                                 UNITED STATES
                        ENVIRONMENTAL PROTECTION AGENCY

____________________________________
IN THE MATTER OF:		)
                              	)
                              	)
TENNESSEE VALLEY AUTHORITY	)	Federal Facilities Compliance Agreement
						)	Between the United States Environmental
400 West Summit Hill Drive			)	Protection Agency and the Tennessee
Knoxville, Tennessee 37902			)	Valley Authority
						)
Allen, Bull Run, Colbert, 			)
Cumberland, Gallatin, Johnsonville, 		)	Docket No. CAA-04-2010-1760
John Sevier, Kingston, Paradise, 		)
Shawnee, and Widows Creek 		)
Fossil Plants					)
     						)
____________________________________
Background

      On April 20, 2011, the United States Environmental Protection Agency (EPA) published a notice in the Federal Register announcing a federal facilities compliance agreement (Compliance Agreement) between EPA and the Tennessee Valley Authority (TVA) to resolve alleged violations of the Clean Air Act (CAA) and its implementing regulations at the coal-fired facilities that TVA owns and operates in Alabama, Kentucky, and Tennessee.  EPA's notice requested comments on the Compliance Agreement and required that public input be submitted by May 20, 2011, in the TVA docket established at www.regulations.gov.  During the 30-day public comment period, EPA received approximately 125 separate sets of comments.  On June 14, 2011, EPA published a notice in the TVA docket at www.regulations.gov, as well as on its coal-fired power plant initiative website at http://www.epa.gov/Compliance/resources/cases/civil/caa/tvacoal-fired.html, announcing, in part, that EPA would respond to comments it received by July 8, 2011.  This document is EPA's response to the comments.  EPA has identified a number of common concerns in the comments, and responds to each of these concerns below.

Comment 1- Economic/Social Impacts of Retirements

      A majority of the comments received by EPA reference the potential economic and/or social impacts on local communities surrounding the plants at which TVA has committed to retire coal-fired units.  These commenters generally express an expectation that the effects of coal unit retirements on these communities will be detrimental, and several portray the expected impacts as devastating.  In particular, the comments seem to focus on the Johnsonville Plant, which will have all ten of its coal-fired units retired under the Compliance Agreement.  Many commenters point out that the retirements will result in the future loss of employment for several hundred employees that currently work at the affected plants.  With respect to the local communities surrounding the Johnsonville facility, they highlight the rural nature of the area and say that TVA is among the largest employers in the region.  They cite the current levels of unemployment in this area as being extremely high, which will not be helped by the loss of more jobs.  They also state that layoffs may require many families to be displaced or result in increased foreclosures.

      Numerous commenters also express a belief that the coal unit retirements will have further implications for the local communities.  They state that the loss of jobs at TVA plants will cause businesses in the area to see reduced revenues, resulting in additional job losses and potential shutdown of some businesses.  Some commenters also state that this will result in diminished local government services as the tax base shrinks, while others claim that schools and local organizations will be impacted by the lack of support that TVA and its employees have traditionally provided.  A few commenters express a belief that the Compliance Agreement will not be helpful to the struggling U.S. economy, and at least one commenter requests that this decision be placed on hold until the economy improves.

Response 1- Economic/Social Impacts of Retirements

      The Compliance Agreement between EPA and TVA is similar to settlements that EPA has reached with more than 20 other electric utilities over the last decade to address alleged noncompliance with CAA requirements.  As in each of these previous cases, EPA has alleged that TVA failed to comply with requirements applicable to new or modified sources of air pollution for a number of its coal-fired units, including the requirement to apply appropriate technology that reduces the emissions of harmful air pollutants.  The Compliance Agreement addresses the alleged violations and will significantly reduce the emissions from its coal-fired fleet through a mix of pollution control additions, unit retirements, temporary unit idling, and renewable biomass repowering.  The Compliance Agreement is prescriptive regarding the exact actions that will be required for some of the TVA coal-fired units, but also allows for future decisions regarding the specific options that will be implemented at other units.  Through this approach, TVA has committed to a number of emission reducing actions pursuant to its current business plan and existing infrastructure, while retaining the ability to make decisions regarding the best options for the necessary emissions reductions as its business plan evolves in the future.
The 18 coal-fired units, comprising the over 2,700 MW of generating capacity that TVA has committed to permanently retire pursuant to the Compliance Agreement, were selected by TVA.  EPA is not aware of what factors TVA may have considered in determining which units to retire.  EPA also notes that the Compliance Agreement does not prohibit TVA from constructing new lower emitting sources of power at the plants where units will be retired, and in fact contemplates that new natural gas power will be built at some of the locations.

      When fully implemented, EPA anticipates that the Compliance Agreement will result in a combined total of over 341,000 tons per year of reduced sulfur dioxide and nitrogen oxides emissions.  These pollutants lead to a number of adverse environmental and health effects when emitted to the air.  EPA estimates that the monetized health benefits of these emission reductions range from $11 to $27 billion (in 2010 dollars), per year, including avoiding 1,200 to 3,000 premature deaths, 2,000 non-fatal heart attacks, 800 cases of chronic bronchitis, 960 hospital admissions, 1,200 emergency department visits for asthma, 1,900 cases of acute bronchitis, 21,000 asthma attacks, 39,000 cases of upper or lower respiratory symptoms, 150,000 days when people miss work, and 880,000 days when people must restrict their activities per year.  While these health benefits will occur throughout TVA's service area and in downwind locations, EPA expects that a portion of these health benefits will also be realized in the communities surrounding the retired coal-fired units.

      In addition, the Compliance Agreement also requires TVA to spend $350 million on environmental mitigation projects to address the impacts of past emissions. Communities near TVA's facilities will directly benefit from $350 million in environmental projects designed to reduce harmful air pollution and advance EPA's goals in addressing environmental justice issues.  TVA estimates that the Energy Efficiency Projects and the Clean/Renewable Energy Projects will achieve the following reductions: CO2 will be reduced by 30,000,000 tons; SO2 will be reduced by 96,000 tons; NOx will be reduced by 25,000 tons; and mercury will be reduced by 800 pounds.

Comment 2- Legality of the Compliance Agreement & EPA's Authority to Require Retirements

      A number of the comments received by EPA call into question the legal basis for the Compliance Agreement.  Several of these comments generally express a belief that that the Compliance Agreement is illegal, unethical or improper.  Some commenters believe that EPA lacks the authority to require unit retirements.  A few commenters question why the dispute between EPA and TVA was not settled in the courts, while others indicate the agreement should be approved by Congress.  Some of these commenters also question two federal agencies entering into such an agreement, and particularly one that involves required retirements of coal-fired electric generating units.

      One commenter asserts that EPA exceeded its authority under Executive Order 12088.  This commenter also states that EPA violated its own policy regarding supplemental environmental projects, because the mitigation projects do not satisfy nexus requirements.  Furthermore, the commenter states that North Carolina is statutorily prohibited from being allocated environmental mitigation project funds in excess of $100,000, based on its only stated cause of action under the CAA citizen suit provision.

Response 2- Legality of the Compliance Agreement & EPA's Authority to Require Retirements

	Section 118 of the CAA requires all federal entities that own or operate emissions sources regulated by the CAA to comply with all federal, state or local requirements applicable to such emissions sources.  Section 113 of the CAA authorizes EPA to pursue enforcement for violations of the Act.  Pursuant to Executive Order 12088, Federal Compliance with Pollution Control Standards, 43 Fed. Reg. 47707, executive branch agencies are to cooperate with the Administrator of EPA in the prevention, control and abatement of environmental pollution, and the EPA Administrator is to make every effort to resolve conflicts between federal agencies regarding the violation of pollution control standards.  To this end, EPA has a longstanding history of using federal facility compliance agreements to implement the required measures to address noncompliance at federal facilities.

	EPA alleges in the Compliance Agreement and the companion Consent Agreement and Final Order (Docket No. CAA-04-2010-1528(b)) that TVA failed to comply with several elements of the CAA, including the Prevention of Significant Deterioration, Nonattainment New Source Review, New Source Performance Standard, and Title V provisions, as well as the associated federal and state implementing regulations.  EPA and TVA have reached agreement on appropriate measures to address the alleged noncompliance and mitigate the harmful effects resulting from substantial quantities of air pollutants that have been emitted.  EPA and TVA are implementing this resolution through the subject Compliance Agreement.

      The environmental mitigation projects that TVA is required to complete pursuant to Section V.F of the Compliance Agreement are not supplemental environmental projects and are not subject to the EPA Supplemental Environmental Projects Policy.  Instead, the environmental mitigation projects are designed to address the impacts of past emissions. United States, et. al., v. Cinergy Corp., 582 F.Supp.2d 1055 (S.D. Ind. 2008)("This Court therefore concludes that its equitable authority granted by Section 113(b) includes the authority to order relief aimed at redressing the harms caused by Defendants' established violations of the CAA").  The Compliance Agreement requires TVA to pay no less than $60 million in funds to Alabama, Kentucky, North Carolina and Tennessee to fund environmental mitigation projects described in Section III.F of the Consent Decree (Alabama et al. v. Tennessee Valley Auth., No. 3:11-cv-00170 [E.D. Tenn. entered June 30, 2011] ).  The Compliance Agreement does not include any provision regarding the allocation of such funds to the respective states.  The allocation of funds for environmental mitigation projects is controlled by the Consent Decree, which is not subject to the notice seeking public comment.

Comment 3- Transparency

      A significant number of the comments received by EPA express a belief that the Compliance Agreement was not developed through a transparent process.  Several commenters described the Compliance Agreement as a secret or backdoor deal.  Others indicate that the Compliance Agreement is far reaching and affects many lives, but those affected were not involved in its development or did not have an opportunity to comment.  Some commenters express a belief that it is inappropriate for two federal agencies to enter into an agreements such as this without any kind of public hearing or prior notification.  Meanwhile, some of the commenters indicate that the TVA employees have not been provided with accurate information.

Response 3- Transparency

      The Compliance Agreement arises from a legal dispute between EPA and TVA, regarding the compliance status of a number of TVA's coal-fired units with respect to CAA requirements.  EPA initiated enforcement in the late 1990s regarding the allegations.  EPA and TVA attempted to resolve their differences through a series of settlement discussions involving EPA and TVA.  Through the discussions, it became apparent that similar allegations of noncompliance had also been made by other parties in the civil judicial federal court setting.  In this circumstance, it was appropriate for EPA, TVA, and others (environmental groups representing interested citizens and the State of North Carolina) making similar allegations of noncompliance to work together and achieve settlement to ensure consistency in the ultimate resolution.  Settlement discussions are not typically public for a number of reasons.  As a general matter, maintaining the confidentiality of such discussions helps foster an open dialogue between the parties.

      EPA is not required to seek public input for a federal facilities compliance agreement.  However, EPA recognized that the settlement with TVA was a significant action that will have impacts for numerous people and entities over a large geographical area.  Therefore, EPA chose to go beyond its obligations in this case and provided an opportunity for the public to comment on the Compliance Agreement.  EPA disagrees with those comments that indicate the public was not provided an opportunity to comment, because EPA clearly did provide such an opportunity.

Comment 4- Emission Controls Rather Than Retirements

      A number of commenters generally advocate for emissions controls at the coal-fired units scheduled for retirement.  These commenters indicate that it would be better to install emissions controls at the units rather than to shut those units down.  Some commenters express a belief that adding emissions controls to the existing units will be cheaper than investing in new sources of power, such as nuclear energy and its associated issues.  Others point out that the adverse environmental impacts of the coal-fired units can be reduced through retrofitting with appropriate emissions controls.  Some commenters express frustration that TVA has provided funding for controls at some plants but not for others.  Meanwhile, others advocate investing in the existing infrastructure to create further job opportunities in the Tennessee Valley.

Response 4- Emission Controls Rather Than Retirements

      As is discussed above with respect to the economic and social impacts of TVA's retirement plans, the 18 coal-fired units that will actually be retired pursuant to the Compliance Agreement was determined by TVA.  However, for the majority of TVA's coal-fired system, it will be making the decisions regarding whether to install emissions controls or implement the other available compliance options in the future.

Comment 5- Concerns about Generating System Reliability, Loss of Johnsonville and John Sevier plants, & Increased Rates from Retirements

      Several commenters voiced concerns regarding TVA's ability to reliably provide power to its customers following the retirement of coal units.  Multiple commenters suggest that alternative energy sources will not be capable of meeting the existing or future demand on TVA's system.  Some commenters say that renewable sources of energy such as solar and wind are not reliable.  Other commenters assert that the coal unit retirements are an unnecessary reduction in generating capacity when the replacement capacity has not been identified or built.  Meanwhile, others point out that TVA already purchases some of the power that is supplied to its customers.

      A number of the comments received by EPA include statements regarding the historical performance of the Johnsonville and John Sevier plants and indicate that retirement of units at these facilities is not warranted.  Several of these commenters maintain that the Johnsonville facility provides dependable and low cost power for TVA's customers.  Others indicate that TVA can count on the Johnsonville plant in situations where other units are not available for service.  Several commenters point out that the John Sevier plant is one of TVA's best performing plants and was recently recognized for its high performance by an industry group.  A small number of the comments received by EPA raise concerns regarding the impacts of TVA's retirements at the Johnsonville plant on the DuPont facility that is located nearby.  These commenters point out that TVA has a contract to provide steam and electricity to the DuPont plant and they feel that DuPont may not be able to continue to operate once the Johnsonville coal-fired units are no longer in service.  They also indicate that the DuPont facility is one of the largest employers in the area and the additional loss of jobs would have significant economic impacts locally.

      In addition, a number of the commenters expressed concerns regarding the potential for increased costs associated with power derived from alternative sources of energy.  Several commenters believe that gas-fired generation is expensive and will result in increased electric rates.  Others say that relying on natural gas generation reduces flexibility and will result in more expensive power if natural gas prices rise.  Meanwhile, commenters also say that nuclear plants are expensive to build, renewable sources of energy cost more to operate and purchasing of power can be expensive, which will result in increased rates for customers.  A few commenters also point out that TVA provides power in relatively poor areas of the country that are already hindered by the recession, and which depend on stable and affordable electric rates.

Response 5- Concerns about Generating System Reliability, Loss of Johnsonville and John Sevier plants, & Increased Rates from Retirements

      As mentioned in response to comments discussed above, TVA either has made or will make decisions regarding how best to comply with the Clean Air Act at its coal-fired units.  EPA is not aware of the specific factors TVA may have considered in determining which units to retire.  However, EPA notes that in discussing the recently completed Integrated Resource Plan (a strategic planning document developed by TVA with TVA partners and stakeholders) on its website, TVA indicates that the strategic planning document supports the principles of providing its customers with electric power in a reliable, affordable and sustainable manner.  The Compliance Agreement also does not address other sources of power in the area that may be able to provide steam and electricity to nearby businesses, such as the Dupont facility.  In addition, the Compliance Agreement itself allows for a potential force majeure claim by TVA in the event that TVA is directed by a government agency or regional transmission organization, to supply electricity in response to a system-wide, state, or regional emergency.

Comment 6- Replacement of Coal with Nuclear Generation & Nuclear Safety Concerns

      Several commenters feel that the retirement of TVA's coal-fired units will lead to an expansion of TVA's nuclear capacity.  These commenters are concerned about possible nuclear accidents causing environmental disaster, and they highlight the recent events in Japan.  Some point out that a nuclear accident can be caused by factors other than natural disaster, including human error.  Others say that coal-fired emissions are not as harmful as the potential exposure to nuclear radiation, and the impacts don't last as long. Some also point out that there are issues with the handling and disposal of the spent nuclear fuel.

Response 6- Replacement of Coal with Nuclear Generation & Nuclear Safety Concerns

      The Compliance Agreement does not include any elements regarding the expansion of nuclear power within TVA's electrical generating system.  Any plan that TVA may have for future expansion of its nuclear fleet is a TVA decision made independent of the Compliance Agreement and its requirements.  Additional information regarding nuclear radiation may be available through the United States Nuclear Regulatory Commission (www.nrc.gov).

Comment 7- Relationship between the Kingston Ash Spill & the Compliance Agreement

      A few of the comments received by EPA reflect a sense that there is some relationship between the Compliance Agreement and the ash spill that occurred at TVA's Kingston plant in December of 2008.  Commenters say that the Compliance Agreement seems to be a result of the ash spill and that the Johnsonville plant should not be retired as a result of what happened at Kingston.  Some feel that the Johnsonville facility is being closed in order to save the Kingston facility.

Response 7- Relationship between the Kingston Ash Spill & the Compliance Agreement

      The Compliance Agreement is not related to the fly ash release that occurred at the Kingston plant in late 2008.  The Compliance Agreement addresses alleged CAA noncompliance at several of TVA's coal-fired plants.  As is detailed further in the Compliance Agreement and the associated Consent Agreement and Final Order (Docket No. CAA-04-2010-1528(b)), EPA alleges that TVA modified a number of its coal-fired units without complying with applicable CAA requirements, including requirements that permits be obtained prior to construction and appropriate pollution controls be installed to reduce emissions of air pollutants.  EPA initiated enforcement related to these violations in the late 1990s and has now reached agreement with TVA on appropriate measures to address the alleged noncompliance.

Comment 8- Emphasis on Clean Coal Technology Rather Than Retirements and Objection to Reducing Coal-based Power Production

      A few of the commenters made statements advocating for the use of clean coal technology to keep TVA's coal-fired units operating.  Some of these commenters question what will happen to the coal that is no longer needed at TVA's retired units, while others assert that less developed countries with little or no environmental standards will continue to expand the use of coal and increase emissions worldwide.  They speculate that the development of clean coal technology in the United States can have a beneficial impact on global emissions.

      In addition, a small number of commenters suggest that it is bad policy to reduce coal-based power production in the United States.  Multiple commenters say that the Unites States has a great quantity of coal and we should be using more coal for power production rather than less.  Others question contraction of coal-based electric generation.  In addition, one commenter suggests that the government should expand coal mines and coal-fired power plants in an effort to generate more jobs and provide for energy independence.

Response 8- Emphasis on Clean Coal Technology Rather Than Retirements

      EPA is not aware of the specific factors TVA may have considered in determining which units to retire versus continuing to operate.  However, the Compliance Agreement allows for a substantial portion of TVA's coal fleet to remain in operation and continue utilizing coal for power production.  In addition, this continued operation of coal at much of TVA's fleet could include use of clean coal technologies in the future.

Comment 9- Involvement of the Environmental Groups

      EPA received a few comments relating to the involvement of environmental groups.  One commenter questioned the relationship between EPA and Sierra Club, while another appeared to suggest that Sierra Club is making decisions for EPA.  Another commenter stated a belief that the Compliance Agreement was driven by a "radical environmental group."  Another commenter asserted that it is a misuse of taxpayer money to allow any payments to be made to entities such as Sierra Club.

Response 9- Involvement of the Environmental Groups

	While there are three nongovernmental environmental organizations, including Sierra Club, and four states that have joined with EPA to resolve alleged CAA noncompliance at TVA's coal-fired power plants, none of these entities are a party to the Compliance Agreement.  The environmental organizations and states have entered into a Consent Decree (Alabama et al. v. Tennessee Valley Auth., No. 3:11-cv-00170 [E.D. Tenn. entered June 30, 2011] ) with TVA that, for the most part, contains the same requirements as the Compliance Agreement.  The states and environmental organizations had raised their own allegations regarding TVA's CAA compliance that were similar in nature to EPA's allegations.  EPA's Compliance Agreement stemmed from EPA's own allegations of violations at the TVA facilities and the decisions EPA made regarding the requirements of the Compliance Agreement were EPA's and EPA's alone.  We would point out that many of the provisions of the Compliance Agreement with TVA are identical or substantially similar to provisions of agreements that EPA negotiated with other coal-fired power plant owners and operators and were negotiated without the involvement of nongovernmental environmental organizations. However, in resolving these claims, TVA has entered into separate agreements with EPA and the state and environmental organizations.


[Federal Register: October 9, 2007 (Volume 72, Number 194)]
[Notices]
[Page 57325-57326]
[DOCID:fr09oc07-72]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12646-001]

City of Broken Bow, OK; Notice of Application Ready for
Environmental Analysis and Soliciting Comments, Recommendations, Terms
and Conditions, and Prescriptions

September 26, 2007.
    Take notice that the following hydroelectric license application
has been filed with the Commission and is available for public
inspection.
    a. Type of Application: Original Major License.
    b. Project No.: 12646-001.
    c. Date Filed: July 6, 2006.
    d. Applicant: City of Broken Bow, Oklahoma.
    e. Name of Project: Pine Creek Lake Dam Hydropower Project.
    f. Location: On the Little River, in McCurtain County, Oklahoma.
The project would be located at the United States Army Corps of
Engineers' (Corps) Pine Creek Lake Dam and would occupy several acres
of land administered by the Corps.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791 (a)-825(r).
    h. Applicant Contact: Olen Hill, City Manager, City of Broken Bow,
Oklahoma, 210 North Broadway, Broken Bow, Oklahoma 74728; (405) 584-
2282.
    i. FERC Contact: Allyson Conner at<PHONE_NUMBER> or
<EMAIL_ADDRESS>
    j. Deadline for filing comments, recommendations, terms and
conditions, and prescriptions: 60 days from the issuance of this notice
(Monday, November 26, 2007); reply comments are due 105 (Wednesday,
January 9, 2008) days from the issuance date of this notice.
    All documents (original and eight copies) should be filed with:
Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervenor files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency.
    Comments, recommendations, terms and conditions, and prescriptions
may be filed electronically via the Internet in lieu of paper. The
Commission strongly encourages electronic filings. See 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
(http://www.ferc.gov) under the ``eFiling'' link.

    k. This application has been accepted, and is now ready for
environmental analysis.
    l. Description of Project: The proposed project, using the existing
Corps' Pine Creek Dam and Reservoir, would consist of: (1) A diversion
structure connecting to the existing outlet conduit; (2) a penstock
connecting the diversion structure to the powerhouse; (3) a 112-foot-
wide by 73-foot-long powerhouse containing two turbine-generator units,
having a totaled installed capacity of 6.4 megawatts; (4) a tailrace
returning flows to the Little River; (5) a one-mile-long, 14.4-kilovolt
transmission line or a 6.5-mile-long, 13.8 kilovolt transmission line
connecting to an existing distribution line; and (6) appurtenant
facilities. The project would have an average annual generation of
16,200 megawatt-hours.
    m. A copy of the application is available for review at the
Commission in the Public Reference Room or may be viewed on the
Commission's Web site 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 Online Support at
<EMAIL_ADDRESS>or toll-free at 1-866-208-3676, or for TTY,

(202) 502-8659. A copy is also available for inspection and
reproduction at the address in item h above.
    All filings must: (1) Bear in all capital letters the title
``COMMENTS,'' ``REPLY COMMENTS,'' ``RECOMMENDATIONS,'' ``TERMS AND
CONDITIONS,'' or ``PRESCRIPTIONS;'' (2) set forth in the heading the
name of the applicant and the project number of the application to
which the filing responds; (3) furnish the name, address, and telephone
number of the person submitting the filing; and (4) otherwise comply
with the requirements of 18 CFR 385.2001 through 385.2005. All
comments, recommendations, terms and conditions, or prescriptions must
set forth their evidentiary basis and otherwise comply with the
requirements of 18 CFR 4.34(b) and 385.2010. Agencies may obtain copies
of the application directly from the applicant.
    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp
 to be notified via e-mail of new filings and

issuances related to this or other pending projects. For assistance,
contact FERC Online Support.
    n. Procedural Schedule: The Commission staff proposes to issue a
single Environmental Assessment (EA) rather than issuing a draft and
final EA. Staff intends to allow at least 30 days for entities to
comment on the EA. The Commission will take into consideration all
comments received on the EA before taking final action on the license
application. The application will be processed according to the
following schedule, but revisions to the schedule may be made as
appropriate:
    Issue Notice of Availability of the EA: May 2008.
    o. The license applicant must file no later than 60 days following
the date of issuance of this notice: (1) A copy of the water quality
certification; (2) a copy of the request for certification, including
proof of the date on which the certifying agency received the request;
or (3) evidence of waiver of water quality certification.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-19776 Filed 10-5-07; 8:45 am]

BILLING CODE 6717-01-P


(6) If you operate an integrated sampling Hg CEMS conforming to PS 12B, you may use a monitoring period from 24 hours to 168 hours in length. You should use a monitoring period that is a multiple of 24 hours (except during relative accuracy testing as allowed in PS 12B).
      (l) HCl Monitoring Requirements. If you are subject to an emissions limitation on HCl emissions in §63.1343, you must continuously monitor HCl according to paragraph (l)(1) or (2) and  paragraphs (m)(1) through (m)(4) of this sectionor, if your kiln is controlled using a wet or dry scrubber or tray tower, you may continuously monitor SO2 emissions according to paragraph (l)(3) of this section. You must also develop an emissions monitoring plan in accordance with paragraphs (p)(1) through (p)(4) of this section.

      *  *  *  *  *
      (2) Install, operate, and maintain a CMS to monitor wet scrubber or tray tower parameters, as specified in paragraphs (m)(5) and (m)(7) of this section, and dry scrubber, as specified in paragraph (m)(8) of this section.
      (3) If the source is equipped with a wet or dry scrubber or tray tower, and you choose to monitor SO2 emissions, you must continuously monitor SO2 according to the requirements of §60.63(e) through (f) of part 60 subpart F of this chapter. If SO2 levels increase above the 1 hour average SO2 operating level established during your performance test, you must
      (i) As soon as possible but no later than 30 days after you exceed the established SO2 value conduct an inspection and take corrective action to return the SO2 CEMS measurement to within the established value; and
      (ii) Within 90 days of the exceedance or at the time of the next compliance test, whichever comes first, conduct an HCl emissions compliance test to determine compliance with the HCl emissions limit and to verify or re-establish the SO2 CEMS operating limit.
      (m) Parameter Monitoring Requirements. If you have an operating limit that requires the use of a CMS, you must install, operate, and maintain each continuous parameter monitoring system (CMS) according to the procedures in paragraphs (m)(1) through (4) of this section by the compliance date specified in §63.1351. You must also meet the applicable specific parameter monitoring requirements in paragraphs (m)(5) through (m)(11) that are applicable to you.
*  *  *  *  *
      (7) *  *  *
      (i) Locate the pH sensor in a position that provides a representative measurement of wet scrubber or tray tower effluent pH.
*  *  *  *  *
      (9) Mass Flow Rate (for Sorbent Injection) Monitoring Requirements. If you have an operating limit that requires the use of equipment to monitor sorbent injection rate (e.g., weigh belt, weigh hopper, or hopper flow measurement device), you must meet the requirements in paragraphs (m)(9)(i) through (iii) of this section. These requirements also apply to the sorbent injection equipment of a dry scrubber.
*  *  *  *  *
      (10) Bag leak detection monitoring requirements. If you elect to use a fabric filter bag leak detection system to comply with the requirements of this subpart, you must install, calibrate, maintain, and continuously operate a BLDS as specified in paragraphs (m)(10)(i) through (viii) of this section.
      (i) You must install and operate a BLDS for each exhaust stack of the fabric filter.
      (ii) Each BLDS must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations and in accordance with the guidance provided in EPA - 454/R - 98 - 015, September 1997.
      (iii) The BLDS must be certified by the manufacturer to be capable of detecting particulate matter emissions at concentrations of 10 or fewer milligrams per actual cubic meter.
      (iv) The BLDS sensor must provide output of relative or absolute particulate matter loadings.
      (v) The BLDS must be equipped with a device to continuously record the output signal from the sensor.
      (vi) The BLDS must be equipped with an alarm system that will alert an operator automatically when an increase in relative particulate matter emissions over a preset level is detected. The alarm must be located such that the alert is detected and recognized easily by an operator.
      (vii) For positive pressure fabric filter systems that do not duct all compartments of cells to a common stack, a BLDS must be installed in each baghouse compartment or cell.
*  *  *  *  *
      (11) *  *  *
      (v) Cleaning the BLDS probe or otherwise repairing the BLDS; or
*  *  *  *  *
      (n) Continuous Flow Rate Monitoring System. You must install, operate, calibrate, and maintain instruments, according to the requirements in paragraphs (n)(1) through (10) of this section, for continuously measuring and recording the stack gas flow rate to allow determination of the pollutant mass emissions rate to the atmosphere from sources subject to an emissions limitation that has a pounds per ton of clinker unit.
*  *  *  *  *
	(3) [Reserved]
*  *  *  *  *
      (o) Alternate Monitoring Requirements Approval. You may submit an application to the Administrator for approval of alternate monitoring requirements to demonstrate compliance with the emission standards of this subpart, except for emission standards for THC, subject to the provisions of paragraphs (o)(1) through (o)(6) of this section.
*  *  *  *  *
      (p) Development and Submittal (Upon Request) of Monitoring Plans. If you demonstrate compliance with any applicable emissions limit through performance stack testing or other emissions monitoring, you must develop a site-specific monitoring plan according to the requirements in paragraphs (p)(1) through (4) of this section. This requirement also applies to you if you petition the EPA Administrator for alternative monitoring parameters under paragraph (o) of this section and §63.8(f). If you use a BLDS, you must also meet the requirements specified in paragraph (p)(5) of this section.
      (1) For each CMS required in this section, you must develop, and submit to the permitting authority for approval upon request, a site-specific monitoring plan that addresses paragraphs (p)(1)(i) through (iii) of this section. You must submit this site-specific monitoring plan, if requested, at least 30 days before your initial performance evaluation of your CMS.
*  *  *  *  *
      (2) In your site-specific monitoring plan, you must also address paragraphs (p)(2)(i) through (iii) of this section.
*  *  *  *  *
      (5) BLDS Monitoring Plan. Each monitoring plan must describe the items in paragraphs (p)(5)(i) through (v) of this section. At a minimum, you must retain records related to the site-specific monitoring plan and information discussed in paragraphs (m)(1) through (4), (m)(10) and (m)(11) of this section for a period of 5 years, with at least the first 2 years on-site;
      *  *  *  *  *
      21. Section 63.1351 is amended by revising paragraphs (c) and (d), and adding paragraph (e) to read as follows:
§63.1351  Compliance dates.
*  *  *  *  *
      (c)  The compliance date for existing sources for all the requirements that became effective on [INSERT DATE 60 DAYS AFTER PUBLICATION OF THESE AMENDMENTS IN THE FEDERAL REGISTER] will be September 9, 2015.].
      (d) The compliance date for new sources is [INSERT DATE 60 DAYS AFTER PUBLICATION OF THESE AMENDMENTS IN THE FEDERAL REGISTER] or startup, whichever is later.
      (e) The compliance date for existing and new sources with the requirements for open clinker storage piles in §63.1343(c) is [INSERT DATE 60 DAYS AFTER PUBLICATION OF THESE AMENDMENTS IN THE FEDERAL REGISTER] or startup, whichever is later.
      22. Section 63.1352 is amended by revising paragraph (b) to read as follows:
      §63.1352  Additional test methods.
       (a) If you are conducting tests to determine the rates of emission of HCl from kilns and associated bypass stacks at portland cement manufacturing facilities, for use in applicability determinations under §63.1340 you may use Method 320 or Method 321 of appendix A of this part.

      (b) Owners or operators conducting tests to determine the rates of emission of specific organic HAP from raw material dryers, kilns at Portland cement manufacturing facilities, solely for use in applicability determinations under §63.1340 of this subpart are permitted to use Method 320 of appendix A to this part, or Method 18 of appendix A to part 60 of this chapter.
	23. Section 63.1354 is amended by revising paragraphs (b)(9)(vi) and (c) to read as follows:
§63.1354  Reporting requirements.
*  *  *  *  *
	(b)  *  *  *
      (9)  *  *  *
	(vi)	 For each PM, HCl, Hg, and THC CEMS or Hg sorbent trap monitoring system, within 60 days after the reporting periods, you must submit reports to EPA's WebFIRE database by using the Compliance and Emissions Data Reporting Interface (CEDRI) that is accessed through EPA's Central Data Exchange (CDX) (www.epa.gov/cdx). You must use the appropriate electronic reporting form in CEDRI or provide an alternate electronic file consistent with EPA's reporting form output format. For each reporting period, the reports must include all of the calculated 30-operating day rolling average values derived from the CEMS or Hg sorbent trap monitoring systems.
*  *  *  *  *
      (c) Reporting edeviations due to startup, shutdown or malfunctions. For each deviation from a standard or emission limit caused by a startup, shutdown, or malfunction at an affected source, you must report the deviation in the semi-annual compliance report. The report must contain the date, time and duration, and the cause of each event (including unknown cause, if applicable), and a sum of the number of events in the reporting period. The report must list for each event the affected source or equipment, an estimate of the volume of each regulated pollutant emitted over the emission limit for which the source failed to meet a standard, and a description of the method used to estimate the emissions. The report must also include a description of actions taken by an owner or operator during a malfunction of an affected source to minimize emissions in accordance with §63.1348(d), including actions taken to correct a malfunction.
*	*	*	*	*
      24. Section 63.1355 is amended by revising paragraphs (f) and (g) to read as follows:
§63.1355  Recordkeeping Requirements.
*	*	*	*	*
	(f) The date, time and duration of each startup or shutdown which causes the source to exceed any applicable emission limitation, and (f)(i) through (iii) of this section;
      (i)  The date, time, and duration of each startup or shutdown period, for any affected source that is subject to an emission standard during startup or shutdown that differs from the emission standard applicable at other times.
      (ii) The quantity and type of raw feed and fuel used during the startup or shutdown period.
      (ii) An estimate of the volume of each regulated pollutant emitted over the emission limit during startup or shutdown, with a description of the method used to estimate emissions.
      (g)(1) The date, time and duration of each malfunction that causes an affected source to fail to meet an applicable standard; if there was also a monitoring malfunction, the date, time and duration of the monitoring malfunction; the record must list the affected source or equipment, an estimate of the volume of each regulated pollutant emitted over the standard for which the source failed to meet a standard, and a description of the method used to estimate the emissions.
*	*	*	*	*
	25. Section 63.1356 is amended by revising the section heading and the section text to read as follows:
§63.1356  Sources with multiple emissions limit or monitoring requirements.
      If an affected facility subject to this subpart has a different emissions limit or requirement for the same pollutant under another regulation in title 40 of this chapter, the owner or operator of the affected facility must comply with the most stringent emissions limit or requirement and is exempt from the less stringent requirement.
      26.	Section 63.1357 is amended by:
      (a). Revising paragraph (a)(1); and
      (b). Revising paragraph (a)(2) to read as follows:
§63.1357  Temporary, conditioned exemption from particulate matter and opacity standards.
      (a) *	*	*
      (1) Any particulate matter and opacity standards of part 60 or part 63 of this chapter that are applicable to cement kilns and clinker coolers.
      (2) Any permit or other emissions or operating parameter or other limitation on workplace practices that are applicable to cement kilns and clinker coolers to ensure compliance with any particulate matter and opacity standards of this part or part 60 of this chapter.
*	*	*	*	*
	27. Table 3 to Subpart LLL of Part 63 is revised to read as follows:
Table 3 to Subpart LLL of Part 63 -- Applicability of General Provisions
                                   Citation
                                       e
                            Applies to Subpart LLL

                                  Explanation
  *         *         *         *         *         *         *
63.6(e)(3)
Startup, Shutdown Malfunction Plan
No
Startup and shutdown plans addressed in §63.1347.
  *         *         *         *         *         *         *


EPA REGISTRATION DIVISION COMPANY NOTICE OF FILING FOR PESTICIDE PETITIONS PUBLISHED IN THE FEDERAL REGISTER

EPA Registration Division contact: PV Shah,<PHONE_NUMBER>

INSTRUCTIONS:  Please utilize this outline in preparing the pesticide petition.  In cases where the outline element does not apply, please insert "NA-Remove" and maintain the outline. Please do not change the margins, font, or format in your pesticide petition. Simply replace the instructions that appear in green, i.e., "[insert company name]," with the information specific to your action.

TEMPLATE:

Archer Daniels Midland Company

IN-10693

	EPA has received a pesticide petition (In-10693) from Archer Daniels Midland Company, EPA Company Number 86603, 4666 E. Faries Parkway, Decatur, IL 62526 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180. to establish an exemption from the requirement of a tolerance for Sodium lactate, when either of the following isomers: sodium L-lactate (CAS # 867-56-1) and sodium D,L-lactate (CAS # 72-17-3) are used as an inert ingredient in pesticide formulations applied to growing crops, or to raw agricultural commodities after harvest under 40 CFR 180.910.  EPA has determined that the petition contains data or information regarding the elements set forth in section 408 (d)(2) of  FDDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.

A. Residue Chemistry

	1. Plant metabolism. Not applicable to this petition

	2. Analytical method. Not applicable to this petition

	3. Magnitude of residues. Not applicable to this petition

B. Toxicological Profile

The publically available robust lactic acid database can be used to bridge the toxicology data for sodium L-lactate and sodium D,L-lactate due to the biological equivalence of lactic acid and its sodium salts.  Upon ingestion, sodium lactate, the sodium salt of lactic acid, is readily converted to lactic acid in the human gut.  Thus, either sodium L- or D,L-lactate is present in vivo as lactic acid (i.e., is therefore biologically equivalent to either L- or D,L-lactic acid).  Accordingly, bridging the robust database of toxicological and environmental data for L- and D,L-lactic acid to support an exemption from tolerance for sodium L-lactate and sodium D,L-lactate is a scientifically sound approach.

	1. Acute toxicity.  Naturally occurring in many foods, lactic acid is shown to be of low acute oral, dermal and inhalation toxicity, and is considered EPA Toxicity Category III or IV. However, due to its acidic character, it is severely irritating and potentially corrosive to eyes and skin, and considered EPA Toxicity Category I.

An intraperitoneal study and an oral feeding study were conducted with sodium lactate that showed it to be similar to lactic acid in that it is of low toxicity (LD50 > 2000 mg/kg).

	2. Genotoxicty. Due to its naturally occurring prevalence in food and in humans as a metabolic product, the Agency previously waived mutagenicity data requirements for lactic acid.  Because of the biological equivalence of sodium lactate and lactic acid, it is appropriate to conclude that mutagenicity data would also be waived for sodium lactate.

	3. Reproductive and developmental toxicity. Due to its naturally occurring prevalence in food and in humans as a metabolic product, the Agency previously waived reproductive and developmental toxicity data requirements for lactic acid.  Because of the biological equivalence of sodium lactate and lactic acid, it is appropriate to conclude that reproductive and developmental toxicity data would also be waived for sodium lactate.

	4. Subchronic toxicity. Due to its naturally occurring prevalence in food and in humans as a metabolic product, the Agency previously waived subchronic toxicity data requirements for lactic acid.  Because of the biological equivalence of sodium lactate and lactic acid, it is appropriate to conclude that subchronic toxicity data would also be waived for sodium lactate.

	5. Chronic toxicity. Due to its naturally occurring prevalence in food and in humans as a metabolic product, the Agency previously waived chronic toxicity data requirements for lactic acid.  Because of the biological equivalence of sodium lactate and lactic acid, it is appropriate to conclude that chronic toxicity data would also be waived for sodium lactate.

	6. Animal metabolism. Sodium lactate is the sodium salt of lactic acid, and is produced naturally by the fermentation of a sugar source.  Sodium lactate when ingested is broken down into sodium chloride and lactic acid, which is subsequently converted to carbon dioxide and water.

	7. Metabolite toxicology. There are no metabolites of toxicological concern.

	8. Endocrine disruption. EPA has not reported having any available information to suggest that sodium lactate would have any endocrine effects.  When the appropriate screening and/or testing protocols under the EDSP have been developed, sodium lactate may be subject to additional screening and/or testing to better characterize effects related to endocrine disruption.  This does not impact the current regulatory status of sodium lactate.

C. Aggregate Exposure

	1. Dietary exposure.  Dietary exposure (food and drinking water) to lactic acid occurs primarily from naturally occurring sources in foods.  However, risk estimates have not been calculated by EPA for potential exposures to lactic acid on food, in drinking water, or as a result of use in residential settings because there are no toxicological endpoints of concern for lactic acid.  Because of the biological equivalence of sodium lactate and lactic acid, it is appropriate to conclude that there should be no toxicological endpoints of concern for sodium lactate.

	2. Non-dietary exposure. Based on the proposed 40 CFR §180.910 uses cited herein, residential exposure of sodium lactate is not expected to occur.

D. Cumulative Effects. EPA has not made a common mechanism of toxicity finding for sodium lactate.

E. Safety Determination

	1. U.S. population. As part of the FQPA tolerance reassessment process, EPA concluded that there are no toxicological endpoints of concern for oral, dermal, or inhalation exposure to lactic acid.  Given the wide spread occurrence in food and in the body, no subchronic or chronic assessment was made.  The Agency determined that the established exemptions from the requirement for a tolerance for lactic acid for current uses met the safety standards under the FQPA amendments to section 408(b)(2)(D) of the FFDCA, and that there is a reasonable certainty no harm will result to the general population or any subgroup from the use of lactic acid in pesticide formulations.

Because no toxicological endpoints were identified for lactic acid, EPA determined that exposure to lactic acid does not result in human health effects of concern.  Therefore, a quantitative risk assessment was deemed not necessary.  The inclusion of the sodium lactate uses would not change this determination.

	2. Infants and children. EPA determined that the established exemptions from the requirement of a tolerance for lactic acid met the safety standards under the FQPA amendments to section 408(b)(2)(C) of the FFDCA, to establish that there was a "reasonable certainty of no harm" for infants and children. While there are some concerns about the ingestion of lactic acid by premature and very young infants, and lactic acid is not allowed as a food additive in infant formula as a result, the Agency determined that because these infants only consume infant formula or breast milk, that exposure to lactic acid from other foods would not occur.  The inclusion of the sodium lactate uses would not change this determination.

As no toxicological endpoints have been identified for lactic acid and/or sodium lactate, no FQPA Safety Factor is applicable.

F. International Tolerances Currently there are no known Codex MRLs established for sodium lactate.


[Federal Register: November 8, 2007 (Volume 72, Number 216)]
[Rules and Regulations]
[Page 63100-63101]
[DOCID:fr08no07-4]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2007-28773; Airspace Docket No. 07-ACE-9]

Modification of Class E Airspace; Poplar Bluff, MO

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Direct final rule; confirmation of effective date.

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

SUMMARY: This document confirms the effective date of the direct final
rule which revises Class E airspace at Poplar Bluff, MO.

DATES: Effective Date: 0901 UTC, December 20, 2007.

FOR FURTHER INFORMATION CONTACT: Grant Nichols, System Support, DOT
Regional Headquarters Building, Federal Aviation Administration, 901
Locust, Kansas City, MO 64106; telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The FAA published this direct final rule
with a request for comments in the Federal Register on September 7,
2007 (72 FR 51363). The FAA uses the direct final rulemaking procedure
for a non-controversial rule where the FAA believes that there will be
no adverse public comment. This direct final rule advised the public
that no adverse comments were anticipated, and that unless a written
adverse comment, or a written notice of intent to submit such an
adverse comment, were received within the comment period, the
regulation would become effective on December 20, 2007.
    Class E airspace areas extending upward from 700 feet or more above
the surface of the earth are published in Paragraph 6005 of FAA Order
7400.9R, signed August 1, 2007, and effective September 15, 2007, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designations

listed in this document will be published subsequently in the Order.
    No adverse comments were received, and thus this notice confirms
that this direct final rule will become effective on that date.

    Issued in Fort Worth, Texas on October 19, 2007.
Donald R. Smith,
Manager, System Support Group, ATO Central Service Center.
[FR Doc. 07-5317 Filed 11-7-07; 8:45 am]

BILLING CODE 4910-13-M


[Federal Register Volume 88, Number 102 (Friday, May 26, 2023)]
[Notices]
[Pages 34201-34203]
[FR Doc No: 2023-11239]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97541; File No. SR-BX-2023-012]

Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Offer Field-
Programmable Gate Array Technology as an Optional Delivery Mechanism
for BX TotalView

May 22, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on May 12, 2023, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed with
the Securities and Exchange Commission (``SEC'' or ``Commission'') the
proposed rule change as described in Items I and II below, which Items
have been prepared by the Exchange. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to offer field-programmable gate array
(``FPGA'') technology as an optional delivery mechanism for BX
TotalView.

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
    BX proposes to offer field-programmable gate array (``FPGA'')
technology as an optional delivery mechanism for BX TotalView.\3\
---------------------------------------------------------------------------

    \3\ A proposal to make FPGA technology also available at the PSX
Exchange is being submitted together with this proposal. The
Exchange initially filed this Proposal on May 4, 2023 (SR-BX-2023-
011). On May 12, 2023, the Exchange withdrew SR-BX-2023-011 and
replaced it with the instant filing. This filing corrects an error
in the initial submission, but includes no substantive changes.
---------------------------------------------------------------------------

    FPGA technology has been used for over a decade by the Nasdaq Stock
Market to facilitate customer ingestion of large quantities of
information at periods of peak activity. FPGA hardware is designed to
facilitate the processing of large data packets without introducing
variable queuing, thereby improving the predictability of data transfer
on telecommunications ports, a process known as ``determinism.''
Outside of peak activity, FPGA helps customers establish more
predictable consistency in message throughput over the course of the
trading day.

    The Exchange proposes to use FPGA technology to process BX
TotalView data. BX TotalView is a real-time market data product that
provides full order depth using a series of order messages to track the
life of customer orders in the BX market, as well as trade data for BX
executions and administrative messages such as Trading Action messages,
Symbol Directory, and Event Control messages.\4\ BX TotalView allows
users to view all displayed quotes and orders, access total displayed
anonymous interest, and see total size of all displayed quotes and
orders.
---------------------------------------------------------------------------

    \4\ See Nasdaq BX, Inc. Rules, Equity 7, Section 123 (BX
TotalView); see also Securities Exchange Act Release No. 59307
(January 28, 2009), 74 FR 6069 (February 4, 2009) (establishing fees
for BX TotalView).
---------------------------------------------------------------------------

    FPGA technology has been offered by the Nasdaq Stock Exchange for
over a decade, and the Nasdaq Options Market for nearly as long,\5\ and
has been cited by the SEC as an example of a technology useful in the
distribution of market data products.\6\ It is a well-established
technology that is familiar to market participants.
---------------------------------------------------------------------------

    \5\ See Securities Exchange Act Release No. 67297 (June 28,
2012), 77 FR 39752 (July 5, 2012) (SR-Nasdaq-2012-063) (introducing
FPGA technology); see also Nasdaq Data News 2012-13, available at
http://www.nasdaqtrader.com/TraderNews.aspx?id=dn2012-13
(introducing TotalView FPGA service as of August 1, 2012);
Securities Exchange Act Release No. 74745 (April 16, 2015), 80 FR
22588 (April 22, 2015) (SR-Nasdaq-2015-035) (establishing FPGA for
the Nasdaq Options Market); see also The Nasdaq Stock Market LLC
Rules, Equity 7, Section 126(c) (Hardware-Based Delivery of Nasdaq
Depth data).
    \6\ See Securities Exchange Act Release No. 90610, 86 FR 18596,
18647 (April 9, 2021) (File No. S7-03-20) (listing field
programmable gate array services as an example of a technological
innovation that could be employed by competing consolidators as part
of the Market Data Infrastructure rule).
---------------------------------------------------------------------------

    The purchase of FPGA technology is entirely optional because FPGA
functionality can be replicated through a variety of software
solutions. Our experience with Nasdaq TotalView is that some customers
use FPGA technology to address determinism, others avail themselves of
software solutions, some use both, and others alternate between both.
Some market participants that have purchased FPGA technology in the
past have discontinued its use. There are no systematic differences
among market participants that choose to use or not to use FPGA
technology beyond the compatibility of FPGA technology with the
customer's specific technical systems, which can change over time as
systems are modified, replaced or updated.
    The proposal to offer FPGA technology to customers of BX TotalView
is in response to customer demand. To date, lower levels of peak
activity at the BX Exchange relative to the Nasdaq Exchange have been
associated with low levels of customer interest in this product.
Recently, however, BX has heard from customers interested in using FPGA
technology for BX TotalView. To address this customer demand, and to
drive liquidity to the BX Exchange by making it a more attractive
trading venue, BX has decided to offer this product to meet evolving
customer needs.
    The Exchange will submit a proposed fee schedule for this product
in a separate filing. The Exchange intends to make this product
available on June 1, 2023.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\7\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\8\ in particular, in that it is designed to promote
just and equitable principles of trade, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and in general to protect investors and the public interest.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    As noted above, the current proposal to offer FPGA technology with
BX TotalView is in response to changes in customer demand. This
proposal reflects the need for the Exchange to stay competitive in the
market for exchange services. It also promotes competition and
innovation by providing market participants additional choices in the
transmission of depth of book data.
    Offering this well-recognized technology to customers will
facilitate their usage of the data. If the technology is not ultimately
beneficial, the customer can discontinue it at any time, and for any
reason, as they have done in the past. Customers that choose not to
purchase FPGA technology will not be affected because these customers
have alternative methods to facilitate determinism available to them.
    Approval of this proposal is in the public interest and otherwise
furthers the objectives of Section 6(b)(5) of the Act because it
promotes competition, facilitates the ingestion of market data by
certain market participants, and has no impact on customers that do not
elect to avail themselves of the service.

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.
    Nothing in the Proposal burdens inter-market competition (the
competition among self-regulatory organizations) because approval of
the Proposal does not impose any burden on the ability of other
exchanges to compete. All exchanges are free introduce products that
facilitate the ingestion of data at peak periods.
    Nothing in the Proposal burdens intra-market competition (the
competition among consumers of exchange data) because FPGA technology
will be available to any market participant on a non-discriminatory
basis.

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

    FINRA has filed the proposed rule change pursuant to Section
19(b)(3)(A) of the Act \9\ and Rule 19b-4(f)(6) thereunder.\10\ Because
the proposed rule change does not: (i) significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6) thereunder.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \11\ normally
does not become operative prior to 30 days after the date of the
filing. However, Rule 19b-4(f)(6)(iii) \12\ permits the Commission to
designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative on June 1 so that any potential customer that
wishes to obtain

the FPGA service would be able to do so on June 1, 2023. The Exchange
argues that an operative date of June 1, 2023 is consistent with the
protection of investors and the public interest because market data
services are typically initiated at the beginning of a calendar month,
and the June 1 operative date would allow any interested customer to
utilize the service for the entire month, while still allowing any
interested party almost a month to review the proposal.\13\ The
Exchange also argues that the benefits of the full month of operation
outweigh any costs associated with a slightly shorter operative delay,
given that FPGA is a well-established technology that is familiar to
market participants. The Commission believes that waiver of the 30-day
operative delay is consistent with the protection of investors and the
public interest. Accordingly, the Commission hereby waives the
operative delay and designates the proposed rule change as operative
upon filing.\14\
---------------------------------------------------------------------------

    \11\ 17 CFR 240.19b-4(f)(6).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ The Exchange initially filed the substance of this proposed
rule change on May 4, 2023 as SR-BX-2023-011. This initial proposal
was withdrawn and replaced on May 12, 2023.
    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change 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-BX-2023-012 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-BX-2023-012. 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. Do not include
personal identifiable information in submissions; you should submit
only information that you wish to make available publicly. We may
redact in part or withhold entirely from publication submitted material
that is obscene or subject to copyright protection. All submissions
should refer to File Number SR-BX-2023-012, and should be submitted on
or before June 16, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

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

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-11239 Filed 5-25-23; 8:45 am]
BILLING CODE 8011-01-P