[Federal Register: May 24, 2010 (Volume 75, Number 99)]
[Rules and Regulations]
[Page 28757]
[DOCID:fr24my10-4]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2010-0325]

Drawbridge Operation Regulation; Long Island, New York Inland
Waterway From East Rockaway Inlet to Shinnecock Canal, Hempstead, NY,
Maintenance

AGENCY: Coast Guard, DHS.

ACTION: Notice of temporary deviation from regulations.

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SUMMARY: The Commander, First Coast Guard District, has issued a
temporary deviation from the regulation governing the operation of the
Wantagh State Parkway Bridge across Sloop Channel at mile 15.4, at
Jones Beach, New York. Under this temporary deviation the bridge may
operate on a special operating schedule for five months to facilitate
the completion of new bridge construction.

DATES: This deviation is effective from May 15, 2010 through October
30, 2010.

ADDRESSES: Documents mentioned in this preamble as being available in
the docket are part of docket USCG-2010-0325 and are available online
at http://www.regulations.gov, inserting USCG-2010-0325 in the
``Keyword'' and then clicking ``Search''. They are also available for
inspection or copying at the Docket Management Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Ms. Judy Leung-Yee, Project Officer, First Coast Guard
District, telephone<PHONE_NUMBER>. If you have questions on viewing
the docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Wantagh State Parkway Bridge has a
vertical clearance in the closed position of 20 feet at mean high water
and 23 at mean low water. The existing drawbridge operation regulations
are listed at 33 CFR 117.5.
    The New York State Department of Transportation, requested a
temporary deviation for the existing bridge to operate on special
schedule to facilitate the completion of the new bridge construction.
    The waterway has seasonal recreational vessels of various sizes.
    We contacted the New York Marine Trades Association, South Bay
Cruising Club, and Sector Long Island Sound. No objection to the
proposed temporary deviation schedule was received.
    Under this temporary deviation, in effect from May 15, 2010 through
October 30, 2010, the Wantagh State Parkway Bridge at mile 15.4, across
Sloop Channel, at Jones Beach, New York, shall operate as follows: The
draw shall open on signal after at least a half-hour advance notice is
given by calling the number posted at the bridge. From 6:30 a.m.
through 12 noon and from 12:15 p.m. through 4 p.m., Monday through
Friday, one bascule lift span may remain in the closed position. A full
two lift span opening shall be given between 12 noon and 12:15 p.m.
provided at least a one-hour advance notice is given by calling the
number posted at the bridge.
    From 7:30 a.m. through 8:30 p.m. on Saturday, Sunday and Federal
holidays the draw shall open on the hour and half-hour provided at
least a half-hour advance notice is given by calling the number posted
at the bridge.
    In accordance with 33 CFR 117.35(e), the bridge must return to its
regular operating schedule immediately at the end of the designated
time period. This deviation from the operating regulations is
authorized under 33 CFR 117.35.

    Dated: May 7, 2010.
Gary Kassof,
Bridge Program Manager, First Coast Guard District.
[FR Doc. 2010-12342 Filed 5-21-10; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)]
[Notices]
[Pages 34516-34517]
[FR Doc No: 2017-15546]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP17-472-000]

National Fuel Gas Supply Corporation; Notice of Request Under
Blanket Authorization

    Take notice that on July 10, 2017, National Fuel Gas Supply
Corporation (National Fuel) 6363 Main Street, Williamsville, New York
14221, filed a prior notice application pursuant to sections 157.205,
and 157.216 of the Federal Energy Regulatory Commission's (Commission)
regulations under the Natural Gas Act (NGA), and National Fuel's
blanket certificate issued in Docket No. CP83-4-000. National Fuel
requests authorization to abandon one injection/withdrawal storage well
and associated well line in its Colden Storage Field located in the
Town of Aurora, Erie County, New York. Specifically, National Fuel
proposes to plug and abandon one injection/withdrawal storage well,
Well 0925-I, and abandon in place the associated Well Line CW-925, all
as more fully set forth in the application, which is open to the public
for inspection. There will be no abandonment or decrease in service to
customers as a result of the proposed abandonment. The filing may also
be viewed on the web at http://

www.ferc.gov using the ``eLibrary'' link. Enter the docket number
excluding the last three digits in the docket number field to access
the document. For assistance, contact FERC at
<EMAIL_ADDRESS>or call toll-free,<PHONE_NUMBER> or TTY,
(202) 502-8659.
    Any questions regarding this application should be directed to
Alice A. Curtiss, Deputy General Counsel for National Fuel, 6363 Main
Street, Williamsville, New York 14221, or phone<PHONE_NUMBER>, or by
email<EMAIL_ADDRESS>    Any person or the Commission's staff may, within 60 days after
issuance of the instant notice by the Commission, file pursuant to Rule
214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to
intervene or notice of intervention and pursuant to Section 157.205 of
the regulations under the NGA (18 CFR 157.205), a protest to the
request. If no protest is filed within the time allowed therefore, the
proposed activity shall be deemed to be authorized effective the day
after the time allowed for filing a protest. If a protest is filed and
not withdrawn within 30 days after the allowed time for filing a
protest, the instant request shall be treated as an application for
authorization pursuant to section 7 of the NGA.
    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9,
within 90 days of this Notice the Commission staff will either:
Complete its environmental assessment (EA) and place it into the
Commission's public record (eLibrary) for this proceeding, or issue a
Notice of Schedule for Environmental Review. If a Notice of Schedule
for Environmental Review is issued, it will indicate, among other
milestones, the anticipated date for the Commission staff's issuance of
the final environmental impact statement (FEIS) or EA for this
proposal. The filing of the EA in the Commission's public record for
this proceeding or the issuance of a Notice of Schedule for
Environmental Review will serve to notify federal and state agencies of
the timing for the completion of all necessary reviews, and the
subsequent need to complete all federal authorizations within 90 days
of the date of issuance of the Commission staff's FEIS or EA.
    Persons who wish to comment only on the environmental review of
this project should submit an original and two copies of their comments
to the Secretary of the Commission. Environmental commenters will be
placed on the Commission's environmental mailing list, will receive
copies of the environmental documents, and will be notified of meetings
associated with the Commission's environmental review process.
Environmental commenters will not be required to serve copies of filed
documents on all other parties. However, the non-party commenter will
not receive copies of all documents filed by other parties or issued by
the Commission (except for the mailing of environmental documents
issued by the Commission) and will not have the right to seek court
review of the Commission's final order.
    The Commission strongly encourages electronic filings of comments,
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 5 copies of the protest or intervention to the
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426.

    Dated: July 19, 2017.
Kimberly D. Bose,
Secretary.
[FR Doc. 2017-15546 Filed 7-24-17; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register: September 9, 2008 (Volume 73, Number 175)]
[Notices]
[Page 52406]
[DOCID:fr09se08-121]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[FEMA-1783-DR]

New Mexico; Amendment No. 2 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the State of New Mexico (FEMA-1783-DR), dated August 14, 2008, and
related determinations.

DATES: Effective Date: August 25, 2008.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration
for the State of New Mexico is hereby amended to include the following
areas among those areas determined to have been adversely affected by
the catastrophe declared a major disaster by the President in his
declaration of August 14, 2008.

    All counties in the State of New Mexico are eligible to apply
for assistance under the Hazard Mitigation Grant Program.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households in
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050, Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs; 97.036,
Disaster Grants--Public Assistance (Presidentially Declared
Disasters); 97.039, Hazard Mitigation Grant.)

R. David Paulison,
Administrator, Federal Emergency Management Agency.
[FR Doc. E8-20826 Filed 9-8-08; 8:45 am]

BILLING CODE 9110-10-P


[Federal Register Volume 83, Number 61 (Thursday, March 29, 2018)]
[Notices]
[Pages 13547-13552]
[FR Doc No: 2018-06298]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82940; File No. SR-NASDAQ-2018-019]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Amend the Exchange's Transaction Fees at Chapter XV, Section 2, Which
Governs the Pricing for Nasdaq Participants Using The Nasdaq Options
Market

March 23, 2018.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on March 13, 2018, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's transaction fees at
Chapter XV, Section 2, which governs the pricing for Nasdaq
Participants using The Nasdaq Options Market (``NOM''), Nasdaq's
facility for executing and routing standardized equity and index
options.
    The text of the proposed rule change is available on the Exchange's
website at http://nasdaq.cchwallstreet.com/, at the principal office of
the Exchange, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed

any comments it received on the proposed rule change. The text of these
statements may be examined at the places specified in Item IV below.
The Exchange has prepared summaries, set forth in sections A, B, and C
below, of the most significant aspects of such statements.

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

1. Purpose
    The purpose of the proposed rule change is to amend NOM pricing at
Chapter XV, Section 2 to modify the NOM Market Maker,\3\ Customer \4\
and Professional \5\ Rebates to Add Liquidity in Penny and Non-Penny
Pilot Options. The Exchange also proposes to increase the Customer and
Professional Fee for Removing Liquidity in SPY Options. Each change is
discussed below.
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    \3\ The term ``NOM Market Maker'' or (``M'') is a Participant
that has registered as a Market Maker on NOM pursuant to Chapter
VII, Section 2, and must also remain in good standing pursuant to
Chapter VII, Section 4. In order to receive NOM Market Maker pricing
in all securities, the Participant must be registered as a NOM
Market Maker in at least one security.
    \4\ The term ``Customer'' or (``C'') applies to any transaction
that is identified by a Participant for clearing in the Customer
range at The Options Clearing Corporation (``OCC'') which is not for
the account of broker or dealer or for the account of a
``Professional'' (as that term is defined in Chapter I, Section
1(a)(48)).
    \5\ The term ``Professional'' or (``P'') means any person or
entity that (i) is not a broker or dealer in securities, and (ii)
places more than 390 orders in listed options per day on average
during a calendar month for its own beneficial account(s) pursuant
to Chapter I, Section 1(a)(48). All Professional orders shall be
appropriately marked by Participants.
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NOM Market Maker Rebate to Add Liquidity in Penny Pilot Options
    The Exchange proposes to amend the Tier 6 NOM Market Maker Rebate
to Add Liquidity in Penny Pilot Options by modifying the criteria to
qualify for this tier and by increasing the rebate amount. Today, the
Exchange has a six tier rebate structure for paying the NOM Market
Maker Rebate to Add Liquidity in Penny Pilot Options as follows:

------------------------------------------------------------------------
                                                       Rebate to add
                 Monthly volume                          liquidity
------------------------------------------------------------------------
Tier 1: Participant adds NOM Market Maker         $0.20.
 liquidity in Penny Pilot Options and/or Non-
 Penny Pilot Options of up to 0.10% of total
 industry customer equity and ETF option average
 daily volume (``ADV'') contracts per day in a
 month.
Tier 2: Participant adds NOM Market Maker         $0.25.
 liquidity in Penny Pilot Options and/or Non-
 Penny Pilot Options above 0.10% to 0.25% of
 total industry customer equity and ETF option
 ADV contracts per day in a month.
Tier 3: Participant adds NOM Market Maker         $0.30 or $0.40 in the
 liquidity in Penny Pilot Options and/or Non-      following symbols
 Penny Pilot Options above 0.25% to 0.60% of       AAPL, QQQ, IWM, SPY
 total industry customer equity and ETF option     and VXX.
 ADV contracts per day in a month.
Tier 4: Participant adds NOM Market Maker         $0.32 or $0.40 in the
 liquidity in Penny Pilot Options and/or Non-      following symbols
 Penny Pilot Options of above 0.60% to 0.90% of    AAPL, QQQ, IWM, VXX
 total industry customer equity and ETF option     and SPY.
 ADV contracts per day in a month.
Tier 5: Participant adds NOM Market Maker         $0.40.
 liquidity in Penny Pilot Options and/or Non-
 Penny Pilot Options of above 0.30% of total
 industry customer equity and ETF option ADV
 contracts per day in a month and qualifies for
 the Tier 7 or Tier 8 Customer and/or
 Professional Rebate to Add Liquidity in Penny
 Pilot Options.
Tier 6: Participant adds NOM Market Maker         $0.42.
 liquidity in Penny Pilot Options and/or Non-
 Penny Pilot Options above 0.80% of total
 industry customer equity and ETF option ADV
 contracts per day in a month and qualifies for
 the Tier 7 or Tier 8 Customer and/or
 Professional Rebate to Add Liquidity in Penny
 Pilot Options or Participant adds NOM Market
 Maker liquidity in Penny Pilot Options and/or
 Non-Penny Pilot Options above 0.90% of total
 industry customer equity and ETF option ADV
 contracts per day in a month.
------------------------------------------------------------------------

    The Exchange proposes to amend the criteria to qualify for Tier 6,
which currently offers two alternative methods of qualifying for the
$0.42 per contract rebate in that tier. The first method is a two-
pronged requirement that the Participant (i) add NOM Market Maker
liquidity in Penny Pilot Options and/or Non-Penny Pilot Options above
0.80% of total industry customer equity and ETF option average daily
volume (``ADV'') contracts per day in a month and (ii) qualifies for
the Tier 7 or Tier 8 Customer and/or Professional Rebate to Add
Liquidity in Penny Pilot Options. The alternative is a requirement that
the Participant add NOM Market Maker liquidity in Penny Pilot Options
and/or Non-Penny Pilot Options above 0.90% of total industry customer
equity and ETF option ADV contracts per day in a month. The Exchange is
proposing to eliminate the first method, and to amend the alternative
by increasing the 0.90% total industry customer equity and ETF option
ADV threshold to 0.95% and adding two new requirements to qualify for
the Tier 6 rebate. As such, the proposed Tier 6 criteria will have
three prongs and require that the Participant (i) add NOM Market Maker
liquidity in Penny Pilot Options and/or Non-Penny Pilot Options above
0.95% of total industry customer equity and ETF option ADV contracts
per day in a month, (ii) execute Total Volume of 250,000 or more
contracts per day in a month, of which 30,000 or more contracts per day
in a month must be removing liquidity, and (iii) add Firm,\6\ Broker-
Dealer \7\ and Non-NOM Market Maker \8\ liquidity in Non-Penny Pilot
Options of 10,000 or more contracts per day in a month. ``Total
Volume'' will have the same meaning as the definition currently in note
b of Section 2(1), specifically as Customer, Professional, Firm,
Broker-Dealer, Non-NOM Market Maker and NOM Market Maker volume in
Penny Pilot Options and/or Non-Penny Pilot Options which either adds or
removes liquidity on NOM. Lastly, the Exchange proposes to increase the

current Tier 6 rebate amount from $0.42 to $0.48 per contract.
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    \6\ The term ``Firm'' or (``F'') applies to any transaction that
is identified by a Participant for clearing in the Firm range at
OCC.
    \7\ The term ``Broker-Dealer'' or (``B'') applies to any
transaction which is not subject to any of the other transaction
fees applicable within a particular category.
    \8\ The term ``Non-NOM Market Maker'' or (``O'') is a registered
market maker on another options exchange that is not a NOM Market
Maker. A Non-NOM Market Maker must append the proper Non-NOM Market
Maker designation to orders routed to NOM.
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NOM Market Maker Rebate To Add Liquidity in Non-Penny Pilot Options
    The Exchange proposes to create an alternative method for
Participants to earn a rebate for adding NOM Market Maker liquidity in
Non-Penny Pilot Options. Today, the Exchange charges Participants a
$0.35 per contract NOM Market Maker Fee for Adding Liquidity in Non-
Penny Pilot Options. To encourage Participants to add NOM Market Maker
liquidity in Non-Penny Pilot Options, the Exchange currently offers
incentives to reduce this fee or earn a rebate, provided the
Participants meet the volume-based requirements in note ``5,'' Section
2(1). Specifically, Participants who add NOM Market Maker liquidity in
Non-Penny Pilot Options of 7,500 to 9,999 ADV contracts per day in a
month would be assessed a $0.00 per contract Non- Penny Options Fee for
Adding Liquidity in that month. In addition, Participants that add NOM
Market Maker liquidity in Non-Penny Pilot Options of 10,000 or more ADV
contracts per day in a month would receive a $0.30 per contract Non-
Penny Rebate to Add Liquidity for that month instead of paying the Non-
Penny Fee for Adding Liquidity.
    The Exchange now proposes an additional rebate in new note ``6''
for NOM Market Makers that add liquidity in Non-Penny Pilot Options.
Specifically, Participants that qualify for the proposed Tier 6 NOM
Market Maker Rebate to Add Liquidity in Penny Pilot Options, as
discussed above, will receive a $0.86 per contract NOM Market Maker
Rebate to Add Liquidity in Non-Penny Pilot Options. Participants that
qualify for a note ``5'' incentive will receive the greater of the note
``5'' or note ``6'' incentive.
Customer and Professional Rebate To Add Liquidity in Penny Pilot
Options
    The Exchange proposes a number of changes to the Rebates to Add
Customer and Professional Liquidity in Penny Pilot Options set forth in
Section 2(1). First, the Exchange is proposing to modify the eight tier
rebate structure to a six tier rebate structure. The Exchange currently
pays a volume-based tiered Customer and Professional Rebate to Add
Liquidity in Penny Pilot Options as follows:

------------------------------------------------------------------------
                                                           Rebate to add
                     Monthly volume                          liquidity
------------------------------------------------------------------------
Tier 1: Participant adds Customer, Professional, Firm,             $0.20
 Non-NOM Market Maker and/or Broker-Dealer liquidity in
 Penny Pilot Options and/or Non-Penny Pilot Options of
 up to 0.10% of total industry customer equity and ETF
 option average daily volume (``ADV'') contracts per day
 in a month.............................................
Tier 2: Participant adds Customer, Professional, Firm,              0.25
 Non-NOM Market Maker and/or Broker-Dealer liquidity in
 Penny Pilot Options and/or Non-Penny Pilot Options
 above 0.10% to 0.20% of total industry customer equity
 and ETF option ADV contracts per day in a month........
Tier 3: Participant adds Customer, Professional, Firm,              0.42
 Non-NOM Market Maker and/or Broker-Dealer liquidity in
 Penny Pilot Options and/or Non-Penny Pilot Options
 above 0.20% to 0.30% of total industry customer equity
 and ETF option ADV contracts per day in a month........
Tier 4: Participant adds Customer, Professional, Firm,              0.43
 Non-NOM Market Maker and/or Broker-Dealer liquidity in
 Penny Pilot Options and/or Non-Penny Pilot Options
 above 0.30% to 0.40% of total industry customer equity
 and ETF option ADV contracts per day in a month........
Tier 5: Participant adds Customer, Professional, Firm,              0.45
 Non-NOM Market Maker and/or Broker-Dealer liquidity in
 Penny Pilot Options and/or Non-Penny Pilot Options
 above 0.40% to 0.75% of total industry customer equity
 and ETF option ADV contracts per day in a month........
Tier 6: Participant has Total Volume of 100,000 or more             0.45
 contracts per day in a month, of which 25,000 or more
 contracts per day in a month must be Customer and/or
 Professional liquidity in Penny Pilot Options..........
Tier 7: Participant has Total Volume of 150,000 or more             0.47
 contracts per day in a month, of which 50,000 or more
 contracts per day in a month must be Customer and/or
 Professional liquidity in Penny Pilot Options..........
Tier 8: Participant adds Customer, Professional, Firm,              0.48
 Non-NOM Market Maker and/or Broker-Dealer liquidity in
 Penny Pilot Options and/or Non-Penny Pilot Options
 above 0.75% or more of total industry customer equity
 and ETF option ADV contracts per day in a month, or
 Participant adds: (1) Customer and/or Professional
 liquidity in Penny Pilot Options and/or Non-Penny Pilot
 Options of 0.20% or more of total industry customer
 equity and ETF option ADV contracts per day in a month,
 and (2) has added liquidity in all securities through
 one or more of its Nasdaq Market Center MPIDs that
 represent 1.00% or more of Consolidated Volume in a
 month or qualifies for MARS (defined below)............
------------------------------------------------------------------------

    For purposes of Tiers 6 and 7, ``Total Volume'' is defined as
Customer, Professional, Firm, Broker-Dealer, Non-NOM Market Maker and
NOM Market Maker volume in Penny Pilot Options and/or Non-Penny Pilot
Options which either adds or removes liquidity on NOM. The Exchange now
proposes to eliminate Tiers 6 and 7, and renumber current Tier 8 as
Tier 6. The Exchange will also make a number of related clean-up
changes to remove all references in Chapter XV to current Tier 6 or
Tier 7, and renumber all references to Tier 8 to Tier 6. In particular,
the proposed clean-ups are in notes ``1,'' ``d,'' ``e'' and ``f'' in
Section 2(1), in the Tier 5 NOM Market Maker Rebate to Add Liquidity in
Penny Pilot Options in Section 2(1), and in the qualifier for the
additional $0.09 per contract rebate applicable to the Market Access
and Routing Subsidy Payment tiers in Section 2(6). Further, the
Exchange would delete the portion of note ``b'' that states ``For
purposes of Tiers 6 and 7'' and relocate the remaining rule text that
contains the definition of ``Total Volume'' to a new corresponding note
to the proposed Tier 6 NOM Market Maker Rebate to Add Liquidity in
Penny Pilot Options. As discussed above, the second prong of the
proposed Tier 6 rebate will contain a Total Volume qualifier.
    Further, the Exchange proposes to decrease the Customer and
Professional Rebate to Add Liquidity in Penny Pilot Options set forth
in note ``e'' of Section 2(1). Today, a Participant may receive a $0.53
per contract Rebate to Add Liquidity in Penny Pilot Options as Customer
or Professional if that Participant transacts in all securities through
one or more of its Nasdaq Market Center MPIDs that represent 3.00% or
more of Consolidated Volume \9\ in the same month on The Nasdaq Stock
Market. Participants that qualify for this rebate would not be eligible
for any other Customer and Professional rebates in Tiers 1 through 8,
or other rebate incentives for Customer and Professional order flow in
Chapter XV, Section 2(1) of NOM

Rules.\10\ The Exchange now proposes to decrease this note ``e''
incentive from $0.53 to $0.52 per contract for Customers and
Professionals transacting in Penny Pilot Options.
---------------------------------------------------------------------------

    \9\ Consolidated Volume would be determined as set forth in
Nasdaq Rule 7018(a).
    \10\ In calculating total volume, the Exchange will add the NOM
Participant's total volume transacted on the NASDAQ Stock Market in
a given month across its Nasdaq Market Center MPIDs, and will divide
this number by the total industry Consolidated Volume.
---------------------------------------------------------------------------

Customer and Professional Fee for Removing Liquidity in SPY Options
    The Exchange currently charges NOM Participants a Penny Pilot
Options Fee for Removing Customer or Professional Liquidity that is
$0.50 per contract, excluding SPY. For NOM Participants that remove
Customer or Professional liquidity in SPY, this fee is reduced to $0.48
per contract.\11\ The Exchange now proposes to amend this fee so that
the Penny Pilot Options Fee for Removing Customer or Professional
Liquidity in SPY will be increased from $0.48 to $0.49 per contract.
---------------------------------------------------------------------------

    \11\ See Chapter XV, Section 2(1), note 3. Firms, Non-NOM Market
Makers, NOM Market Makers and Broker-Dealers are assessed a $0.50
per contract Penny Pilot Options Fee for Removing Liquidity in SPY,
similar to other Penny Pilot Options.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\12\ in general, and furthers the objectives of
Sections 6(b)(4) and 6(b)(5) of the Act,\13\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

NOM Market Maker Rebate To Add Liquidity in Penny Pilot Options
    The Exchange believes that the proposed changes to the criteria to
qualify for the Tier 6 NOM Market Maker Rebate to Add Liquidity in
Penny Pilot Options and the proposed increase in the rebate amount from
$0.42 to $0.48 per contract are reasonable, equitable and not unfairly
discriminatory.
    As discussed above, the Exchange is proposing to eliminate the
first method to qualify for Tier 6, and amend the alternative method by
increasing the total industry customer equity and ETF option ADV
threshold from 0.90% to 0.95% and adding two new volume-based
requirements to qualify for Tier 6. Accordingly, the proposed three-
pronged criteria to qualify for Tier 6 will require that Participants
(1) add NOM Market Maker liquidity in Penny Pilot Options and/or Non-
Penny Pilot Options above 0.95% of total industry customer equity and
ETF option ADV contracts per day in a month, (2) execute Total Volume
of 250,000 or more contracts per day in a month, of which 30,000 or
more contracts per day in a month must be removing liquidity, and (3)
add Firm, Broker-Dealer and Non-NOM Market Maker liquidity in Non-Penny
Pilot Options of 10,000 or more contracts per day in a month. The
Exchange notes that the proposed $0.48 per contract Tier 6 rebate will
be the highest available NOM Market Maker Rebate to Add Liquidity in
Penny Pilot Options. The Exchange believes that the proposed $0.48 per
contract Tier 6 rebate is reasonable because it will require three
components to be met by Participants in order to qualify for that
rebate. These requirements require more volume to be submitted on NOM
than the current highest rebate (i.e., the current Tier 6 NOM Market
Maker Rebate to Add Liquidity in Penny Pilot Options) requires today.
    The Exchange believes that the first prong (add NOM Market Maker
liquidity in Penny Pilot Options and/or Non-Penny Pilot Options above
0.95% of total industry customer equity and ETF option ADV contracts
per day in a month) is reasonable because the Exchange already allows
Participants to earn rebates today based on percentages of total
industry customer equity and ETF option ADV. While the percentage
threshold has increased from 0.90% to 0.95%, the Exchange is offering
to pay a rebate of $0.48 per contract, the highest rebate, for
Participants that meet this higher threshold. The second prong (execute
Total Volume of 250,000 or more contracts per day in a month, of which
30,000 or more contracts per day in a month must be removing liquidity)
is reasonable because the Exchange already allows Participants to
obtain rebates today based on Total Volume, and requiring a certain
amount of the Total Volume to consist of volume that removes liquidity
will attract both liquidity providers and removers to NOM. The third
prong (add Firm, Broker-Dealer and Non-NOM Market Maker liquidity in
Non-Penny Pilot Options of 10,000 or more contracts per day in a month)
is reasonable because the Exchange is incentivizing Participants to
send Non-Penny Pilot Firm, Broker-Dealer and Non-NOM Market Maker order
flow to NOM. Overall, the Exchange believes that the proposed Tier 6
rebate will continue to encourage Participants to send additional order
flow to NOM in either Penny or Non-Penny Pilot Options to qualify for
the higher Tier 6 rebate. All market participants benefit from the
increased order interaction when more order flow is available on NOM.
    The Exchange believes that the proposed Tier 6 NOM Market Maker
Rebate to Add Liquidity in Penny Pilot Options is equitable and not
unfairly discriminatory because all similarly-situated Participants are
equally capable of qualifying for the proposed rebate, and the rebate
will be uniformly paid to all qualifying Participants. Further, the
Exchange believes that it is equitable and not unfairly discriminatory
to only offer this rebate to Participants that transact as NOM Marker
Makers because NOM Market Makers, unlike other market participants, add
value through continuous quoting \14\ and the commitment of capital. In
addition, encouraging NOM Market Makers to add greater liquidity
benefits all Participants in the quality of order interaction. The
Exchange believes it is equitable and not unfairly discriminatory to
offer only NOM Market Makers the opportunity to earn the Tier 6 rebate
described above because of the obligations borne by these market
participants, as noted herein.
---------------------------------------------------------------------------

    \14\ Pursuant to Chapter VII (Market Participants), Section 5
(Obligations of Market Makers), in registering as a market maker, an
Options Participant commits himself to various obligations.
Transactions of a Market Maker in its market making capacity must
constitute a course of dealings reasonably calculated to contribute
to the maintenance of a fair and orderly market, and Market Makers
should not make bids or offers or enter into transactions that are
inconsistent with such course of dealings. Further, all Market
Makers are designated as specialists on NOM for all purposes under
the Act or rules thereunder. See Chapter VII, Section 5.
---------------------------------------------------------------------------

NOM Market Maker Rebate To Add Liquidity in Non-Penny Pilot Options
    The Exchange believes that the proposed $0.86 per contract NOM
Market Maker Rebate to Add Liquidity in Non-Penny Pilot Options offered
to Participants if they qualify for the Tier 6 NOM Market Maker Rebate
to Add Liquidity in Penny Pilot Options is reasonable, equitable and
not unfairly discriminatory. The Exchange notes that the proposed $0.86
per contract rebate set forth in new note ``6'' will be the highest
available incentive provided to Participants that add NOM Market Maker
liquidity in Non-Penny Pilot Options.\15\ The Exchange believes that

the proposed incentive of $0.86 per contract is reasonable because it
will require Participants to meet the stringent volume requirements set
forth in the Tier 6 Penny Pilot Options Rebate to Add NOM Market Maker
Liquidity, as described above. The incentives currently offered to
Participants that add NOM Market Maker liquidity in Non-Penny Pilot
Options as set forth in note ``5'' have significantly lower volume-
based qualification requirements than the requirements for the Tier 6
Penny Pilot Options Rebate.\16\
---------------------------------------------------------------------------

    \15\ Today, the Exchange offers Participants a reduced fee of
$0.00 or a rebate of $0.30, provided the Participant meets the
volume qualifications in note 5 of Section 2(1). Specifically,
Participants that add NOM Market Maker liquidity in Non-Penny Pilot
Options of 7,500 to 9,999 ADV contracts per day in a month would be
assessed a $0.00 per contract Non-Penny Options Fee for Adding
Liquidity in that month. In addition, Participants that add NOM
Market Maker liquidity in Non-Penny Pilot Options of 10,000 or more
ADV contracts per day in a month would receive a $0.30 per contract
Non-Penny Rebate to Add Liquidity for that month instead of paying
the Non-Penny Fee for Adding Liquidity.
    \16\ See note 15 above.
---------------------------------------------------------------------------

    Further, the new note ``6'' incentive is intended to encourage
Participants who transact as NOM Market Makers to continue to send more
order flow to the Exchange in either Penny or Non-Penny Pilot Options
in order to qualify for the proposed Tier 6 Penny Pilot Rebate to Add
NOM Market Maker Liquidity to earn the additional $0.86 Non-Penny
Rebate to Add NOM Market Maker Liquidity. All market participants
benefit from the increased order interaction when more order flow is
available on NOM. The Exchange also believes that it is reasonable to
offer Participants that qualify for a note ``5'' incentive the greater
of the current note ``5'' or new note ``6'' incentive because the
Participant will be able to receive the greater of the two rebates with
this proposal.
    The Exchange believes that the proposed NOM Market Maker Rebate to
Add Liquidity in Non-Penny Pilot Options is equitable and not unfairly
discriminatory because all similarly-situated Participants are equally
capable of qualifying for the proposed rebates, and the rebate will be
uniformly paid to all qualifying Participants. Further, the Exchange
believes that offering only Participants that transact as NOM Market
Makers the opportunity to qualify for the proposed $0.86 per contract
Rebate to Add Liquidity in Non-Penny Pilot Options is equitable and not
unfairly discriminatory for the same reasons discussed above for the
proposed Tier 6 Penny Pilot Options Rebate to Add NOM Market Maker
Liquidity. It should also be noted that while the proposed $0.86 per
contract rebate will be the highest available incentive provided to
Participants that add NOM Market Maker liquidity in Non-Penny Pilot
Options, the Exchange currently offers eligible Participants that
transact as Customers and/or Professionals rebates up to $1.05 per
contract for adding liquidity in Non-Penny Pilot Options.\17\
Accordingly, the Exchange believes the $0.86 per contract rebate
proposed to be offered to Participants that transact as NOM Market
Makers is equitable and not unfairly discriminatory because the
proposed incentive is within the range of rebates currently offered to
all Participants that transact on NOM and add liquidity in Non-Penny
Pilot Options.
---------------------------------------------------------------------------

    \17\ Participants must meet the requirements in note ``f'' of
Section 2(1) in order to qualify for this $1.05 per contract
incentive.
---------------------------------------------------------------------------

Customer and Professional Rebate To Add Liquidity in Penny Pilot
Options
    The Exchange believes that its proposal to modify the eight tier
rebate structure to a six tier rebate structure by deleting the current
Tier 6 and Tier 7 Customer and Professional Rebates to Add Liquidity,
which currently contain Total Volume qualification requirements, is
reasonable, equitable and not unfairly discriminatory. Participants
will still have the opportunity to qualify for the other tiered
Customer and Professional Rebates to Add Liquidity in Penny Pilot
Options, which will remain unchanged, as well as the other incentives
currently provided to Participants that add Customer and Professional
liquidity in Penny Pilot Options.\18\
---------------------------------------------------------------------------

    \18\ In addition to the tiered rebates, the Exchange currently
offers eligible Participants that add Customer and Professional
liquidity in Penny Pilot Options rebate incentives that go up to
$0.55 per contract if the Participant meets the relevant
requirements. See Chapter XV, Section 2(1), notes ``c''--``f.''
---------------------------------------------------------------------------

    Further, the Exchange believes it is reasonable, equitable and not
unfairly discriminatory to make the related clean-up changes to remove
all references in Chapter XV to current Tier 6 or Tier 7, renumber all
references to Tier 8 to Tier 6, and relocate the definition of ``Total
Volume'' in note ``b'' to a new corresponding note to the proposed Tier
6 NOM Market Maker Rebate to Add Liquidity in Penny Pilot Options. The
proposed changes will make NOM's pricing schedule easier to read and
eliminate any potential confusion to the benefit of members and
investors.
    In addition, the proposed change to note ``e'' in Section 2(1) to
decrease the Customer and Professional Rebate to Add Liquidity in Penny
Pilot Options provided to eligible Participants that transact 3.00% or
more in Consolidated Volume on The Nasdaq Stock Market from $0.53 to
$0.52 per contract is reasonable because the proposed change is a
modest reduction, and the Exchange believes that its rebate program
will continue to incentivize Participants to transact greater volume on
The Nasdaq Stock Market in order to qualify for a higher rebate on NOM.
    The Exchange also believes that the proposed reduction in the note
``e'' incentive as discussed above is equitable and not unfairly
discriminatory because any Participant that qualifies for this rebate
will be uniformly paid the $0.52 per contract incentive for Penny Pilot
Options. The requirements for earning this rebate will be applied
uniformly to all market participants. Furthermore, the Exchange
believes that it is equitable and not unfairly discriminatory to only
offer the proposed $0.52 per contract incentive in note ``e'' to
eligible Participants that add Customer and Professional liquidity in
Penny Pilot Options. Customer liquidity benefits all market
participants by providing more trading opportunities, which attracts
market makers. An increase in the activity of these market participants
in turn facilitates tighter spreads, which may cause an additional
corresponding increase in order flow from other market participants.
The Exchange believes that offering a lower fee to Professionals is
similarly beneficial, as the lower fees may cause market participants
to select NOM as a venue to send Professional order flow, increasing
competition among the exchanges. As with Customer liquidity, the
Exchange believes that increased Professional order flow should benefit
other market participants.
Customer and Professional Fee for Removing Liquidity in SPY Options
    The proposal to amend note 3 of Chapter XV, Section 2(1) to
increase the Penny Pilot Options Fee for Removing Customer or
Professional Liquidity in SPY from $0.48 to $0.49 per contract is
reasonable and equitable because the proposed fee remains lower for SPY
as compared to other Penny Pilot Options. The Exchange believes that
the lower fee of $0.49 per contract in SPY, as compared to $0.50 per
contract in other Penny Pilot Options, will continue to incentivize
Participants to send Customer and Professional order flow in SPY.\19\
The Exchange notes that the proposed pricing for the reduced SPY fee in
note 3 remains competitive with another options exchange.\20\
---------------------------------------------------------------------------

    \19\ SPY options are the largest volume Penny Pilot Options
traded on the Exchange.
    \20\ CBOE C2 Exchange (``C2'') charges public customers a $0.49
per contract taker fee and professional customers a $0.50 per
contract taker fee, both in all penny classes except RUT. See C2
Fees Schedule, Section 1.

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

    The Exchange does not believe that only offering this lower fee to
Participants that remove Customer and Professional liquidity in SPY is
inequitable and unfairly discriminatory. Customer liquidity benefits
all market participants by providing more trading opportunities, which
attracts market makers. An increase in the activity of these market
participants in turn facilitates tighter spreads, which may cause an
additional corresponding increase in order flow from other market
participants. The Exchange believes that offering a lower fee to
Professionals is similarly beneficial, as the lower fees may cause
market participants to select NOM as a venue to send Professional order
flow, increasing competition among the exchanges. As with Customer
liquidity, the Exchange believes that increased Professional order flow
should benefit other market participants.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. All of the proposed changes to
the NOM Market Maker, Customer and Professional Rebates to Add
Liquidity in Penny and Non-Penny Pilot Options, as well as the Customer
and Professional Fee for Removing Liquidity in SPY Options, are
designed to attract additional order flow to NOM, and the Exchange
believes that its pricing remains attractive to market participants.
The Exchange operates in a highly competitive market in which market
participants can readily favor competing venues if they deem fee levels
at a particular venue to be excessive, or rebate opportunities
available at other venues to be more favorable. In such an environment,
the Exchange must continually adjust its fees to remain competitive.
Because competitors are free to modify their own fees in response, and
because market participants may readily adjust their order routing
practices, the Exchange believes that the degree to which fee changes
in this market may impose any burden on competition is extremely
limited.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\21\
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NASDAQ-2018-019 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2018-019. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NASDAQ-2018-019, and should be submitted
on or before April 19, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Brent J. Fields,
Secretary.
[FR Doc. 2018-06298 Filed 3-28-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: October 7, 2008 (Volume 73, Number 195)]
[Rules and Regulations]
[Page 58475-58481]
[DOCID:fr07oc08-12]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2007-0525; FRL-8726-2]

Approval and Promulgation of Air Quality Implementation Plans;
Texas; Reasonable Further Progress Plan, Motor Vehicle Emissions
Budgets, and Revised 2002 Base Year Emissions Inventory; Dallas/Fort
Worth 1997 8-Hour Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is approving a
revision to the Texas State Implementation Plan (SIP) to meet the
Reasonable Further Progress (RFP) requirements of the Clean Air Act
(CAA) for the Dallas/Fort Worth (DFW) moderate 1997 8-hour ozone
nonattainment area. EPA is also approving the RFP motor vehicle
emissions budgets (MVEBs) and a revised 2002 Base Year Emissions
Inventory associated with the revision. EPA is approving the SIP
revision because it satisfies the RFP, RFP transportation conformity
and Emissions Inventory requirements for 1997 8-hour ozone
nonattainment areas classified as moderate and demonstrates further
progress in reducing ozone precursors. EPA is approving the revision
pursuant to section 110 and part D of the CAA and EPA's regulations.

DATES: This direct final rule will be effective December 8, 2008
without further notice unless EPA receives relevant adverse comments by
November 6, 2008. If adverse comments are received, EPA will publish a
timely withdrawal of the direct final rule in the Federal Register
informing the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2007-0525, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov.
     Follow the online instructions for submitting comments.
     EPA Region 6 ``Contact Us'' Web site: http://epa.gov/
region6/r6coment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
     E-mail: Mr. Guy Donaldson at<EMAIL_ADDRESS>Please
also send a copy by e-mail to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number<PHONE_NUMBER>.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket No. EPA-R06-OAR-2007-
0525. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov
or e-mail. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through http://
www.regulations.gov your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.

Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at<PHONE_NUMBER> to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a 15 cent per page
fee for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during
official business hours, by appointment, at the Texas Commission on
Environmental Quality, Office of Air Quality, 12124 Park 35 Circle,
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Emad Shahin, Air Planning Section
(6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>; fax number
214-665-7263; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'',
``us'', or ``our'' is used, we mean the EPA.

Outline

I. What Action Is EPA Taking?
II. What Is a SIP?
III. What Is the Background for This Action?
IV. What Is EPA's Evaluation of the Revision?
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    We are approving a revision to the Texas SIP, submitted to meet the
Emissions Inventory and RFP requirements of the CAA for the DFW
moderate 1997 8-hour ozone nonattainment area. The revision was adopted
by the State of Texas on May 23, 2007 and submitted to EPA on May 30,
2007. We are approving the revised 2002 Base Year Emissions Inventory,
the 15% RFP plan, and the RFP 2008 MVEBs. The RFP plan demonstrates
that emissions will be reduced 15 percent for the period of 2002
through 2008. The Volatile Organic Compounds (VOC) MVEB is 119.81 tpd,
and the Oxides of Nitrogen (NOX) emissions budget is 249.33
tpd. We are approving the SIP revision because it satisfies the
Emissions Inventory, RFP, and RFP transportation conformity
requirements for 1997 8-hour ozone nonattainment areas classified as
moderate, and demonstrates further progress in reducing ozone
precursors. We are approving the revision pursuant to section 110 and
part D of the CAA and EPA's regulations.
    EPA is publishing this rule without prior proposal because we view
this as a noncontroversial amendment and anticipate no relevant adverse
comments. However, in the proposed rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the SIP revision if relevant adverse
comments are received. This rule will be effective on December 8, 2008
without further notice unless we receive relevant adverse comment by
November 6, 2008. If we receive relevant adverse comments, we will
publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect. We will address all public
comments in a subsequent final rule based on the proposed rule. We will
not institute a second comment period on this action. Any parties
interested in commenting must do so now. Please note that if we receive
adverse comment on an amendment, paragraph, or section of this rule and
if that provision may be severed from the remainder of the rule, we may
adopt as final those provisions of the rule that are not the subject of
an adverse comment.

II. What Is a SIP?

    Section 110 of the CAA requires states to develop air pollution
regulations and control strategies to ensure that air quality meets the
national ambient air quality standards (NAAQS) established by EPA.
NAAQS are established under section 109 of the CAA and currently
address six criteria pollutants: carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide.
    A SIP is a set of air pollution regulations, control strategies,
other means or techniques, and technical analyses developed by the
state, to ensure that the state meets the NAAQS. It is required by
section 110 and other provisions of the CAA. A SIP protects air quality
primarily by addressing air pollution at its point of origin. A SIP can
be extensive, containing state regulations or other enforceable
documents, and supporting information such as emissions inventories,
monitoring networks, and modeling demonstrations. Each state must
submit regulations and control strategies to EPA for approval and
incorporation into the federally-enforceable SIP.

III. What Is the Background for This Action?

    Inhaling even low levels of ozone, a key component of urban smog,
can trigger a variety of health problems including chest pains,
coughing, nausea, throat irritation, and congestion. It can also worsen
bronchitis and asthma, and reduce lung capacity. Volatile organic
compounds (VOC) and oxides of nitrogen (NOX) are known as
``ozone precursors'', as VOCs react with NOX, oxygen, and
sunlight to form ozone. The CAA requires that areas not meeting the
NAAQs for ozone demonstrate RFP in reducing emissions of ozone
precursors.
    EPA promulgated, on July 18, 1997, a revised 8-hour ozone standard
of 0.08 parts per million (ppm), which is more protective than the
previous 1-hour ozone standard (62 FR (38855).\1\ On April 30, 2004,
EPA published designations and classifications for the revised 1997 8-
hour ozone standard (69 FR 23858); Ellis, Johnson, Kaufman, Parker, and
Rockwall Counties (the five new counties) were added to the DFW ozone
nonattainment area; and the area was classified as a moderate
nonattainment area. The DFW 1997 8-hour ozone nonattainment area
therefore consists of nine counties. Collin, Dallas, Denton, and
Tarrant counties (the four core counties) were initially classified as
a moderate nonattainment area under the 1-hour ozone standard with an
attainment date no later than November 15, 1996 (November 6, 1991, 56
FR 56694). The area did not attain the 1-hour standard by that outside
1996 deadline, and was reclassified as a serious 1-hour ozone
nonattainment area with an attainment date no later than November 15,
1999 (February 18, 1998, 63 FR 8128).
---------------------------------------------------------------------------

    \1\ EPA issued a revised 8-hour ozone standard on March 27, 2008
(73 FR 16436). The designation and implementation process for that
standard is just starting and does not affect EPA's action here.
---------------------------------------------------------------------------

    On November 29, 2005 (70 FR 71612), as revised on June 8, 2007 (72
FR

31727), EPA published the Phase 2 final rule for implementation of the
8-hour standard that addressed, among other things, the RFP control and
planning obligations as they apply to areas designated nonattainment
for the 1997 8-hour ozone NAAQS. In the Phase 1 Rule, RFP was defined
in section 51.900(p) as meaning for the purposes of the 1997 8-hour
NAAQS, the progress reductions required under section 172(c)(2) and
section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA. In section
51.900(q), rate of progress (ROP) was defined as meaning for purposes
of the 1-hour NAAQS, the progress reductions required under section
172(c)(2) and section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA
(see 69 FR 23997).
    On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Rule in South Coast Air Quality
Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). On June 8,
2007, in response to several petitions for rehearing, the court
modified the scope of vacatur of the Phase 1 Rule. See 489 F.3d 1245
(D.C. Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The court
vacated those portions of the Phase 1 Rule that provide for regulation
of the 1997 8-hour ozone NAAQS in some nonattainment areas under
Subpart 1 in lieu of Subpart 2 and that allowed areas to revise their
SIPs to no longer require certain programs as they applied for purposes
of the 1-hour NAAQS; new source review, section 185 penalties, and
contingency plans for failure to meet RFP and attainment milestones.
The decision does not affect the requirements for areas classified
under subpart 2, such as the DFW area, to submit a reasonable further
progress plan for the 1997 8-hour ozone NAAQS. Litigation on the Phase
2 Rule is pending before the D.C. Circuit Court of Appeals.
    Section 182 of the CAA and EPA's 1997 8-hour ozone regulations \2\
require a state, for each 1997 8-hour ozone nonattainment area that is
classified as moderate, to submit an emissions inventory and a RFP plan
to show how the state will reduce emissions of VOCs and NOX.
The DFW moderate 1997 8-hour ozone nonattainment area has a maximum
attainment date of June 15, 2010, that is beyond five years after
designation. In addition, the four core counties in the DFW moderate
area have an approved 15% VOC Rate of Progress plan under the 1-hour
ozone standard (May 22, 1997, 62 FR 27964).
---------------------------------------------------------------------------

    \2\ Reasonable further progress regulations are at 40 CFR
51.910, and emissions inventory regulations are at 40 CFR 51.915.
---------------------------------------------------------------------------

    For a moderate area with an attainment date of more than five years
after designation, the RFP plan must obtain a 15% reduction in ozone
precursor emissions for the first six years after the baseline year
(2002 through 2008). If such a moderate area also contains a portion of
the area with an approved 15% VOC Rate of Progress plan under the 1-
hour ozone standard, states are allowed to treat the area as two parts,
each with a separate RFP target. (Rate of Progress refers to reasonable
further progress for the 1-hour ozone standard.) For the part with an
approved 15% VOC Rate of Progress plan under the 1-hour ozone standard,
states can use reductions from VOC, NOX, or a combination of
the two and the RFP plan must demonstrate RFP for a total of 15%
emission reductions for the first six years due to the moderate
classification. See 40 CFR 51.910(a)(1)(ii)((A), which refers to
section 51.910(b)(2). For the part without an approved 1-hour ozone 15%
VOC Rate of Progress plan, states must obtain VOC reductions totaling
15% for the first six years. These VOC reductions can be obtained from
the part of the area with an approved 1-hour VOC Rate of Progress plan.
However, VOC reductions from the four core counties relied upon in the
five new counties' RFP plan (1) must be after the baseline year and
meet the other criteria for credibility under section 182(b)(1) of the
Act, (2) not have been relied upon in the four core counties' RFP plan,
and (3) cover the six-year period. For more information please see our
Technical Support Document (TSD).
    Pursuant to CAA section 172(c)(9), RFP plans must include
contingency measures that will take effect without further action by
the State or EPA, which includes additional controls that would be
implemented if the area fails to reach the reasonable further progress
milestones. While the Act does not specify the type of measures or
quantity of emissions reductions required, EPA provided guidance
interpreting the Act that implementation of these contingency measures
would provide additional emissions reductions of up to 3% of the
adjusted base year inventory (or a lesser percentage that will make up
the identified shortfall) in the year following the RFP milestone year.
For more information on contingency measures please see the April 16,
1992 General Preamble (57 FR 13498, 13510) and the November 29, 2005
Phase 2 8-hour ozone standard implementation rule (70 FR 71612, 71650).
RFP plans must also include a MVEB, which is the allowable on-road
mobile emissions an area can produce and continue to demonstrate RFP.

IV. What Is EPA's Evaluation of the Revision?

    EPA has reviewed the revision for consistency with the requirements
of EPA regulations. A summary of EPA's analysis is provided below. For
a full discussion of our evaluation, please see our TSD.

A. Texas Has an Approvable Base Year Emissions Inventory

    CAA sections 172(c)(3) and 182(a)(1) require an inventory of actual
emissions from all sources of relevant pollutants in the nonattainment
area. EPA strongly recommended using 2002 as the base year emissions
inventory. Texas has developed a 2002 Base Year Inventory for the DFW
nonattainment area. The 2002 Base Year Inventory includes all point,
area, non-road mobile, and on-road mobile source emissions in all of
the nine counties. On May 13, 2005 Texas submitted the 2002 base year
inventory to EPA as part of a SIP revision for the DFW 8-hour ozone
non-attainment area. EPA reviewed the 2002 base year inventory and
determined that it was developed in accordance with EPA guidelines. A
Federal Register Notice approving the 2002 base year inventory was
published on August 15, 2008 (73 FR 47835).
    However, since that revision was submitted to EPA, more accurate
data became available and improved calculation methods have been
developed. Because of these changes, the RFP SIP revision updates
emissions data for the base year 2002. EPA has determined that the
inventory was developed in accordance with EPA guidance on emission
inventory preparation, and that the revised 2002 Base Year Emissions
Inventory is approvable. Table 1 lists the Emissions Inventory for the
DFW area. For more detail on how emissions inventories were estimated,
see the Technical Support Document.

                               Table 1--DFW 2002 RFP Base Year Emissions Inventory
----------------------------------------------------------------------------------------------------------------
                                                     VOC                                    NOX
                                   -----------------------------------------------------------------------------
            Source type                4 Core       5 New       9 County      4 Core       5 New       9 County
                                      counties     counties      total       counties     counties      total
----------------------------------------------------------------------------------------------------------------
                                    Base Year Emissions Inventory (Tons/Day)
----------------------------------------------------------------------------------------------------------------
Point.............................        18.73         7.69        26.42        34.55        44.70        79.25
Area..............................       205.07        32.34       237.41        34.96         2.08        37.04
On-road Mobile....................       143.28        18.32       161.60       296.01        60.22       356.23
Non-road Mobile...................       108.63        10.97       119.60       117.22        17.45       134.67
                                   -----------------------------------------------------------------------------
    Total.........................       475.71        69.32       545.03       482.74       124.45       607.19
----------------------------------------------------------------------------------------------------------------

B. Adjusted Base Year Inventory and 2008 RFP Target Levels

    The 2002 base year emissions inventory referenced above is also
known as the ``base year inventory,'' and is the starting point for
calculating RFP. Next, section 182(b)(2)(C) explains that the baseline
from which emission reductions are calculated should be determined as
outlined pursuant to CAA section 182(b)(1)(B). Section 182(b)(1)(B) and
40 CFR 51.910 require that the base year inventory must be adjusted to
exclude certain emissions specified in CAA section 182(b)(1)(D). This
requires that the baseline exclude emission reductions due to Federal
Motor Vehicle Control Programs (FMVCP) promulgated by the Administrator
by January 1, 1990, and emission reductions due to the regulation of
Reid Vapor Pressure promulgated by the Administrator prior to the
enactment of the Clean Air Act Amendments of 1990. These measures are
not creditable.
    The result (after the adjustment) is the ``adjusted base year
inventory.'' The required RFP 15% reduction is calculated by
multiplying the adjusted base year inventory by 0.15. This figure is
subtracted from the adjusted base year inventory, resulting in the
target level of emissions for the milestone year (2008). Tables 2 and 3
feature summaries of the adjusted base year inventories (row c),
required 15% reductions (row d), and 2008 target level of emissions
(row e), as described above.
    Texas has based the 15% plan on NOX reductions for the
four core counties, and VOC reductions for the five new counties, which
do not have an approved 15% 1-hour ozone Rate of Progress Plan. To meet
the RFP requirement, Texas' plan must provide at least 68.43 tons per
day (tpd) reductions in NOX emissions in the four core
counties, and 10.11 tpd reductions in VOC for the five new counties.
The VOC reductions may come from anywhere within the 8-hour
nonattainment area (40 CFR 51.910(a)(1)(iii)(B)(1)).

 Table 2--Calculation of DFW Required NOX Target Level of Emissions for
  the Four Core Counties With an Approved VOC 15% 1-Hour Ozone Rate of
                              Progress Plan
------------------------------------------------------------------------
                                                              NOX 4 core
                        Description                            counties
                                                              (tons/day)
------------------------------------------------------------------------
a. 2002 Base Year Inventory................................       482.74
b. Excluded Emission Reductions............................        26.52
c. Adjusted Base Year Inventory (a-b)......................       456.22
d. 15% Reductions (c x 0.15)...............................        68.43
e. 2008 Target (c-d).......................................       387.79
------------------------------------------------------------------------

 Table 3--Calculation of DFW VOC Target Levels of Emissions in Tons Per
      Day for Portion Without an Approved VOC Rate of Progress Plan
------------------------------------------------------------------------
                                                              VOC (5 new
                        Description                           counties)
------------------------------------------------------------------------
a. 2002 Emission Inventory.................................        69.32
b. Non-creditable Reductions, 2002-2008....................         1.93
c. 2002 Adjusted to 2008 (a-b).............................        67.39
d. 15% Reductions (c x 0.15)...............................        10.11
e. 2008 Target (c-d).......................................        57.28
------------------------------------------------------------------------

C. The 2008 Projected Emissions Inventories and How the Total Required
15% Reductions Are Achieved in the Four Core Counties and the Five New
Counties

    Next, section 182(b)(1)(A) requires that States need to provide
sufficient control measures in their RFP plans to offset any emissions
growth. To do this the State must estimate the amount of growth that
will occur between 2002 and the end of 2008. The State uses population
and economic forecasts to estimate how emissions will change in the
future. Generally, the State followed our standard guidelines in
estimating the growth in emissions. EPA's MOBILE 6.2.03 was used to
develop the 2008 on-road inventory. For more detail on how emissions
growth was estimated, see the TSD. Texas terms the projections of
growth as the RFP 2008 Uncontrolled Inventories.
    Texas then estimates the projected emission reductions from the
control measures in place between 2002 and the end of 2008 and applies
these to the RFP 2008 Uncontrolled Inventories; the results are the RFP
2008 Controlled Inventories. The total amount of VOC and NOX
emissions in the RFP 2008 Controlled Inventories must be equal to or
less than the 2008 target inventories (listed at row e in Tables 2 and
3, above). The RFP plan relies on a number of state and federal control
measures intended to reduce NOX and VOC emissions. The
control measures address emissions from point, area, mobile non-road,
and mobile on-road sources.
    The majority of point source reductions are from the addition of
NOX controls at electric generating units in the four core
counties and VOC controls on surface coating sources in the five new
counties. Area source VOC reductions for the five new counties include
(1) surface coating controls for automobile refinishing, factory
finished wood, wood furniture, metal cans, metal coils, and machinery
and equipment, (2) the State's Stage I program, and (3) the State's
portable fuel container rule. The four core counties did not rely upon
any area source NOX reductions.
    The mobile non-road emission reductions for the four core counties
were a result of implementing federal measures, including the Tier I
and II Locomotive NOX standards, the heavy-duty non-road
engines standards, the Tier 1, 2, and 3 non-road diesel engines
standards, the small non-road SI engines Phase II standards, and the
large non-road SI and recreational marine standards. The five counties
relied upon the following federal measures for the

mobile non-road emission reductions: the new non-road SI engines
standards, the heavy-duty non-road engines standards, the Tier 1, 2,
and 3 non-road diesel engines standards, the small non-road SI engines
Phase II standards, the large non-road SI and recreational marine
standards, and non-road RFG. For all of the counties, emissions from
locomotives, aircraft and support equipment, and commercial marine
vessels were calculated outside of the NONROAD 5 model using EPA
approved methodologies. EPA finds that the State's projected emissions
and emission reductions for these three non-road mobile sources are
acceptable.
    Reductions in mobile on-road emissions for the four core counties
resulted from fleet turnover due to Tier 1 and Tier 2 of the FMVCP, the
Federal RFG, the Federal NLEV, the 2007 Heavy Duty Diesel FMVCP, and
the State's I/M Program. The mobile on-road emission reductions for the
five counties were from fleet turnover due to Tier 1 and Tier 2 of the
FMVCP, surplus VOC emission reductions in the four core counties from
the Tier 1 FMVCP, the Federal NLEV, the 2007 Heavy Duty Diesel FMVCP,
and the State's I/M program. Each of the State measures relied upon in
this plan have been approved in separate actions. See the TSD for more
details.
    As a result, for NOX the target level of emissions is
387.79 tpd, and the 2008 projected inventory after RFP reductions are
applied is 374.09 tpd. For VOC, the target level of emissions is 57.28
tpd, and the 2008 projected inventory after RFP reductions are applied
is 54.72 tpd. As illustrated in Table 4, for both pollutants the 2008
projection inventory is less than the target level of emissions.
Therefore, the control measures included in the 2008 projection
inventory are adequate to meet the 15% RFP requirement.

                                  Table 4--Summary of RFP Demonstration for DFW
----------------------------------------------------------------------------------------------------------------
                                                                               NOX (tons/day)    VOC (tons/day)
                                  Inventory                                    4 core counties   5 new counties
----------------------------------------------------------------------------------------------------------------
2008 Target.................................................................            387.79             57.28
2008 Uncontrolled Emissions.................................................            651.85             90.02
2008 RFP Emission Reductions................................................            277.76          \*\35.30
2008 Projected Emissions after RFP Reductions...............................            374.09             54.72
RFP Met?....................................................................               Yes               Yes
----------------------------------------------------------------------------------------------------------------
\*\ VOC reductions from the Federal Motor Vehicle Control Program in the 4 core counties were used to help meet
  the RFP emission reduction target for the 5 new counties.

D. The Reasonable Further Progress Plan Includes Acceptable RFP
Contingency Measures

    The 1997 8-hour ozone RFP plan for a moderate nonattainment area
must include contingency measures, which are additional controls to be
implemented if the area fails to make reasonable further progress.
Contingency measures are intended to achieve reductions over and beyond
those relied on in the RFP demonstration and could include federal and
state measures already scheduled for implementation. The CAA does not
preclude a state from implementing such measures before they are
triggered. EPA interprets the CAA to require sufficient contingency
measures in the RFP submittal, so that upon implementation of such
measures, additional emission reductions of up to 3% of the adjusted
base year inventory (or a lesser percentage that will make up the
identified shortfall) would be achieved between the milestone year of
2008 and the next calendar year, i.e., 2009.
    Texas used federal and state measures currently being implemented
to meet the contingency measure requirement for the DFW RFP SIP. These
measures, which are the same measures used for RFP, provide reductions
that are in excess of those needed for RFP. As shown in Table 5, in
both the four core counties and the five new counties, the excess
reductions are greater than 3% of the adjusted base year inventories.
Therefore these reductions are sufficient as contingency measures.

     Table 5--RFP Contingency Measure Demonstration for DFW RFP SIP
------------------------------------------------------------------------
                                                 NOX 4 core   VOC 5 new
                  Description                     counties     counties
                                                 (tons/day)   (tons/day)
------------------------------------------------------------------------
a. Adjusted Base Year Inventory (from Tables 2       456.22        67.39
 and 3).......................................
b. 3% Needed for Contingency (a x 0.03).......        13.69         2.02
c. Excess Reductions Used for Contingency.....        13.70         2.56
d. Contingency Met?...........................          Yes          Yes
------------------------------------------------------------------------

E. The RFP Milestone 2008 Motor Vehicle Emissions Budget (MVEB) Are
Approvable

    The 1997 8-hour ozone RFP plan must include MVEBs for
transportation conformity purposes. Texas submitted its RFP MVEBs for
VOCs and NOX. Conformity to a SIP means that transportation
activities will not produce new air quality violations, worsen existing
violations, delay reaching reasonable further progress milestones, or
delay timely attainment of the NAAQS. A MVEB is the maximum amount of
emissions allowed in the SIP for on-road motor vehicles. The MVEB is
the mechanism to determine if the future transportation plans conform
to the SIP. The MVEB establishes an emissions ceiling for the regional
transportation network. The DFW RFP SIP contains VOC and NOX
MVEBs for the RFP milestone year 2008. The emissions budget for VOC is
119.81 tpd, and the NOX emissions budget is 249.33 tpd. On-
road emissions must be shown in future transportation plans to be less
than the MVEB for 2008 and subsequent years. The VOC and NOX
RFP emissions budgets are acceptable

because when added to the other components of the 2008 emissions
inventory (including non-road, stationary source, and area source
emissions) the total level of emissions is below the 2008 RFP emissions
target level. We found the RFP MVEBs (also termed transportation
conformity budgets) adequate and on June 28, 2007, the availability of
these budgets was posted on our website for the purpose of soliciting
public comments. The comment period closed on July 30, 2007, and we
received no comments. On March 21, 2008, we published the Notice of
Adequacy Determination for these RFP MVEBs (73 FR 15152). Once
determined adequate, these RFP budgets must be used in future DFW
transportation conformity determinations. The adequacy determination
represents a preliminary finding by EPA of the acceptability of the
MVEB. Today we are finding the MVEBs are fully consistent with RFP, and
the RFP plan is fully approvable, as it sets the allowable on-road
mobile emissions the DFW area can produce and continue to demonstrate
RFP.

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 8, 2008. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental Relations, Nitrogen oxides, Ozone,
Volatile organic compounds.

    Dated: September 26, 2008.
Richard E. Greene,
Regional Administrator, Region 6.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart SS--Texas

0
2. The second table in Sec.  52.2270 (e), the table entitled ``EPA
Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the
Texas SIP'' is amended by adding two new entries to the end of the
table for ``Reasonable Further Progress Plan'', for the Dallas/Fort
Worth, TX area. The addition reads as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                    Applicable geographic   State approval/
      Name of SIP provision        or non-attainment area   submittal date   EPA approval date      Comments
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Approval of the 1997 8-hour Ozone  Dallas/Fort Worth, TX.          05/23/07  10/07/08 [Insert
 15% Reasonable Further Progress                                              FR page number
 Plan, and 2008 RFP Motor Vehicle                                             where document
 Emission Budgets.                                                            begins].
Revised 2002 Base Year Emissions   Dallas/Fort Worth, TX.          05/23/07  10/07/08 [Insert
 Inventory.                                                                   FR page number
                                                                              where document
                                                                              begins].
----------------------------------------------------------------------------------------------------------------

[FR Doc. E8-23673 Filed 10-6-08; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: February 25, 2010 (Volume 75, Number 37)]
[Rules and Regulations]
[Page 8526-8528]
[DOCID:fr25fe10-23]

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

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket OST-2007-26828]
RIN 2105-AD64

Procedures for Transportation Workplace Drug and Alcohol Testing
Programs

AGENCY: Office of the Secretary, DOT.

ACTION: Final rule.

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

SUMMARY: This final rule responds to the comments received regarding
the interim final rule (IFR) procedures for the use of a new alcohol
screening device (ASD) which is qualified for use in DOT Agency
regulated alcohol testing. The Department did not receive any comments
which were germane to the rulemaking. As such, the Department will
adopt the rule as final without change.

DATES: This rule is effective February 25, 2010.

FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, U.S. Department of
Transportation, Office of Drug and Alcohol Policy and Compliance, 1200
New Jersey Avenue, SE., Washington, DC 20590;<PHONE_NUMBER> (voice),
202-366-3897 (fax), or<EMAIL_ADDRESS>(e-mail).

SUPPLEMENTARY INFORMATION:

Purpose

    Department regulations require that in order for an employer to
utilize a specific ASD to conduct required DOT alcohol tests, the
device must (a) Have been approved by the National Highway Traffic
Safety Administration (NHTSA) as meeting required model specifications,
(b) be published by NHTSA in the Federal Register on their most current
ASD CPL, and (c) have Department-approved procedures in part 40 for its
use. By publishing the IFR, the Department ensured that procedures were
in place so that when NHTSA published its ASD CPL in the Federal
Register, the breath tube ASD was immediately available for use by DOT
regulated employers.

Background and Purpose

    When it originally published its alcohol testing rules on February
15, 1994 [54 FR 7302 et seq.], the Department established breath
testing using evidential breath testing devices (EBTs) as the required
method. However, in response to comments requesting additional
flexibility in testing methods, the Department said that NHTSA would
develop model specifications for non-evidential alcohol screening
devices, evaluate additional screening devices against those
specifications, and periodically publish a conforming products list of
screening devices that met the model specifications. The Department
noted, too, that the Department would also have to undertake separate
rulemaking proceedings to establish part 40 procedures for use by DOT-
regulated industries of any devices approved by NHTSA.
    On April 20, 1995 [60 FR 19675], the Department published
procedures for use of both breath and saliva ASDs. At that time, the
Department did not anticipate that additional breath and saliva
screening devices would be developed that would necessitate new
procedures for their use. As a result, the revised part 40 published
December 19, 2000 [65 FR 79462] stated, in part, that ASDs on the NHTSA
CPL could be used for part 40 alcohol screening tests. Because NHTSA
added an ASD to their CPL and the Department had no procedures for its
use, we were forced to amend that rule. On August 9, 2001 [65 FR
41944], part 40 was amended to read, ``You may use an ASD that is on
the NHTSA CPL for DOT alcohol tests only if there are instructions for
its use in this part.''
    On October 1, 2002 [67 FR 61521], the Department published
procedures for the use of a breath tube ASD that had been approved by
NHTSA and added to their May 4, 2001 CPL [66 FR 22639]. By 2005, that
device was no longer being manufactured, and was removed from the CPL
effective September 19, 2005 [70 FR 54972]. Subsequently, NHTSA
approved a new breath tube ASD but had not yet added it to its ASD CPL
which was one of three critical criteria to permitting DOT regulated
employers to use the device.
    Although DOT regulated employers could still not use the ASD, the
Department realized that the breath tube procedures currently in our
regulation were not consistent with instructions for use of the newly
approved ASD. As a result, on January 11, 2007 the Department published
an IFR [72 FR 1298] where it amended part 40 by eliminating procedures
specific for the breath tube ASD which is no longer being manufactured
and added procedures for use of the newly approved device.
    The IFR provided instructions for use of the new ASD which were
generally similar to those for the previously approved breath tube
device. The principal difference was in how the alcohol result is read
by the technician. Instead of comparing the color of the crystals in
the ASD with the colored crystals in a manufacturer-produced control
tube, the new ASD used an electronic analyzer to provide the technician
and the employee with an automated visual result of negative (a
flashing green light) or positive (a flashing red light) at 0.02. The
Department also retained the requirement to read the result within 15
minutes of the test to ensure a confirmation test, when necessary, was
conducted in a timely manner. Finally, because of the manufacturer's
requirement to only use the detector device with a pre-calibrated
electronic analyzer, the IFR also added a fatal flaw to the current
list of fatal flaws. Specifically, the alcohol screening test was to be
cancelled if an electronic analyzer was not used with a specified lot
of detector devices.

Discussion of Comments to the Docket

    There were two comments to the docket which were not germane to the
interim final rule and, therefore, the Department will not address
them. Because there were no comments which provided substantive
information to warrant changing the procedures in the IFR, the
Department will adopt the text in the IFR as final.

Regulatory Analyses and Notices

    The statutory authority for this rule derives from the Omnibus
Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322,
5331, 20140, 31306, and 54101 et seq.) and the Department of
Transportation Act (49 U.S.C. 322).
    This final rule is not significant for purposes of Executive Order
12866 or the DOT's regulatory policies and procedures. It finalizes
minor modifications, already in effect, to our procedures that do not
increase costs on regulated parties. In fact, it facilitates the use of
an alcohol screening device that may increase flexibility and lower
costs for employers who choose to use them over more expensive options
previously approved by the Department. The rule will impose no burdens
on any parties, and NHTSA has already determined that the device is
technically acceptable for use in the DOT alcohol testing program.
While small entities are among those who may use the device, the
Department consequently certifies, under the Regulatory Flexibility
Act, that this rule does not have a significant economic impact on a
substantial number of small entities.
    We issued the IFR on this subject to ensure that employers could
use the ASD when it is placed on NHTSA's CPL as a qualified device
(meeting DOT specifications for accuracy and precision). We determined,
at that time, under section 553 of the Administrative Procedure Act,
that prior notice and an opportunity for public comment were
unnecessary, impracticable, or contrary to the public interest. Given
the absence of any comment on the IFR, and the fact that this rule
simply finalizes a rule already in effect, the Department finds good
cause under 553 to make this rule effective immediately.

List of Subjects in 49 CFR Part 40

    Administrative practice and procedures, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Laboratories, Reporting and
recordkeeping requirements, Safety, Transportation.

    Issued at Washington DC, this 9th day of February 2010.
Ray LaHood,
Secretary of Transportation.

PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS

0
Accordingly, the Interim Final Rule amending 49 CFR part 40 which was
published at 72 FR 1298 on January 11,

2007 is adopted as a final rule without change.

[FR Doc. 2010-3730 Filed 2-24-10; 8:45 am]
BILLING CODE 4910-9X-P