 NAAQS.
    EGLE's modeling results for receptors placed at the two
SO2 monitors' locations matched well with the actual
monitored design values. The model's predicted design value at the
Remer monitor location was 47.7 ppb, compared to the monitored design
value of 45 ppb, and the model's predicted design value at the Mills
monitor location was 52.7 ppb, compared to the monitored design value
of 54 ppb. The location of the maximum modeled 99th percentile
concentration was less than half a kilometer from the Remer monitor,
which lends support to EPA's expectation that the Remer monitor is
located in the area of expected maximum concentrations. Other areas of
predicted high concentrations were at approximately the same distance
to the northwest and west of the power plants as the Mills monitor,
again lending support to EPA's expectation that the Mills monitor
location is also representative of areas of high expected
concentrations.
    After reviewing EGLE's July 24, 2020 submittal, EPA proposes to
find that the St. Clair area has attained the 2010 SO2 NAAQS
and satisfies the requirements of the Clean Data Policy.

IV. What action is EPA taking?

    EPA is proposing to approve EGLE's request for a Clean Data
Determination for the St. Clair nonattainment area in St. Clair County,
Michigan. Finalizing this determination would suspend the requirements
for EGLE to submit an attainment demonstration and other associated
nonattainment planning requirements for so long as the St. Clair
nonattainment area continues to attain the 2010 SO2 NAAQS.
This proposed action is consistent with EPA's long-held interpretation
of CAA requirements.
    Finalizing this action would not constitute a redesignation of the
St. Clair area to attainment of the 2010 SO2 NAAQS under
section 107(d)(3) of the CAA. The St. Clair area will remain designated
nonattainment for the 2010 SO2 NAAQS until such time as EPA
determines that the area meets the CAA requirements for redesignation
to attainment and takes action to redesignate the area.

V. Statutory and Executive Order Reviews

    This action proposes to make a clean data determination for the St.
Clair area for the 2010 SO2 NAAQS based on air quality data
which would result in the suspension of certain Federal requirements
and does not impose any additional requirements. For that reason, this
action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Sulfur oxides.

    Dated: August 9, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2021-17546 Filed 8-16-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 241 (Thursday, December 15, 2011)]
[Notices]
[Pages 78064-78066]
[FR Doc No: 2011-32140]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65925; File No. SR-Phlx-2011-166]

Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
Permit Fees

December 9, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\, and Rule 19b-4 thereunder,\2\ notice is hereby given
that on November 28, 2011, NASDAQ OMX PHLX LLC (``Phlx'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I, II, and III, below, which Items have been prepared by the
Exchange. The

Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to amend its Permit Fee in Section VI of its
Fee Schedule.
    While changes to the Fee Schedule pursuant to this proposal are
effective upon filing, the Exchange has designated the amendments
entitled ``Permit Fees'' to be operative on January 3, 2012.
    The text of the proposed rule change is available on the Exchange's
Web site at http://nasdaqtrader.com/micro.aspx?id=PHLXfilings, at the
principal office of the Exchange, on the Commission's Web site at
http://www.sec.gov and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to amend the Permit Fee
in Section VI, entitled ``Access Service, Cancellation, Membership,
Regulatory and Other Fees'' to recoup costs associated with the
administration of its members. The Exchange also proposes a clarifying
amendment to the applicability of the Permit Fees to both Clearing
Members of The Options Clearing Corporation (``OCC Clearing Members'')
\3\ and Floor Brokers.
---------------------------------------------------------------------------

    \3\ These OCC Clearing Members are also Phlx Members.
---------------------------------------------------------------------------

    The Exchange assesses two different Permit Fees based on whether a
member is transacting business on the Exchange. The Exchange assesses
members who are transacting business on the Exchange a Permit Fee of
$1,100 per month. A member or member organization is assessed the
$1,100 monthly Permit Fee if that member or member organization: (1)
Transacts its option orders in its assigned Phlx house account in a
particular month; or (2) for those member organizations which are under
common ownership, transacts at least one options trade in a Phlx house
account that is assigned to one of the member organizations under
common ownership.\4\ Members who are not transacting business on the
Exchange are assessed a Permit Fee of $7,500 per month. A member or
member organization is assessed the $7,500 Permit Fee for not
transacting business on the Exchange if that member is either: (i) Not
a PSX Participant; \5\ or not engaged in an options business at the
Exchange in a particular month. In addition, a member or member
organization that sponsors an options participant \6\ would pay an
additional Permit Fee for each sponsored options participant.
---------------------------------------------------------------------------

    \4\ For purposes of the Permit Fee, ``common ownership'' shall
be defined as at least 75% common ownership between the member
organizations.
    \5\ Applicants that apply for membership solely to participate
in the NASDAQ OMX PSX equities market are not assessed a Permit Fee,
Application Fee, Initiation Fee, or Account Fee. See Securities
Exchange Act Release No. 61863 (April 7, 2010), 75 FR 20021 (April
16, 2010) (SR-Phlx-2010-54).
    \6\ See Exchange Rule 1094 titled Sponsored Participants. A
Sponsored Participant may obtain authorized access to the Exchange
only if such access is authorized in advance by one or more
Sponsoring Member Organizations. Sponsored Participants must enter
into and maintain participant agreements with one or more Sponsoring
Member Organizations establishing a proper relationship(s) and
account(s) through which the Sponsored Participant may trade on the
Exchange.
---------------------------------------------------------------------------

Permit Fees

    The Exchange is proposing to increase the $1,100 monthly Permit Fee
for members transacting business on the Exchange to $2,000. The
Exchange is seeking to recoup costs incurred from the membership
administration function.\7\ While changes to the Fee Schedule pursuant
to this proposal are effective upon filing, the Exchange has designated
this amendment entitled ``Permit Fees'' to be operative on January 3,
2012.
---------------------------------------------------------------------------

    \7\ The Exchange is not amending the Permit Fee for members who
are not transacting business on the Exchange.
---------------------------------------------------------------------------

Application of Permit Fees

    The Exchange is proposing a clarifying amendment regarding the
applicability of the $1,100 Permit Fee to certain types of members,
namely OCC Clearing Members and Floor Brokers.\8\ Both OCC Clearing
Members and Floor Brokers conduct business on an agency basis, in other
words they enter trades on behalf of another person or entity and not
for their own account. OCC Clearing Members may never trade, but are
required to be a member of the Exchange in order to clear for a Phlx
member.\9\ As both these members are not transacting options for their
own account, they are not conducting business in an assigned house
account and therefore would not be eligible for the $1,100 Permit Fee.
The Exchange proposes to amend its Fee Schedule to indicate that both
OCC Clearing Members and Floor Brokers would be assessed the $1,100
Permit Fee. It was not the intent of the Exchange in requiring members
to transact business in their house account to prevent OCC Clearing
Members and Floor Brokers from being eligible for the $1,100 Permit
Fee. The Exchange amended its Rules to require trading in the house
account in order that the Exchange may automate its billing
process.\10\ With respect to OCC Clearing Members and Floor Brokers,
the Exchange is able to identify these members and member organizations
and, through its automated billing, assess them the $1,100 Permit Fee.
The Exchange intends that this section entitled ``Clarifying
Amendment'' will be effective upon filing.
---------------------------------------------------------------------------

    \8\ The Exchange is able to verify OCC Clearing Members from
information provided by OCC. Pursuant to Rule 1061, entitled
``Registration of Floor Brokers'', Floor Brokers are required to
register with the Exchange.
    \9\ See Exchange Rules 911 entitled ``Member and Member
Organization Participation'' and ``Rule 1052 entitled Responsibility
of Clearing Options Members For Exchange Options Transactions.''
    \10\ See Securities Exchange Act Release No. 65574 (October 14,
2011), 76 FR 65228 (October 20, 2011) (SR-Phlx-2011-134).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \11\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \12\ in
particular, in that it is an equitable allocation of reasonable fees
and other charges among Exchange members.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The Exchange believes that proposed amendment to the Permit Fee is
reasonable because the Exchange is seeking to recoup costs related to
membership administration. The proposed fee is in the range of similar
fees at other exchanges and less than other fees.\13\ In addition, the
Exchange

believes that the Permit Fee is equitable and not unfairly
discriminatory, because unlike other exchanges, Phlx's Permit Fees are
the same for every options permit holder that is conducting business at
the Exchange.
---------------------------------------------------------------------------

    \13\ See the Chicago Board of Trade, Incorporated's Fees
Schedule. Per month a Market Maker Trading Permit is $6,000, a SPX
Tier Appointment is $3,000, a VIX Tier Appointment if $1,000, Floor
Broker Trading Permit is $6,000, Electronic Access Permit is $1,600
and there is no access fee for a CBSX Trading Permit. See also the
International Securities Exchange LLC's Schedule of Fees. Per month
a EAM is $500.00 and a market maker ranges from $2,000 to $4,000.
See also C2, Inc.'s Fee Schedule. Per month, a market-maker permit
is $5,000, an Electronic Access Permit is $1,000 and a SPXM Tier
appointment is $4,000 after November 30, 2011. See also NYSE Arca,
Inc.'s Fee Schedule. Per month, a Floor Broker, Office and Clearing
Firm is $1,000 and a market maker is $4,000. See also NYSE Amex,
LLC's Fee Schedule. Per month, Per month, a Floor Broker, Order
Routing and Clearing Firm is $500 and a market maker is $5,000.
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    The Exchange believes that its clarifying amendment is reasonable
the Exchange recognizes that the members and member organizations that
are registered as OCC Clearing Members and Floor Brokers facilitate
transactions for others at the Exchange and are therefore unable to
utilize the house account in the same way as other members. In
addition, the Exchange believes that it is reasonable to assess a
$1,100 Permit Fee for OCC Clearing Members and Floor Brokers that are
transacting business at the Exchange in a capacity that facilitates
trading.
    The Exchange believes that it is equitable and not unfairly
discriminatory to assess OCC Clearing Members and Floor Brokers the
$1,100 as compared to other members who may not transact business,
because the OCC Clearing Member and Floor Broker are trading for others
as compared to the member who chooses whether to transact business in
his/her own account. Other members are only required to transact one
trade in their house account in order to be assessed the lower Permit
Fee.

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

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

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

    No written comments were either solicited or received

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\14\ At any time within 60 days of the
filing of the proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
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    \14\ 15 U.S.C. 78s(b)(3)(A)(ii).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-Phlx-2011-166 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-Phlx-2011-166. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File No. SR-Phlx-2011-166 and should be
submitted on or before January 5, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2011-32140 Filed 12-14-11; 8:45 am]
BILLING CODE 8011-01-P