[Federal Register Volume 84, Number 243 (Wednesday, December 18, 2019)]
[Notices]
[Page 69453]
[FR Doc No: 2019-27250]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2019-0105]

Petition for Waiver of Compliance

    Under part 211 of title 49 of the Code of Federal Regulations
(CFR), this provides the public notice that by letter received December
10, 2019, Kansas City Southern (KCS) petitioned the Federal Railroad
Administration (FRA) for a waiver of compliance from certain provisions
of the Federal railroad safety regulations contained at 49 CFR part
236. FRA assigned the petition Docket Number FRA-2019-0105.
    Specifically, KCS seeks relief from the 2-year periodic testing
requirements in Sec.  236.377, Approach locking; Sec.  236.378, Time
locking; Sec.  236.379, Route locking; Sec.  236.380, Indication
locking; and Sec.  236.381, Traffic locking. KCS also requests relief
from the 1-year periodic testing period of Sec.  236.109, Time
releases, timing relays, and timing devices, on all vital
microprocessor-based systems.
    KCS proposes to verify and test signal locking systems controlled
by microprocessor-based equipment by use of alternative procedures
every 4 years after initial baseline testing or program change as
follows:
     Verification of the Cyclic Redundancy Check (CRC)/Check
Sum/Universal Control Number (UNC) of an existing location's
application logic to the baseline tested version.
     Comparison and verification of all input/output
arrangement, vital timer durations, and vital program settings between
the existing location and prints/records pertaining to the baseline
tested version.
     Re-establishment of the baseline tested version via full
compliance with 49 CFR part 236 when a discrepancy is caused/found
between the existing and baseline versions.
     Incorporate recording of alternative method into KCS's
test record-keeping system.
    KCS states its current record-keeping system has all the
information and requirements for baseline tests. Furthermore, the
existing test records fulfil all the requirements for baseline test
record keeping. Given this, KCS desires to use these test records as
the existing baseline versions. Subsequent alternative tests would be
recorded as such within KCS's record-keeping system.
    A copy of the petition, as well as any written communications
concerning the petition, is available for review online at
www.regulations.gov and in person at the Department of Transportation's
Docket Operations Facility, 1200 New Jersey Ave. SE, W12-140,
Washington, DC 20590. The Docket Operations Facility is open from 9
a.m. to 5 p.m., Monday through Friday, except Federal Holidays.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested party
desires an opportunity for oral comment, they should notify FRA, in
writing, before the end of the comment period and specify the basis for
their request.
    All communications concerning these proceedings should identify the
appropriate docket number and may be submitted by any of the following
methods:
     Website: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, W12-140, Washington, DC 20590.
     Hand Delivery: 1200 New Jersey Ave. SE, Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Communications received by February 3, 2020 will be considered by
FRA before final action is taken. Comments received after that date
will be considered if practicable.
    Anyone can search the electronic form of any written communications
and comments received into any of our dockets by the name of the
individual submitting the comment (or signing the document, if
submitted on behalf of an association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits comments from the public to better
inform its processes. DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. See also
http://www.regulations.gov/#!privacyNotice for the privacy notice of
regulations.gov.

    Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety Chief Safety Officer.
[FR Doc. 2019-27250 Filed 12-17-19; 8:45 am]
 BILLING CODE 4910-06-P


Memorandum TO: Portland Cement Remand docket FROM: Steven Silverman, Attorney RE: Meeting with Jim Pew Esq. ( Earthjustice)

On March 29, Keith Barnett and I met with Jim Pew, counsel for Earthjustice. Daniel Dertke of the Department of Justice participated by telephone. Most of the meeting dealt with EPA officials outlining further information gathering steps the Agency plans to undertake, especially regarding potential means of control of mercury emissions from cement kilns. We also spoke briefly regarding the other proposed standards, as well as Earthjustice's ( negative) reaction to the proposed rule. EPA also offered to keep Earthjustice apprised of any technical developments which might emerge as further information is gathered.


[Federal Register Volume 83, Number 205 (Tuesday, October 23, 2018)]
[Notices]
[Pages 53467-53468]
[FR Doc No: 2018-23114]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP18-538-000]

Sendero Carlsbad Gateway, LLC; Notice of Schedule for
Environmental Review of the Gateway Project

    On August 9, 2018, Sendero Carlsbad Gateway, LLC (Gateway) filed an
application in Docket No. CP18-538-000 requesting a Certificate of
Public Convenience and Necessity pursuant to section 7(c) of the
Natural Gas Act to construct and operate certain natural gas pipeline
facilities. The proposed project is known as the Gateway Project
(Project), and would provide about 400 million standard cubic feet of
natural gas per day from Gateway's newly expanded Carlsbad Plant (a
cryogenic gas processing plant) to the Agua Blanca intrastate pipeline
owned by White Water Midstream, LLC. According to Gateway, the Project
would help alleviate natural gas supply delivery constraints in
southeast New Mexico and satisfy overall demand in the western region
of the United States.
    On August 22, 2018, the Federal Energy Regulatory Commission
(Commission or FERC) issued its Notice of Application for the Project.
Among other things, that notice alerted agencies issuing federal
authorizations of the requirement to complete all necessary reviews and
to reach a final decision on a request for a federal authorization
within 90 days of the date of issuance of the Commission staff's
Environmental Assessment (EA) for the Project. This instant notice
identifies the FERC staff's planned schedule for the completion of the
EA for the Project.

Schedule for Environmental Review

Issuance of EA--January 11, 2019
90-day Federal Authorization Decision Deadline--April 11, 2019

    If a schedule change becomes necessary, additional notice will be
provided so that the relevant agencies are kept informed of the
Project's progress.

Project Description

    The Gateway Project would consist of the following facilities:
     Approximately 23 miles of 24-inch-diameter natural gas
transmission pipeline in Eddy County, New Mexico and Culberson County,
Texas;
     a new meter station (including a mainline block valve and
pig \1\ launcher) within the existing Carlsbad Plant in Eddy County;
---------------------------------------------------------------------------

    \1\ A ``pig'' is a tool that the pipeline company inserts into
and pushes through the pipeline for cleaning the pipeline,
conducting internal inspections, or other purposes.
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     a mainline block valve at milepost 15.0 in Eddy County;
and
     a pig receiver and mainline block valve at milepost 23.3
near a White Water Midstream, LLC meter station in Culberson County.

Background

    On August 29, 2018, the Commission issued a Notice of Intent to
Prepare An Environmental Assessment for the Proposed Gateway Project,
And Request for Comments on Environmental Issues (NOI). The NOI was
sent to affected landowners; federal, state, and local government
agencies; elected officials; environmental and public interest groups;
Native American tribes; other interested parties; and local libraries
and newspapers.
    In response to the NOI, the Commission received comments from

the U.S. Department of Agriculture, Texas Commission on Environmental
Quality, Texas Parks and Wildlife Department, New Mexico Department of
Game and Fish, New Mexico State Historic Preservation Office, and one
Native American tribe. The primary issues raised by the commentors were
appropriate best management practices for construction and restoration,
special status species, surface water, and impacts on vegetation and
wildlife. All substantive comments will be addressed in the EA.

Additional Information

    In order to receive notification of the issuance of the EA and to
keep track of all formal issuances and submittals in specific dockets,
the Commission offers a free service called eSubscription. This can
reduce the amount of time you spend researching proceedings by
automatically providing you with notification of these filings,
document summaries, and direct links to the documents. Go to
www.ferc.gov/docs-filing/esubscription.asp.
    Additional information about the projects are available from the
Commission's Office of External Affairs at (866) 208-FERC or on the
FERC website (www.ferc.gov). Using the ``eLibrary'' link, select
``General Search'' from the eLibrary menu, enter the selected date
range and ``Docket Number'' excluding the last three digits (i.e.,
CP18-538), and follow the instructions. For assistance with access to
eLibrary, the helpline can be reached at<PHONE_NUMBER>, TTY (202) 502-
8659, or at [email protected]. The eLibrary link on the FERC
website also provides access to the texts of formal documents issued by
the Commission, such as orders, notices, and rule makings.

    Dated: October 17, 2018.
Kimberly D. Bose,
Secretary.
[FR Doc. 2018-23114 Filed 10-22-18; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 35 (Thursday, February 21, 2013)]
[Notices]
[Pages 12054-12056]
[FR Doc No: 2013-03959]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2004-0500; FRL 9527-5]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; EPA's ENERGY STAR Program in the Residential
Sector (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency has submitted an
information collection request (ICR), ``EPA's ENERGY STAR Program in
the Residential Sector'' (EPA ICR No. 2193.03, OMB Control No. 2060-
0586),

to the Office of Management and Budget (OMB) for review and approval in
accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
This is a proposed extension of the ICR, which is currently approved
through February 28, 2013. Public comments were previously requested
via the Federal Register (77 FR 50495) on August 21, 2012 during a 60-
day comment period. This notice allows for an additional 30 days for
public comments. A fuller description of the ICR is given below,
including its estimated burden and cost to the public. An Agency may
not conduct or sponsor and a person is not required to respond to a
collection of information unless it displays a currently valid OMB
control number.

DATES: Additional comments may be submitted on or before March 25,
2013.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OAR-2004-0500, to (1) EPA online using www.regulations.gov (our
preferred method), by email to<EMAIL_ADDRESS>or by mail to:
EPA Docket Center, Environmental Protection Agency, Mail Code 28221T,
1200 Pennsylvania Ave. NW., Washington, DC 20460, and (2) OMB via email
to<EMAIL_ADDRESS>Address comments to OMB Desk Officer
for EPA.
    EPA's policy is that all comments received will be included in the
public docket without change including any personal information
provided, unless the comment includes profanity, threats, information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

FOR FURTHER INFORMATION CONTACT: Brian Ng, Energy Star Residential
Branch, Mailcode 6202J, Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202)
343-9162; fax number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Supporting documents which explain in detail the information that
the EPA will be collecting are available in the public docket for this
ICR. The docket can be viewed online at www.regulations.gov or in
person at the EPA Docket Center, EPA West, Room 3334, 1301 Constitution
Ave. NW., Washington, DC. The telephone number for the Docket Center is
202-566-1744. For additional information about EPA's public docket,
visit http://www.epa.gov/dockets.
    Abstract: EPA first developed energy efficiency guidelines for new
homes in 1995. ENERGY STAR's existing homes effort was rolled out in
2000 to promote cost-effective upgrades in the existing homes market.
Both of these efforts promote cost effective, whole house energy
efficiency improvements that are independently verified by third
parties. Through 2011 there have been more than 1.3 million ENERGY STAR
certified new homes built in the U.S., and more than 50,000 existing
homes have been improved through the whole house retrofit program, Home
Performance with ENERGY STAR.
    Since participation in the ENERGY STAR program is voluntary,
organizations are not required to submit information to EPA.
Information received is not of a confidential nature. EPA has developed
this ICR to obtain authorization to collect information for the
following activities:
    Joining the ENERGY STAR Program and Related Activities: An
organization interested in joining ENERGY STAR as a partner is asked to
submit a partnership agreement establishing its commitment to ENERGY
STAR. Partners agree to undertake efforts such as educating their staff
and the public about their partnership with ENERGY STAR, developing and
implementing a plan to improve energy performance in homes, and
highlighting achievements utilizing the ENERGY STAR label.
    Verification of ENERGY STAR Guidelines: The purpose of the
verification process is to ensure the quality of home construction and
improvements with respect to ENERGY STAR guidelines. Under ENERGY
STAR's Certified Homes program, verification of a home's energy
efficiency occurs when site-built home builders or plants producing
manufactured and modular homes want to apply the ENERGY STAR label on
homes. The verification process involves the home builder, the
verification organization (Home Energy Rating Providers and Home Energy
Raters), and the Heating, Ventilation, and Cooling (HVAC) contractor.
These organizations complete four checklists as part of the
verification process. In addition, plants producing manufactured and
modular homes must undergo a certification process to ensure that they
consistently produce and install homes that meet ENERGY STAR
guidelines. Under ENERGY STAR's Home Performance with ENERGY STAR,
program sponsors promote a program of whole house, science-based
improvements to existing homes. Sponsors oversee contractors who carry
out the improvements, perform tests, and report the results to the
sponsors. Under ENERGY STAR's HVAC Quality Installation program,
sponsors promote the installation of HVAC systems in new and existing
homes to meet ENERGY STAR guidelines. Sponsors oversee contractors who
perform the installations, perform tests, and report the results to the
sponsors. Sponsors submit quarterly reports to EPA on these activities.
    Evaluation: Partners and other program participants are asked to
periodically submit information to EPA as needed to assist in
evaluating ENERGY STAR's effectiveness in helping organizations promote
energy efficiency in homes, to assess partners' level of interest and
ability in promoting ENERGY STAR in the residential sector, and to
determine the impact that ENERGY STAR has on residential energy use and
the supply and demand for energy-efficient homes and home improvement
products and services. In addition, EPA offers online tools, such as
the Home Energy Yardstick and Home Energy Advisor, for homeowners to
learn about and improve their homes' energy efficiency.
    Periodic Reporting: Some partners are asked to submit information
to EPA periodically to assist EPA in tracking and measuring progress in
building and promoting ENERGY STAR certified homes and installing and
promoting energy-efficient improvements.
    ENERGY STAR Awards: Each year, partners are eligible for an ENERGY
STAR award, which recognizes organizations demonstrating outstanding
support in promoting ENERGY STAR. An application is submitted to EPA by
interested partners.
    Outreach Partnership: Partners have the option of participating in
an outreach partnership, whereby partners jointly contribute resources
to the distribution of a public outreach and education campaign about
ENERGY STAR certified homes.
    Form Numbers:
     Partnership Letter for Home Builders, Architects & Home
Plan Designers, Home Energy Raters & Providers (5900-188)
     Partnership Agreement for EEPS (5900-33)
     Commitment Form for EEPS (5900-272)
     Partnership Agreement for Lenders (5900-08)
     Partnership Agreement for HVAC QI Sponsor (5900-183)
     Partnership Agreement for Home Performance with ENERGY
STAR Sponsor (5900-17)
     Implementation Plan for Home Performance with ENERGY STAR
Sponsor (5900-186)

     Commitment Form for Outreach Partnership (5900-06)
     Water Management Checklist (5900-178)
     Thermal Enclosure Checklist (5900-176)
     Multifamily High Rise Developer Participation Agreement
(5900-267)
     Multifamily High Rise Project Application (5900-266)
     Multifamily High Rise Testing & Verification Worksheet
(5900-269)
     Multifamily High Rise Submittal Validation Form (5900-270)
     Multifamily High Rise Performance Path Calculator (5900-
268)
     Modular Home Completion Report (5900-189)
     Manufactured Home Completion Report (5900-172)
     Modular Plant Qualification Form (5900-194)
     HVAC QI Rater Checklist (5900-271)
     HVAC Contractor Checklist (5900-175)
     Commissioning Report (5900-180)
     HIP Profile (5900-179)
     Energy Use Authorization Form (5900-184)
    Respondents/affected entities: Home builders, modular and
manufactured home manufacturing plants, developers, verification
organizations, oversight organizations, lenders, energy efficiency
program sponsors (e.g., national, regional, state, or local government
entities, utilities), architects, home plan designers, retailers,
contractors, and homeowners.
    Respondent's obligation to respond: Voluntary.
    Estimated number of respondents: 132,000 (total).
    Frequency of response: Once, quarterly, annually, and occasionally.
    Total estimated burden: 183,967 hours (per year). Burden is defined
at 5 CFR 1320.3(b)
    Total estimated cost: $13,553,809 (per year). This includes an
estimated cost of $13,553,209 for labor and $600 for capital
investment, operation and maintenance.
    Changes in the Estimates: There is an increase of 3,009 hours in
the total estimated respondent burden compared with the ICR currently
approved by OMB. This includes a 112,566-hour increase due to program
changes and a 109,557-hour decrease due to adjustments. The 112,566-
hour increase due to program changes resulted primarily from EPA's new,
more rigorous guidelines for new homes looking to earn the ENERGY STAR.
The 109,557-hour decrease due to adjustments resulted primarily from
updated and improved data and analysis.

John Moses,
Director, Collection Strategies Division.
[FR Doc. 2013-03959 Filed 2-20-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: December 21, 2005 (Volume 70, Number 244)]
[Rules and Regulations]
[Page 75923-75927]
[DOCID:fr21de05-17]

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Part V

Environmental Protection Agency

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40 CFR Part 63

National Emission Standards for Hazardous Air Pollutants: Miscellaneous
Coating Manufacturing; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2003-0178; FRL-8011-6]
RIN 2060-AM72

National Emission Standards for Hazardous Air Pollutants:
Miscellaneous Coating Manufacturing

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: On May 13, 2005 (70 FR 25676), EPA issued direct final rule
amendments and a parallel proposal to provide additional compliance
options for the national emission standards for hazardous air
pollutants (NESHAP) for Miscellaneous Coating Manufacturing. One
proposed amendment specified that compliance with the weight percent
hazardous air pollutant (HAP) limit in coatings products may be
demonstrated based on formulation data. However, the proposed amendment
did not include de minimis limits for HAP in formulation data as
allowed in other surface coating NESHAP. Due to adverse comment, we
withdrew that provision of the direct final, and we are now issuing
final amendments to specify that certain raw material formulation data
as supplied to coating manufacturers may be used to demonstrate
compliance with the weight percent HAP limit.

DATES: Effective Date: December 21, 2005.

ADDRESSES: Docket ID No. OAR-2003-0178 contains supporting information
used in developing the NESHAP. All documents in the docket are listed
in the EDOCKET index at http://docket.epa.gov/edkpub/index.jsp.

Although listed in the index, some information is not publicly
available, i.e., 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 either electronically in
EDOCKET or in hard copy at the Air and Radiation Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
    The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room is<PHONE_NUMBER>, and the telephone number for the
Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Randy McDonald, Organic Chemicals
Group, Emission Standards Division (Mail Code C504-04), Office of Air
Planning and Standards, EPA, Research Triangle Park, North Carolina
27711, telephone number<PHONE_NUMBER>, electronic mail address
<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION: Regulated Entities. The regulated category
and entities affected by this action include:

------------------------------------------------------------------------
                                                  Examples of regulated
            Category                 NAICS*              entities
------------------------------------------------------------------------
Industry.......................      3255, 3259  Manufacturers of
                                                  paints, coatings,
                                                  adhesives, or inks.
------------------------------------------------------------------------
*North American Industrial Classification System.

    This table is not intended to be exhaustive, but rather provides a
guide for readers likely to be interested in the revisions to the rule
affected by this action. To determine whether your facility, company,
business, organization, etc., is regulated by this action, you should
carefully examine all of the applicability criteria in 40 CFR 63.7985
of the rule, as well as in today's amendment to the definitions
sections. If you have questions regarding the applicability of the
amendments to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
    Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of the final rule amendments will also be available
on the WWW through EPA's Technology Transfer Network (TTN). Following
signature by the EPA Administrator, a copy of the final rule amendments
will be posted on the TTN's policy and guidance page for newly proposed
or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides

information and technology exchange in various areas of air pollution
control.
    Judicial Review. Under section 307(b)(1) of the Clean Air Act
(CAA), judicial review of the final rule amendments is available only
by filing a petition for review in the U.S. Court of Appeals for the
District of Columbia by February 21, 2006. Under section 307(d)(7)(B)
of the CAA, only an objection to the final rule amendments that was
raised with reasonable specificity during the period for public comment
can be raised during judicial review. Moreover, under section 307(b)(2)
of the CAA, the requirements established by the final rule amendments
may not be challenged separately in any civil or criminal proceedings
brought by EPA to enforce these requirements.
    Outline. The information presented in this preamble is organized as
follows:

I. Background
II. Response to Comments
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children for
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Background

    On December 11, 2003, we issued the NESHAP for miscellaneous
coating manufacturing (40 CFR part 63, subpart HHHHH). Subpart HHHHH
applies to equipment and processes involved in the manufacturing of
coatings, such as paints, inks, and adhesives.
    On May 13, 2005, we issued direct final rule amendments (70 FR
25676) and a parallel proposal (70 FR 25864) to amend subpart HHHHH. We
stated in the direct final rule that if we received adverse comment by
June 13, 2005, we would publish a timely withdrawal in the Federal
Register.
    We subsequently received adverse comments from two commenters on
one provision and, accordingly, withdrew paragraph (b)(4) in 40 CFR
63.8055 (70 FR 38780). The remaining provisions, for which we did not
receive any adverse comments, became effective on July 12, 2005. After
consideration of the comments, we are promulgating the final rule
amendments based on the parallel proposal published on May 13, 2005.

II. Response to Comments

    The direct final rule amendments published on May 13, 2005,
included amendments that allow formulation data to be used as an
alternative to test data for demonstrating compliance with the 5 weight
percent HAP limit in '63.8055 of 40 CFR part 63, subpart HHHHH. The
intent was to make the compliance options for the miscellaneous coating
manufacturing NESHAP consistent with options for other surface coating
rules. For example, 40 CFR part 63, subpart MMMM, the NESHAP for
surface coating of miscellaneous metal parts and products, has a
compliant materials option that requires the owner or operator of the
surface coating operation to determine the mass fraction of organic HAP
for each coating. One method of determining this mass fraction is to
use formulation data from the supplier or manufacturer. However, unlike
the option in the other surface coating rules, the formulation data
option in the direct final rule amendments to subpart HHHHH did not
have mass cutoffs of 0.1 percent for carcinogens as defined by
Occupational Safety and Health Administration (OSHA) or 1 percent for
other HAP because subpart HHHHH does not establish cutoffs for trace
materials or impurities.
    The commenters objected to this direct final rule amendments and
pointed out that the amendments did not allow for mass cutoffs reported
in Material Safety Data Sheets (MSDS), which require reporting of
quantities of materials based on limits of 0.1 percent for carcinogens
and 1 percent for other HAP; and/or other technical reports supplied by
the coating manufacturers that use these reporting quantities. These
limits account for trace constituents and impurities in materials.
These reporting limits are used when raw material and product
formulations are supplied to paint and coating manufacturers and, in
turn, supplied to their customers. One of the commenters also pointed
out that to disallow the use of these de minimis reporting levels
effectively renders the option useless because raw material data and
manufacturer formulations are not reported below these limits. Further,
without this allowance, the miscellaneous coating manufacturing NESHAP
would create an inherent inconsistency between manufacturer=s
certifications under the surface coatings NESHAP (recordkeeping and
reporting for downstream users) and potential certification
(recordkeeping and reporting) for this option under the miscellaneous
coating manufacturing NESHAP.
    We appreciate the commenter's request to minimize the compliance
burden and allow exemptions for impurities and trace constituents. We
agree that the proposed rule amendment allowing formulation data should
be a practical option that reduces the compliance burden on both the
regulated industry and the permitting authorities.
    We do not agree with the commenter regarding consistency between
compliance with other surface coating NESHAP and the miscellaneous
coating manufacturing NESHAP. The formats of the standards in other
surface coating rules are different than the format of the standard in
the coating manufacturing rule. Although we considered formulation data
in development of the standards for the other surface coating NESHAP,
for coating manufacturing, we only considered emissions reduction
techniques in development of standards. The 5 percent HAP limit in the
miscellaneous coating manufacturing NESHAP was intended as a pollution
prevention option that provides a level of control more stringent than
the emissions standards. Nevertheless, we have considered lessons
learned in the development of surface coating rules and, in that light,
we tried to be consistent. In the other surface coating rules, we have
not required raw material providers to perform complete analyses of
their products to quantify impurities or trace constituents, nor have
we considered any requirements that might force raw material providers
to change their raw material specifications. We understand that use of
MSDS sheets as formulation data would mean that a HAP, such as toluene
at 0.5 percent of the material by mass, may be present in the raw
material yet not be considered in the 5 percent HAP limit compliance
demonstration. However, because a limited number of trace HAP are used
in coating manufacturing and trace compounds in raw materials will only
become more dilute in the final coating, we believe formulation data
with the MSDS de minimis limits for trace compounds are adequate to
conform with the intended pollution prevention alternative and
demonstrate compliance with the 5 percent HAP limit.
    We do not agree, however, that the MSDS information for a coating
product provided by the coating manufacturer is a legitimate basis for
determining compliance with the 5 percent HAP limit. A manufacturer can
estimate the HAP content of the coating by formulation data from the
raw material supplier.
    Therefore, we are promulgating a final rule amendment that allows
compliance with the 5 percent HAP limit using formulation data from
suppliers, if the formulation data represent each organic HAP that is
present at 0.1 percent by mass or more for OSHA-defined carcinogens,
and at 1.0 percent by mass or more for other HAP. Only formulation data
from raw material suppliers shall be used to demonstrate compliance
with the 5 percent HAP limit.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Executive Order
defines ``significant regulatory action'' as one that is likely to
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    It has been determined that the final rule amendments are not a
``significant regulatory action'' under the terms of Executive Order
12866 and are, therefore, not subject to OMB review.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
This action gives a source owner or operator the option of using vapor
balancing to comply with the standards. Since it is only an option,
this action will not increase the information collection burden. The
OMB has previously approved the information collection requirements
contained in the existing regulations under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0535 (EPA ICR No. 2115.01).

    Copies of the information collection request (ICR) document(s) may
be obtained from Susan Auby, by mail at the Office of Environmental
Information, Collection Strategies Division; U.S. EPA (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at
<EMAIL_ADDRESS>or by calling<PHONE_NUMBER>. A copy may also be

downloaded off the Internet at http://www.epa.gov/icr. Include the ICR

or OMB number in any correspondence.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal Agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act

    The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with the direct final
rule amendments.
    For purposes of assessing the impacts of today's direct final rule
amendments on small entities, a small entity is defined as: (1) A small
business in the North American Industrial Classification System (NAICS)
code 325 that has up to 500; (2) a small governmental jurisdiction that
is a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's amendments on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603
and 604. Thus, an agency may conclude that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. The
final rule amendments will not impose any requirements on small
entities. The final rule amendments add a compliance option granting
greater flexibility to small entities subject to the final rule that
may result in a more efficient use of resources for them and,
therefore, impose no additional regulatory costs or requirements on
owners or operators of affected sources.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255, August 10, 1999) requires the
EPA to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national Government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
    The final rule amendments do not have federalism implications. They
will not have substantial direct effects on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. The final rule
amendments provide a source owner or operator with another option to
comply with the standards and, therefore, impose no additional burden
on sources. Thus, Executive Order 13132 does not apply to the final
rule amendments.

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

    Executive Order 13175 (65 FR 67249, November 9, 2000) requires the
EPA to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of

regulatory policies that have tribal implications.'' The final rule
amendments do not have tribal implications, as specified in Executive
Order 13175. The final rule amendments provide a source owner or
operator with another option to comply with the standards and,
therefore, impose no additional burden on sources. Thus, Executive
Order 13175 does not apply to the final rule amendments.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant''; as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that the EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by the EPA.
    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. Today=s final rule
amendments are not subject to Executive Order 13045 because they are
based on technology performance, not health or safety risks.
Furthermore, the final rule amendments have been determined not to be
``economically significant'' as defined under Executive Order 12866.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    The final rule amendments are not subject to Executive Order 13211
(66 FR 28355, May 22, 2001) because they are not a significant
regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272
note), directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs the
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
    No new standard requirements are cited in the final rule
amendments. Therefore, the EPA is not proposing or adopting any
voluntary consensus standards in the final rule amendments.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing the final 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 the direct final rule in the Federal Register. The
final rule amendments are not a ``major rule'' as defined by 5 U.S.C.
804(2). The final rule amendments are effective on December 21, 2005.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.

    Dated: December 15, 2005.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I, part 63 of
the Code of the Federal Regulations is amended as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart HHHHH--[Amended]

0
2. Section 63.8055 is amended by adding paragraph (b)(4) to read as
follows:

Sec.  63.8055  How do I comply with a weight percent HAP limit in
coating products?

* * * * *
    (b) * * *
    (4) You may rely on formulation data from raw material suppliers if
it represents each organic HAP that is present at 0.1 percent by mass
or more for OSHA-defined carcinogens, as specified in 29 CFR
1910.1200(d)(4), and at 1.0 percent by mass or more for other
compounds. If the HAP weight percent estimated based on formulation
data conflicts with the results of a test conducted according to
paragraphs (b)(1) through (3) of this section, then there is a rebuttal
presumption that the test results are accurate unless, after
consultation, you demonstrate to the satisfaction of the permitting
authority that the test results are not accurate and that the
formulation data are more appropriate.

[FR Doc. 05-24300 Filed 12-20-05; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Notices]
[Pages 63969-63971]
[FR Doc No: 2011-26528]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65514; File No. SR-BX-2011-066]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
Inbound Routing from an Affiliated Exchange

October 7, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\, and Rule 19b-4 \2\ thereunder, notice is hereby given
that on September 30, 2011, NASDAQ OMX BX, Inc. (``Exchange'' or
``BX'') 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

    BX is filing with the Commission a proposed rule change to permit
it to accept inbound orders routed by Nasdaq Execution Services LLC
(``NES'') from the NASDAQ OMX PSX facility (``PSX'') of NASDAQ OMX PHLX
(``PHLX'') (with the attendant obligations and conditions), as
described further below, on a one year pilot basis.
    The text of the proposed rule change is available at http://nasdaqomxbx.cchwallstreet.com/, at BX's principal office, and at the
Commission's Public Reference Room.

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

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

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

1. Purpose
    In conjunction with a proposal by PHLX to provide outbound routing
services to all markets using its affiliated routing broker, NES,\3\
the Exchange proposes that NES be permitted to route orders from PSX to
the Exchange on a one year pilot basis.
---------------------------------------------------------------------------

    \3\ See SR-Phlx-2011-108.
---------------------------------------------------------------------------

    NES is a broker-dealer and member of NASDAQ, PHLX and the Exchange.
NES provides all routing functions for The NASDAQ Stock Market
(``NASDAQ'') as well as, pursuant to recent proposed rule changes, BX
and PHLX.\4\ The

Exchange, NASDAQ, PHLX and NES are affiliates. Accordingly, the
affiliate relationship between BX and NES, its member, raises the issue
of an exchange's affiliation with a member of such exchange.
Specifically, in connection with prior filings, the Commission has
expressed concern that the affiliation of an exchange with one of its
members raises the potential for unfair competitive advantage and
potential conflicts of interest between an exchange's self-regulatory
obligations and its commercial interests.\5\
---------------------------------------------------------------------------

    \4\ See SR-BX-2011-048 and SR-Phlx-2011-108.
    \5\ See Securities Exchange Act Release Nos. 59153 (December 23,
2008), 73 FR 80485 (SR-NASDAQ-2008-098); and 62736 (August 17,
2010), 75 FR 51861 (August 23, 2010) (SR-NASDAQ-2010-100).
---------------------------------------------------------------------------

    Recognizing that the Commission has previously expressed concern
regarding the potential for conflicts of interest in instances where a
member firm is affiliated with an exchange of which it is a member, the
Exchange previously proposed, and the Commission approved, limitations
and conditions on NES's affiliation with the Exchange.\6\ Also
recognizing that the Commission has expressed concern regarding the
potential for conflicts of interest in instances where a member firm is
affiliated with an exchange to which it is routing orders, the Exchange
previously proposed, and the Commission approved,\7\ NES's affiliation
with the Exchange to permit the Exchange to accept inbound orders that
NES routes in its capacity as a facility of Nasdaq, subject to the
certain limitations and conditions. The Exchange now proposes to permit
BX to accept inbound orders that NES routes in its capacity as a
facility of PHLX, subject to these same limitations and conditions:
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release Nos. 58324, 73 FR 4936
(August 12, 2008) (SR-BSE-2008-02; SR-BSE-2008-23; SR-BSE-2008-25;
SR-BSECC-2008-01; (``BSE Approval Order'').
    \7\ See Securities Exchange Act Release Nos. 59154 (December 23,
2008), 73 FR 80468 (December 31, 2008) (SR-BSE-2008-048); and 64090
(March 17, 2011), 76 FR 16462 (SR-BX-2011-007).
---------------------------------------------------------------------------

    First, the Exchange and the Financial Industry Regulatory Authority
(``FINRA'') will maintain a Regulatory Contract, as well as an
agreement pursuant to Rule 17d-2 under the Act (``17d-2
Agreement'').\8\ Pursuant to the Regulatory Contract and the 17d-2
Agreement, FINRA will be allocated regulatory responsibilities to
review NES's compliance with certain Exchange rules.\9\ Pursuant to the
Regulatory Contract, however, BX retains ultimate responsibility for
enforcing its rules with respect to NES.
---------------------------------------------------------------------------

    \8\ 17 CFR 240.17d-2.
    \9\ NES is also subject to independent oversight by FINRA, its
designated examiniing authority, for compliance with financial
responsibility requirements.
---------------------------------------------------------------------------

    Second, FINRA will monitor NES for compliance with the Exchange's
trading rules, and will collect and maintain certain related
information.\10\
---------------------------------------------------------------------------

    \10\ Pursuant ot the Regulatory Contract, both FINRA and the
Exchange will collect and maintain all alerts, complaints,
investigations and enforcement actions in which NES (in its capacity
as a facility of PHLX routing orders to the Exchange) is identified
as a participant that has potentially violated applciable Commission
or Exchange rules. The Exchange and FINRA will retain these records
in an easily accessible manner in order to facilitate any potential
review conducted by the Commission's Office of Compliance
Inspections and Examinations.
---------------------------------------------------------------------------

    Third, FINRA will provide a report to the Exchange's chief
regulatory officer (``CRO''), on a quarterly basis, that: (i)
Quantifies all alerts (of which FINRA is aware) that identify NES as a
participant that has potentially violated Commission or Exchange rules,
and (ii) lists all investigations that identify NES as a participant
that has potentially violated Commission or Exchange rules.
    Fourth, the Exchange has in place BX Rule 2140(c), which requires
NASDAQ OMX, as the holding company owning both the Exchange and NES, to
establish and maintain procedures and internal controls reasonably
designed to ensure that NES does not develop or implement changes to
its system, based on non-public information obtained regarding planned
changes to the Exchange's systems as a result of its affiliation with
the Exchange, until such information is available generally to
similarly situated Exchange members, in connection with the provision
of inbound order routing to the Exchange.
    Fifth, the Exchange proposes that the routing of orders from NES to
the Exchange, in NES's capacity as a facility of PHLX, be authorized
for a pilot period of one year.
    The Exchange believes that the above-listed conditions protect the
independence of the Exchange's regulatory responsibility with respect
to NES, and that these mitigate the aforementioned concerns about
potential conflicts of interest and unfair competitive advantage.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\11\ in general, and with
Sections 6(b)(5) of the Act,\12\ in particular, in that the proposal is
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest, because the
proposed rule change will allow the Exchange to receive inbound routes
of orders from NES, acting in its capacity as a facility of PHLX, in a
manner consistent with prior approvals and established protections. The
Exchange believes that the proposed conditions establish mechanisms
that protect the independence of the Exchange's regulatory
responsibility with respect to NES, as well as ensure that NES cannot
use any information it may have because of its affiliation with the
Exchange to its advantage.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78f.
    \12\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

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

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days after the date of the filing, or such
shorter time as the Commission may designate, it has become effective
pursuant to 19(b)(3)(A) of the Act \13\ and Rule 19b-4(f)(6) \14\
thereunder.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

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

the purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-BX-2011-066 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2011-066. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-BX-2011-066 and should be
submitted on or before November 4, 2011.
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-26528 Filed 10-13-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 100 (Wednesday, May 26, 2021)]
[Notices]
[Pages 28418-28420]
[FR Doc No: 2021-11076]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91960; File No. SR-Phlx-2021-31]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend the
Exchange's Pricing Schedule at Equity 7, Section 3

May 20, 2021.
    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 May 12, 2021, Nasdaq 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 the Exchange's pricing schedule at
Equity 7, Section 3, as described further below.
    The Exchange originally filed the proposal pricing change on May 3,
2021 (SR-Phlx-2021-29). On May 12, 2021, the Exchange withdrew that
filing and submitted this filing.
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/phlx/rules, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its pricing schedule, at Equity 7,
Section 3, to make a change to its fees for routing of orders using the
SCAR routing option in all securities. Specifically, the Exchange
proposes to lower the $0.0025 per share executed credit that is given
to a member that enters an order in any of the three tapes using the
``SCAR'' routing option \3\ which ultimately executes on Nasdaq BX
(``BX'').
---------------------------------------------------------------------------

    \3\ Pursuant to Equity 4, Section 3315(a)(1)(A)(x), ``SCAR'' is
a routing option under which orders will check the System for
available shares and simultaneously route to BX and Nasdaq in
accordance with the System routing table. If shares remain
unexecuted after routing, they are posted on the book or cancelled.
Once on the book, should the order subsequently be locked or crossed
by another market center, the System will not route the order to the
locking or crossing market center.
---------------------------------------------------------------------------

    BX recently revised its pricing schedule to lower its existing
credits.\4\ Currently, all credits provided to members on BX are lower
than $0.0025 per share executed. As a result, the Exchange is proposing
to lower its existing $0.0025 per share credit to $0.0016 per share
executed for SCAR orders that execute on BX in order to better align
this amount with the credit amount provided by BX on its fee schedule.
---------------------------------------------------------------------------

    \4\ Securities Exchange Act Release No. 91639 (April 22, 2021),
80 FR 22500, (April 28, 2021).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\5\ in general, and furthers the objectives of Sections
6(b)(4) and 6(b)(5) of the Act,\6\ in particular, in that it provides
for the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility, and is
not designed to permit unfair discrimination between customers,
issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

The Proposal Is Reasonable
    The Exchange's proposed changes to its SCAR routing rebate are
reasonable in several respects. As a threshold matter, the Exchange is
subject to significant competitive forces in the market for equity
securities transaction

services that constrain its pricing determinations in that market. The
fact that this market is competitive has long been recognized by the
courts. In NetCoalition v. Securities and Exchange Commission, the D.C.
Circuit stated as follows: ``[n]o one disputes that competition for
order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S.
national market system, buyers and sellers of securities, and the
broker-dealers that act as their order-routing agents, have a wide
range of choices of where to route orders for execution'; [and] `no
exchange can afford to take its market share percentages for granted'
because `no exchange possesses a monopoly, regulatory or otherwise, in
the execution of order flow from broker dealers'. . . .'' \7\
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    \7\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
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    The Commission and the courts have repeatedly expressed their
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. In Regulation
NMS, while adopting a series of steps to improve the current market
model, the Commission highlighted the importance of market forces in
determining prices and SRO revenues and, also, recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \8\
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    \8\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting
Release'').
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    Numerous indicia demonstrate the competitive nature of this market.
For example, clear substitutes to the Exchange exist in the market for
equity security transaction services. The Exchange is only one of
several equity venues to which market participants may direct their
order flow.
    Within this environment, market participants can freely and often
do shift their order flow among the Exchange and competing venues in
response to changes in their respective pricing schedules.
    The Exchange believes it is reasonable to lower the $0.0025 per
share executed credit that it provides to a member that enters a SCAR
routed order that executes on BX because the proposal will better align
this credit with corresponding credits that BX provides to its own
members that remove liquidity from that exchange.\9\ The Exchange also
believes that it is appropriate to periodically reassess and
recalibrate its fees. In this instance, better aligning the credits
will help to ensure that market participants will not use the
Exchange's SCAR order routing strategy solely to obtain a higher rebate
on orders that are routed and executed on BX.
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    \9\ See Nasdaq BX Equity 7 (Pricing Schedule), available at
https://listingcenter.nasdaq.com/rulebook/phlx/rules/Phlx%20Equity%207 [sic].
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The Proposal Is an Equitable Allocation of Credits and Not Unfairly
Discriminatory
    The Exchange believes its proposal to lower its credit for SCAR
routed orders that execute on BX to $0.0016 per share executed credit
is an equitable allocation because the proposed amended credit amount
is better aligned with the liquidity removal credits that BX provides
to its members. Additionally, the proposal is not unfairly
discriminatory because the proposed amended credit is available to all
members.
    Any participant that is dissatisfied with the proposals is free to
shift their order flow to competing venues that provide more generous
pricing or less stringent qualifying criteria.

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.
Intramarket Competition
    The Exchange does not believe that its proposal will place any
category of Exchange participants at a competitive disadvantage. The
proposal will merely ensure that the amount of the SCAR credit is
better aligned with the recently lowered corresponding credits that BX
provides to its own members that remove liquidity from that exchange.
    As noted above, all members of the Exchange will benefit from the
protection of the overall quality of the equity market. Moreover,
members are free to trade on other venues to the extent they believe
that the proposed credit amount is not attractive. As one can observe
by looking at any market share chart, price competition between
exchanges is fierce, with liquidity and market share moving freely
between exchanges in reaction to fee and credit changes.
Intermarket Competition
    The Exchange's proposal is pro-competitive in that the proposal
will result in competitive alignment between the SCAR credit and the
amounts of liquidity removal credits that BX provides to its own
members that remove liquidity from that exchange.
    If the changes proposed herein are unattractive to market
participants, it is likely that the Exchange will lose market share as
a result. Accordingly, the Exchange does not believe that the proposed
changes will impair the ability of members or competing order execution
venues to maintain their competitive standing in the financial markets.

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.\10\
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    \10\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is: (i)
Necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-Phlx-2021-31 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-Phlx-2021-31. This file
number should be included on the subject line if email is used. To help
the Commission process and review your

comments more efficiently, please use only one method. The Commission
will post all comments on the Commission's internet website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent
amendments, all written statements with respect to the proposed rule
change that are filed with the Commission, and all written
communications relating to the proposed rule change between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change. Persons submitting comments are cautioned that we do
not redact or edit personal identifying information from comment
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
Phlx-2021-31 and should be submitted on or before June 16, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-11076 Filed 5-25-21; 8:45 am]
BILLING CODE 8011-01-P