[Federal Register: September 29, 2010 (Volume 75, Number 188)]
[Notices]
[Page 60165-60168]
[DOCID:fr29se10-123]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Notice Regarding Consideration and Processing of Applications for
Financial Assistance Under the Railroad Rehabilitation and Improvement
Financing (RRIF) Program

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of priorities for consideration of applications.

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SUMMARY: Under this notice, FRA is providing the basis for its
consideration of potential applications for financial assistance under
the RRIF Program authorized by 45 U.S.C. 821 et seq.

DATES: This notice is effective for all applications received by FRA
after October 29, 2010.

FOR FURTHER INFORMATION CONTACT: Barbara Amani, Chief of the Credit
Programs Division, Office of Railroad Development, Federal Railroad
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590
(telephone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; and e-mail:
Barbara.Amani@dot.gov); or Casey Symington, Attorney Advisor, Office of
Chief Counsel, Federal Railroad Administration, 1200 New Jersey Avenue,
SE., Washington, DC 20590 (telephone:<PHONE_NUMBER>; fax: (202) 493-
6068; and e-mail: Casey.Symington@dot.gov).

SUPPLEMENTARY INFORMATION: Title V of the Railroad Revitalization and
Regulatory Reform Act of 1976, Public Law 94-210 (1976), authorized a
program of financial assistance necessary to furnish assistance to
railroads for facilities maintenance, rehabilitation, improvements and
acquisitions. FRA used this financial assistance program to provide
financial assistance to portions of the then-fiscally challenged rail
industry. The program was most active during the four years following
the enactment of the statute. The improving financial condition of the
rail industry subsequent to enactment of the Staggers Rail Act of 1980
and the partial economic deregulation of the rail industry helped
improve the larger railroads' access to private capital, reducing
interest in the program.
    The Federal Credit Reform Act of 1990 resulted in fundamental
changes in all federal credit programs, by requiring that the subsidy
cost of any federal credit assistance be reserved prior to the credit
assistance being made available. Although the subsidy cost required an
appropriation, FRA's subsequent annual appropriations acts contained a
specific prohibition on the use of FRA's funds for this purpose. As a
result, use of the Title V program was limited to projects specifically
authorized by Congress.
    A secondary impact of the Staggers Rail Act of 1980 was a more
liberalized approach to restructuring railroads, which led to the
growth in the number and importance of short line and regional
railroads (also known as Class III and Class II railroads). A number of
studies conducted during the 1980s and 1990s concluded that significant
portions of the short line and regional railroad industry were
challenged by deferred maintenance and a lack of access to the private
capital markets at rates and terms comparable to debt financing
opportunities available to the larger, Class I railroads.
    In 1998, Title V of the Railroad Revitalization and Regulatory
Reform Act of 1976 was amended by the Transportation Equity Act for the
21st Century of 1998, Public Law 105-178 (1998) (TEA-21) to establish
the RRIF Program. TEA-21 authorized a program of financial assistance
to the rail industry in the form of loans and loan guarantees and other
financial instruments. The program was subsequently amended and
expanded in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Public Law 109-59 (2005) (SAFETEA-LU)
and the Rail Safety Improvement Act of 2008 (RSIA), Division A of
Public Law 110-432.
    TEA-21 addressed capital needs by providing a program of loans and
loan guarantees for rail investment purposes. A combined total of $3.5
billion in direct loans and loan guarantees was

authorized to be outstanding at any one time. One billion dollars were
specifically reserved for non-Class I railroads. The financial terms
available for such loans were significantly better than those available
to Class III and Class II railroads in private markets. Those terms
included a term up to 25 years and an interest rate equal to the
treasury rate for similar-term securities. Most importantly, the TEA-21
amendments provided that non-Federal sources could pay the subsidy cost
of the loan (referred to in the RRIF Program as the Credit Risk
Premium) on behalf of an eligible applicant. Thus, FRA through the RRIF
Program could provide financial assistance without the need for an
appropriation or any other specific act by Congress.
    SAFETEA-LU amended the RRIF Program to, among other things,
increase the amount of financial assistance available from $3.5 billion
to $35 billion, and to increase the amount reserved for other than
Class I railroads from $1 billion to $7 billion. SAFETEA-LU also
repealed, by statute, certain regulatory provisions. The RRIF program
was further amended in the RSIA to extend the maximum term of a loan
under the RRIF program from 25 years to 35 years. A total of 22 loans
in an aggregate initial principal amount of $779 million have been made
under the RRIF Program since TEA-21 was enacted. Of these, a total of 3
loans in an aggregate initial principal amount of $381 million have
been repaid.
    This notice supplements the existing notice of evaluation criteria
for the RRIF Program published in the Federal Register on September 26,
2005 (70 FR 56207) and provides policy guidance.
    The public has an interest in how federal funds are allocated,
including use of federal loans. To provide sound stewardship of federal
funds, the Secretary of Transportation has authority and discretion in
approving loan applications. That authority has been delegated to the
Administrator of the Federal Railroad Administration (49 CFR 1.49(t)).
In exercising discretion to evaluate the merits of proposed loans, the
Administrator may consider public policy priorities and federal credit
policies as outlined in the Office of Management and Budget Circular A-
129, Revised, November 2000. FRA will perform a cost-benefit analysis
of each loan or loan guarantee application and examine public benefits
derived from the loan relative to the amount of financial assistance
committed to achieve those public benefits. Proposals generating public
benefits using limited federal financial assistance to achieve policy
goals will be viewed more favorably than proposals generating limited
public benefits with significant federal RRIF assistance. Please note
that the collection of information associated with the RRIF Program is
currently approved under OMB No. 2130-0580. This approval expires on
January 31, 2013.
    Priority Projects: Selection of projects falls into eight
priorities for RRIF financial assistance as described in 45 U.S.C.
822(c). These priorities are restated below with clarifying language
(where appropriate) and consistent with DOT's Strategic Plan FY 2010-FY
2015 ``Transportation for a New Generation'' (draft).
    FRA will give priority to projects that--
    (1) Enhance public safety. This is DOT's highest programmatic
priority. FRA will prioritize projects that ensure safe and efficient
transportation choices. DOT's goal is to improve public health and
safety by reducing transportation-related fatalities and injuries and
improving the safety experience for all transportation system users,
including passengers, employees, pedestrians and motorists. In
determining which projects best enhance public safety, FRA will pay
particular attention to projects that do the following: Address
specific chronic safety concerns, including those identified during
periodic inspections by FRA's Office of Railroad Safety; facilitate
implementation of enhancements of signal and train control systems;
reduce or eliminate the potential for accidents at highway-rail at-
grade crossings; limit the access to rail infrastructure by trespassers
and other unauthorized persons; lead to a sustained improvement in the
class of track as defined by FRA's safety regulations; and/or lead to
the operation of safer railroad equipment.
    (2) Enhance the environment. FRA prioritizes projects that promote
environmental sustainability of transportation through investments that
focus on energy efficiency and environmental quality. DOT pursues
transportation policies and investments that reduce carbon emissions
and protect the human and natural environment. In determining which
projects best further those goals, FRA will give priority to
investments that do the following: Reduce the consumption of fossil
fuels and otherwise improve energy efficiency of rail operations;
reduce air pollutant emissions from rail equipment and facilities,
including acquisition of locomotives meeting the U.S. Environmental
Protection Agency's locomotive emissions standards; facilitate the
development of intercity and commuter rail public transportation
alternatives to single occupant motor vehicle transportation; reduce
the levels of noise emitted from rail operations, including reductions
of noise experienced by on-board personnel; and/or reduce the
contribution of pollutants into the Nation's waterways. It is important
to note that applications for financial assistance under the RRIF
Program will require environmental review in compliance with the
National Environmental Policy Act (NEPA).
    (3) Promote economic development, and (4) Enable United States
companies to be more competitive in international markets. FRA will
prioritize projects that build a foundation for economic
competitiveness. DOT fosters transportation policies and investments
that serve the travelling public and freight movement to bring lasting
economic and social benefit to the Nation. DOT seeks to encourage the
expansion and development of domestic manufacturing of transportation
systems and equipment in a manner consistent with law. In determining
which projects best promote economic development and enable American
companies to be more competitive in international markets, FRA will pay
particular attention to projects that do the following: Lead to the
construction, reconstruction or improvement of infrastructure or the
acquisition of equipment or other capital assets on both freight and
passenger (including commuter) rail corridors and related intermodal
and multi-modal facilities that address capacity constraints in the
Nation's transportation system and deliver integrated transportation
system improvements, while spurring domestic employment in both the
short-term and long-term; facilitate the development of new industries
and businesses' access to the Nation's transportation system; and/or
improve the efficiency and reduce the cost of freight movements of
domestic products into global commerce. To further address these
priorities, FRA will expect recipients of direct loans or loan
guarantees under the RRIF Program to agree to use funds provided to
them under the RRIF Program to purchase steel, iron and other
manufactured goods produced in the United States for the project.
Mitigating factors include but are not limited to limitations on
sufficient quantity, availability and quality; inability to purchase
and have delivered rolling stock or power train equipment within a
reasonable time; and whether including domestic material would increase
the cost of the overall project by more than 25 percent.
    (5) Are endorsed by the plans prepared under 23 U.S.C. 135 by the

State or States in which they are located.
    (6) Preserve or enhance rail or intermodal service to small
communities or rural areas, and (7) Enhance service and capacity in the
national rail system. FRA will prioritize projects that support the
development of interconnected, livable communities. DOT promotes place-
based policies that provide transportation choices and improve the
quality of life for all Americans. In determining which projects will
best preserve or enhance rail or intermodal service to small
communities or rural areas and enhance service and capacity in the
national rail system, FRA will pay particular attention to projects
that do the following: Preserve access for small communities and rural
America to the Nation's rail system; facilitate the development of rail
and rail-related intermodal facilities that encourage the reduction of
highway freight transportation in urban areas; facilitate the
development of rail-related intermodal passenger facilities that
improve the operation of and expand the public's access to public
transportation; and/or provide investments that expand the access to
intercity passenger and commuter rail transportation by persons with
disabilities.
    (8) Materially alleviate rail capacity problems which degrade the
provision of service to shippers and would fulfill a need in the
national transportation system. FRA will prioritize projects promoting
a state of good repair for transportation assets to ensure a reliable
and safe rail system. In determining which projects best enhance
service and capacity in the national rail system, alleviate rail
capacity problems which degrade the provision of service to shippers
and fulfill a need in the national transportation system, FRA will give
priority to projects that do the following: Assure sustained
performance of rail and rail-related intermodal infrastructure and
equipment in a safe, reliable and efficient manner, including the
replacement of capital assets before they reach the end of their
economic and useful life; permit rail infrastructure to accommodate
safe operation of 286,000 pound rail cars; and/or incorporate into the
rail infrastructure innovative design and construction procedures,
innovative quality assurance practices, and/or innovative materials to
extend the useful life of assets and reduce onsite repairs,
rehabilitation and reconstruction.
    Eligible Purposes: A list of eligible purposes is provided in 45
U.S.C 822(b). Although that section permits RRIF financial assistance
for certain categories of refinancing, FRA believes the greatest
benefit to the public of providing financial assistance under the RRIF
Program occurs when that assistance is used to directly fund capital
improvements. In particular, the RRIF Program has its most positive
impact by directly financing those improvements that would not
otherwise be undertaken, or whose undertaking would be substantially
delayed without RRIF assistance. Thus, in considering whether to
approve a loan or loan guarantee under the RRIF Program, FRA will give
more weight to those projects that need the type of financial
assistance provided by the RRIF Program to be financially feasible. FRA
is mindful that Congress at times imposes statutory mandates on the
rail industry that require certain specific investments by specified
times. In order to meet those statutory requirements, some eligible
applicants may be required to divert available fiscal resources away
from other investment needs, including investment needs that align with
DOT's strategic goals. In those circumstances, such statutory mandates
will also be afforded greater weight, to the extent that the applicant
can demonstrate the adverse impact on its investment plan if RRIF
financial assistance were not made available. FRA will also consider
the applicant's use of other forms of federal assistance and subsidies
including tax credits and grant programs in its financing plan.
    FRA will also consider applications for RRIF financial assistance
for projects that the applicant would and could undertake without such
assistance. It will be the obligation of the applicant to identify with
specificity how the public's interest would benefit from RRIF financial
assistance when compared to use of conventional funding. It is the
difference between the two scenarios that can be viewed as the net
benefit to the public of providing financial assistance under the RRIF
Program. FRA will evaluate this net benefit in comparison to the amount
of financial assistance required to achieve this benefit. FRA intends
to include requirements in its RRIF loan documents to ensure that the
net financial benefit made available through the RRIF financial
assistance results in increased public benefits.
    The refinancing of eligible capital investments poses similar
issues. In a refinancing, RRIF financial assistance is not required to
achieve the benefits of the project being refinanced. Thus, when
reviewing RRIF applications for refinancing, FRA will expect that the
financial resources made available by refinancing at the favorable
rates under RRIF be used by the applicant to achieve public benefits.
However, proposals to use RRIF funds directly for capital improvements
will be given preference over those that include refinancing. FRA will
evaluate those benefits against the cost of the financial assistance in
order to assess the overall benefit of the application. Examples of
preferred uses from the decreased cost of capital from a RRIF loan are:
Improving cash flow to implement a demonstrably expanded capital
improvement program, preserving the viability of a rail service, or
lowering the debt service obligation burden of States and public
agencies. In considering requests for RRIF loans to refinance debt, FRA
will evaluate the borrower's ability to efficiently access private
sector capital. FRA will request that prospective borrowers describe
the terms of equivalent debt that they believe would be available from
private sector sources and the amount they anticipate to save should a
RRIF loan be approved. As described above, FRA intends to protect the
public benefits of a RRIF loan through binding covenants in its loan
documents when appropriate.
    Requests to refinance debt incurred to finance the acquisition of a
railroad by an equity owner raise different considerations. Under the
statute, FRA may refinance debt that was originally incurred for any
eligible purpose stated in 45 U.S.C. 822(b)(1)(A). Under the statute,
RRIF loans may not be incurred to refinance outstanding debt incurred
for purposes other than the acquisition, improvement or rehabilitation
of eligible rail equipment or facilities. Since RRIF loans may not be
used to refinance outstanding debt incurred to acquire, for example,
goodwill or intangibles, FRA's ability to refinance acquisition debt is
limited. The value of railroad property, like the value of any other
asset, is normally set by the market. FRA is concerned that the
potential for long-term, low-cost federal refinancing of short-term,
high-cost acquisition debt might skew the true value of the assets
being acquired, and perhaps even have an inflationary impact in the
rail industry as a whole. RRIF financial assistance for refinancing the
acquisition of eligible railroad property might encourage transactions
that otherwise would not be made or transactions by entities that might
lack the full knowledge of the rail industry that will be needed to
assure the sustainability of the railroad. In considering proposed
financing or refinancing debt, in particular short-

term debt, used for the acquisition of a significant amount of rail
assets, FRA will require the applicant to demonstrate significantly
more than minimal public benefit from the transaction. Circumstances
where the acquisition is required to preserve essential rail service or
where a public agency is acquiring a rail property for direct public
benefit (e.g. use for public transportation) are more favorably
considered.
    Applicants: A list of eligible applicants is provided in 45 U.S.C.
822(a). The RRIF Program was originally established as a means to
provide access to capital for critical infrastructure improvements by
the Class III and Class II railroads. Although the RRIF program has
changed since its creation, FRA views the original purpose as one of
the highest priorities for the use of RRIF financial assistance.
    In recent months, FRA has seen increased interest for RRIF
financing by public authorities and publicly owned and/or controlled
railroads providing passenger service. The public interest in using
federal credit is easier to identify in situations where the credit
program preserves or expands transportation services used by the public
or where the credit reduces the burden on public agencies and federal
or State taxpayers to provide such services. The challenge in
considering public transportation for credit financing comes from the
fact that few, if any, of these systems generate sufficient revenues to
cover all of their costs. Indeed, public policy frequently finds
sufficient value in the non-monetary benefits of increasing the
utilization of such systems to justify the use of public funds to keep
fares low. FRA as a potential lender will look to other revenue sources
for assured repayment.
    Some public transportation entities have access to relatively
reliable long-term sources of revenue (e.g. a sales tax or access to a
dedicated revenue stream) or can offer the full faith and credit of
their States as a guarantee that the RRIF loan will be repaid. In such
cases, FRA's ability to make findings on the likelihood of repayment is
easier than for applications that can only be repaid through ongoing
actions by future Congresses or State legislatures. Solely relying on
future appropriations for repayment may not be optimal and could result
in a 100% credit risk premium. However, FRA will consider
appropriations as a repayment source if it is part of an overall
financing package that uses other revenue streams to service the debt.
Among the factors that FRA will consider, in addition to the public
benefits derived from the financing, will be the history of support for
the public transportation entity in the past and the extent that the
total amount of debt service, including the RRIF financing, falls
within the historic range of debt service obligations of the entity
that has been publicly funded.
    Loan Amount: Pursuant to 45 U.S.C. 822(d), the RRIF Program is
authorized to provide up to $35 billion in direct loans and loan
guarantees at any one time. The RRIF Program is subject to authority
provided in annual appropriations. Appropriations are not required to
pay for the credit risk premium, but merely grant FRA the authority to
obligate the remaining balance of the $35 billion authorized. The
balance currently available is approximately $34.6 billion. The timing
and sequencing of this volume of credit assistance could, under some
circumstances, create dislocations in the rail industry, which could
create inflationary pressures and lead to inefficient practices,
particularly in light of other federally sponsored rail investments
occurring over the next several years. FRA sees the need to balance the
volume of RRIF-financed work at any one time with a need to timely
realize the Department's strategic goals. FRA will not set an arbitrary
limit on the size of an application or the total dollar value of
applications under consideration at any one time. FRA will
periodically, however, assess whether the volume of RRIF-assisted rail
capital improvements is continuing to have a positive impact on rail
investment in the U.S.
    Ability To Repay: Pursuant to 45 U.S.C. 822(g), and as a
prerequisite to making loans or loan guarantees, the FRA must make a
number of findings including the finding that ``the obligation can
reasonably be repaid, using an appropriate combination of credit risk
premiums and collateral offered by the applicant to protect the Federal
Government * * * .'' To this end, FRA will evaluate the credit risk of
the application including the financial strength of the applicant or of
the project and the potential recovery in the event of default
including the nature and value of collateral if offered.
    Additionally, pursuant to 45 U.S.C. 823(a), FRA is permitted to
establish terms and conditions for loans and loan guarantees made under
45 U.S.C. 822. To this end, FRA will continue to require terms and
conditions in its RRIF loan documents sufficient to ensure that
applicants will repay their loans with interest within the term of the
loan.
    Pre-Application Discussions: The application process can involve a
substantial amount of work and expense for potential applicants,
particularly for smaller railroads or entities proposing larger
projects that might require additional levels of review, such as
projects requiring an environmental impact statement to comply with
NEPA. Regulations governing the RRIF Program have always included
provisions for pre-application discussions, which provide a foundation
to better address expectations about both the timing and ultimate
outcome of the process. FRA will use the pre-application meetings and
requests for clarification to develop a project outline, including a
preliminary analysis of the benefits of the proposed financing.
    Evaluation Charge: Demand for funding under the RRIF Program has
increased significantly in the past two years. In addition to the
increased volume of applications, FRA has noted a significant increase
in the size and complexity of the proposed transactions.
    FRA has typically staffed RRIF transactions solely with FRA
attorneys and not employed outside counsel. As a result, while we are
permitted to pass on the cost of outside counsel as an evaluation
charge under 45 U.S.C. 823(k), we have not had a need to do so. Given
the increased demand for RRIF loans and the increasing size and
complexity of the transactions submitted for our consideration, we
expect to employ outside counsel more frequently in the future. We
believe that employing outside counsel will both enhance our ability to
structure and document our transactions in a way that best protects the
taxpayers' investment and helps us manage the increased volume of
complex financing proposals more quickly and efficiently.
    While we may include the cost of outside counsel in our evaluation
charges, the total evaluation charges for a given transaction will not
exceed one-half of 1 percent of the principal amount of our loan, as
provided in the statute. We do not expect that we will employ outside
counsel for traditional RRIF loans to Class III applicants, unless the
loan contains complicated structuring or documentation issues.

    Issued in Washington, DC, on September 24, 2010.
Joseph C. Szabo,
Administrator.
[FR Doc. 2010-24467 Filed 9-28-10; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register: January 14, 2010 (Volume 75, Number 9)]
[Notices]
[Page 2153]
[DOCID:fr14ja10-83]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2009-1069]

Certificate of Alternative Compliance for the Tractor Tug FORTE

AGENCY: Coast Guard, DHS.

ACTION: Notice.

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SUMMARY: The Coast Guard announces that a Certificate of Alternative
Compliance was issued for the tractor tug FORTE as required by 33
U.S.C. 1605(c) and 33 CFR 81.18.

DATES: The Certificate of Alternative Compliance was issued on November
30, 2009.

ADDRESSES: The docket for this notice is available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to http://www.regulations.gov,
inserting USCG-2009-1069 in the ``Keyword'' box, and then clicking on
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice,
call CWO2 David Mauldin, District Eight, Prevention Branch, U.S. Coast
Guard, telephone<PHONE_NUMBER>. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    The tractor tug FORTE will be used for offshore supply operations.
The horizontal distance between the forward and aft masthead lights may
be 20[foot]- 9\9/16\. Placing the aft masthead light at the
horizontal distance from the forward masthead light as required by
Annex I, paragraph 3(a) of the 72 COLREGS, and Annex I, Section
84.05(a) of the Inland Rules Act, would result in an aft masthead light
location directly over the cargo deck, where it would interfere with
loading and unloading operations.
    The Certificate of Alternative Compliance allows for the horizontal
separation of the forward and aft masthead lights to deviate from the
requirements of Annex I, paragraph 3(a) of 72 COLREGS, and Annex I,
Section 84.05(a) of the Inland Rules Act.
    This notice is issued under authority of 33 U.S.C. 1605(c), and 33
CFR 81.18.

    Dated: December 14, 2009.
J.W. Johnson,
Commander, U.S. Coast Guard, Chief, Inspections and Investigations
Branch, By Direction of the Commander, Eighth Coast Guard District.
[FR Doc. 2010-547 Filed 1-13-10; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register: August 4, 2008 (Volume 73, Number 150)]
[Notices]
[Page 45257]
[DOCID:fr04au08-74]

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SECURITIES AND EXCHANGE COMMISSION

[Securities Exchange Act of 1934; Release No. 58248/July 29, 2008]

Order Extending Emergency Order Pursuant to Section 12(k)(2) of
the Securities Exchange Act of 1934 Taking Temporary Action To Respond
to Market Developments

    On July 15, 2008, the Commission issued an Emergency Order Pursuant
to Section 12(k)(2) of the Securities Exchange Act of 1934 Taking
Temporary Action to Respond to Market Developments (the ``Order'').\1\
That Order took effect on July 21, 2008 and applies to the publicly
traded securities of the substantial financial firms identified in
Appendix A to the Order. The Commission updated the Order by an
amendment dated July 18, 2008.\2\ The Order, as amended (the
``Emergency Order''), is currently set to terminate on July 29, 2008.
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    \1\ See Securities Exchange Act Release No. 58166 (July 15,
2008).
    \2\ See Securities Exchange Act Release No. 58190 (July 18,
2008).
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    Pursuant to its authority under Section 12(k)(2)(C) of the
Securities Exchange Act of 1934 (``Exchange Act''), the Commission is
extending the Emergency Order. Section 12(k)(2)(C) authorizes the
Commission to extend an emergency order issued pursuant to Section
12(k)(2)(A) of the Exchange Act for a total effective period of up to
30 calendar days, if the Commission finds that the emergency still
exists and determines that an extension is necessary in the public
interest and for the protection of investors to maintain fair and
orderly securities markets.
    The Commission has carefully reevaluated the current state of the
markets in consultation with officials of the Board of Governors of the
Federal Reserve System, the Department of the Treasury and the Federal
Reserve Bank of New York. We note that the Board of Governors of the
Federal Reserve System, in authorizing the creation of the temporary
Primary Dealer Credit Facility (``PDCF''), was required to determine
that ``unusual and exigent circumstances'' exist and that the PDCF
remains available to the financial firms identified in Appendix A. The
Commission continues to remain concerned about the ongoing threat of
market disruption and effects on investor confidence, and has
determined in this environment that the standards under Section
12(k)(2) for extending the Emergency Order have been met. Accordingly,
the Commission has determined that extending the Emergency Order is in
the public interest and necessary to maintain fair and orderly
securities markets and for the protection of investors. Following
expiration of the Emergency Order, the Commission will proceed
immediately to consideration of rulemaking, which would become
effective after notice and comment.
    Therefore, it is ordered, pursuant to Section 12(k)(2)(C) of the
Exchange Act, that the Emergency Order is extended such that it will
terminate at 11:59 p.m. EDT on Tuesday, August 12, 2008.

    By the Commission.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-17759 Filed 8-1-08; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register: February 17, 2006 (Volume 71, Number 33)]
[Notices]
[Page 8626-8628]
[DOCID:fr17fe06-122]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53275; File No. SR-NYSE-2006-02]

Self-Regulatory Organizations; New York Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to Extension of Two Crossing Sessions in the Exchange's Off-
Hours Trading Facility

February 13, 2006.
    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 January 25, 2006, the New York Stock Exchange, Inc. (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
filed the proposed rule change pursuant to Section 19(b)(3)(A) of the
Act \3\ and Rule 19b-4(f)(6) thereunder, which renders it effective
upon filing with the Commission.\4\ The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The NYSE proposes to extend until February 1, 2007 the following
pilot programs (``Pilots''): Crossing Session III, for the execution of
guaranteed price coupled orders by member organizations to fill the
balance of customer orders at a price that was guaranteed to a customer
prior to the close of the Exchange's 9:30 a.m. to 4 p.m. trading
session (``Crossing Session III''); and Crossing Session IV, whereby an
unfilled balance of an order may be filled at a price such that the
entire order is filled at no worse price than the Volume Weighted
Average Price (``VWAP'') for the subject security (``Crossing Session
IV''). The text of the proposed rule change is available on the NYSE's
Web site (http://www.nyse.com), at the NYSE's Office of Secretary, and

at the Commission's Public Reference Room.

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

    In its filing with the Commission, the NYSE 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
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 SR-NYSE-2002-40,\5\ the Commission approved an order
establishing two new crossing sessions (Crossing Sessions III and IV)
in the Exchange's Off-Hours Trading Facility (``OHTF'') as pilot
programs that expired on December 1, 2004. Subsequently, the Commission
published a notice of filing and immediate effectiveness of a proposed
rule change extending the Pilots until February 1, 2006.\6\ This
proposal extends the Pilots until February 1, 2007.\7\ Crossing
Sessions III and IV are described below.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 48857 (December 1,
2003), 68 FR 68440 (December 8, 2003).
    \6\ See Securities Exchange Act Release No. 51091 (January 28,
2005), 70 FR 6484 (February 7, 2005) (SR-NYSE-2005-01).
    \7\ The NYSE confirmed that the Pilots will continue to function
in the same manner that they operated prior to the one-year
extension. Telephone conversation between Donald Siemer, Director,
Market Surveillance, NYSE, Joseph P. Morra, Special Counsel,
Division of Market Regulation (``Division''), Commission and Johnna
B. Dumler, Attorney, Division, Commission on February 10, 2006.
---------------------------------------------------------------------------

Background
    The purpose of SR-NYSE-2002-40 was to add two additional ``Crossing
Sessions'' (Crossing Sessions III and IV) to the Exchange's OHTF.
Before SR-NYSE-2002-40, the OHTF consisted of Crossing Sessions I and
II. Crossing Session I permits the execution, at the Exchange's closing
price, of single-stock, single-sided closing price orders and crosses
of single-stock, closing price buy and sell orders. Crossing Session II
permits the execution of crosses of multiple-stock (``basket'')
aggregate priced buy and sell orders. For Crossing Session II, trade
reporting is accomplished by reporting to the Consolidated Tape the
total number of shares and the total market value of the aggregate-
price trades. There is no indication of the individual component stocks
involved in the aggregate-price transactions.
Crossing Session III
    In the instant proposed rule change, the Exchange is proposing to
extend until February 1, 2007, the Pilot in Crossing Session III.
Crossing Session III is described in NYSE Rule 907. This Pilot would
continue to allow for the execution on the NYSE of ``guaranteed price
coupled orders'' whereby member organizations could fill the unfilled
balance of a customer order at a price which was guaranteed to the
customer prior to the close of the Exchange's 9:30 a.m. to 4 p.m.
trading session.
The Granting of ``Upstairs Stops''
    In serving their institutional customers, member firms may offer
them a guarantee that a large size order will receive no worse than a
particular price. Such a practice is usually referred to as an
``upstairs stop,'' meaning that

the firm guarantees that its customer's order will be executed at no
worse price than the agreed-upon, guaranteed price, with the member
firm trading for its own account, if necessary, to effectuate the
guarantee.
    Typically, a member firm will seek to execute as much of the order
as possible during the trading day at or below the ``stop'' price (in
the case of a buy order) or at or above the ``stop'' price (in the case
of a sell order). Any portion of the order not filled during the
trading day will be completed after hours, with the firm either buying
from, or selling to, its customer at a price which ensures that the
entire order is executed at a price which is no worse than the ``stop''
price.
    Member firms typically execute the unfilled balance of the order,
after the U.S. Consolidated Tape is closed, in the London over-the-
counter market, where trades are not reported in real time. The purpose
of this is simply to minimize the possibility that other market
participants may ascertain the firm's, or the customer's inventory
position, and possibly trade in the subject security to the detriment
of the firm that granted the ``upstairs stop.'' According to the
Exchange, it is more transparent to print the trade in the NYSE primary
market during U.S. Consolidated Tape hours.

Crossing Session IV

    The Exchange is also proposing to extend the Pilot in Crossing
Session IV (which is also described in NYSE Rule 907), until February
1, 2007. Crossing Session IV is a facility whereby member organizations
may fill the unfilled balance of a customer's order at a price such
that the overall order is filled at a price that is no worse than the
VWAP for the subject security on that trading day. The member
organization would be required to document its VWAP agreement with the
customer and the basis upon which the VWAP price would be determined.
Operation of Crossing Sessions
    As described in NYSE Information-Memos 04-30 and 05-57 and NYSE
Rule 907, Crossing Session III and Crossing Session IV would continue
to operate as follows:
    (i) The original order as to which an ``upstairs stop'' or ``VWAP''
has been granted may be of any size;
    (ii) The customer must have received a ``stop'' (guaranteed price)
or VWAP for the entire order;
    (iii) The member firm must record all details of the order,
including the price it has guaranteed its customer or that the entire
order will be filled at no worse than the VWAP;
    (iv) An order or the unfilled balance of an order that would be
executed in Crossing Session III or Crossing Session IV may be of any
size;
    (v) The customer's order must be executed in Crossing Session III
or Crossing Session IV at a price that ensures that the entire order is
executed at a price that is no worse than the guaranteed price or the
VWAP;
    (vi) Orders may be entered in Crossing Session III or Crossing
Session IV between 4 p.m. and 6:30 p.m., and must be identified as
either a Crossing Session III or Crossing Session IV order;
    (vii) Member firms will receive an immediate report of execution
upon entering an order into Crossing Session III or Crossing Session
IV;
    (viii) Orders may be entered into Crossing Session III for
execution at prices outside the trading range in the subject security
during the 9:30 a.m. to 4 p.m. trading session;
    (ix) Orders may not be entered into Crossing Session III or
Crossing Session IV in a security that is subject to a trading halt at
the close of the regular 9:30 a.m. to 4 p.m. trading session; and
    (x) At 6:30 p.m., the Exchange will print trades reported through
Crossing Session III as guaranteed price coupled orders or in Crossing
Session IV as VWAP executions.
2. Statutory Basis
    NYSE believes that the proposed rule change is consistent with
Section 6 of the Act \8\ in general, and furthers the objectives of
Section 6(b)(5) of the Act \9\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system and, in general, to protect investors and the public
interest.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

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

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

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

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)\10\ and Rule 19b-4(f)(6)
thereunder.\11\ At any time within 60 days of the filing of the
proposed rule change, the Commission may summarily abrogate such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    NYSE has asked the Commission to waive the five-day pre-filing
notice requirement and the 30-day operative delay. The Commission
believes such waiver is consistent with the protection of investors and
the public interest because it would allow the Pilots to operate
without interruption.\12\ For this reason, the Commission designates
the proposal to be operative upon filing with the Commission.
---------------------------------------------------------------------------

    \12\ For purposes only of waiving the 30-day pre-operative
period, the Commission has considered the proposed rule's impact on
efficiency, competition and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

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 e-mail to<EMAIL_ADDRESS>Please include File

Number SR-NYSE-2006-02 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2006-02. 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 inspection and copying in the
Commission's Public Reference Room. Copies of such filing will also be
available for inspection and copying at the principal office of the
NYSE. 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-
NYSE-2006-02 and should be submitted by March 10, 2006.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\13\
Nancy M. Morris,
Secretary.
---------------------------------------------------------------------------

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

 [FR Doc. E6-2299 Filed 2-16-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Proposed Rules]
[Pages 2109-2115]
[FR Doc No: 2019-01112]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0301; FRL-9988-99-Region 4]

Air Plan Approval; NC: Readoption of Air Quality Rules and
Removal of Oxygenated Gasoline Rules

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve several State Implementation Plan (SIP) revisions submitted by
the North Carolina Department of Environmental Quality, Division of Air
Quality (DAQ), on March 21, 2018, readopting and amending several air
quality rules, and requesting to remove the rules for the oxygenated
gasoline program. One of these SIP revisions also contains a non-
interference demonstration, which

concludes that removing the oxygenated gasoline rules would not
interfere with attainment or maintenance of the National Ambient Air
Quality Standards (NAAQS). EPA has preliminarily determined that North
Carolina's March 21, 2018, SIP revisions are consistent with the
applicable provisions of the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before March 8, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2018-0301 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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, 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: Kelly Sheckler, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. The telephone number is<PHONE_NUMBER>. Ms. Sheckler can
also be reached via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Overview

    EPA is proposing to approve several SIP revisions submitted by
North Carolina on March 21, 2018, seeking to readopt and amend various
air quality rules, and to remove the rules for the oxygenated gasoline
program from North Carolina's SIP. To support the request to remove the
rules for the oxygenated gasoline program from the SIP, North
Carolina's March 21, 2018, SIP revision contains technical support
materials to demonstrate that the removal of the rules will not
interfere with attainment or maintenance of any NAAQS or with any other
applicable requirement of the CAA. Specifically, these SIP revisions
address State regulations amended or readopted in 15A North Carolina
Administrative Code (NCAC) 02D Sections .0100, Definitions and
References, .0200, Air Pollution Sources, .0300, Air Pollution
Emergencies, and .0400, Ambient Air Quality Standards, and the removal
of rules in 15A NCAC 02D Section .1300, Oxygenated Gasoline Standard
(hereinafter referred to as the oxygenated gasoline program).\1\ The
March 21, 2018, SIP revision also includes changes to the
Transportation Conformity Rules in 15A NCAC 02D Section .2000, however,
in this action, EPA will not be addressing those amendments.
---------------------------------------------------------------------------

    \1\ In the table of North Carolina regulations federally
approved into the SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred
to as ``Subchapter 2D Air Pollution Control Requirements.''
---------------------------------------------------------------------------

    EPA's analysis of North Carolina's March 21, 2018, SIP revisions
that are the subject of this proposed rule is organized into three
parts under Section II. Part A provides the background, analysis, and
the non-interference demonstration for the removal of North Carolina's
oxygenated gasoline program; Part B contains information regarding
rules submitted for readoption only; and Part C contains information
regarding rules submitted for amendment.

II. Analysis of North Carolina's March 21, 2018, SIP Revisions

A. Removal of the Oxygenated Gasoline Program

1. Background
    Under section 211(m) of the CAA, states with areas designated
nonattainment for carbon monoxide (CO) with certain design values were
required to submit revisions to their SIPs and implement oxygenated
gasoline programs by no later than November 15, 1992.\2\ For North
Carolina, the Raleigh-Durham and Winston-Salem areas were designated as
nonattainment for the 8-hour CO standard with design values triggering
the requirements of CAA section 211(m) for oxygenated gasoline. See 56
FR 56694 (November 6, 1991); 57 FR 56762 (November 30, 1992).\3\ As a
result, the State submitted, and EPA approved, an oxygenated gasoline
program for the areas of Raleigh-Durham and Winston-Salem. North
Carolina included the Charlotte CO nonattainment area in the program's
coverage in its SIP, although it was not required to implement such a
program for that area. See 59 FR 33683 (June 30, 1994).
---------------------------------------------------------------------------

    \2\ Oxygenates are fuel additives that contain oxygen, usually
in the form of alcohol or ether. Oxygenates can enhance fuel
combustion and thereby reduce exhaust emissions. Some oxygenates
also boost gasoline octane. Because CO emissions from gasoline-
fueled vehicles tend to increase in cold weather, the control period
for oxygenated gasoline programs is during the winter months.
    \3\ Under CAA section 211(m), the triggering CO design value is
9.5 parts per million (ppm) or above. Raleigh-Durham had a design
value of 10.9 ppm, and Winston-Salem had a design value of 9.7 ppm
(based on 1988 and 1989 data). The Charlotte area was a pre-1990
nonattainment area and was designated by operation of law, but the
area had a design value of 8.4 ppm (based on 1988 and 1989 data),
which is below the 9.5 ppm. See 56 FR 56694 (November 6, 1991) and
57 FR 56762 (November 30, 1992).
---------------------------------------------------------------------------

    The CAA established an attainment date of December 31, 1995, for
all CO areas triggering the CAA section 211(m) requirements such as the
Raleigh-Durham and Winston-Salem areas, and areas below that trigger,
such as Charlotte, had to attain by November 15, 1995. Section
107(d)(3)(E) of the CAA sets out the requirements that an area must
meet in order to be redesignated from nonattainment to attainment,
including that the area must have a fully-approved maintenance plan
pursuant to section 175A of the CAA. A maintenance plan, as defined in
section 175A(a) of the CAA, is a revision to the SIP to provide for the
maintenance of the NAAQS for the air pollutant in question in the area
concerned for at least 10 years after the redesignation. CAA section
175A(d) requires that such plans include contingency provisions, as
necessary, to promptly correct any violation of the NAAQS that occurs
after redesignation of an area; this includes implementation of
controls measures that were contained in the SIP prior to
redesignation. In 1994, EPA approved North Carolina's request to
redesignate the Winston-Salem area to attainment for the CO NAAQS and
approved the initial 10-year maintenance plan for the area. See 59 FR
48399 (September 21, 1994). In 1995, EPA approved the redesignation of
the Charlotte and Raleigh-Durham areas to attainment for the CO NAAQS
and approved the initial 10-year maintenance plans for those areas as
well. See 60 FR 39258 (August 2, 1995). The initial 10-year maintenance
plans included the continued use of the oxygenated gasoline program for
the Raleigh-Durham area. For the Charlotte and Winston-Salem areas, the
initial 10-year maintenance plans included the oxygenated gasoline
program as a contingency measure.
    Subsequently, on October 19, 1995, North Carolina submitted a
proposed SIP revision requesting that the

oxygenated gasoline program for the Raleigh-Durham CO maintenance area
be moved from the maintenance plan to the contingency measures portion
of the maintenance plan. The request was based on a revised vehicle
miles traveled analysis which demonstrated that the CO NAAQS could be
maintained without the continued use of the oxygenated gasoline
program. See 60 FR 56127 (November 7, 1995).\4\
---------------------------------------------------------------------------

    \4\ EPA analyzed this request and proposed to approve the
revision in 1995. See 60 FR 56127, November 7, 1995. EPA received no
comments on its proposed action. On June 20, 2007, EPA clarified
that it ultimately finalized its approval in 2006. See 72 FR 33692.
---------------------------------------------------------------------------

    Eight years after redesignation of an area to attainment, CAA
section 175A(b) requires the state to submit an update to the original
maintenance plan to provide for the maintenance of the NAAQS for
another 10 years after the initial 10-year period has expired (this is
known as the second 10-year maintenance plan). North Carolina's second
10-year maintenance plan for the Charlotte, Raleigh-Durham and Winston-
Salem areas was approved by EPA on March 24, 2006 (71 FR 14817). The
plan included the oxygenated gasoline program as a contingency measure
for all three areas.\5\ In 2015, the 20-year maintenance plan periods
(covering the initial 10-year maintenance period and the second 10-year
maintenance period) expired for all three areas. Specifically, the end
date for the 20-year maintenance plan period for the Charlotte and
Raleigh-Durham (Wake and Durham counties) areas was September 18, 2015,
and the end date for the 20-year maintenance plan period for the
Winston-Salem area (Forsyth county) was May 23, 2015.\6\
---------------------------------------------------------------------------

    \5\ On June 20, 2013, (78 FR 37118), EPA approved North
Carolina's request to convert the second 10-year maintenance plans
to limited maintenance plans. A limited maintenance plan generally
includes all the elements for a full section 175A maintenance plan
except that a limited maintenance plan is not required to include
motor vehicle emissions budgets for transportation conformity
purposes. See the October 6, 1995, Memorandum from Joseph W. Praise
to the Air Branch Chiefs, Regions I-X, entitled ``Limited
Maintenance Plan Option for Nonclassifiable CO Nonattainment
Areas.''
    \6\ While these areas have all reached the end of their 20-year
maintenance period, the second 10-year maintenance plan does not
cease to be effective. Rather, the terms of the maintenance plan
(including all measures and requirements) remain in effect until the
State submits, and EPA approves, a revision to the plan consistent
with the anti-backsliding requirements of CAA section 110(l) and CAA
section 193, if applicable. North Carolina's March 21, 2018, SIP
revision is such a request and the analysis of that request for
consistency with the CAA's anti-backsliding requirements follows in
Section II.A.2 below.
---------------------------------------------------------------------------

2. What are the CAA requirements for the removal of the oxygenated
gasoline program in North Carolina?
    One of North Carolina's March 21, 2018, SIP revisions seeks to
remove the State's oxygenated gasoline program from the North Carolina
SIP. As noted above, that program is included as a contingency measure
in the State's second 10-year maintenance plan for the Charlotte,
Raleigh-Durham, and Winston-Salem CO maintenance areas pursuant to the
requirements of CAA section 175A(d). However, the requirement in
section 175(A)(d) for contingency measures to include all control
measures contained in the SIP prior to redesignation does not preclude
the removal of contingency measures from the maintenance plan once the
second 10-year maintenance plan period has expired. Here, the
Charlotte, Raleigh-Durham, and Winston-Salem areas' second 10-year
maintenance plan periods expired in 2015, as described above. Thus,
section 175A(d) does not preclude the removal from the SIP of the
oxygenated gasoline program for these areas. North Carolina's March 21,
2018, SIP revision seeking such a removal must, however, still comply
with the requirements of CAA sections 110(l) and 193, where
applicable.\7\
---------------------------------------------------------------------------

    \7\ CAA section 193 is not applicable to the instant SIP
revision because the oxygenated gasoline program was not a control
measure required to be adopted into the SIP by North Carolina for
these areas prior to November 15, 1990.
---------------------------------------------------------------------------

    Section 110(l) requires that a revision to the SIP not interfere
with any applicable requirement concerning attainment and reasonable
further progress (as defined in section 171), or any other applicable
requirement of the Act. EPA's criterion for determining the
approvability of North Carolina's March 21, 2018, SIP revision is
whether the non-interference demonstration associated with the removal
of the oxygenated gasoline program for the Charlotte, Raleigh-Durham,
and Winston-Salem areas satisfies section 110(l).
    EPA evaluates each section 110(l) non-interference demonstration on
a case-by-case basis considering the circumstances of each SIP
revision. EPA interprets 110(l) as applying to all NAAQS that are in
effect, including those that have been promulgated but for which EPA
has not yet made designations. The degree of analysis focused on any
NAAQS in a non-interference demonstration varies depending on the
nature of the emissions associated with the proposed SIP revision. With
regards to the removal of the oxygenated gasoline program in North
Carolina, the most relevant pollutant to consider is CO. EPA's analysis
of North Carolina's March 21, 2018, SIP revision pursuant to section
110(l) is provided below.
3. What is EPA's analysis of North Carolina's non-interference
demonstration?
a. Overall Preliminary Conclusions
    On March 21, 2018, DAQ submitted a revision to North Carolina's
SIP-approved oxygenated gasoline program, along with a non-interference
demonstration to support the State's request to remove the program from
the North Carolina SIP. This demonstration includes an evaluation of
the impact that the removal of the oxygenated gasoline program for
Charlotte (Mecklenburg county), Raleigh-Durham (Wake and Durham
counties) and Winston-Salem (Forsyth county) would have on North
Carolina's ability to attain or maintain the NAAQS in the State. The
demonstration and EPA's analysis of the potential impact of the removal
of the program is below.
i. Non-interference Analysis for the CO NAAQS
    EPA promulgated the CO NAAQS in 1971 and has retained the standards
since its last review of the standard in 2011. The primary NAAQS for CO
includes: (1) an 8-hour standard of 9.0 ppm, measured using the annual
second highest 8-hour concentration for two consecutive years as the
design value; and (2) a 1-hour average of 35 ppm, using the second
highest 1-hour average within a given year. The counties subject to
this proposed action have monitored data below the CO NAAQS for over 20
years.
    Table 1 shows air quality data from monitoring sites in North
Carolina, for the 8-hour CO NAAQS in the three areas for 2010 through
2017. The design values are all well below the CO NAAQS (see Tables 1,
2 and 3).

                   Table 1--8-Hour CO Air Quality Data for Monitoring Sites in Charlotte Area
----------------------------------------------------------------------------------------------------------------
                                                                    Annual 2nd
                                                                    highest  8-                     Percent of
                              Year                                     hour        Design value    the standard
                                                                   concentration       (ppm)         of 9 ppm
                                                                       (ppm)
----------------------------------------------------------------------------------------------------------------
2010............................................................             1.7
2011............................................................             1.5             1.7              19
2012............................................................             1.5             1.5              17
2013............................................................             1.6             1.6              18
2014............................................................             1.3             1.6              18
2015............................................................             1.2             1.3              14
2016............................................................             1.0             1.2              13
2017............................................................             1.3             1.3              14
----------------------------------------------------------------------------------------------------------------

                 Table 2--8-hour CO Air Quality Data for Monitoring Sites in Raleigh-Durham Area
----------------------------------------------------------------------------------------------------------------
                                                                    Annual 2nd
                                                                    highest  8-                     Percent of
                              Year                                     hour        Design value    the standard
                                                                   concentration       (ppm)         of 9 ppm
                                                                       (ppm)
----------------------------------------------------------------------------------------------------------------
2010............................................................             1.3
2011............................................................             1.4             1.4              16
2012............................................................             1.3             1.4              16
2013............................................................             1.2             1.3              14
2014............................................................             1.2             1.2              13
2015............................................................             1.2             1.2              13
2016............................................................             1.5             1.5              17
2017............................................................             1.2             1.2              13
----------------------------------------------------------------------------------------------------------------

                 Table 3--8-hour CO Air Quality Data for Monitoring Sites in Winston-Salem Area
----------------------------------------------------------------------------------------------------------------
                                                                                Percent of
                     Year                          Annual 2nd  highest  8-hour     Design value    the standard
                                                      concentration  (ppm)             (ppm)         of 9 ppm
----------------------------------------------------------------------------------------------------------------
2010..........................................  1.9.............................
2011..........................................  2.1.............................             2.1              23
2012..........................................  1.2.............................             2.1              23
2013..........................................  1.7.............................             1.7              19
2014..........................................  1.5.............................             1.7              19
2015..........................................  1.3.............................             1.5              17
2016..........................................  Monitor shut down in 2015.......
----------------------------------------------------------------------------------------------------------------

    For the 1-hour CO standard of 35 ppm, all three areas have recent
design values that range from 4 percent to 6.6 percent of the standard.
For the Charlotte area, ambient monitoring data for 2016 and 2017 show
design values of 1.4 and 1.5 ppm, respectively. For the Raleigh-Durham
area, ambient monitoring data for 2016 and 2017 show design values of
2.3 and 1.6 ppm, respectively. For the Winston-Salem area, the design
value was 1.9 ppm for 2015. The monitor was approved to be and was shut
down after 2015 monitoring season.
    It is important to also note, that emissions from vehicles have
dramatically been reduced through federal legislative and regulatory
actions. At the time when areas were experiencing violations of the CO
NAAQS in the 1970-1990, typical new cars were emitting nearly 13 grams
per mile hydrocarbons (HC), 3.6 grams per mile nitrogen oxides
(NOX), and 87 grams per mile CO. Since then, EPA has set
standards to bring down levels of these pollutants, and the auto
industry has responded by developing new emission control technologies.
As a result, new passenger vehicles are 98-99 percent cleaner for most
tailpipe pollutants compared to the 1960s, fuels are much cleaner--lead
has been eliminated, and sulfur levels are more than 90 percent lower
than they were prior to regulation. U.S. cities have much improved air
quality, despite ever increasing population and increasing vehicle
miles traveled, standards have sparked technology innovation from
industry. Today, no areas in the United States are violating the CO
NAAQS primarily due to the cleaner vehicle fleet.
    As stated above, North Carolina's oxygenated gasoline program,
which was designed to control CO from vehicles, was moved into the
contingency portion of the Charlotte, Raleigh-Durham and the Winston-
Salem areas' maintenance plans, to be used only if needed. The State
has never needed to trigger implementing the oxygenated gasoline
program. Monitoring from 2008-2011 show that all three areas continue
to be well below (85 percent) the 8-hour CO NAAQS. For these reasons,
EPA proposes to agree with North Carolina's technical demonstration
that removal of the oxygenated gasoline program from the State's
implementation plan would not

interfere with maintenance of the CO NAAQS in the State or with any
other applicable requirement of the CAA.\8\
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    \8\ CAA section 211(m) is an applicable requirement of the CAA
for certain CO nonattainment areas and areas that have been
redesignated to attainment (to the extent necessary for maintenance
of the standard). However, following the expiration of the 20-year
maintenance period (that is, at the end of the second 10-year
maintenance plan period), the area is in attainment for CO and
pursuant to CAA section 211(m)(6), an oxygenated gasoline program is
no longer required by the Act.
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ii. Non-interference Analysis for the Fine Particulate Matter
(PM2.5) NAAQS
    Over the course of several years, EPA has reviewed and revised the
PM2.5 NAAQS several times. On July 16, 1997, EPA established
an annual PM2.5 NAAQS of 15.0 micrograms per cubic meter
([mu]g/m\3\), based on a 3-year average of annual mean PM2.5
concentrations, and a 24-hour PM2.5 NAAQS of 65 [mu]g/m\3\,
and based on a 3-year average of the 98th percentile of 24-hour
concentrations. See 62 FR 36852 (July 18, 1997). On September 21, 2006,
EPA retained the 1997 Annual PM2.5 NAAQS of 15.0 [mu]g/m\3\
but revised the 24-hour PM2.5 NAAQS to 35 [mu]g/m\3\, based
again on a 3-year average of the 98th percentile of 24-hour
concentrations. See 71 FR 61144 (October 17, 2006). On December 14,
2012, EPA retained the 2006 24-hour PM2.5 NAAQS of 35 [mu]g/
m\3\ but revised the annual primary PM2.5 NAAQS to 12.0
[mu]g/m\3\, based again on a 3-year average of annual mean
PM2.5 concentrations. See 78 FR 3086 (January 15, 2013).
    EPA promulgated designations for the 1997 Annual PM2.5
NAAQS on January 5, 2005 (70 FR 944), and April 14, 2005 (70 FR 19844).
On November 13, 2009 (74 FR 58699), and on January 15, 2015 (80 FR
2206), EPA published notices determining that the entire state of North
Carolina was unclassifiable/attainment for the 2006 daily
PM2.5 NAAQS and the 2012 Annual PM2.5 NAAQS,
respectively.
    In North Carolina's March 21, 2018, SIP revision, the State
concluded that the removal of the oxygenated gasoline program would not
interfere with attainment or maintenance of the PM2.5 NAAQS.
The oxygenated gasoline program is not designed to reduce emissions for
PM2.5; therefore, removing it from the North Carolina SIP
will not have any impact on ambient concentrations of PM2.5.
EPA has evaluated the State's analysis and proposes to agree with North
Carolina's technical demonstration that removal of the oxygenated
gasoline program from the State's implementation plan would not
interfere with maintenance of the PM2.5 NAAQS in the State.
iii. Non-Interference Analysis for the 2010 Nitrogen Dioxide
(NO2) NAAQS
    The 2010 NO2 NAAQS is set at 100 parts per billion
(ppb), based on the 3-year average of the 98th percentile of the yearly
distribution of 1-hour daily maximum concentrations. The annual
standard of 53 ppb is based on the annual mean concentration. On
February 17, 2012 (77 FR 9532), EPA designated all counties in North
Carolina as unclassifiable/attainment for the 2010 NO2
NAAQS.
    Based on the technical analysis in North Carolina's March 21, 2018,
SIP revision, all NO2 monitors in the State are measuring
below the annual NO2 standard, and all near road monitors
are measuring well below the 1-hour NO2 standard. The
oxygenated gasoline program is not designed to reduce emissions for
NO2; therefore, removing it from the North Carolina SIP will
not have any impact on ambient concentrations of NO2. Given
the current unclassifiable/attainment designation and the results of
North Carolina's emissions analysis, EPA proposes to agree with North
Carolina's technical demonstration that removal of the oxygenated
gasoline program from the State's implementation plan would not
interfere with maintenance of the 2010 NO2 NAAQS in the
State.
iv. Non-Interference Analysis for the Ozone NAAQS
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard
of 0.08 ppm. This standard was more stringent than the 1-hour ozone
standard that was promulgated in 1979. On March 12, 2008, EPA revised
both the primary and secondary NAAQS for ozone to a level of 0.075 ppm
to provide increased protection of public health and the environment.
See 73 FR 16436 (March 27, 2008). The 2008 ozone NAAQS retains the same
general form and averaging time as the 0.08 ppm NAAQS set in 1997, but
is set at a more protective level. Under EPA's regulations at 40 CFR
part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year
average of the annual fourth highest daily maximum 8-hour average
ambient air quality ozone concentrations is less than or equal to 0.075
ppm. See 40 CFR 50.15. On October 26, 2015 (80 FR 65292), EPA published
a final rule lowering the level of the 8-hour ozone NAAQS to 0.070 ppm.
    North Carolina is currently designated attainment statewide for the
all the ozone NAAQS. On November 6, 2017 (82 FR 54232), EPA designated
the entire state of North Carolina attainment/unclassifiable for the
2015 8-hour ozone NAAQS. Additionally, all the counties subject to this
proposed rulemaking were designated ``unclassifiable/attainment'' for
the 2008 8-hour ozone NAAQS on May 21, 2012. See 77 FR 30088.
    Given the current unclassifiable/attainment designation and the
results of North Carolina's emissions analysis, EPA proposes to agree
with North Carolina's technical demonstration that removal of the
oxygenated gasoline program from the State's implementation plan would
not interfere with maintenance of the ozone NAAQS in the State.
v. Non-Interference Analysis for the Sulfur Dioxide (SO2)
NAAQS
    On June 22, 2010 (75 FR 35520), EPA revised the 1-hour
SO2 NAAQS to 75 ppb which became effective on August 23,
2010. On August 5, 2013 (78 FR 47191), EPA initially designated
nonattainment only in areas with violating 2009-2011 monitoring data.
EPA did not designate any county in North Carolina for the 2010 1-hour
SO2 NAAQS as part of the initial designation. On March 2,
2015, a Consent Decree was entered by order of the United States
District Court for the Northern District of California requiring EPA to
complete designations for the remaining areas in the Country by three
specific deadlines according to a court-ordered schedule.\9\ For North
Carolina, EPA designated the entire state attainment/unclassifiable for
SO2 on December 21, 2017 (effective April 9, 2018 https://www.gpo.gov/fdsys/pkg/FR-2018-01-09/pdf/2017-28423.pdf) except for the
following townships/counties: Beaverdam Township (Haywood County);
Limestone Township (Buncombe County); and Cunningham Township (Person
County). Counties listed above deployed monitors which EPA is required
to designate by December 31, 2020. Also, a portion of Brunswick County
was designated unclassifiable effective in August 2016.
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    \9\ Copy of the Consent Decree--http://www.epa.gov/so2designations/pdfs/201503FinalCourtOrder.pdf.
---------------------------------------------------------------------------

    Based on the technical analysis in North Carolina's March 21, 2018,
SIP revision, the State concluded that removal of the oxygenated
gasoline program would not interfere with attainment or maintenance of
the SO2 NAAQS. The sulfur content in fuel has been
significantly decreased through EPA's Tier 2 and Tier 3 rulemakings

which tightened engine standards and required that fuel formulations
contain reduced levels of sulfur. See 65 FR 6698 (February 10, 2000)
and 81 FR 23641 (April 22, 2016). Further, the oxygenated gasoline
program is not designed to reduce emissions for SO2,
therefore, removing it from the North Carolina SIP will not have any
impact on ambient concentrations of SO2. For these reasons,
EPA proposes to agree with North Carolina's technical demonstration
that removal of the oxygenated gasoline program from the State's
implementation plan would not interfere with maintenance of the 2010
SO2 NAAQS in the State.
vi. Non-Interference Analysis for 2008 Lead NAAQS
    On November 12, 2008 (73 FR 66964), EPA promulgated a revised
primary and secondary lead NAAQS of 0.15 [micro]g/m\3\. Under EPA's
regulations at 40 CFR part 50, the 2008 lead NAAQS are met when the
maximum arithmetic 3-month mean concentration for a 3-year period, as
determined in accordance with Appendix R of 40 CFR part 50, is less
than or equal to 0.15 [micro]g/m\3\. See 40 CFR 50.16. On November 8,
2011 (76 FR 72907), EPA designated the entire State of North Carolina
as unclassifiable/attainment for that NAAQS. North Carolina's ambient
lead levels have remained well below the standard. The oxygenated
gasoline program is not designed to reduce emissions for lead,
therefore, removing it from the North Carolina SIP will not have any
impact on ambient concentrations of lead. For these reasons, EPA
proposes to agree with North Carolina's technical demonstration that
removal of the oxygenated gasoline program from the State's
implementation plan would not interfere with maintenance of the 2008
lead NAAQS in the State.

B. Rules Submitted for Readoption Only

    On November 9, 2017, the North Carolina Environmental Management
Commission amended and readopted various air quality rules in 15A NCAC
02D.\10\ The rules that were submitted for readoption with no changes
are contained in Section .0200, Air Pollution Sources as follows: \11\
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    \10\ This was done pursuant to the requirements of North
Carolina's General Statute (G.S. 150B-21.3A), adopted by the State
in 2013.
    \11\ While these readopted rules contain no changes, the
aforementioned review and readoption made pursuant to G.S. 150B-
21.3A, revises the state effective date of the rules to January 1,
2018.

.0201, Classification of Air Pollution Sources
.0202, Registration of Air Pollution Sources

    Because these readopted rules contain no changes to the current
SIP-approved version, EPA is proposing to approve the readopted rules
into the North Carolina SIP.

C. Amended Rules

    As noted above, on November 9, 2017, the North Carolina
Environmental Management Commission amended and readopted various air
quality rules in 15A NCAC 02D. The rules that were amended are
contained in Sections .0100, Definitions and References, .0200, Air
Pollution Sources, .0300, Air Pollution Emergencies, and .0400, Ambient
Air Quality Standards. More specifically, the following rules were
amended and updated:

.0101, Definitions
.0103, Copies of Referenced Federal Regulations
.0104, Incorporation by Reference
.0105, Mailing List
.0302, Episode Criteria
.0303, Emission Reduction Plans
.0304, Preplanned Abatement Program
.0305, Emission Reduction Plan: Alert Level
.0306, Emission Reduction Plan: Warning Level
.0307, Emission Reduction Plan: Emergency Level
.0401, Purpose
.0402, Sulfur Oxides
.0404, Carbon Monoxide
.0407, Nitrogen Dioxide
.0408, Lead
.0409, PM10 Particulate Matter
.0410, PM2.5 Particulate Matter

    Section .0100, Definitions is amended to update the format of units
and references and Sections .0103, .0104, and .0105 are amended to
update agency name, addresses and to include web referenced documents
and costs.
    Section .0300, Air Pollution Emergencies addresses the prevention
of buildup of air contaminants during an air pollution episode to
prevent a public health emergency. Section .0302 is amended to update
the format of units, to update who proclaims air quality alerts and
warnings and declarations of emergency at various pollutant levels
requiring abatement actions from the Director to the Secretary's level
with concurrence of the Governor, to remove obsolete pollutant levels
triggering such proclamations or declarations and to renumber the
subsections as a result of the aforementioned changes. The amendments
to Sections .0303 and .0304 update the format of references for air
pollution alerts, warnings and emergencies. Sections .0305, .0306, and
.0307 are amended to eliminate redundant language in paragraph 4 for
open burning requirements.
    Section .0400, Ambient Air Quality Standards contains the ambient
air quality standards and associated monitoring methodologies for the
State that reflect the NAAQS. Specifically, Sections .0401 and .0409,
and .0410 are amended to update the format of references and acronym
changes were made to .0402, .0404, .0407, and .0408.
    EPA views all of the above amendments as minor or ministerial and
is proposing to approve these rules, as amended, into the North
Carolina SIP.

III. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the following air quality rules under Subchapter 2D Air
Pollution Control Requirements, Sections .0101, Definitions,.0103,
Copies of Referenced Federal Regulations, .0104, Incorporation by
Reference, .0105, Mailing List, .0201, Classification of Air Pollution
Sources, .0202, Registration of Air Pollution Sources, .0302, Episode
Criteria, .0303, Emission Reduction Plans, .0304, Preplanned Abatement
Program, .0305, Emission Reduction Plan: Alert Level, .0306, Emission
Reduction Plan: Warning Level, .0307, Emission Reduction Plan:
Emergency Level, .0401, Purpose, .0402, Sulfur Oxides, .0404, Carbon
Monoxide, .0407, Nitrogen Dioxide, .0408, Lead, .0409, PM10
Particulate Matter, and .0410, PM2.5 Particulate Matter,
state effective January 1, 2018. EPA has made, and will continue to
make, these materials generally available through www.regulations.gov
and at the EPA Region 4 office (please contact the person identified in
the For Further Information Contact section of this preamble for more
information).

IV. Proposed Action

    For the reasons explained above, EPA is proposing to approve North
Carolina's March 21, 2018, SIP revisions seeking to readopt and amend
various air quality rules, and to remove the oxygenated gasoline
program from North Carolina's SIP. With regard to the oxygenated
gasoline program, EPA is proposing to agree with North Carolina's
technical demonstration that removal of the program from the State's
implementation plan will not interfere with continued attainment or
maintenance of any applicable NAAQS or with any other applicable
requirement of the CAA, and that the requirements of CAA section 110(l)
have been satisfied. Specifically, EPA is

proposing to remove oxygenated gasoline rules under Subchapter 2D,
Sections .1300, .1301, .1302, .1303, .1304 and .1305 in their entirety
from the North Carolina SIP.
    EPA is also proposing to approve North Carolina's March 21, 2018,
SIP revision for the readoption without changes of the rules identified
in Supchapter 2D, Section .0200 and for the minor amendments to rules
identified in Sections .0100, .0300, .0400.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
proposes to approve state law as meeting Federal requirements and does
not impose additional requirements beyond those imposed by state law.
For that reason, these proposed actions:
     Are not significant regulatory actions 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);
     Are not Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory actions because SIP approvals are exempted under
Executive Order 12866;
     Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4);
     Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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).
    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 as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: December 17, 2018.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-01112 Filed 2-5-19; 8:45 am]
 BILLING CODE 6560-50-P