[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Notices]
[Pages 6903-6906]
[FR Doc No: 2022-02433]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-94126; File No. SR-NYSEArca-2021-89]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting
Proceedings To Determine Whether To Approve or Disapprove a Proposed
Rule Change To List and Trade Shares of the Bitwise Bitcoin ETP Trust
Under NYSE Arca Rule 8.201-E

February 1, 2022.
    On October 14, 2021, NYSE Arca, Inc. (``NYSE Arca'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade shares (``Shares'') of the
Bitwise Bitcoin ETP Trust (``Trust'') under NYSE Arca Rule 8.201-E
(Commodity-Based Trust Shares). The proposed rule change was published
for comment in the Federal Register on November 3, 2021.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 93445 (Oct. 28,
2021), 86 FR 60695 (``Notice''). No comments have been received on
the proposed rule change.
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    On December 15, 2021, pursuant to Section 19(b)(2) of the Act,\4\
the Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ This order institutes proceedings under Section 19(b)(2)(B)
of the Act \6\ to determine whether to approve or disapprove the
proposed rule change.
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    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 93790, 86 FR 72300
(Dec. 21, 2021). The Commission designated February 1, 2022, as the
date by which it should approve, disapprove, or institute
proceedings to determine whether to disapprove the proposed rule
change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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I. Summary of the Proposal

    As described in more detail in the Notice,\7\ the Exchange proposes
to list and trade the Shares of the Trust under NYSE Arca Rule 8.201-E,
which governs the listing and trading of Commodity-Based Trust Shares
on the Exchange.
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    \7\ See Notice, supra note 3.
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    The investment objective of the Trust is to seek to provide
exposure to the value of bitcoin held by the Trust, less the expenses
of the Trust's operations.\8\

The Shares will represent units of undivided beneficial ownership of
the Trust.\9\ Under normal circumstances, the Trust's only asset will
be bitcoin, and, under limited circumstances, cash.\10\ The Trust will
not use derivatives that may subject the Trust to counterparty and
credit risks.\11\
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    \8\ See id. at 60696. Bitwise Investment Advisers, LLC
(``Sponsor'') is the sponsor of the Trust, and Delaware Trust
Company is the trustee. The Trust will engage a third party
custodian to maintain custody of the Trust's bitcoin assets. The
Trust also will engage a third party service provider to serve as
the administrator (``Administrator'') and transfer agent of the
Trust. See id.
    \9\ See id. at 60699.
    \10\ See id. at 60696. The Trust may sell bitcoin and
temporarily hold cash as part of a liquidation of the Trust or to
pay certain extraordinary expenses not assumed by the Sponsor.
According to the Exchange, the Trust also may, from time to time,
passively receive, by virtue of holding bitcoin, certain additional
digital assets or rights to receive such digital assets through a
fork of the Blockchain or an airdrop of assets. See id. n.12.
    \11\ See id. at 60696.
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    The Trust's net asset value (``NAV'') and NAV per Share will be
determined by the Administrator once each Exchange trading day as of
4:00 p.m. E.T., or as soon thereafter as practicable, by reference to
the CF Bitcoin-Dollar US Settlement Price (``CME US Reference
Rate'').\12\ The Administrator will calculate the NAV by multiplying
the number of bitcoin held by the Trust by the CME US Reference Rate
for such day, and subtracting the accrued but unpaid expenses and
liabilities of the Trust.\13\ The CME US Reference Rate is a daily
reference rate of the U.S. dollar price of one bitcoin, calculated at
4:00 p.m. E.T.\14\
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    \12\ See id. at 60696, 60699.
    \13\ See id. at 60699.
    \14\ The Exchange states that the CME US Reference Rate utilizes
the same methodology as the CME CF Bitcoin Reference Rate, which is
calculated at 4:00 p.m. London time and is used to settle bitcoin
futures on the CME. See id. at 60696 n.11; 60698-99.
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    The CME US Reference Rate aggregates during a calculation window
the trade flow of several spot bitcoin trading platforms into the U.S.
dollar price of one bitcoin as of its calculation time. The current
constituent bitcoin platforms of the CME US Reference Rate are
Bitstamp, Coinbase, Gemini, itBit, and Kraken (``Constituent
Platforms''). In calculating the CME US Reference Rate, the methodology
creates a joint list of certain trade prices and sizes from the
Constituent Platforms. The methodology then divides this list into a
number of equally sized time intervals, and it calculates the volume-
weighted median trade price for each of those intervals. The CME US
Reference Rate is the equally weighted average of the volume-weighted
medians of all intervals.\15\
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    \15\ See id. at 60699.
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    The Trust will provide website disclosure of its holdings
daily.\16\ In addition, each trading day, the Exchange will calculate
and disseminate an intraday trust value (``ITV'') every 15 seconds
during the NYSE Arca Core Trading Session.\17\ The ITV will be
calculated throughout the trading day by using the prior day's holdings
at close of business and the most recently reported price level of the
CME Bitcoin Real Time Price \18\ as reported by Bloomberg, L.P., or
another reporting service, or another price of bitcoin derived from
updated bids and offers indicative of the spot price of bitcoin.\19\
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    \16\ See id. at 60715.
    \17\ See id. at 60699. The ITV will also be widely disseminated
by one or more major market data vendors during the NYSE Arca Core
Trading Session. See id.
    \18\ The CME Bitcoin Real Time Price is a continuous real-time
bitcoin price index published by the CME Group and Crypto Facilities
Ltd. using data from the Constituent Platforms. See id.
    \19\ See id.
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    The Trust will create and redeem Shares from time to time, but only
in one or more Creation Units. A Creation Unit will initially consist
of at least 25,000 Shares, but may be subject to change.\20\ The Trust
will process all creations and redemptions in-kind, and accrue all
ordinary fees in bitcoin (rather than cash), as a way of seeking to
ensure that the Trust holds the desired amount of bitcoin-per-share.
The Trust will not purchase or sell bitcoin, other than if the Trust
liquidates or must pay expenses not contractually assumed by the
Sponsor. Instead, financial institutions authorized to create and
redeem Shares (``Authorized Participants'') will deliver, or cause to
be delivered, bitcoin to the Trust in exchange for Shares of the Trust,
and the Trust will deliver bitcoin to Authorized Participants when
those Authorized Participants redeem Shares of the Trust.\21\
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    \20\ See id.
    \21\ See id. at 60696.
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II. Proceedings To Determine Whether To Approve or Disapprove SR-
NYSEArca-2021-89 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act \22\ to determine whether the proposed rule
change should be approved or disapproved. Institution of proceedings is
appropriate at this time in view of the legal and policy issues raised
by the proposed rule change, as discussed below. Institution of
proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, as
described below, the Commission seeks and encourages interested persons
to provide comments on the proposed rule change.
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    \22\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\23\ the Commission is
providing notice of the grounds for disapproval under consideration.
The Commission is instituting proceedings to allow for additional
analysis of the proposed rule change's consistency with Section 6(b)(5)
of the Act, which requires, among other things, that the rules of a
national securities exchange be ``designed to prevent fraudulent and
manipulative acts and practices'' and ``to protect investors and the
public interest.'' \24\
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    \23\ Id.
    \24\ 15 U.S.C. 78f(b)(5).
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    The Commission asks that commenters address the sufficiency of the
Exchange's statements in support of the proposal, which are set forth
in the Notice,\25\ in addition to any other comments they may wish to
submit about the proposed rule change. In particular, the Commission
seeks comment on the following questions and asks commenters to submit
data where appropriate to support their views:
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    \25\ See Notice, supra note 3.
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    1. What are commenters' views on whether the proposed Trust and
Shares would be susceptible to manipulation? What are commenters' views
generally on whether the Exchange's proposal is designed to prevent
fraudulent and manipulative acts and practices? What are commenters'
views generally with respect to the liquidity and transparency of the
bitcoin markets, the bitcoin markets' susceptibility to manipulation,
and thus the suitability of bitcoin as an underlying asset for an
exchange-traded product (``ETP'')?
    2. The Exchange asserts that ``the exclusive use of in-kind
creations, redemptions and fee accruals, in all situations except when
the Trust is required to liquidate or to pay extraordinary expenses,
provides long-term investors in the Trust with redundant but strong
protection.'' \26\ The Exchange further asserts that ``[t]he in-kind
structure ensures that the Trust maintains the appropriate amount of
bitcoin-per-Share in all scenarios, regardless of the U.S. dollar
calculation of NAV or the CME US Reference Rate.'' \27\ What are
commenters' views of these assertions?
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    \26\ See id. at 60700.
    \27\ See id.
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    3. The Exchange asserts that, ``through extensive statistical
analysis and careful

consideration of third-party evaluations of these markets, the Sponsor
has demonstrated that the CME [bitcoin futures] Market leads the
bitcoin spot market and the unregulated bitcoin futures market, such
that it is reasonably likely that a person attempting to manipulate the
ETP would also have to trade on the CME [bitcoin futures] Market.''
\28\ The Exchange further asserts ``both existing academic literature
and the Sponsor's own studies show that the CME [bitcoin futures]
Market leads price discovery relative to the bitcoin spot market.''
\29\ Do commenters agree or disagree?
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    \28\ See id. at 60704.
    \29\ See id. at 60716.
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     Specifically, what are commenters' views of the Sponsor's
methodology used to arrive at this conclusion? The Exchange describes
how the Sponsor used data from the CME Group and Coin Metrics,
supplemented with data from CoinAPI, to perform pairwise information
share/component share (``IS/CS'') price discovery analysis and pairwise
time-shift lead-lag (``TSLL'') analysis between the CME bitcoin futures
market and 10 bitcoin spot markets and seven unregulated futures
markets.\30\ What are commenters' views on, for example, the Sponsor's
choices for, and level of explanation of: The sources for the tick-
level trade data; the aggregation (if any) the Sponsor performed on the
tick-level trade data; the spot and unregulated futures trading
platforms the Sponsor included in its pairwise analyses; the particular
IS/CS and TSLL paradigms used to perform its pairwise analyses; the
full-period and monthly results of its pairwise analyses; the
statistical significance of the results; and the sensitivity of the
results to the Sponsor's methodological choices?
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    \30\ See id. at 60704-11.
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     What are commenters' views on how the Commission should
weigh the Sponsor's pairwise results compared to the previous academic
and industry lead-lag studies that the Sponsor cites? \31\ What are
commenters' views on the accuracy of the Sponsor's summaries of such
past studies?
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    \31\ See id. at 60705-07.
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     What are commenters' views on the robustness of the
Sponsor's two-dimensional, pairwise results? Do commenters believe the
Exchange has adequately addressed the extent of any relationship
between prices on unregulated bitcoin futures markets and the CME
bitcoin futures market, the bitcoin spot markets, and/or the
Constituent Platforms, or where price formation occurs when the
entirety of bitcoin futures markets, not just the CME, is considered?
     What are commenters' views on whether the Sponsor's lead-
lag results sufficiently demonstrate a reasonable likelihood that a
would-be manipulator of the proposed ETP would have to trade on the CME
bitcoin futures market to successfully manipulate the proposed ETP? Do
commenters believe that the Exchange has adequately explained and/or
demonstrated how the Sponsor's market-level, statistical results
provide sufficient evidence of the likely trading behavior of a would-
be manipulator?
    4. The Exchange asserts that ``the Sponsor's analysis shows that
trading in the Trust is unlikely to become the predominant influence on
prices in the CME [bitcoin futures] Market, even when assuming
aggressive estimates of first-year flows of $4.7 billion and average
daily trading volume of $143 million.'' \32\ Do commenters agree or
disagree?
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    \32\ See id. at 60711.
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     Specifically, what are commenters' views of the Exchange's
estimates of the Trust's first-year flows? What are commenters' views
of the methodology used to arrive at those estimates? \33\ Do
commenters agree with the Exchange that ``it is unlikely that a bitcoin
ETP will experience the highest first-year flows in history,'' \34\ and
that the 2020 inflows to the Grayscale Bitcoin Trust (GBTC) of $4.7
billion is an ``aggressive'' working estimate for first-year flows into
a new bitcoin ETP? \35\
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    \33\ See id. at 60711-12.
    \34\ See id. at 60711.
    \35\ See id. at 60712.
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     The Exchange describes how the Sponsor correlated the
daily and weekly flows into GBTC with the corresponding daily or weekly
price of bitcoin (calculated using the 4:00 p.m. E.T. bitcoin reference
rate from Coin Metrics), and concludes that ``there is no meaningful
relationship between daily and weekly flows into GBTC and changes in
the price of bitcoin.'' \36\ What are commenters' views on the data
sources used, methodology selected, and results obtained by the
Sponsor? The Exchange states that the Sponsor concluded from this
analysis that ``it is unlikely that the aggressive estimate of first-
year flows into a bitcoin ETP ($4.7 billion) would cause it to become
the predominant influence on prices in the CME [bitcoin futures]
Market.'' \37\ What are commenters' views on how well the Sponsor's
analysis of the historical correlation between GBTC inflows and the
spot price of bitcoin predicts the future impact of inflows into the
proposed ETP on prices in the CME bitcoin futures market?
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    \36\ See id. at 60712-13.
    \37\ See id. at 60713.
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     What are commenters' views of the Exchange's estimate of
the likely average daily trading volume of the Shares ($143 million)?
What are commenters' views on the methodology used to arrive at that
estimate (which was based on an assessment of GBTC's and SPDR Gold
(GLD)'s ratios of average daily trading volume to assets under
management)? \38\ Do commenters agree with the Exchange that $143
million is an ``aggressive'' working estimate for average daily trading
volume of a new bitcoin ETP? \39\
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    \38\ See id. at 60713-14.
    \39\ See id. at 60714.
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     The Exchange states that ``[g]iven that the average daily
trading volume of the CME [bitcoin futures] Market in 2020 was 174%
higher at $392 million than the Sponsor's aggressive estimate of a new
bitcoin ETP's potential trading volume of $143 million, the Sponsor
found that it is unlikely that trading in a new bitcoin ETP will cause
such ETP to become the predominant influence on prices in the CME
[bitcoin futures] Market.'' \40\ Do commenters agree or disagree with
the Sponsor's conclusion? Why or why not?
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    \40\ See id. at 60715.
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III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written
submissions of their views, data, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposal. In particular, the Commission invites the written
views of interested persons concerning whether the proposal is
consistent with Section 6(b)(5) or any other provision of the Act, and
the rules and regulations thereunder. Although there do not appear to
be any issues relevant to approval or disapproval that would be
facilitated by an oral presentation of views, data, and arguments, the
Commission will consider, pursuant to Rule 19b-4, any request for an
opportunity to make an oral presentation.\41\
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    \41\ Section 19(b)(2) of the Act, as amended by the Securities
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by a self-regulatory
organization. See Securities Act Amendments of 1975, Senate Comm. on
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st
Sess. 30 (1975).

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    Interested persons are invited to submit written data, views, and
arguments regarding whether the proposal should be approved or
disapproved by February 28, 2022. Any person who wishes to file a
rebuttal to any other person's submission must file that rebuttal by
March 14, 2022.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NYSEArca-2021-89 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-NYSEArca-2021-89. 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-NYSEArca-2021-89 and should be submitted
by February 28, 2022. Rebuttal comments should be submitted by March
14, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\42\
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    \42\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-02433 Filed 2-4-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 56 (Monday, March 23, 2020)]
[Notices]
[Pages 16406-16408]
[FR Doc No: 2020-05999]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88397; File No. SR-NYSE-2020-18]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change of
a Temporary Waiver of the Co-Location Hot Hands Fee

March 17, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on March 16, 2020, New York Stock Exchange LLC (``NYSE'' or
the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the self-
regulatory organization. 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\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to a temporary waiver of the co-location
``Hot Hands'' fee beginning on March 16, 2020 through March 29,
2020.The proposed rule change is available on the Exchange's website at
www.nyse.com, 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 self-regulatory organization
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 those 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 parts of such statements.

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

1. Purpose
    The Exchange proposes a temporary suspension of the co-location \4\
``Hot Hands'' fee beginning on March 16, 2020 through March 29, 2020,
after which the Mahwah, New Jersey data center (``Data Center'') is
scheduled to reopen to third parties.
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    \4\ The Exchange initially filed rule changes relating to its
co-location services with the Securities and Exchange Commission
(``Commission'') in 2010. See Securities Exchange Act Release No.
62960 (September 21, 2010), 75 FR 59310 (September 27, 2010) (SR-
NYSE-2010-56).
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    The Exchange is an indirect subsidiary of Intercontinental
Exchange, Inc. (``ICE''). Through its ICE Data Services (``IDS'')
business, ICE operates the Data Center, from which the Exchange
provides co-location services to Users.\5\
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    \5\ For purposes of the Exchange's co-location services, a
``User'' means any market participant that requests to receive co-
location services directly from the Exchange. See Securities
Exchange Act Release No. 76008 (September 29, 2015), 80 FR 60190
(October 5, 2015) (SR-NYSE-2015-40). As specified in the Price List,
a User that incurs co-location fees for a particular co-location
service pursuant thereto would not be subject to co-location fees
for the same co-location service charged by the Exchange's
affiliates NYSE American LLC (``NYSE American''), NYSE Arca, Inc.
(``NYSE Arca''), NYSE Chicago, Inc. (``NYSE Chicago''), and NYSE
National, Inc. (``NYSE National'' and together, the ``Affiliate
SROs''). See Securities Exchange Act Release No. 70206 (August 15,
2013), 78 FR 51765 (August 21, 2013) (SR-NYSE-2013-59). Each
Affiliate SRO has submitted substantially the same proposed rule
change to propose the changes described herein. See SR-NYSEAmer-
2020-19, SR-NYSEArca-2020-22, SR-NYSECHX-2020-07, and SR-NYSENAT-
2020-10.
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    Among those services is a ``Hot Hands'' service, which allows Users
to use on-site Data Center personnel to maintain User equipment,
support network troubleshooting, rack and stack a server in a User's
cabinet; power recycling; and install and document the fitting of cable
in a User's cabinet(s).\6\ The Hot Hands fee is $100 per half hour.
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    \6\ See Securities Exchange Act Release No. 72721 (July 30,
2014), 79 FR 45562 (August 5, 2014) (SR-NYSE-2014-37).
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    ICE has announced to each User that, starting March 16, 2020, the
Data Center will be closed to third parties through March 29, 2020.
Pursuant to the ICE contingency plan, the Data Center is being closed
to third parties to help avoid the spread of COVID-19, which could
negatively impact Data Center functions. The Chief Executive Officer of
the Exchange has taken the actions required under NYSE Rule 7.1 to
close the co-location facility of the Exchange to third parties.\7\
While the Rule 7.1 closure is in effect, User representatives will not
be allowed access to the Data Center.
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    \7\ See NYSE Rule 7.1(c) through (e). See also NYSE Arca Rules
7.1-E and 7.1-O, NYSE American Rules 7.1E and 901NY, NYSE Chicago
Rule 7.1, and NYSE National Rule 7.1.
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    If a User's equipment requires work while the Rule 7.1 closure is
in effect, the User will have no option but to use the Hot Hands
service and, absent the proposed waiver, would incur Hot Hands fees for
the work. Given that, the Exchange proposes to waive all Hot Hands fees
from the date of the closing through March 29, 2020, and to add text to
the Hot Hands Fee in the Price List noting the waiver. The Exchange
believes that there will be sufficient Data Center staff on-site to
comply with User requests for Hot Hands service.
    The proposed waiver would apply equally to all Users. The proposed
fee waiver would not apply differently to distinct types or sizes of
market participants. Rather, it would apply uniformly to all Users.
    The proposed change is not otherwise intended to address any other
issues relating to co-location services and/or related fees, and the
Exchange is not aware of any problems that Users would have in
complying with the proposed change.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\8\ in general, and furthers the
objectives of Sections 6(b)(4) and (5) of the Act,\9\ in particular,
because it provides for the equitable allocation of reasonable dues,
fees, and other charges among its members, issuers and other persons
using its facilities and does not unfairly discriminate between
customers, issuers, brokers or dealers. In addition, it is designed 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 mechanisms of, a free and open market and a national market
system and, in general, to protect investors and the public interest
and because it is not designed to permit unfair

discrimination between customers, issuers, brokers, or dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(4) and (5).
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The Proposed Rule Change Is Reasonable
    The Exchange believes that the proposed rule change is reasonable
for the following reasons.
    While the Rule 7.1 closure is in effect, User representatives will
not be allowed access to the Data Center. If a User's equipment
requires work during such period, the User will have to use the Hot
Hands service and, absent a waiver, would incur Hot Hands fees for the
work. The Exchange believes that it is reasonable to grant the proposed
waiver because Users would have no option other than using the Hot
Hands service.
    The proposed relief would allow a User to have work carried out on
its equipment notwithstanding the closure of the Data Center without
incurring Hot Hands fees.
The Proposed Rule Change Is Equitable
    The Exchange believes the proposed rule change is an equitable
allocation of its fees and credits for the following reasons.
    The proposed waiver would apply equally to all Users. The proposed
fee waiver would not apply differently to distinct types or sizes of
market participants. Rather, it would apply uniformly to all Users.
    The Exchange believes that the proposal is equitable because all
similarly-situated Users would not be charged a fee to use the Hot
Hands service that the User would have to use because of the Data
Center closure.
The Proposed Change Is Not Unfairly Discriminatory and Would Protect
Investors and the Public Interest
    The Exchange believes that the proposed change is not unfairly
discriminatory for the following reasons.
    The proposed waiver would not apply differently to distinct types
or sizes of market participants. Rather, all Users whose equipment
requires work during the Data Center closure would have the resulting
fees waived, and the waiver would apply uniformly to all Users from
March 16, 2020 through March 29, 2020. For the reasons above, the
proposed changes do not unfairly discriminate between or among market
participants.
    In addition, the Exchange believes that the proposed rule change
would perfect the mechanisms of a free and open market and a national
market system and, in general, protect investors and the public
interest because it would allow a User to have work carried out on its
equipment notwithstanding the closure of the Data Center pursuant to
Rule 7.1 without incurring Hot Hands fees. Accordingly, the Exchange
believes that the requested relief is designed to perfect the
mechanisms of a free and open market and a national market system and,
in general, protect investors and the public interest by facilitating
the uninterrupted availability of Users' equipment.
    For all of the above reasons, the Exchange believes that the
proposal is consistent with the Act.

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

    In accordance with Section 6(b)(8) of the Act,\10\ the Exchange
believes that the proposed rule change will not impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

Intramarket Competition
    The Exchange does not believe that the proposed change would place
any burden on intramarket competition that is not necessary or
appropriate.
    The proposal it is not designed to affect competition, but rather
to provide relief to Users that, while the Rule 7.1 closure is in
effect, have no option but to use the Hot Hands service.
    The proposed waiver would not apply differently to distinct types
or sizes of market participants. All Users who use the Hot Hands
service from March 16, 2020 through March 29, 2020 would have the
resulting fees waived.
Intermarket Competition
    The Exchange does not believe that the proposed change would impose
any burden on intermarket competition that is not necessary or
appropriate.
    The Exchange believes that the proposed change would not affect the
competitive landscape among the national securities exchanges, as the
Hot Hands service is solely charged within co-location to existing
Users, and would be temporary.
    For the reasons described above, the Exchange believes that the
proposed rule change reflects this competitive environment.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \11\ of the Act and subparagraph (f)(2) of Rule
19b-4 \12\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such 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 under
Section 19(b)(2)(B) \13\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-NYSE-2020-18 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-NYSE-2020-18. 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-
NYSE-2020-18 and should be submitted on or before April 13, 2020.
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-05999 Filed 3-20-20; 8:45 am]
 BILLING CODE 8011-01-P


From:
Raymond, Gabrielle<EMAIL_ADDRESS>Sent:
Tuesday, January 5, 2021 5:11 PM
To:
<EMAIL_ADDRESS>Allen Dittenhoefer<EMAIL_ADDRESS>'Knight, Jeffrey A.'<EMAIL_ADDRESS>'Mary Kaplan'<EMAIL_ADDRESS><EMAIL_ADDRESS>Jones, DonnaLee<EMAIL_ADDRESS>Subject:
Coke - EPA responses to Model Shell File Review and Other Emissions Files

Hello,

Thank you all very much for your review and comments on the coke modeling shell file and other emissions files.

Attached are the EPA's responses to the coke modeling shell file, Method 303 file, Flare file, and Byproduct file:
CokeOven_NonCategory_RTR_ModFile_COETFResponses_122420_EPAResponses_010521.xlsx
CokeOvens-Method303_for Industry review_COETF Comments rev122220_EPAresponse-010521.xlsx
Coke_Flare_Emissions_for Industry review_COETF Comments rev122220_EPAResponse-010521.xlsx
Coke_Byproduct_Chemical Plant_Emissions COETF Comments rev122120_EPAresponse010521.xlsx

Please review and provide any comments by 1/19/2021.

EPA is still reviewing the other emissions files (fugitive pushing and boiler-new method) and will send those when ready, likely before end of week.

EPA has also reviewed the memo from Mostardi Platt and the ArcelorMittal Burns Harbor ICR pushing test data again for semi-volatile compounds, dioxins/furans, and volatile organics and agrees that the AM BH SW846 Method 0031 emissions should be retained except for methylene chloride and toluene. The SW846 Method 0010 and Method 23 results also will be retained.

Let us know if there are any questions.

Thank you for all your help,
Gabrielle

Gabrielle Raymond
she/her/hers
RTI International
3040 Cornwallis Road
P.O. Box 12194
Research Triangle Park, NC 27709
Phone:<PHONE_NUMBER>

<< CokeOven_NonCategory_RTR_ModFile_COETFResponses_122420_EPAResponses_010521.xlsx >>
<< CokeOvens-Method303_for Industry review_COETF Comments rev122220_EPAresponse-010521.xlsx >>
<< Coke_Flare_Emissions_for Industry review_COETF Comments rev122220_EPAResponse-010521.xlsx >>
<< Coke_Byproduct_Chemical Plant_Emissions COETF Comments rev122120_EPAresponse010521.xlsx >>


[Federal Register Volume 82, Number 237 (Tuesday, December 12, 2017)]
[Rules and Regulations]
[Pages 58342-58347]
[FR Doc No: 2017-26657]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2017-0459; FRL-9971-83-Region 2]

Approval and Promulgation of Implementation Plans; New York;
Reasonably Available Control Technology for the 2008 8-Hour Ozone
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is conditionally
approving a State Implementation Plan (SIP) submitted by the State of
New York for purposes of implementing Reasonably Available Control
Technology (RACT) for the 2008 8-hour ozone National Ambient Air
Quality Standard (NAAQS) related to control of volatile organic
compounds (VOCs) from industrial cleaning solvents. The EPA is
approving New York's Ozone Transport Region RACT SIP as it applies to
non-control technique guideline major sources of VOCs and major sources
of oxides of nitrogen. The EPA is also approving the State of New
York's state-wide non-attainment new source review certification as
sufficient for purposes of satisfying the 2008 8-hour ozone NAAQS. The
EPA is approving New York's certification that there are no sources
within the State for the following CTGs: Manufacture of Vegetable Oils
and Application of Agricultural Pesticides. This action is being taken
in accordance with the requirements of the Clean Air Act.

DATES: This final rule is effective on January 11, 2018.

ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA-R02-OAR-2017-0459. All documents in the docket are
listed on the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Environmental
Protection Agency, 290 Broadway, New York, New York 10007-1866, at
(212) 637-3892, or by email at [email protected].

SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION section is
arranged as follows:

Table of Contents

I. What is the background for this action?
II. What comments were received in response to the EPA's proposed
action?
III. What action is the EPA taking?
IV. What are the consequences if a condition is not met?
    A. What are the Act's provisions for sanctions?
    B. What Federal implementation plan provisions apply if a state
fails to submit an approvable plan?
V. Statutory and Executive Order Reviews

I. What is the background for this action?

    On September 14, 2017 (82 FR 43209), the EPA published a Notice of
Proposed Rulemaking that proposed to conditionally approve the State of
New York's December 22, 2014 State Implementation Plan (SIP)
submittal,\1\ for purposes of implementing Reasonably Available Control
Technology (RACT) \2\ for the 2008 8-hour ozone National Ambient Air
Quality Standard (NAAQS or standard). The EPA proposed to approve New
York's Ozone Transport Region RACT SIP as it applies to non-control
technique guideline major sources of VOCs and major sources of oxides
of nitrogen. The EPA also proposed to approve the State of New York's
state-wide non-attainment new source review certification as sufficient
for purposes of satisfying the 2008 8-hour ozone NAAQS.\3\ In addition,
the EPA proposed to approve New York's certification that there are no
sources within the State for the following CTGs: (a) Manufacture of
Vegetable Oils and (b) Application of Agricultural Pesticides.
---------------------------------------------------------------------------

    \1\ New York supplemented its SIP submittal by letter dated
September 6, 2017.
    \2\ The EPA has defined RACT as the lowest emission limitation
that a particular source is capable of meeting by the application of
control technology that is reasonably available considering
technological and economic feasibility (44 FR 53762, September 17,
1979).
    \3\ New York's nonattainment new source review certification
addresses both the New York-Northern New Jersey-Long Island, NY-NJ-
CT and the Jamestown nonattainment areas.
---------------------------------------------------------------------------

    The proposed approval was conditioned on New York finalizing
revisions to RACT requirements related sources subject to the
industrial cleaning solvents control techniques guidelines (CTG). As
the SIP submittal indicates, the RACT requirements for the 2008 ozone
NAAQS have been fulfilled with the exception of sources subject to the
industrial cleaning solvents CTG. In the SIP submittal, New York
committed to address sources subject to this CTG through a timely
revision to Title 6 of the New York Codes, Rules and Regulations Part
226 entitled, ``Solvent Metal Cleaning Processes'' (6 NYCRR Part 226).
Therefore, consistent with section 110(k)(4) of the Clean Air Act
(CAA), the EPA's September 14, 2017 rulemaking, signed September 6,
2017 and published September 14, 2017, proposed to conditionally
approve New York's December 2014 SIP submittal. On September 6, 2017,
New York supplemented its SIP submittal with a letter to the EPA
committing to fulfill the requirements of the industrial cleaning
solvents CTG by finalizing revisions to Part 226 by November 30, 2018.
Therefore, based on the State's September 6, 2017 commitment letter,
the EPA is conditionally approving New York's December 2014 SIP
submittal, as it applies to CTG requirements for VOC major sources, for
purposes of implementing RACT statewide for the 2008 8-hour ozone
NAAQS.
    The specific details of New York's December 2014 SIP submittal and
the rationale for the EPA's approval action are explained in the EPA's
proposed rulemaking and are not restated in this

final action. For this detailed information, the reader is referred to
the EPA's September 14, 2017 proposed rulemaking (82 FR 43209).

II. What comments were received in response to the EPA's proposed
action?

    In response to the EPA's September 14, 2017 proposed rulemaking on
New York's December 2014 SIP submittal, the EPA received the following
four comments summarized below. The specific comments may be viewed
under Docket ID Number EPA-R02-OAR-2017-0459 on the http://www.regulations.gov Website.
    Comment 1: An anonymous citizen comments that he or she ``believes
the proposed rule will help improve the environment greatly.''
    Response 1: The EPA acknowledges the commenter's support of the
EPA's proposed rule.
    Comment 2: A New York State citizen provides extensive comments
related to the EPA's encouragement (see 82 FR 43209 (September 14,
2017)) to New York to strengthen its ozone SIP by adopting and
submitting as a SIP revision additional control measures needed for
attainment of the 8-hour ozone NAAQS as it relates to: The adoption of
more stringent emission limits for simple cycle combustion turbines
firing distillate oil or more than one fuel and submitting a SIP
revision that addresses HEDD (High Electric Demand Day) sources. The
citizen states that regional ozone modeling that analyzes emissions
data from 2015 or 2016 is necessary before New York should consider,
much less implement, the SIP revisions that EPA ``encourages'' New York
to adopt and submit as SIP revisions.
    The commenter states that he had prepared comments and analyses
that support his recommendation to do further modeling before
implementing any further controls. The commenter states that he had
compared NOX emissions from all New York sources reporting
NOX emissions to EPA and all New York combustion turbines
with ozone concentration measurements at the Fairfield, CT ozone
monitoring station on all Ozone Season days with valid observations at
this monitoring station from 2006 to 2016. The commenter states that
the Fairfield monitoring site is the downwind ambient monitor with the
highest New York impact according to EPA's modeling for its Cross-State
Air Pollution Rule (CSAPR). The commenter notes that all combustion
turbines that meet this criterion are either in New York City or on
Long Island. The commenter's detailed 52-page modeling and statistical
summary appears in Attachment 1 to his October 11, 2017 comment letter.
The commenter's summary concludes that the ``results indicate that
refined modeling with recent emissions has to be performed to confirm
that further controls will reduce ozone enough to warrant further
controls on any of the New York sources included in this analysis.''
    The commenter concludes his letter by stating that there are
complex meteorological conditions during ozone episodes downwind of New
York (land and sea breezes, elevated terrain concerns, and the
nocturnal boundary layer structure along the coast) that need to be
incorporated into regional ozone modeling analyses. The commenter
states that if regional ozone modeling analyses that use post-2015
emissions data and incorporate complex meteorology are not used then
New York runs the risk of implementing a control program that cannot
succeed. Concluding, the commenter states, ``Given the level of effort
and time doing the modeling right it might be necessary to delay
implementation of further SIP control requirements.''
    Response 2: The EPA thanks the commenter for the detailed analyses
and recommendations with respect to the additional control measures.
These comments are not germane to the EPA's proposed approval of New
York's December 2014 SIP but rather are relevant to future planning
requirements associated with the moderate area classification. The EPA,
therefore, is not responding to them in this action. These detailed
modeling and statistical analyses are best directed to New York State
as the State develops planning requirements for progressing, under
moderate area classification, toward attainment of the 8-hour ozone
standard.
    Comment 3: Similar to Comment 2 above, a comment from the
Environmental Energy Alliance of New York, LLC (the ``Alliance'')
provides extensive comments related to the EPA's encouragement (see 82
FR 43209, September 14, 2017) to New York to strengthen its ozone SIP
by adopting and submitting as a SIP revision with additional control
measures needed for attainment of the 8-hour ozone NAAQS as it relates
to more stringent emission limits on simple cycle turbines units and
peaking units that operate on high electric demand days (HEDD).
Alliance members own and operate electric generating and transmission
and distribution facilities throughout New York and elsewhere. Alliance
members operate the majority of the peaking units in the New York
Metropolitan Area (NYMA).
    The Alliance expresses concern that the imposition of emission
limits needs to be balanced with the need to maintain reliable
electricity service to New York. While the Alliance supports New York's
and the EPA's efforts to reach attainment of the ozone NAAQS, the
Alliance suggests that the need to reduce emissions in the NYMA and the
Alliance's requirement to maintain reliable service to its customers is
a more complex issue than simply imposing more stringent emission
limits. The Alliance comments that there are over 100 peaking turbines
(about 3000 megawatts (MW)) in the NYMA to maintain system reliability
and support renewables. The Alliance states that with the impending
closure of 2000 MW of nuclear generation, the combined effect of the
peaking unit regulation changes and retirements suggests any new rule
implementation should proceed with flexibility and caution.
    The Alliance states that it has worked cooperatively with New York
to develop an approach to replace, repower, or retrofit controls of
existing peaking units. The Alliance's October 16, 2017 comment letter
includes as an attachment a September 8, 2017 letter commenting on New
York's July 25, 2017 pre-proposal entitled ``Combustion Turbine
(Peaking Unit) Pre-Proposal Outline'' which outlines, according to the
Alliance, New York's efforts to achieve attainment of the ozone NAAQS
in the NYMA as it relates to peaking units. In its September 2017
letter to New York, the Alliance expresses the hope to collectively
design cost-effective solutions compatible with the need to maintain
reliable service to ratepayers. In addition, in its September 2017
letter, the Alliance provides detailed comments and recommendations
related to the following issues: the compliance schedule, emission
limits, performance of control options, potential for collateral
increase in carbon monoxide, system averaging, emission limits for
dual-fueled units, compliance requirements during the interim period
before unit retirement, and alternative approaches to NOX
reductions in the NYMA.
    Response 3: The EPA appreciates the Alliance's comments with
respect to their concern for electric system reliability within the
NYMA and the need for caution and flexibility when developing and
implementing new NOX control measures on peaking units. EPA
acknowledges the importance of maintaining reliable electric service to

ratepayers while implementing new NOX controls.
    These extensive and detailed comments concerning the connection
between reliability of the electric grid and the development and
implementation of NOX emission limits on electric generating
units are best directed to New York State as the State engages in
planning for progressing, under moderate area classification, to
attainment of the 8-hour ozone standard. These comments relating to the
reliability of the electric grid are not germane as they do not
specifically address the EPA's proposed action on New York's December
2014 SIP submittal that addresses the implementation of RACT for the 8-
hour 2008 ozone standard.
    Comment 4: The State of New Jersey Department of Environmental
Protection (NJDEP or New Jersey) comments that New York's December 2014
RACT SIP will provide necessary emission reductions in NOX
and VOC for the New York-Northern New Jersey-Connecticut (NY-NJ-CT)
ozone nonattainment area to move towards attainment of the 2008 ozone
NAAQS (75 ppb ozone), but more still needs to be done for the area to
attain. NJDEP recommends that the EPA require New York to adequately
address three source categories that emit significant amounts of
emissions that impact ozone levels in the NY-NJ-CT area:
    1. Adopt rules that reduce NOX emissions from peaking
turbines during high ozone days in the NY-NJ-CT area.
    2. Adopt rules that reduce NOX emissions from stationary
engines used for demand-side management that generate electricity
during high ozone days in the NY-NJ-CT area.
    3. Assess lightering operations in the New York harbor that emit
VOC from crude oil, gasoline, and other volatile product transfers.
    As part of the State's October 10, 2017 comment letter, NJDEP
attached its August 20, 2014 comment letter to New York at the time New
York proposed its RACT SIP in 2014. NJDEP's August 2014 comment letter
to New York provides NJDEP's detailed arguments as to why New York
needs to address the above mentioned three source categories as RACT
sources. NJDEP states that the first two source categories are subject
to the New Jersey's RACT regulation but not the third source category
since there are no lightering operations in New Jersey waters. NJDEP
comments that New York, in finalizing its 2014 RACT SIP, did not
adequately address the same three source categories since New York
responded that the three source categories did not meet their
definition of RACT. NJDEP comments that it believes these source
categories should be covered under RACT requirements because they are
existing, major stationary sources for which reasonably available
control technology exists. NJDEP comments that the lightering
activities can be considered a major stationary source, similar to the
EPA's treatment of some airports for emissions inventory, since the
activities are occurring within established areas of New York Harbor.
NJDEP further comments that the State of Delaware has had regulations
addressing lightering activities since 2007 thus establishing
reasonably available control technology.
    Response 4: The EPA appreciates the comments from NJDEP. NJDEP
recommends that New York consider the three source categories
identified in its comment as RACT but NJDEP does not provide supporting
technical details to demonstrate that certain control measures for
these three source categories can be considered RACT in New York.
    As stated in our proposed rule dated September 14, 2017 (82 FR
43209), New York's December 22, 2014 SIP submittal included a response
to a comment that ``once the NYMA is reclassified to moderate
nonattainment for the 2008 ozone NAAQS and an attainment SIP is
required, DEC [New York] will undertake a review of its many
NOX control options to determine which would most
efficiently and effectively reduce emissions in the NYMA.'' New York
made a similar response to a comment related to VOC emissions from
lightering operations. Since the NYMA was reclassified from a marginal
to a moderate nonattainment area on May 4, 2016 (81 FR 26697),
effective June 3, 2016, the following EPA response to NJDEP comments is
a recommendation that New York include, as part of its upcoming
attainment demonstration SIP for the 8-hour ozone NAAQS for the NYMA
moderate nonattainment area, an evaluation of the NJDEP and the EPA's
recommended additional control measures for purposes of reducing
additional NOX and VOC emissions.
    In response to NJDEP's August 2014 letter, New York issued a
document entitled ``Assessment of Public Comments New York State
Implementation Plan for 8-hour Ozone: Reasonably Available Control
Technology'' (Assessment) which is included in the docket for this
action. In its Assessment, New York responded to the three source
category comments from NJDEP as summarized below.
    For peaking turbines, New York responded that peaking generating
units that exceed major source emission threshold are subject to the
State's NOX RACT regulation for combustion turbines and New
York maintained that these emission limits represent RACT for
combustion turbines. New York further responded that the most recently
adopted and SIP approved (78 FR 41846, July 12, 2013) NOX
RACT regulation requires case-by-case evaluations for combined-cycle
combustion turbines. New York further stated that combustion turbines
are also used as part of a system-wide averaging plan for
NOX RACT and therefore more stringent limits may not
necessarily result in a one-for-one reduction in NOX.
    In response to New Jersey's comment, the EPA finds that New York's
OTR NOX RACT SIP submittal is sufficient. System-wide
averaging is an EPA approved RACT compliance option.
    The EPA, however, encourages New York to evaluate whether
NOX emission limits, for the combustion turbines not part of
a system-wide averaging program, could be more stringent. As stated in
our September 2017 proposal, the EPA encourages New York to evaluate
lowering the NOX emission limit for simple cycle combustion
turbines combusting distillate oil or more than one fuel since New
York's neighboring states of New Jersey and Connecticut have more
stringent emission limits than New York's limit of 100 parts per
million (ppm). For this source category, Connecticut has adopted
NOX emission limits of 40-75 ppm for June 2018 and 40-75 ppm
for June 2023 and New Jersey's adopted limit is equivalent to 43 ppm.
In addition, the EPA encourages New York to propose and submit as a SIP
revision for the EPA's approval any revised case-by-case RACT
determinations for combined-cycle combustion turbines.
    For stationary engines used for demand-side management, New York
responded in its Assessment that the majority of combustion engines
used for demand-side management are minor sources based on
NOX emission levels and are therefore not subject to RACT;
and engines that do exceed major source emission threshold are subject
to the State's NOX RACT regulation. New York maintained that
these requirements fulfill RACT.
    In response to New Jersey's comment, the EPA herein responds that
we concur with New York's logic, as articulated in its Assessment (see
preceding paragraph) regarding RACT applicability for sources
considered minor and major. EPA nonetheless encourages New York to
consider a more stringent NOX emission limit for internal
combustion engines firing with

distillate oil (solely or in combination with other fuels) from the
current limit of 2.3 grams per brake horsepower-hour (g/bhp-hr) to the
limit adopted in Connecticut of 1.5 (for rich burn engine)-2.3 (for
lean burn engine) g/bhp-hr, starting in June 2023. In addition, New
Jersey's SIP approved (72 FR 41626, July 31, 2007) NOX RACT
regulation, Subchapter 19, includes a NOX emission limit of
1.5 g/bhp-hr for rich burn engines.
    For lightering operations in the New York harbor, New York, in its
Assessment, responded that they do not consider tank vessels or service
vessels to be stationary sources; such vessels are considered mobile
sources and are not permitted under the Title V stationary source
permitting program. New York concluded that it is not appropriate to
address lightering operations in the New York SIP. In response to New
Jersey's comment, the EPA finds that New York's OTR VOC RACT SIP
submittal is approvable given New York's current treatment of tank
vessels and service vessels.
    The EPA recognizes that, as New Jersey indicates in its comment,
the State of Delaware regulates lightering operations in the State's
``Regulation No. 1124--Control of Volatile Organic Compound Emissions
(formally Regulation No. 24), section 46 entitled, Crude Oil Lightering
Operations.'' The EPA approved Delaware's VOC RACT Regulation 1124,
section 46, Crude Oil Lightering Operations, into the SIP on September
13, 2007 (72 FR 52285). As discussed above, in response to a comment
received by the State during its RACT rulemaking process, New York
states that, if the NYMA is reclassified to moderate nonattainment,
``New York will investigate the need and appropriateness for additional
emission reductions and evaluate lightering controls and/or other
emission reductions strategies in order to determine the most effective
manner in which to attain the ozone NAAQS.'' Therefore, the EPA
recommends that New York review the lightering operations in New York's
harbor for possible applicability to RACT as it relates to New York's
future submittal of its attainment SIP for the NYMA nonattainment area.
    To summarize, since the NYMA has been reclassified from marginal to
a moderate nonattainment area, New York is required to submit a new
RACT determination as part of the State's attainment demonstration for
the 2008 ozone standard for the NYMA moderate nonattainment area. New
York should include an evaluation of the three source categories
suggested by NJDEP, as well as the other recommendations discussed by
the EPA as in the September 14, 2017 proposal, in its RACT evaluation
as part of the State's attainment demonstration for the 2008 ozone
standard.

III. What action is the EPA taking?

    The EPA is conditionally approving New York's statewide RACT
submittal dated December 22, 2014, as supplemented on September 6,
2017, for purposes of satisfying the 2008 8-hour ozone standard RACT
requirement, as it applies to CTG requirements for VOC major sources.
New York must meet its commitment to adopt a revised Part 226 by
November 30, 2018.
    The EPA is approving the remainder of New York's OTR RACT SIP
submittal, as it applies to non-CTG major sources of VOCs and to major
sources of NOX.
    The EPA is also approving New York's non-attainment new source
review certification, state-wide, as sufficient for purposes of the
2008 ozone NAAQS. Finally, the EPA is approving New York's
certification that there are no sources within the State for the
following CTGs: (a) Manufacture of Vegetable Oils and (b) Application
of Agricultural Pesticides.
    Under section 110(k) of the CAA, the EPA may conditionally approve
a plan revision based on a commitment by the State to adopt specific
enforceable measures by a date certain but not later than one year
after the date of approval of the plan revision. If New York meets its
commitment within the applicable time frame, the conditionally approved
submission will remain as part of the SIP until the EPA takes final
action approving or disapproving the SIP requirement in question. If
New York fails to meet its commitment within the specified time period,
the conditional approval will, by operation of law, become a
disapproval. If the conditional approval becomes a disapproval, this
commitment will no longer be a part of the approved SIP for New York,
and an 18-month clock for sanctions under CAA section 179(a)(2) and a
two-year clock for a federal implementation plan (FIP) under CAA
section 110(c)(1) would commence. The EPA subsequently will publish a
document in the Federal Register notifying the public that the
conditional approval converted to a disapproval.

IV. What are the consequences if the condition is not met?

    The Act provides for the imposition of sanctions and the
promulgation of a FIP if States fail to correct any deficiencies
identified by the EPA in a final disapproval action within certain
timeframes.

A. What are the Act's provisions for sanctions?

    If the EPA disapproves a required SIP submittal or component of a
SIP submittal, section 179(a) provides for the imposition of sanctions
unless the deficiency is corrected within 18 months of the final
disapproval. The first sanction would apply 18 months after the EPA
disapproves the SIP submittal or if the State fails to make the
required submittal. Under the EPA's sanctions regulations, 40 CFR
52.31, the first sanction would be 2:1 offsets for sources subject to
the new source review requirements under section 173 of the Act. If the
State has still failed to submit a SIP 6 months after the first
sanction is imposed, the second sanction will apply. The second
sanction is a limitation on the receipt of Federal highway funds. The
EPA also has authority under section 110(m) to sanction a broader area.

B. What Federal implementation plan provisions apply if a state fails
to submit an approvable plan?

    In addition to sanctions, if the EPA finds that a State failed to
submit the required SIP revision or disapproves the required SIP
revision, or a portion thereof, the EPA must promulgate a FIP no later
than 2 years from the date of the finding if the deficiency has not
been corrected.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions

of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by February 12, 2018. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 29, 2017.
Peter D. Lopez,
Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart HH--New York

0
2. In Sec.  52.1670, the table in paragraph (e) is amended by adding
the entries ``2008 8-hour Ozone RACT analysis'' and ``2008 8-hour Ozone
Nonattainment New Source Review Requirements'' at the end of the table
to read as follows:

Sec.  52.1670  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved New York Nonregulatory and Quasi-Regulatory Provision
----------------------------------------------------------------------------------------------------------------
                                                             New York
       Action/SIP element         Applicable geographic      submittal     EPA  approval        Explanation
                                  or  nonattainment area       date            date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
2008 8-hour Ozone RACT analysis  Statewide and to the           12/22/14        12/12/17   Full approval
                                  New York portion of                                      as it applies to non-
                                  the New York-Northern                                    CTG major sources of
                                  New Jersey-Long Island                                   VOCs and to major
                                  (NY-NJ-CT) and the                                       sources of NOX.
                                  Jamestown 8-hour ozone                                   Conditional
                                  nonattainment areas.                                     approval as it
                                                                                applies to CTG for
                                                                                VOC major sources.
2008 8-hour Ozone Nonattainment  Statewide and to the           12/22/14        12/12/17   Full
 New Source Review Requirements.  New York portion of                                      approval.
                                  the New York-Northern
                                  New Jersey-Long Island
                                  (NY-NJ-CT) and the
                                  Jamestown 8-hour ozone
                                  nonattainment areas.
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  52.1683 by adding paragraphs (b)(2) and (3) and (p) to
read as follows:

Sec.  52.1683  Control strategy: Ozone.

* * * * *
    (b) * * *
    (2) Manufacture of Vegetable Oils.
    (3) Application of Agricultural Pesticides.
* * * * *
    (p)(1) The December 22, 2014 New York reasonably available control
technology (RACT) analysis plan, as supplemented on September 6, 2017,
submitted pursuant to the 2008 8-hour ozone national ambient air
quality standard (NAAQS), which applies to the entire State, including
the New York portion of the New York-Northern New Jersey-Long Island
(NY-NJ-CT) and the Jamestown 8-hour ozone marginal nonattainment areas,
is conditionally approved as it applies to the Clean Air Act control
techniques guidelines (CTG)

requirements for major sources of volatile organic compounds (VOC).
    (2) The remainder of New York's December 22, 2014 RACT analysis
plan, pursuant to the 2008 8-hour ozone NAAQS as applied to the entire
State, including the New York portion of the NY-NJ-CT and the Jamestown
8-hour ozone marginal nonattainment areas, and as it applies to non-CTG
major sources of VOCs and to major sources of oxides of nitrogen
(NOX), is approved.
    (3) The December 22, 2014 New York plan submittal providing a
nonattainment new source review (NNSR) certification as sufficient for
purposes of the state-wide 2008 8-hour ozone NAAQS, including the New
York portion of the NY-NJ-CT and the Jamestown 8-hour ozone
nonattainment areas, is approved.

[FR Doc. 2017-26657 Filed 12-11-17; 8:45 am]
 BILLING CODE 6560-50-P


   DEPARTMENT OF HEALTH & HUMAN SERVICES default		         		Public
Health Service

 ADVANCE \r360  ADVANCE \d3 	Food and Drug Administration

 ADVANCE \r360 	Rockville, MD  20857

                  June 10, 2004

        Frederick O. Cope, PhD FACN CNS

                   HY-GENE Biomedical Corporation

                   1660 Northwest Professional Plaza Suite E

                   Columbus, Ohio 43220

        Dear Dr. Cope:

Your petition requesting the Food and Drug Administration to reopening
of the Administrative  record for Topical Antimicrobial Drug Products
for Over-the-Counter Human Use; Health Care Drug Products, was received
by this office on 06/10/2004.  It was assigned docket number
1975N-0183H/CP 17 and it was filed on 06/10/2004. Please refer to this
docket number in future correspondence on this subject with the Agency.

Please note that the acceptance of the petition for filing is a
procedural matter in that it in no way reflects an agency decision on
the substantive merits of the petition.

Sincerely,

                Jennie C. Butler, Director

                Division of Dockets Management

                Office of Management Programs

                Office of Management


[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Notices]
[Page 86775]
[FR Doc No: 2016-28965]

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

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No.: DOT-OST-2016-0206]

Advisory Committee on Transportation Equity Meeting Notice

AGENCY: Office of the Secretary, U.S. Department of Transportation
(DOT).

ACTION: Notice of open committee meeting.

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

SUMMARY: The Department of Transportation is publishing this notice to
announce the following Federal advisory committee meeting of the
Advisory Committee on Transportation Equity (ACTE). The meeting is open
to the public.

DATES: The Committee will meet from 2:30 p.m. to 5 p.m. EST on December
15, 2016.

ADDRESSES: The meeting will be held at 1200 New Jersey Avenue SE.,
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Barbara McCann, U.S. Department of
Transportation, Office of the Secretary, Office of Policy, Room W84-
212, 1200 New Jersey Avenue SE., Washington, DC 20590; phone (202) 366-
2234; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The committee meeting is being held in
accordance with the Federal Advisory Committee Act, 5 U.S.C. App.
    Purpose of the Committee: The purpose of the Committee is to
provide advice and recommendations to the Secretary of Transportation
on comprehensive, interdisciplinary issues related to transportation
equity from a variety of stakeholders involved in transportation
planning, design, research, policy, and advocacy.
    Proposed Agenda: This will be the first meeting of the ACTE. The
committee will conduct introductions of members, discuss organizational
details and logistics, and discuss equity in transportation planning,
design, research, policy and advocacy. Agenda will be as follows:

--Welcome and Mission of ACTE
--Remarks by U.S. Transportation Secretary Anthony Foxx
--Briefing on FACA Rules and Ethics
--Discussion on Transportation Equity
--Public Comments

    Public Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b, as
amended, and 41 CFR 102-3.140 through 102-3.165, and subject to the
availability of space, this meeting is open to the public. Seating is
on a first to arrive basis. Because the meeting of the committee will
be held in a Federal Government facility, security screening is
required. Attendees are requested to register by submitting their name,
affiliation, email address and daytime phone number three business days
prior to the meeting to Barbara McCann, the committee Designated
Federal Officer at the address listed in the FOR FURTHER INFORMATION
CONTACT section. A photo ID is required to enter the premises. Please
note that parking is limited. DOT Headquarters is fully handicap
accessible. Wheelchair access is available in front at the main
entrance of the building. For additional information about public
access procedures, contact Ms. McCann, the committee's Designated
Federal Officer, at the email address or telephone number listed in the
FOR FURTHER INFORMATION CONTACT section.
    Written Comments or Statements: Pursuant to 41 CFR 102-3.105(j) and
102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act,
the public or interested organizations may submit written comments or
statements to the committee in response to the stated agenda of the
meeting or in regard to the committee's mission in general. Written
comments or statements should be submitted to Ms. McCann, the committee
Designated Federal Officer, via electronic mail, the preferred mode of
submission, at the address listed in the FOR FURTHER INFORMATION
CONTACT section. Each page of the comment or statement must include the
author's name, title or affiliation, address, email address and daytime
phone number. The Designated Federal Official will review all submitted
written comments or statements and provide them to members of the
committee for their consideration. Written comments or statements being
submitted in response to the agenda set forth in this notice must be
received by the Designated Federal Official at least three business
days prior to the meeting to be considered by the committee. Written
comments or statements received after this date may not be provided to
the committee until its next meeting.
    Verbal Comments or Statements: Pursuant to 41 CFR 102-3.140d, the
Committee is not obligated to allow a member of the public to speak or
otherwise address the Committee during the meeting. Members of the
public are invited to provide verbal comments or statements during the
Committee meeting only at the time and in the manner described below.
All requests to speak or otherwise address the Committee during the
meeting must be submitted to the committee's Designated Federal
Official at least three days prior to the meeting, via electronic mail,
the preferred mode of submission, at the address listed in the FOR
FURTHER INFORMATION CONTACT section. The request should include a brief
statement of the subject matter to be addressed by the comment, and
should be relevant to the stated agenda of the meeting or in regard to
the committee's mission in general. The Designated Federal Official
will log each request in the order received. A 30-minute period will be
available for verbal public comments. Members of the public who have
requested to make a verbal comment will be allotted no more than two
minutes, and will be invited to speak in the order in which their
requests were received by Designated Federal Official.
    Minutes: The minutes of this meeting will be available for public
review and copying within 60 days at the following Web site:
www.transportation.gov/acte.

    Issued in Washington, DC, on November 28, 2016.
Anthony R. Foxx,
U.S. Department of Transportation Secretary.
[FR Doc. 2016-28965 Filed 11-30-16; 8:45 am]
 BILLING CODE 4910-9X-P