[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Proposed Rules]
[Pages 45730-45735]
[FR Doc No: 2022-16245]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR part 52

[EPA-R09-OAR-2022-0420; FRL-9970-01-R9]

Limited Approval and Limited Disapproval of California Air Plan
Revisions; San Joaquin Valley Air Pollution Control District;
Stationary Source Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing a
limited approval and limited disapproval of revisions to the San
Joaquin Valley Air Pollution Control District (SJVAPCD or ``District'')
portion of the California State Implementation Plan (SIP). These
revisions concern volatile organic compounds (VOC), oxides of nitrogen
(NOX), particulate matter (PM) (including PM equal to or
less than 2.5 microns in diameter (PM2.5) and PM equal to or
less than 10 microns in diameter (PM10)), and their
precursors. This action addresses a revised rule governing the issuance
of permits for stationary sources, focusing on the preconstruction
review and permitting of major sources and major modifications under
part D of title I of the Clean Air Act (CAA or ``Act''). We are taking
comments on this proposal and a final action will follow.

DATES: Written comments must be received on or before August 29, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0420 at www.regulations. For comments submitted at
Regulations.gov, follow the online instructions for submitting
comments. Once submitted, comments cannot be removed or edited from
Regulations.gov. The 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 the
disclosure of which 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. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For the full EPA public
comment policy, information about CBI and multimedia submissions, and
general guidance on making effective comments, please visit
www.epa.gov/dockets/commenting-epa-dockets. If you need assistance in a
language other than English or if you are a person with disabilities
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, 75
Hawthorne St., San Francisco, CA

94105. By phone:<PHONE_NUMBER>, or by email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to the EPA.

Table of Contents

I. The State's Submittal
    A. What rule did the State submit?
    B. Are there other versions of this rule?
    C. What is the purpose of the submitted rule?
II. The EPA's Evaluation and Action
    A. How is the EPA evaluating the rule?
    B. Does the rule meet the evaluation criteria?
    C. What are the rule deficiencies?
    D. EPA Recommendations to Further Improve the Rule
    E. Proposed Action and Public Comment
III. Incorporation by Reference
IV. Statutory and Executive Order Reviews

I. The State's Submittal

A. What rule did the State submit?

    Table 1 lists the rule addressed by this proposal including the
date it was adopted by the District and submitted to the EPA by the
California Air Resources Board (CARB), which is the governor's designee
for California SIP submittals. This rule constitutes part of the
SJVAPCD's program for preconstruction review and permitting of new or
modified stationary sources under its jurisdiction. The rule revisions
that are the subject of this action represent an update to the
SJVAPCD's preconstruction review and permitting program and are
intended to satisfy the requirements under part D of title I of the
Act, ``nonattainment new source review (``NNSR'') as well as the
general preconstruction review requirements under section 110(a)(2)(C)
of the Act, minor new source review (``NSR'').
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    \1\ The submittal was transmitted to the EPA via a letter from
CARB dated November 15, 2019.

                                             Table 1--Submitted Rule
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                  Rule No.                                Rule title                  Adopted        Submitted
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Rule 2201..................................  New and Modified Stationary Source         08/15/19    11/20/19 \1\
                                              Review Rule.
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    On May 7, 2020, the submittal for Rule 2201 was found to meet the
completeness criteria in 40 CFR part 51, appendix V, which must be met
before formal EPA review.\2\
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    \2\ See letter dated May 7, 2020, from Elizabeth J. Adams, U.S.
EPA Region 9, to Richard Corey, CARB, regarding the November 20,
2019, submittal of District Rule 2201.
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B. Are there other versions of this rule?

    Rule 2201 was previously approved into the California SIP on
September 17, 2014.\3\ If the EPA finalizes the action proposed herein,
this prior version of the rule will be replaced in the SIP by the
submitted rule identified in Table 1.
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    \3\ 79 FR 55637.
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C. What is the purpose of the submitted rule?

    As noted above and described in further detail below, the submitted
rule is intended to satisfy the minor NSR and NNSR requirements of
section 110(a)(2)(C) and part D of title I of the Act, and related EPA
regulations. Minor NSR requirements are generally applicable for SIPs
in all areas, while NNSR requirements apply only for areas designated
as nonattainment for one or more National Ambient Air Quality Standards
(NAAQS). The San Joaquin Valley is currently designated ``Extreme''
nonattainment for the 1997, 2008 and 2015 ozone NAAQS and ``Serious''
nonattainment for the 1997, 2006, and 2012 PM2.5 NAAQS. See
40 CFR 81.305. Therefore, the designation of San Joaquin Valley as
federal ozone and PM2.5 nonattainment areas triggered the
requirement for the District to develop and submit an NNSR program to
the EPA for approval into the California SIP.
    The EPA issued a final rule on December 6, 2018, that found that
the District had failed to submit a SIP submittal addressing NNSR
requirements for PM2.5.\4\ This finding of failure to submit
triggered sanctions clocks under CAA section 179. The EPA's May 7, 2020
finding of completeness represented the EPA's determination that the
District had corrected the deficiencies related to NNSR requirements
for the 2006 and 2012 PM2.5 NAAQS that formed the basis for
the EPA's December 6, 2018 finding of failure to submit, and as a
result, the associated sanctions and running of the sanctions clocks
were permanently stopped.\5\ The EPA's Technical Support Document (TSD)
has more information about the purpose of the submitted rule.
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    \4\ 83 FR 62720.
    \5\ See 40 CFR 52.31(d)(5).
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II. The EPA's Evaluation and Action

A. How is the EPA evaluating the rule?

    The EPA has evaluated Rule 2201 for compliance with the applicable
requirements of section 110(a)(2)(C) and part D of title I of the CAA
and the associated regulations at 40 CFR 51.160-165, consistent with
the District's classification as an Extreme ozone nonattainment area
and Serious PM2.5 nonattainment area. We have also
considered whether the rule meets the federal visibility requirements
related to state NNSR programs as described in 40 CFR 51.307.
Additionally, we have reviewed the rule for consistency with other CAA
general requirements for SIP submittals, including requirements at
section 110(a)(2) regarding rule enforceability, and requirements at
sections 110(l) and 193 for SIP revisions.
    Part D and title I of the CAA and the implementing regulations at
40 CFR 51.165 contain the NNSR program requirements for major
stationary sources and major modifications for the pollutants for which
the area has been designated nonattainment. The applicable provisions
of 40 CFR 51.307 establish requirements for state NNSR programs to
provide for review of major stationary sources and major modifications
that may have an impact on visibility in any mandatory Class I Federal
area, consistent with CAA section 169A. Section 110(a)(2)(A) of the Act
requires that regulations submitted to the EPA for SIP approval must be
clear and legally enforceable. Section 110(l) of the Act prohibits the
EPA from approving SIP revisions that would interfere with any
applicable requirement concerning attainment and reasonable further
progress (RFP) or any other applicable requirement of the CAA. Section
193 of the Act prohibits the modification of a SIP-approved control
requirement in effect before November 15, 1990, in a nonattainment
area, unless the modification ensures equivalent or greater emission
reductions of the relevant pollutant(s). With respect to procedures,
CAA sections 110(a) and 110(l) require that a state conduct reasonable
notice and hearing before adopting a SIP revision.

B. Does the rule meet the evaluation criteria?

    With the exceptions noted below, the EPA finds that Rule 2201
generally satisfies the applicable CAA and regulatory requirements for
sources subject to NNSR permit program requirements for Extreme ozone
nonattainment areas and Serious PM2.5 nonattainment areas.
Although the rule does not satisfy the related visibility requirements
in 40 CFR 51.307, the San Joaquin Valley is subject to a Federal
Implementation Plan that addresses these requirements.\6\
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    \6\ 40 CFR 52.281(d).
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    Rule 2201 complies with the substantive and procedural requirements
of CAA section 110(l). With respect to the procedural requirements,
based on our review of the public process documentation included with
the submitted rules, we find that the SJVAPCD has provided sufficient
evidence of public notice and opportunity for comment and public
hearings prior to submittal of this SIP revision and has satisfied
these procedural requirements under CAA section 110(l). With respect to
the substantive requirements of CAA section 110(l), we have determined
that our approval of Rule 2201 would not interfere with the area's
ability to attain or maintain the NAAQS or with any other applicable
requirements of the CAA.
    Similarly, we find that Rule 2201 is approvable under section 193
of the Act because it does not modify any control requirement in effect
before November 15, 1990.
    Rule 2201 is generally consistent with criteria for the EPA's
approval of regulations submitted for inclusion in the SIP, including
the requirement in CAA section 110(a)(2)(A) that submitted regulations
be clear and legally enforceable.
    For the reasons stated above and explained further in our technical
support document (TSD), we find that the submitted rule generally
satisfies the applicable CAA and regulatory requirements for minor NSR
and NNSR permit programs under CAA section 110(a)(2)(C) and part D of
title I of the Act and other applicable requirements, subject to the
exceptions noted below where the EPA has identified deficiencies.
Because Rule 2201 is not fully consistent with these requirements, we
are proposing a limited approval and limited disapproval of Rule 2201
under CAA sections 110(k)(3) and 301(a). Rule 2201 provisions that do
not meet the evaluation criteria are summarized in the following
section and described in more detail in the TSD included in the docket
for this proposed action.

C. What are the rule deficiencies?

    The following provisions of Rule 2201 do not satisfy the
requirements of section 110 and/or part D of title I of the Act, and
prevent full approval of the Rule 2201:
1. Definitions
    Section 3.18 of Rule 2201 incorporates the federal definition of
``major modification'' through the definition of ``Federal Major
Modification,'' but omits several other definitions necessary for
proper application of this term and related calculation provisions.
These missing definitions are listed in the TSD for this proposed
rulemaking. The District must either include definitions for these
terms, or explicitly state that for the purposes of the Rule 2201
definition of ``Federal Major Modification,'' all terms used in the
definition are as defined in 40 CFR 51.165, as it exists on the date of
adoption.
    Additionally, Rule 2201 contains deficient definitions for the
following terms: Major Source; Routine Maintenance, Repair and
Replacement; PM10 Emissions; Secondary Emissions; and
Volatile Organic Compounds. The specific deficiencies associated with
these terms, and the necessary revisions necessary to correct the
deficiencies, are described in the TSD for this proposed action.
2. Interpollutant Offset Requirements
    Section <IP_ADDRESS> allows the District to approve interprecursor
trading (IPT) of ozone precursors to satisfy emission offset
requirements, provided certain conditions are satisfied. However, on
January 29, 2021, the D.C. Circuit Court of Appeals in Sierra Club v.
EPA, 984 F.3d 1055, issued a decision holding that the CAA does not
allow IPT for ozone precursors and vacating the provisions in the EPA's
NNSR regulations allowing IPT for ozone precursors. In light of the
Court's decision, the provision in section <IP_ADDRESS> allowing for IPT
for ozone precursors is no longer permissible. The District must revise
section <IP_ADDRESS> to ensure it is consistent with the Courts decision
and the provisions of 40 CFR 51.165(a)(11) as it pertains to ozone
precursors.
3. Offset Exemptions
    Sections 4.6.6 and 4.6.7 both allow exemptions from otherwise
applicable offset requirements for the relocation of an entire
stationary source or emission unit, respectively, if certain conditions
are met. Because federal requirements do not allow any exemptions from
offset requirements for relocation projects, we find these provisions
deficient. The District may allow a source or emission unit to obtain
emission reduction credits for the quantity of actual emissions
previously emitted at the old location and use them as offsets at the
new location. However, the full potential to emit (PTE) of the source
or emission unit at the new location must be offset at the appropriate
offset ratio. Alternatively, the District may limit the applicability
of these exemptions to minor sources that are not subject to the NNSR
offsetting requirements.
    Section 4.6.8 provides an offset exemption for the installation or
modification of required emission control equipment. Paragraph <IP_ADDRESS>
establishes emissions increase limits for a project to qualify for this
exemption but does not include a limit for PM2.5 emissions
and is therefore deficient. The District must update this provision to
add a limit on increases in permitted emissions or potential to emit of
no more than 10 tpy of PM2.5. This will ensure that the
exemption only applies to emission control projects that will not
trigger a PM2.5 major modification.
4. Public Notice Requirements for Minor Source Permits Emitting Ozone
Precursors
    Section 5.4.5 requires public notice for any project resulting in
an increase in permitted emissions of any pollutant exceeding 20,000
pounds per year (10 tpy). As an extreme ozone nonattainment area, the
major source threshold for ozone precursors is also 10 tpy, meaning
that the rule currently does not require any public notice for minor
sources of NOX and VOC, whose emissions may contribute to
ozone nonattainment in the San Joaquin Valley. Therefore, the public
notice threshold does not adequately address the minor source and minor
modification public notice requirements for VOC and NOX. The
District must demonstrate that its public notice threshold for minor
sources of NOX and VOC is sufficiently stringent to exclude
only sources whose emissions are inconsequential to attainment.
5. District Equivalency With Federal Offset Requirements
    Section 173 of the CAA and the EPA's implementing NSR regulations
at 40 CFR 51.165 require emissions increases associated with new major
sources and major modifications to be offset through corresponding
decreases in emissions.

To be creditable as offsets, these offsetting emissions reductions must
be surplus, permanent, quantifiable, and federally enforceable,\7\ and
meet other federal requirements.
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    \7\ 40 CFR 51.165(a)(3)(ii)(C)(1)(i).
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    The EPA allows local permitting authorities flexibility in
designing and implementing emissions offset programs, so long as these
programs achieve an equal or greater amount of creditable emissions
reductions as would be required under the offset program described in
the federal NSR regulations. Rule 2201 differs from the federal offset
requirements in several respects, including especially how it
calculates ``surplus'' emission reductions required to offset emissions
increases from new major sources and major modifications.
    To account for these differences, Rule 2201 includes an offset
equivalency tracking system in Section 7, which requires the District
to submit an annual report comparing the offsets actually required by
the District to those that would have been required under the federal
requirements in terms of both the quantity of offsets required (``Test
1'') and the creditable ``time-of-use'' surplus value of the offsets
(``Test 2'').\8\
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    \8\ ``Time-of-use'' surplus signifies that the offsetting
emissions reductions are surplus of applicable requirements as of
the issuance date of the ATC permit for the project whose emission
increases the reductions are used to offset. The federal offset
program requires all offsets to be time-of-use surplus. CAA
173(c)(2). In contrast, the quantity of offsets surrendered for
construction permits issued by the District, as measured in Test 1,
are surplus-adjusted only at the time the emission reduction credit
is initially issued (``time-of-issuance'' surplus). Rule 2201 at
section 3.2.2. Since emissions reductions may be credited years
before they are used to offset a project, more stringent control
requirements implemented in the interim period may significantly
reduce the time-of-use surplus value relative to the time-of-
issuance surplus value. Therefore, the District's allowance of ERCs
valued at time-of-issuance is generally less stringent than federal
requirements because it may assign higher value to a credit than is
federally creditable.
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    If there is a shortfall under either Test 1 or Test 2, the District
may supplement the demonstration by retiring additional creditable
emission reductions that have not been used as offsets.\9\ If the
District cannot produce sufficient additional creditable emission
reductions to make up a shortfall under either test, the failure
triggers specific remedies under section 7.4. For a shortfall under
Test 1, all new major source and major modification authority to
construct (ATC) permits issued after the report deadline must apply the
federal offset calculation requirements from 40 CFR 51.165 and part D
of title I of the CAA, including the requirements to provide the
federally required quantity of offsets and to ensure that these offsets
are time-of-use surplus adjusted.\10\ For a shortfall under Test 2, all
new major source and major modification ATC permits issued after the
report deadline must ensure that emissions reductions used to satisfy
offset requirements are creditable and time-of-use surplus
adjusted.\11\
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    \9\ Id. at sections <IP_ADDRESS> and <IP_ADDRESS>.
    \10\ Id. at section <IP_ADDRESS>.
    \11\ Id. at section <IP_ADDRESS>.
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    The EPA first approved these provisions in 2004.\12\ In the years
since, the District has submitted annual equivalency demonstrations as
described under the rule, showing equivalency under Test 1 and Test
2.\13\ For many pollutants and years, the District has demonstrated
equivalency on an annual basis, by collecting more offsets annually
than required under the federal program.\14\ However, tightened federal
requirements resulting from the San Joaquin Valley's 2010
reclassification to Extreme ozone nonattainment has resulted in the
District collecting, in some years, fewer annual offsets for VOC and
NOX than federally required. As a result, recent VOC and
NOX equivalency demonstrations have relied on ``carryover''
offsets collected in previous reporting years, as well as additional
creditable emission reductions from facility closures that have not
been claimed for offset credit by the facility operators (often termed
``orphan shutdowns''), and agricultural engine electrification
projects.
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    \12\ 69 FR 27837 (May 17, 2004). The TSD for this proposed
action includes more detail on the history of the Section 7
provisions and EPA's approval of the equivalency system.
    \13\ These reports are generally available at www.valleyair.org/busind/pto/annual_offset_report/annual_offset_report.htm.
    \14\ This has been most common for PM10, CO, and
SOX, when the District has applied lower offsetting
thresholds than applicable under the federal major source
definitions at 40 CFR 51.165(a)(1)(iv)(A).
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    The District's 2019-2020 Annual Offset Equivalency Report (``2019--
2020 Report'') was the first to demonstrate a shortfall for any
pollutant.\15\ The 2019-2020 Report showed a failure of Test 1 and Test
2 for VOC, and a Test 2 failure for NOX, and attributed
these failures to the District's provisional removal of the additional
creditable emission reductions associated with orphan shutdowns and
engine electrification projects.\16\ In response to the Report's VOC
and NOX failures, the District began implementing the
federal offset requirements for VOC, and the federal requirements for
offset surplus value (but not offset quantity) for NOX, as
described in the section 7 remedy provisions.\17\
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    \15\ SJVAPCD, ``2019-2020 Annual Offset Equivalency Report,''
November 20, 2020.
    \16\ Id. at 4-5. The District withdrew these credits in response
to a CARB report that identified concerns about the assumptions and
calculations that the District applied in crediting these
reductions, among other issues associated with the District's
implementation of its offset program. See CARB, ``Review of the San
Joaquin Valley Air Pollution Control District Emission Reduction
Credit System,'' June 2020.
    \17\ Rule 2201, section <IP_ADDRESS> and <IP_ADDRESS>.
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    The District's 2020-2021 Annual Offset Equivalency Report (``2020-
2021 Report'') showed offset equivalency for PM10,
PM2.5, CO, and SOX.\18\ The 2020-2021 Report did
not include a Test 1 or Test 2 demonstration for VOC, or a Test 2
demonstration for NOX, since the 2019-2020 Report found that
the District's program was no longer showing equivalency under these
tests. The 2020-2021 Report's Test 1 demonstration for NOX
showed that the District required fewer offsets in the reporting year
than would have been required under federal offset requirements, but
that the District's offset program maintained a sufficient balance of
carryover offsets from previous reporting years to make up the
difference. Critically, however, while NOX offsets collected
in the most recent reporting year were surplus adjusted to time-of-use
pursuant to federal requirements (per the District's response to the
prior year's Test 2 failure), the carryover offsets were credited at
their full time-of-issuance value (i.e., these offsets were not
federally surplus-adjusted). Since the District's previous report had
shown a Test 2 shortfall for NOX offsets, these carryover
offsets no longer retained any surplus balance that could be counted
toward equivalency. The District subsequently issued a revised report
withdrawing the NOX portion of the 2020-2021 Report, based
on the District's concern that the remedy of requiring a federal time-
of use surplus adjustment was not adequate to ensure full federal
equivalency.\19\
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    \18\ SJVAPCD, ``2020-2021 Annual Offset Equivalency Report,''
November 19, 2021.
    \19\ SJVAPCD, ``2020-2021 Revised Annual Offset Equivalency
Report,'' March 1, 2022 (``2020-2021 Revised Report''). See also
letter dated March 21, 2022, from Elizabeth J. Adams, Director, EPA
Region IX Air and Radiation Division, to Samir Sheikh, Executive
Director, SJVAPCD (conveying EPA concerns about 2020-2021 Report
NOX demonstration, and supporting District decision to
withdraw through 2020-2021 Revised Report).
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    Since the shortfalls from the 2019-2020 and 2020-2021 Reports,
several shortcomings in the District's equivalency system have become
apparent. As an initial matter, the equivalency failures for VOC and
NOX mean that the District must update the rule to apply
federal applicability and

offset requirements for these pollutants.\20\ More generally, the 2020-
2021 Report showed a significant disconnect between the section 7 tests
and remedies for all pollutants. Specifically, once the District has
failed Test 2, it has effectively demonstrated that its program is less
stringent than the federal requirements because it has not provided an
equivalent amount of time-of-use surplus emissions reductions as would
have been required under the federal program.\21\ However, the remedy
for a Test 2 failure provides only that the District must require the
offsets collected for future permits to be time-of-use surplus
adjusted, and does not contain any explicit requirement for the
District to collect the federal quantity of time-of-use surplus offsets
for those permits. Therefore, the Test 2 remedy does not ensure full
offset equivalency following a Test 2 failure.
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    \20\ See Rule 2201, section <IP_ADDRESS>.
    \21\ See CAA 173(a)(1)(A) (requiring state NSR programs to
obtain ``sufficient offsetting emissions reductions'' as determined
by federal NSR regulations).
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    Additionally, we identified a deficiency in Rule 2201 in that it
does not contain any requirement to prevent the equivalency system from
continuing to operate at a deficit once available carryover offsets and
additional creditable emission reductions are exhausted. Because the
rule only requires the District to demonstrate equivalency on an annual
(rather than ongoing) basis, the District may continue to issue permits
that require less than the federal quantity of surplus offsets even
after the equivalency system has run out of excess offsets and emission
reductions that can be used to restore the difference. This could allow
the District to incur an increasing deficit for up to 15 months before
any remedy is in place, since the rule's remedies become effective only
after the submission deadline for the annual offset equivalency
report.\22\
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    \22\ See Rule 2201 at section <IP_ADDRESS> and <IP_ADDRESS>. Fifteen
months represents the outermost time for a shortfall to be
addressed, running from the start of a reporting year (August 20) to
the reporting deadline (November 20 of the following year). We note
that the District initiated federal time-of-use surplus adjustments
for VOC and NOX once it could no longer demonstrate Test
2 equivalency for these pollutants, consistent with the Test 2
remedy but prior to the reporting deadline. We recognize this as a
voluntary correction consistent with the District's provisional
withdrawal of additional creditable reductions of these pollutants,
rather than a requirement of the existing rule text.
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    As described above, our 2004 approval of Rule 2201 found that an
annual aggregate demonstration was generally appropriate and would not
cause significant delay in implementing a remedy. However, this finding
relies on demonstrations involving an annual shortfall that could be
made up using carryover offsets, rather than a shortfall that exceeds
the balance of available carryover offsets and additional creditable
emission reductions within the equivalency system, as happened in the
2019-2020 Report.\23\ On reconsideration, we find that an annual
aggregate system may be inappropriate because it does not ensure that
sufficient creditable emission reductions are available to offset
emissions from new construction prior to an ATC permit being
issued.\24\ Moreover, we find that the specific provisions of Rule 2201
are inadequate because they do not contain any safeguards to prevent
the District from continuing to operate its equivalency system with a
negative balance during a reporting period.
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    \23\ See 69 FR 27837, 27841.
    \24\ See CAA sections 173(a) and 173(c)(1) (specifying that
emission reductions used to offset a new or modified major source
must be federally enforceable before a permit for the source is
issued, and must be in effect and enforceable by the time the source
commences operation). See also CAA section 173(a)(1)(A) (requiring
sufficient emissions reductions to have been ``obtained'' by the
time the source commences operation).
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    Finally, because neither remedy provides a mechanism to require the
District to quantify or restore a negative balance in the equivalency
system, both remedies fail to ensure full federal offset equivalency in
the event of a shortfall. Thus, even where the District adopts all
offset requirements of the federal program in response to an
equivalency failure, it will retain an historic deficit relative to the
federal program, which is not made whole under the rule. Therefore, the
EPA finds that the District must revise the rule to address these
deficiencies.
    The TSD for this proposed action includes suggestions for how the
District can correct these deficiencies. We encourage the District to
consult with Region 9 during the rule development process to ensure
that all deficiencies are properly addressed.
6. Temporary Replacement Emission Units
    The submitted version of Rule 2201 includes revisions to section
8.1.3 to provide an ``application shield'' for Temporary Replacement
Emission Units (TREUs). An application shield is an administrative
mechanism that allows a source to operate prior to submitting an
application and obtaining an ATC, if certain conditions are met. While
this provision is generally approvable, we have identified two
deficiencies. First, the provision specifies that TREUs must be
addressed by a best available retrofit control technology (BARCT) rule,
but ``BARCT'' is not defined in Rule 2201 or the approved SIP. Second,
the provision specifies that a TREU must be equipped with a control
device that is ``capable'' of at least 85% emission control but does
not specify any required minimum level of control that must actually be
achieved. The definition of Routine Replacement Emissions Unit in
section 3.35.5 of the existing rule also contains these same two
deficiencies. These provisions must be revised to incorporate a
definition of ``BARCT'' and to specify a minimum level of emission
control to be achieved.
7. Other Deficiencies
    The TSD for this proposed action describes several other federal
NNSR requirements not addressed in Rule 2201. These include the
following: stack height requirements at 40 CFR 51.164; enforceable
procedures as provided at 40 CFR 51.165(a)(5)(i) and (ii); and permit
issuance restrictions based on inadequate SIP implementation at CAA
section 173(a)(4). This section of the TSD also notes that the rule
contains a cross-reference to a State statutory provision that should
be clarified with an applicable date. See our discussion in Section
6.3.6 of the TSD for more information on these deficiencies.

D. EPA Recommendations to Further Improve the Rule

    The TSD includes recommendations for the next time the SJVAPCD
modifies Rule 2201.

E. Proposed Action and Public Comment

    As authorized in sections 110(k)(3) and 301(a) of the Act, the EPA
is proposing a limited approval and limited disapproval of Rule 2201.
We will accept comments from the public on this proposal until August
29, 2022. If we finalize this action as proposed, this action will
incorporate Rule 2201 into the SIP, including those provisions
identified as deficient. This approval is limited because EPA is
simultaneously proposing a limited disapproval of the rule under
section 110(k)(3). If finalized as proposed, our limited disapproval
action would trigger an obligation on the EPA to promulgate a Federal
Implementation Plan unless the State corrects the deficiencies, and the
EPA approves the related plan revisions, within two years of the final
action. Additionally, because the deficiency relates to NNSR
requirements under part D of title I of the Act, the offset sanction in
CAA section 179(b)(2) would apply in the San Joaquin Valley 18 months
after the effective date of a

final limited disapproval, and the highway funding sanctions in CAA
section 179(b)(1) would apply in the area six months after the offset
sanction is imposed. Neither sanction will be imposed under the CAA if
the State submits and we approve, prior to the implementation of the
sanctions, a SIP revision that corrects the deficiencies we identify in
our final action. The EPA intends to work with the SJVAPCD to correct
the deficiencies in a timely manner.
    Note that Rule 2201 has been adopted by the SJVAPCD, and the EPA's
final limited disapproval would not prevent the local agency from
enforcing it. The limited disapproval would also not prevent any
portion of the rule from being incorporated by reference into the
federally enforceable SIP.\25\
---------------------------------------------------------------------------

    \25\ Memorandum dated July 9, 1992, from John Calcagni,
Director, Air Quality Management Division, Office of Air Quality
Planning and Standards, U.S. EPA, to EPA Regional Air Directors,
Regions I-X, Subject: ``Processing of State Implementation Plan
(SIP) Submittals.''
---------------------------------------------------------------------------

III. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference the rule discussed in Section I. and listed in Table 1 of
this preamble. The EPA has made, and will continue to make, this
document available electronically through www.regulations.gov and at
the EPA Region IX Office (please contact the person identified in the
FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
state, local, or tribal governments, or to the private sector, will
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.

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

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.

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

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

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

    Dated: July 25, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-16245 Filed 7-28-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Notices]
[Pages 43887-43892]
[FR Doc No: 2012-18217]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67476; File No. SR-BYX-2012-014]

Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change by BATS Y-
Exchange, Inc. To Amend BYX Rules Related to Telemarketing

July 20, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on July 6, 2012, BATS Y-Exchange, Inc. (the ``Exchange'' or
``BYX'') 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
has designated this proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-
4(f)(6)(iii) thereunder,\4\ which renders it effective upon filing with
the Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

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

    The Exchange proposes to adopt BYX Rule 3.23 ``Telemarketing'', to
its rulebook to codify provisions that are substantially similar to
Federal Trade Commission (``FTC'') rules that prohibit deceptive and
other abusive telemarketing acts or practices.\5\ The text of the
proposed rule change is available at the Exchange's Web site at http://www.batstrading.com, at the principal office of the Exchange, on the
Commission's Web site at http://www.sec.gov, and at the Commission's
Public Reference Room.
---------------------------------------------------------------------------

    \5\ The proposed rule change is substantially similar in all
material respects to Financial Industry Regulatory Authority, Inc.
(``FINRA'') Rule 3230 (Telemarketing), which the Commission recently
approved. See Securities Exchange Act Release No. 34-66279 (January
30, 2012), 77 FR 5611 (February 3, 2012) (SR-FINRA-2011-059)
(approval order of proposed rule change to adopt telemarketing
rule).
---------------------------------------------------------------------------

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

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

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

1. Purpose
    The Exchange proposes to add Rule 3.23, ``Telemarketing'', to its
rulebook to codify provisions that are substantially similar to FTC
rules that prohibit deceptive and other abusive telemarketing acts or
practices. Rule 3.23 will require Members to, among other things,
maintain do-not-call lists, limit the hours of telephone solicitations,
and not use deceptive and abusive acts and practices in connection with
telemarketing. The Commission directed BYX to enact these telemarketing
rules in accordance with the Telemarketing Consumer Fraud and Abuse
Prevention Act of 1994 (``Prevention Act'').\6\ The Prevention Act
requires the Commission to promulgate, or direct any national
securities exchange or registered securities association to promulgate,
rules substantially similar to the FTC rules \7\ to prohibit deceptive
and other abusive telemarketing acts or practices, unless the
Commission determines either that the rules are not necessary or
appropriate for the protection of investors or the maintenance of
orderly markets, or that existing federal securities laws or Commission
rules already provide for such protection.\8\
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 6101-6108.
    \7\ 16 CFR 310.1-.9. The FTC adopted these rules under the
Prevention Act in 1995. See Federal Trade Commission, Telemarketing
Sales Rule, 60 FR 43842 (Aug. 23, 1995).
    \8\ 15 U.S.C. 6102.
---------------------------------------------------------------------------

    In 1997, the Commission determined that telemarketing rules
promulgated and expected to be promulgated by self-regulatory
organizations, together with the other rules of the self- regulatory
organizations, the federal securities laws and the Commission's rules
thereunder, satisfied the requirements of the Prevention Act because,
at the time, the applicable provisions of those laws and rules were
substantially similar to the FTC's telemarketing rules.\9\ Since 1997,
the FTC has amended its telemarketing rules in light of changing
telemarketing practices and technology.\10\
---------------------------------------------------------------------------

    \9\ See Telemarketing and Consumer Fraud and Abuse Prevention
Act; Determination that No Additional Rulemaking Required,
Securities Exchange Act Release No. 38480 (Apr. 7, 1997), 62 FR
18666 (Apr. 16, 1996). The Commission also determined that some
provisions of the FTC's telemarketing rules related to areas already
extensively regulated by existing securities laws or activities not
applicable to securities transactions See id.
    \10\ See, e.g., Federal Trade Commission, Telemarketing Sales
Rule, 73 FR 51164 (Aug. 29, 2008) (amendments to the Telemarketing
Sales Rule relating to prerecorded messages and call abandonments);
and Federal Trade Commission, Telemarketing Sales Rule, 68 FR 4580
(Jan. 29, 2003) (amendments to the Telemarketing Sales Rule
establishing requirements for sellers and telemarketers to
participate in the national do-not-call registry).
---------------------------------------------------------------------------

    As mentioned above, the Prevention Act requires the Commission to
promulgate, or direct any national securities exchange or registered
securities association to promulgate, rules substantially similar to
the FTC rules to prohibit deceptive and other abusive telemarketing
acts or practices.\11\ In May 2011, Commission staff directed BYX to
conduct a review of its telemarketing rule and propose rule amendments
that provide protections that are at least as strong as those provided
by the FTC's telemarketing rules.\12\ Commission staff had concerns
``that the [Exchange] rules overall have not kept pace with the FTC's
rules, and thus may no longer meet the standards of the [Prevention]
Act.'' \13\
---------------------------------------------------------------------------

    \11\ See supra note 7.
    \12\ See Letter from Robert W. Cook, Director, Division of
Trading and Markets, Securities and Exchange Commission, to Joe
Ratterman, President and Chief Executive Officer, BATS Global
Markets, Inc., dated May 12, 2011.
    \13\ Id.
---------------------------------------------------------------------------

    The proposed rule change, as directed by the Commission staff,
adopts provisions in Rule 3.23 that are substantially similar to the
FTC's current rules that prohibit deceptive and other abusive
telemarketing acts or practices as described below.\14\
---------------------------------------------------------------------------

    \14\ The proposed rule change is also substantially similar to
FINRA Rule 3230. See supra note 3.
---------------------------------------------------------------------------

Telemarketing Restrictions

    The proposed rule change codifies the telemarketing restrictions in
Rule 3.23(a) to provide that no Member or

associated person of a Member \15\ may make an outbound telephone call
\16\ to:
---------------------------------------------------------------------------

    \15\ An ``associated person of a Member'' is any partner,
officer, director, or branch manager of a Member (or person
occupying a similar status or performing similar functions), any
person directly or indirectly controlling, controlled by, or under
common control with such Member, or any employee of such Member,
except that any person associated with a Member whose functions are
solely clerical or ministerial shall not be included in the meaning
of such term. See Rule 1.5(q).
    \16\ An ``outbound telephone call'' is a telephone call
initiated by a telemarketer to induce the purchase of goods or
services or to solicit a charitable contribution from a donor. A
``telemarketer'' is any person who, in connection with
telemarketing, initiates or receives telephone calls to or from a
customer or donor. A ``customer'' is any person who is or may be
required to pay for goods or services through telemarketing. A
``donor'' means any person solicited to make a charitable
contribution. A ``person'' is any individual, group, unincorporated
association, limited or general partnership, corporation, or other
business entity. ``Telemarketing'' means consisting of or relating
to a plan, program, or campaign involving at least one outbound
telephone call, for example cold-calling. The term does not include
the solicitation of sales through the mailing of written marketing
materials, when the person making the solicitation does not solicit
customers by telephone but only receives calls initiated by
customers in response to the marketing materials and during those
calls takes orders only without further solicitation. For purposes
of the previous sentence, the term ``further solicitation'' does not
include providing the customer with information about, or attempting
to sell, anything promoted in the same marketing materials that
prompted the customer's call. A ``charitable contribution'' means
any donation or gift of money or any other thing of value, for
example a transfer to a pooled income fund. See proposed Rule
3.23(n)(3), (11), (16), (17), (20), and (21); see also FINRA Rule
3230(m)(11), (14), (16), (17), and (20); and 16 CFR 310.2(f), (l),
(n), (v), (w), (cc), and (dd).
---------------------------------------------------------------------------

    (1) Any person's residence at any time other than between 8 a.m.
and 9 p.m. local time at the called person's locations;
    (2) Any person that previously has stated that he or she does not
wish to receive any outbound telephone calls made by or on behalf of
the Member; or
    (3) Any person who has registered his or her telephone number on
the FTC's national do-not-call registry.
    The proposed rule change is substantially similar to the FTC's
provisions regarding abusive telemarketing acts or practices.\17\ The
FTC provided a discussion of the provision when it was adopted pursuant
to the Prevention Act.\18\
---------------------------------------------------------------------------

    \17\ See 16 CFR 310.4(b)(1)(iii)(A) and (B) and (c); see also
FINRA Rule 3230(a). See proposed Rule 3.23(n)(16) and (21) and supra
note 15.
    \18\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission,
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43855.
---------------------------------------------------------------------------

Caller Disclosures

    The proposed rule change codifies in Rule 3.23(b) that no Member or
associated person of a Member shall make an outbound telephone call to
any person without disclosing truthfully, promptly and in a clear and
conspicuous manner to the called person the following information: (i)
The identity of the caller and the Member; (ii) the telephone number or
address at which the caller may be contacted; and (iii) that the
purpose of the call is to solicit the purchase of securities or related
services. The proposed rule change also provides that the telephone
number that a caller provides to a person as the number at which the
caller may be contacted may not be a 900 number or any other number for
which charges exceed local or long-distance transmission charges.\19\
---------------------------------------------------------------------------

    \19\ See proposed Rule 3.23(b); see also FINRA Rule 3230(d)(4).
The proposed rule change is substantially similar to the Federal
Communications Commission's regulations regarding call disclosures.
See 47 CFR 64.1200(d)(4).
---------------------------------------------------------------------------

Exceptions

    The proposed rule change adds Rule 3.23(c) to provide that the
prohibition in paragraph (a)(1) \20\ does not apply to outbound
telephone calls by a Member or an associated person of a Member if:
---------------------------------------------------------------------------

    \20\ The Exchange believes that even if a Member satisfies the
exception in paragraph (c), the Member should still make the caller
disclosures required by paragraph (b) to the called person to ensure
that the called person receives sufficient information regarding the
purpose of the call.
---------------------------------------------------------------------------

    (1) The Member has received that person's express prior written
consent;
    (2) The Member has an established business relationship \21\ with
the person; or
---------------------------------------------------------------------------

    \21\ An ``established business relationship'' is a relationship
between a Member and a person if (a) the person has made a financial
transaction or has a security position, a money balance, or account
activity with the Member or at a clearing firm that provides
clearing services to the Member within the 18 months immediately
preceding the date of an outbound telephone call; (b) the Member is
the broker-dealer of record for an account of the person within the
18 months immediately preceding the date of an outbound telephone
call; or (c) the person has contacted the Member to inquire about a
product or service offered by the Member within the three months
immediately preceding the date of an outbound telephone call. A
person's established business relationship with a Member does not
extend to the Member's affiliated entities unless the person would
reasonably expect them to be included. Similarly, a person's
established business relationship with a Member's affiliate does not
extend to the Member unless the person would reasonably expect the
Member to be included. The term ``account activity'' includes, but
is not limited to, purchases, sales, interest credits or debits,
charges or credits, dividend payments, transfer activity, securities
receipts or deliveries, and/or journal entries relating to
securities or funds in the possession or control of the Member. The
term ``broker- dealer of record'' refers to the broker or dealer
identified on a customer's account application for accounts held
directly at a mutual fund or variable insurance product issuer. See
proposed Rule 3.23(n)(1), (4), and (12); see also 16 CFR 310.2(o)
and FINRA Rule 3230(m)(1), (4), and (12).
---------------------------------------------------------------------------

    (3) The person is a broker or dealer.

Member's Firm-Specific Do-Not-Call List

    The proposed rule change adds Rule 3.23(d) to provide that each
Member must make and maintain a centralized list of persons who have
informed the Member or any of its associated persons that they do not
wish to receive outbound telephone calls. The proposed term ``outbound
telephone call'' is defined substantially similar to the FTC's
definition of that term.\22\
---------------------------------------------------------------------------

    \22\ See 16 CFR 310.4(b)(1)(iii)(A) and supra note 15; see also
FINRA Rule 3230(a)(2).
---------------------------------------------------------------------------

    Proposed Rule 3.23(d)(2) adopts procedures that Members must
institute to comply with Rule 3.23(a) and (b) prior to engaging in
telemarketing. These procedures must meet the following minimum
standards:
    (1) Member must have a written policy for maintaining their firm-
specific do-not-call lists.
    (2) Personnel engaged in any aspect of telemarketing must be
informed and trained in the existence and use of the Member's firm-
specific do-not-call list.
    (3) If a Member receives a request from a person not to receive
calls from that Member, the Member must record the request and place
the person's name, if provided, and telephone number on its firm-
specific do-not-call list at the time the request is made.\23\
---------------------------------------------------------------------------

    \23\ Members must honor a person's do-not-call request within a
reasonable time from the date the request is made, which may not
exceed 30 days from the date of the request. If these requests are
recorded or maintained by a party other than the Member on whose
behalf the outbound telephone call is made, the Member on whose
behalf the outbound telephone call is made will still be liable for
any failures to honor the do-not-call request.
---------------------------------------------------------------------------

    (4) Members or associated persons of Members making an outbound
telephone call must make the caller disclosures set forth in Rule
3.23(b).
    (5) In the absence of a specific request by the person to the
contrary, a person's do- not-call request will apply to the Member
making the call, and will not apply to affiliated entities unless the
consumer reasonably would expect them to be included given the
identification of the call and the product being advertised.
    (6) A Member making outbound telephone calls must maintain a record
of a person's request not to receive further calls.
    Inclusion of this requirement to adopt these procedures will not
create any new obligations on Members, as they are already subject to
identical provisions under Federal Communications Commission (``FCC'')
telemarketing regulations.\24\
---------------------------------------------------------------------------

    \24\ See 47 CFR 64.1200(d); see also FINRA Rule 3230(d).

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

Do-Not-Call Safe Harbors

    Proposed Rule 3.23(e) provides for certain exceptions to the
telemarketing restriction set forth in proposed Rule 3.23(a)(3), which
prohibits outbound telephone calls to persons on the FTC's national do-
not-call registry. First, proposed Rule 3.23(e)(1) provides that a
Member or associated person of a Member making outbound telephone calls
will not be liable for violating proposed Rule 3.23(a)(3) if:
    (1) The Member has an established business relationship with the
called person; however, a person's request to be placed on the Member's
firm-specific do-not- call list terminates the established business
relationship exception to the national do-not-call registry provision
for that Member even if the person continues to do business with the
Member;
    (2) The Member has obtained the person's prior express written
consent, which must be clearly evidenced by a signed, written agreement
(which may be obtained electronically under the E-Sign Act \25\)
between the person and the Member that states that the person agrees to
be contacted by the Member and includes the telephone number to which
the calls may be placed; or
---------------------------------------------------------------------------

    \25\ 15 U.S.C. 7001 et seq.
---------------------------------------------------------------------------

    (3) The Member or associated person of a Member making the call has
a personal relationship \26\ with the called person.
---------------------------------------------------------------------------

    \26\ The term ``personal relationship'' means any family member,
friend, or acquaintance of the person making an outbound telephone
call. See proposed Rule 3.23(n)(18); see also FINRA Rule
3230(m)(18).
---------------------------------------------------------------------------

    The proposed rule change is substantially similar to the FTC's
provision regarding an exception to the prohibition on making outbound
telephone calls to persons on the FTC's do-not- call registry.\27\ The
FTC provided a discussion of the provision when it was adopted pursuant
to the Prevention Act.\28\
---------------------------------------------------------------------------

    \27\ See 16 CFR 310.4(b)(1)(iii)(B); see also FINRA Rule
3230(b).
    \28\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4628; Federal Trade Commission,
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43854.
---------------------------------------------------------------------------

    Second, proposed Rule 3.23(e)(2) provides that a Member or
associated person of a Member making outbound telephone calls will not
be liable for violating proposed Rule 3.23(a)(3) if the Member or
associated person of a Member demonstrates that the violation is the
result of an error and that as part of the Member's routine business
practice:
    (1) The Member has established and implemented written procedures
to comply with Rule 3.23(a) and (b);
    (2) The Member has trained its personnel, and any entity assisting
in its compliance, in the procedures established pursuant to the
preceding clause;
    (3) The Member has maintained and recorded a list of telephone
numbers that it may not contact in compliance with Rule 3.23(d); and
    (4) The Member uses a process to prevent outbound telephone calls
to any telephone number on the Member's firm-specific do-not-call list
or the national do-not-call registry, employing a version of the
national do-not-call registry obtained from the FTC no more than 31
days prior to the date any call is made, and maintains records
documenting this process.
    The proposed rule change is substantially similar to the FTC's safe
harbor to the prohibition on making outbound telephone calls to persons
on a firm-specific do-not-call list or on the FTC's national do-not-
call registry.\29\ The FTC provided a discussion of the provision when
it was adopted pursuant to the Prevention Act.\30\
---------------------------------------------------------------------------

    \29\ See 16 CFR 310.4(b)(3); see also FINRA Rule 3230(c).
    \30\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission,
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43855.
---------------------------------------------------------------------------

Wireless Communications

    Proposed Rule 3.23(f) clarifies that the provisions set forth in
Rule 3.23 are applicable to Members and associated persons of Members
making outbound telephone calls to wireless telephone numbers.\31\
---------------------------------------------------------------------------

    \31\ See also FINRA Rule 3230(e).
---------------------------------------------------------------------------

Outsourcing Telemarketing

    Proposed Rule 3.23(g) states that if a Member uses another entity
to perform telemarketing services on its behalf, the Member remains
responsible for ensuring compliance with Rule 3.23. The proposed rule
change also provides that an entity or person to which a Member
outsources its telemarketing services must be appropriately registered
or licensed, where required.\32\
---------------------------------------------------------------------------

    \32\ See also FINRA Rule 3230(f).
---------------------------------------------------------------------------

Billing Information

    Proposed Rule 3.23(h) provides that, for any telemarketing
transaction, no Member or associated person of a Member may submit
billing information \33\ for payment without the express informed
consent of the customer. Proposed Rule 3.23(h) requires that each
Member or associated person of a Member must obtain the express
informed consent of the person to be charged and to be charged using
the identified account.
---------------------------------------------------------------------------

    \33\ The term ``billing information'' means any data that
enables any person to access a customer's or donor's account, such
as a credit or debit card number, a brokerage, checking, or savings
account number, or a mortgage loan account number. See proposed Rule
3.23(n)(3).
---------------------------------------------------------------------------

    If the telemarketing transaction involves pre-acquired account
information \34\ and a free-to-pay conversion \35\ feature, the Member
or associated person of a Member must:
---------------------------------------------------------------------------

    \34\ The term ``preacquired account information'' means any
information that enables a Member or associated person of a Member
to cause a charge to be placed against a customer's or donor's
account without obtaining the account number directly from the
customer or donor during the telemarketing transaction pursuant to
which the account will be charged. See proposed Rule 3.23(n)(19).
    \35\ The term ``free-to-pay conversion'' means, in an offer or
agreement to sell or provide any goods or services, a provision
under which a customer receives a product or service for free for an
initial period and will incur an obligation to pay for the product
or service if he or she does not take affirmative action to cancel
before the end of that period. See proposed Rule 3.23(n)(13).
---------------------------------------------------------------------------

    (1) Obtain from the customer, at a minimum, the last four digits of
the account number to be charged;
    (2) Obtain from the customer an express agreement to be charged and
to be charged using the identified account number; and
    (3) Make and maintain an audio recording of the entire
telemarketing transaction.
    For any other telemarketing transaction involving preacquired
account information, the Member or associated person of a Member must:
    (1) Identify the account to be charged with sufficient specificity
for the customer to understand what account will be charged; and
    (2) Obtain from the customer an express agreement to be charged and
to be charged using the identified account number.
    The proposed rule change is substantially similar to the FTC's
provision regarding the submission of billing information.\36\ The FTC
provided a discussion of the provision when it was adopted pursuant to
the Prevention Act.\37\
---------------------------------------------------------------------------

    \36\ See 16 CFR 310.4(a)(7); see also FINRA Rule 3230(i).
    \37\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4616.
---------------------------------------------------------------------------

Caller Identification Information

    Proposed Rule 3.23(i) provides that Members that engage in
telemarketing must transmit caller identification information \38\ and
are explicitly prohibited from blocking caller identification
information. The

telephone number provided must permit any person to make a do-not-call
request during normal business hours. These provisions are similar to
the caller identification provision in the FTC rules.\39\ Inclusion of
these caller identification provisions in this proposed rule change
will not create any new obligations on Members, as they are already
subject to identical provisions under FCC telemarketing
regulations.\40\
---------------------------------------------------------------------------

    \38\ Caller identification information includes the telephone
number and, when made available by the Member's telephone carrier,
the name of the Member.
    \39\ See 16 CFR 310.4(a)(8); see also FINRA Rule 3230(g).
    \40\ See 47 CFR 64.1601(e).
---------------------------------------------------------------------------

Unencrypted Consumer Account Numbers

    Proposed Rule 3.23(j) prohibits a Member or associated person of a
Member from disclosing or receiving, for consideration, unencrypted
consumer account numbers for use in telemarketing. The proposed rule
change is substantially similar to the FTC's provision regarding
unencrypted consumer account numbers.\41\ The FTC provided a discussion
of the provision when it was adopted pursuant to the Prevention
Act.\42\ Additionally, the proposed rule change defines ``unencrypted''
as not only complete, visible account numbers, whether provided in
lists or singly, but also encrypted information with a key to its
decryption. The proposed definition is substantially similar to the
view taken by the FTC.\43\
---------------------------------------------------------------------------

    \41\ See 16 CFR 310.4(a)(6); see also FINRA Rule 3230(h).
    \42\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4615.
    \43\ See id. at 4616.
---------------------------------------------------------------------------

Abandoned Calls

    Proposed Rule 3.23(k) prohibits a Member or associated person of a
Member from abandoning \44\ any outbound telephone call. The abandoned
calls prohibition is subject to a ``safe harbor'' under proposed Rule
3.23(k)(2) that requires a Member or associated person of a Member:
---------------------------------------------------------------------------

    \44\ An outbound telephone call is ``abandoned'' if the called
person answers it and the call is not connected to a Member or
associated person of a Member within two seconds of the called
person's completed greeting.
---------------------------------------------------------------------------

    (1) To employ technology that ensures abandonment of no more than
three percent of all calls answered by a person, measured over the
duration of a single calling campaign, if less than 30 days, or
separately over each successive 30-day period or portion thereof that
the campaign continues;
    (2) For each outbound telephone call placed, to allow the telephone
to ring for at least 15 seconds or four rings before disconnecting an
unanswered call;
    (3) Whenever a Member or associated person of a Member is not
available to speak with the person answering the outbound telephone
call within two seconds after the person's completed greeting, promptly
to play a prerecorded message stating the name and telephone number of
the Member or associated person of a Member on whose behalf the call
was placed; and
    (4) To maintain records documenting compliance with the ``safe
harbor.''
    The proposed rule change is substantially similar to the FTC's
provisions regarding abandoned calls.\45\ The FTC provided a discussion
of the provisions when they are adopted pursuant to the Prevention
Act.\46\
---------------------------------------------------------------------------

    \45\ See 16 CFR 310.4(b)(1)(iv) and (b)(4); see also FINRA Rule
3230(j).
    \46\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4641.
---------------------------------------------------------------------------

Prerecorded Messages

    Proposed Rule 3.23(l) prohibits a Member or associated person of a
Member from initiating any outbound telephone call that delivers a
prerecorded message without a person's express written agreement \47\
to receive such calls. The proposed rule change also requires that all
prerecorded outbound telephone calls provide specified opt-out
mechanisms so that a person can opt out of future calls. The
prohibition does not apply to a prerecorded message permitted for
compliance with the ``safe harbor'' for abandoned calls under proposed
Rule 3.23(k)(2). The proposed rule change is substantially similar to
the FTC's provisions regarding prerecorded messages.\48\ The FTC
provided a discussion of the provisions when they were adopted pursuant
to the Prevention Act.\49\
---------------------------------------------------------------------------

    \47\ The express written agreement must: (a) Have been obtained
only after a clear and conspicuous disclosure that the purpose of
the agreement is to authorize the Member to place prerecorded calls
to such person; (b) have been obtained without requiring, directly
or indirectly, that the agreement be executed as a condition of
purchasing any good or service; (c) evidence the willingness of the
called person to receive calls that deliver prerecorded messages by
or on behalf of the Member; and (d) include the person's telephone
number and signature (which may be obtained electronically under the
E-Sign Act).
    \48\ See 16 CFR 310.4(b)(1)(v); see also FINRA Rule 3230(k).
    \49\ See Federal Trade Commission, Telemarketing Sales Rule, 73
FR 51164 (Aug. 29, 2008) at 51165.
---------------------------------------------------------------------------

Credit Card Laundering

    Proposed Rule 3.23(m) prohibits credit card laundering, the
practice of depositing into the credit card system \50\ a sales draft
that is not the result of a credit card transaction between the
cardholder \51\ and the Member. Except as expressly permitted, the
proposed rule change prohibits a Member or associated person of a
Member from:
---------------------------------------------------------------------------

    \50\ The term ``credit card system'' means any method or
procedure used to process credit card transactions involving credit
cards issued or licensed by the operator of that system. The term
``credit card'' means any card, plate, coupon book, or other credit
device existing for the purpose of obtaining money, property, labor,
or services on credit. The term ``credit'' means the right granted
by a creditor to a debtor to defer payment of debt or to incur debt
and defer its payment. See proposed Rule 3.23(n)(7), (8), and (10).
    \51\ The term ``cardholder'' means a person to whom a credit
card is issued or who is authorized to use a credit card on behalf
of or in addition to the person to whom the credit card is issued.
See proposed Rule 3.23(n)(6).
---------------------------------------------------------------------------

    (1) Presenting to or depositing into the credit card system for
payment, a credit card sales draft \52\ generated by a telemarketing
transaction that is not the result of a telemarketing credit card
transaction between the cardholder and the Member;
---------------------------------------------------------------------------

    \52\ The term ``credit card sales draft'' means any record or
evidence of a credit card transaction. See proposed Rule 3.23(n)(9).
---------------------------------------------------------------------------

    (2) Employing, soliciting, or otherwise causing a merchant,\53\ or
an employee, representative or agent of the merchant to present to or
to deposit into the credit card system for payment, a credit card sales
draft generated by a telemarketing transaction that is not the result
of a telemarketing credit card transaction between the cardholder and
the Member; or
---------------------------------------------------------------------------

    \53\ The term ``merchant'' means a person who is authorized
under a written contract with an acquirer to honor or accept credit
cards, or to transmit or process for payment credit card payments,
for the purchase of goods or services or a charitable contribution.
The term ``acquirer'' means a business organization, financial
institution, or an agent of a business organization or financial
institution that has authority from an organization that operates or
licenses a credit card system to authorize merchants to accept,
transmit, or process payment by credit card through the credit card
system for money, goods or services, or anything else of value. See
proposed Rule 3.23(n)(2) and (14).
---------------------------------------------------------------------------

    (3) Obtaining access to the credit card system through the use of a
business relationship or an affiliation with a merchant, when such
access is not authorized by the merchant agreement \54\ or the
applicable credit card system.
---------------------------------------------------------------------------

    \54\ The term ``merchant agreement'' means a written contract
between a merchant and an acquirer to honor or accept credit cards,
or to transmit or process for payment credit card payments, for the
purchase of goods or services or a charitable contribution. See
proposed Rule 3.23(n)(15).
---------------------------------------------------------------------------

    The proposed rule change is substantially similar to the FTC's
provision regarding credit card laundering.\55\ The FTC provided a
discussion of the provisions when they

were adopted pursuant to the Prevention Act.\56\
---------------------------------------------------------------------------

    \55\ See 16 CFR 310.3(c); see also FINRA Rule 3230(l).
    \56\ See Federal Trade Commission, Telemarketing Sales Rule, 60
FR 43842 (Aug. 23, 1995) at 43852.
---------------------------------------------------------------------------

Definitions

    Proposed Rule 3.23(n) adopts the following definitions, which are
substantially similar to the FTC's definitions of these terms:
``acquirer,'' ``billing information,'' ``caller identification
service,'' ``cardholder,'' ``charitable contribution,'' ``credit,''
``credit card,'' ``credit card sales draft,'' ``credit card system,''
``customer,'' ``donor,'' ``established business relationship,'' ``free-
to-pay conversion,'' ``merchant,'' ``merchant agreement,'' ``outbound
telephone call,'' ``person,'' ``pre-acquired account information,''
``telemarketer,'' and ``telemarketing.'' \57\ The FTC provided a
discussion of each definition when they were adopted pursuant to the
Prevention Act.\58\
---------------------------------------------------------------------------

    \57\ See proposed Rule 3.23(n)(2), (3), (5), (6), (7), (8), (9),
(10), (11), (12), (13), (14), (15), (16), (17), (19), (20), and
(21); and 16 CFR 310.2(a), (c), (d), (e), (f), (h), (i), (j), (k),
(l), (n), (o), (p), (s), (t), (v), (w), (x), (cc), and (dd); see
also FINRA Rule 3230(m)(2), (3), (5), (6), (7), (8), (9), (10),
(11), (12), (13), (14), (15), (16), (17), (19), and (20). The
proposed rule change also adopts definitions of ``account
activity,'' ``broker-dealer of record,'' and ``personal
relationship'' that are substantially similar FINRA's definitions of
these terms. See proposed Rule 3.23(n)(1), (4), and (18) and FINRA
Rule 3230(m)(1), (4), and (18); see also 47 CFR 64.1200(f)(14)
(FCC's definition of ``personal relationship'').
    \58\ See Federal Trade Commission, Telemarketing Sales Rule, 60
FR 43842 (Aug. 23, 1995) at 43843; and Federal Trade Commission,
Telemarketing Sales Rule, 68 FR 4580 (Jan. 29, 2003) at 4587.
---------------------------------------------------------------------------

State and Federal Laws

    Proposed Rule 3.23, Interpretation and Policy .01 \59\ reminds
Members and associated persons of Members that engage in telemarketing
that they also are subject to the requirements of relevant state and
federal laws and rules, including the Prevention Act, the Telephone
Consumer Protection Act of 1991,\60\ and the rules of the FCC relating
to telemarketing practices and the rights of telephone consumers.\61\
---------------------------------------------------------------------------

    \59\ See also FINRA Rule 3230, Supplementary Material .01,
Compliance with Other Requirements.
    \60\ See 47 U.S.C. 227.
    \61\ See 47 CFR 64.1200.
---------------------------------------------------------------------------

Announcement in Regulatory Circular

    The Exchange will announce the implementation date of the proposed
rule change in a Regulatory Notice to be published no later than 90
days following the effective date. The implementation date will be no
later than 180 days following the effective date.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of Section 6(b) of the
Act.\62\ Specifically, the Exchange believes the proposed rule change
is consistent with the Section 6(b)(5) \63\ requirements that the rules
of an exchange be designed to promote just and equitable principles of
trade, to prevent fraudulent and manipulative acts, to remove
impediments to and to perfect the mechanism for a free and open market
and a national market system, and, in general, to protect investors and
the public interest. In particular, the proposed rule change will
prevent fraudulent and manipulative acts and protect investors and the
public interest by continuing to prohibit Members from engaging in
deceptive and other abusive telemarketing acts or practices.
Additionally, the proposed rule change removes impediments to and
perfects the mechanism for a free and open market and a national market
system, because it provides consistency among telemarketing rules of
national securities exchanges and FINRA, therefore making it easier for
investors to comply with these rules.
---------------------------------------------------------------------------

    \62\ 15 U.S.C. 78f(b).
    \63\ 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 imposes
any burden on competition.

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 Changes 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) of the Act \64\ and Rule 19b-
4(f)(6)(iii) thereunder.\65\
---------------------------------------------------------------------------

    \64\ 15 U.S.C. 78s(b)(3)(A).
    \65\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    For the foregoing reasons, this rule filing qualifies as a ``non-
controversial'' rule change under Rule 19b-4(f)(6), which renders the
proposed rule change effective upon filing with the Commission. The
Exchange has requested that the Commission waive the 30-day operative
delay period after which a proposed rule change under Rule 19b-4(f)(6)
becomes effective. The Commission believes that waiving the 30-day
operative delay is consistent with the protection of investors and the
public interest because such waiver will afford Exchange members the
benefit of the proposal--the prohibition of deceptive and other abusive
telemarketing acts or practices--without unnecessary delay. Such waiver
will also allow the Exchange to comply with the Commission's directive
and implement uniform telemarketing rules across self-regulatory
organizations, creating consistency among these rules for investors, as
soon as possible. For these reasons, the Commission designates the
proposed rule change as operative under upon filing.\66\
---------------------------------------------------------------------------

    \66\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File No. SR-BYX-2012-014 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-BYX-2012-014. This file
number

should be included on the subject line if email is used. To help the
Commission process and review your comments more efficiently, please
use only one method. The Commission will post all comments on the
Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street NE., Washington,
DC 20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File No. SR-BYX-2012-014 and should be
submitted on or before August 16, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\67\
---------------------------------------------------------------------------

    \67\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-18217 Filed 7-25-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: May 24, 2006 (Volume 71, Number 100)]
[Notices]
[Page 29935]
[DOCID:fr24my06-67]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL06-72-000]

PPL EnergyPlus, LLC, Complainant v. New York Independent System
Operator, Inc., Respondent; Notice of Complaint

May 16, 2006.
    Take notice that on May 15, 2006, pursuant to section 206 of the
Federal Power Act and rule 206(h) of the Rules of Practice and
Procedures of the Commission, PPL EnergyPlus, LLC (Complainant) filed a
formal complaint against New York Independent System Operator, Inc.
(NYISO) alleging that NYISO failed to conduct its External Rights
Auction in a just and reasonable manner. The Complainant requests that
the Commission direct a stakeholder process to revise the NYISO's
process of awarding External Rights. The Complainant also requests fast
track processing of its complaint.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. The
Respondent's answer and all interventions, or protests must be filed on
or before the comment date. The Respondent's answer, motions to
intervene, and protests must be served on the Complainants.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on May 25, 2006.

Magalie R. Salas,
Secretary.
[FR Doc. E6-7884 Filed 5-23-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 79, Number 229 (Friday, November 28, 2014)]
[Notices]
[Page 70881]
[FR Doc No: 2014-28129]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID: FEMA-2014-0033; OMB No. 1660-0132]

Agency Information Collection Activities: Proposed Collection;
Comment Request, Level 1 Assessment Form, Level 3 Evaluation Form for
Students, and Level 3 Evaluation Form for Supervisors

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice; correction.

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

    On November 19, 2014, the Federal Emergency Management Agency
(FEMA) published an agency information collection notice in the Federal
Register at 79 FR 68896. In the ADDRESSES section, FEMA inadvertently
listed the docket ID in (1) Online as FEMA-2014-XXXX. The correct
Docket ID is FEMA 2014-0033.

    Dated: November 24, 2014.
Charlene D. Myrthil,
Director, Records Management Division, Mission Support Bureau, Federal
Emergency Management Agency, Department of Homeland Security.
[FR Doc. 2014-28129 Filed 11-26-14; 8:45 am]
BILLING CODE 9111-53-P


[Federal Register Volume 81, Number 104 (Tuesday, May 31, 2016)]
[Notices]
[Pages 34334-34335]
[FR Doc No: 2016-12802]

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

ENVIRONMENTAL PROTECTION AGENCY

[FRL-9947-14-OAR]

Intent To Disclose Confidential Business Information Contained in
Vehicle Sales Data for Model Years 2009-2014 to the U.S. Energy
Information Administration for Use in Modeling and Projecting Energy
Demand in the Light-Duty Vehicle Sector

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: On May 12, 2016, the Environmental Protection Agency received
a written request from the U.S. Energy Information Administration (EIA)
for historical model year sales data

for years 2009 through 2014 by manufacturer and nameplate. This
requested data may contain confidential business information (CBI).
Pursuant to 40 CFR 2.209(c), the EPA may disclose business information
to other Federal agencies that otherwise is not available to the public
if certain requirements are met. The EPA intends to share certain
information, detailed below, with EIA ten (10) days after publication
of this notice. The information requested has been used to model and
project energy demand in the light-duty vehicle sector and is critical
to EIA's efforts to project energy demand, fuel efficiency, fuel
consumption, and greenhouse gas emissions for the transportation
sector. EIA has agreed to keep the data confidential and not disclose
it further.

DATES: The sales data will be disclosed to EIA on or after June 10,
2016.

FOR FURTHER INFORMATION CONTACT: Sara Zaremski, Office of
Transportation and Air Quality, Compliance Division, Environmental
Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105;
telephone number:<PHONE_NUMBER>; fax number: 734-214- 4053; email
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected by this action are those involved
with the production and sale of motor vehicles. Regulated categories
include:

----------------------------------------------------------------------------------------------------------------
                                                                                Examples of potentially
                Category                       NAICS \1\ codes        SIC \2\ codes       regulated entities
----------------------------------------------------------------------------------------------------------------
Industry...............................  336111, 336112............            3711  Light-duty vehicle and
                                                                                light-duty truck
                                                                                manufacturers.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System (NAICS)
\2\ Standard Industrial Classification (SIC) system code.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by the
disclosure.

II. EIA's Request for Model Year Sales Data for Years 2009-2014

    In their May 12, 2016 request letter to EPA, EIA requested that EPA
provide to EIA historical model year sales data for years 2009 through
2014 by manufacturer and nameplate. As noted above, EIA uses this
information to model and project energy demand in the light-duty
vehicle sector. Additionally, EIA noted that these data are critical to
EIA's continued efforts to project energy demand, fuel efficiency, fuel
consumption, and greenhouse gas emissions for the transportation
sector. Previously, EIA had been unable to obtain official model year
sales data for 2009 through 2014 due to the fact that it contained CBI.
The specific data they requested includes all the data fields currently
available in the Excel files provided on the fueleconomy.gov Web site
(see the Download Fuel Economy Data page at http://www.fueleconomy.gov/feg/download.shtml). Additionally, EIA requested the following data
fields: model year sales, tank size, track width, wheelbase, curb
weight, horsepower, interior volume, fleet (DP, IP, LT), and test
weight.
    EIA indicated that they are aware that this information is subject
to claims of confidential business information. EIA's letter states
``We will take the necessary steps to ensure the data are secure and
kept confidential. EIA routinely works with sensitive data and has
strong data handling safeguards in place.''
    Pursuant to 40 CFR 2.209(c), EPA may disclose business information
to another Federal agency if: (1) EPA receives a written request for
disclosure of the information from a duly authorized officer or
employee of the other agency; (2) the request sets forth the official
purpose for which the information is needed; (3) when the information
has been claimed as confidential or has been determined to be
confidential, the responsible EPA office provides notice to each
affected business of the type of information to be disclosed and to
whom it is to be disclosed, and such notice may be given by notice
published in the Federal Register at least 10 days prior to disclosure;
(4) EPA notifies the other agency of any unresolved business
confidentiality claim covering the information and of any determination
under this subpart that the information is entitled to confidential
treatment, and that further disclosure of the information may be a
violation of the Trade Secrets Act, 18 U.S.C. 1905; and (5) the other
agency agrees in writing that in accordance with the law, it will not
disclose further any information designated as confidential.
    In the case at hand, all of the required elements of 40 CFR
2.209(c) have been met upon publication of this notice.

III. Impact on Vehicle Manufacturers

    Given that EIA is aware that the shared information is CBI or has
been claimed as CBI, and intends to take the necessary steps to ensure
that the data provided is kept secure and confidential, there is no
impact on vehicle manufacturers to the release of this data.

    Dated: May 24, 2016.
Byron J. Bunker,
Director, Compliance Division, Office of Transportation and Air
Quality, Office of Air and Radiation.
[FR Doc. 2016-12802 Filed 5-27-16; 8:45 am]
 BILLING CODE 6560-50-P