[Federal Register Volume 79, Number 75 (Friday, April 18, 2014)]
[Notices]
[Pages 22000-22001]
[FR Doc No: 2014-08857]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2005-21711; FMCSA-2009-0011; FMCSA-2009-0291; FMCSA-
2010-0050; FMCSA-2011-0379]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

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SUMMARY: FMCSA announces its decision to renew the exemptions from the
vision requirement in the Federal Motor Carrier Safety Regulations for
11 individuals. FMCSA has statutory authority to exempt individuals
from the vision requirement if the exemptions granted will not
compromise safety. The Agency has concluded that granting these
exemption renewals will provide a level of safety that is equivalent to
or greater than the level of safety maintained without the exemptions
for these commercial motor vehicle (CMV) drivers.

DATES: This decision is effective May 21, 2014. Comments must be
received on or before May 19, 2014.

ADDRESSES: You may submit comments bearing the Federal Docket
Management FMCSA-2005-21711; FMCSA-2009-0011; FMCSA-2009-0291; FMCSA-
2010-0050; FMCSA-2011-0379], using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and
5 p.m., Monday through Friday, except Federal Holidays.
     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket number for this notice. Note that DOT posts all comments
received without change to http://www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Federal Docket Management System (FDMS) is
available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the Federal Docket
Management System (FDMS) published in the Federal Register on January
17, 2008 (73 FR 3316).

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the vision requirements in 49 CFR 391.41(b)(10), which applies to
drivers of CMVs in interstate commerce, for a two-year period if it
finds ``such exemption would likely achieve a level of safety that is
equivalent to or greater than the level that would be achieved absent
such exemption.'' The procedures for requesting an exemption (including
renewals) are set out in 49 CFR part 381.

Exemption Decision

    This notice addresses 11 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. FMCSA has
evaluated these 11 applications for renewal on their merits and decided
to extend each exemption for a renewable two-year period. They are:

David A. Brannon (FL)
Harvey H. Curtis, Sr. (MD)
Steven R. Felks (TX)
Herbert C. Hirsch (MO)
Michael D. Kilgore (TX)
Joseph J. Kushak (MI)
Douglas L. Norman (NC)
Christopher A. Reineck (OH)
Carroll R. Rogers (CA)
Wayne J. Savage (VA)
Marion Tutt, Jr. (GA)

    The exemptions are extended subject to the following conditions:
(1) That each individual has a physical examination every year (a) by
an ophthalmologist or optometrist who attests that the vision in the
better eye continues to meet the requirements in 49 CFR 391.41(b)(10),
and (b) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual provides a copy of the ophthalmologist's or optometrist's
report to the medical examiner at the time of the annual medical
examination; and (3) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file and retains a copy of the certification on his/her
person while driving for presentation to a duly authorized Federal,
State, or local enforcement official. Each exemption will be valid for
two years unless rescinded earlier by FMCSA. The exemption will be
rescinded if: (1) The person fails to comply with the terms and
conditions of the exemption; (2) the exemption has resulted in a lower
level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31136(e) and 31315.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. In accordance with 49
U.S.C. 31136(e) and 31315, each of the 11 applicants has satisfied the
entry conditions for obtaining an exemption from the vision
requirements (70 FR 48797; 70 FR 61493; 73 FR 6246; 74 FR 65842; 75 FR
9478; 75 FR 9480; 75 FR 14656; 75 FR

19674; 75 FR 22176; 75 FR 28684; 77 FR 15184; 77 FR 23797; 77 FR 23800;
74 FR 27850). Each of these 11 applicants has requested renewal of the
exemption and has submitted evidence showing that the vision in the
better eye continues to meet the requirement specified at 49 CFR
391.41(b)(10) and that the vision impairment is stable. In addition, a
review of each record of safety while driving with the respective
vision deficiencies over the past two years indicates each applicant
continues to meet the vision exemption requirements.
    These factors provide an adequate basis for predicting each
driver's ability to continue to drive safely in interstate commerce.
Therefore, FMCSA concludes that extending the exemption for each
renewal applicant for a period of two years is likely to achieve a
level of safety equal to that existing without the exemption.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by May 19, 2014.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 11 individuals from the vision
requirement in 49 CFR 391.41(b)(10). The final decision to grant an
exemption to each of these individuals was made on the merits of each
case and made only after careful consideration of the comments received
to its notices of applications. The notices of applications stated in
detail the qualifications, experience, and medical condition of each
applicant for an exemption from the vision requirements. That
information is available by consulting the above cited Federal Register
publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

Submitting Comments

    You may submit your comments and material online or by fax, mail,
or hand delivery, but please use only one of these means. FMCSA
recommends that you include your name and a mailing address, an email
address, or a phone number in the body of your document so that FMCSA
can contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and
in the search box insert the docket numbers FMCSA-2005-21711; FMCSA-
2009-0011; FMCSA-2009-0291; FMCSA-2010-0050; FMCSA-2011-0379 and click
the search button. When the new screen appears, click on the blue
``Comment Now!'' button on the right hand side of the page. On the new
page, enter information required including the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. If you submit your comments by mail or
hand delivery, submit them in an unbound format, no larger than 8\1/2\
by 11 inches, suitable for copying and electronic filing. If you submit
comments by mail and would like to know that they reached the facility,
please enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this
preamble, To submit your comment online, go to http://www.regulations.gov and in the search box insert the docket number
FMCSA-2005-21711; FMCSA-2009-0011; FMCSA-2009-0291; FMCSA-2010-0050;
FMCSA-2011-0379 and click ``Search.'' Next, click ``Open Docket
Folder'' and you will find all documents and comments related to the
proposed rulemaking.

    Issued on: April 9, 2014.
 Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2014-08857 Filed 4-17-14; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register: November 13, 2009 (Volume 74, Number 218)]
[Notices]
[Page 58665-58666]
[DOCID:fr13no09-100]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60949; File No. SR-NYSE-2009-110]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Extending a Temporary Equity Transaction Fee for Shares Executed on the
NYSE MatchPoint\SM\ System, Effective Upon Filing Through January 31,
2010

November 6, 2009.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on October 30, 2009, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to extend a temporary equity transaction fee
for shares executed on the NYSE MatchPoint\SM\ (``NYSE MatchPoint'' or
``MatchPoint'') system, effective upon filing through January 31, 2010.
The text of the proposed rule change is available at the Exchange, the
Commission's Public Reference Room, and http://www.nyse.com.

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

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

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

1. Purpose
    On January 7, 2009, the Exchange filed with the Securities and
Exchange Commission (the ``Commission'') a proposed rule change to
adopt a temporary equity transaction fee for shares executed on the
NYSE MatchPoint\SM\ system, effective until February 28, 2009 (the
``January filing'').\4\ On February 26, 2009, the Exchange filed with
the Commission a proposed rule change to extend this temporary equity
transaction fee until April 30, 2009 (the ``March filing'').\5\ On
April 29, 2009, the Exchange filed with the Commission a proposed rule
change to further extend this temporary equity transaction fee until
June 30, 2009 (the ``April filing'').\6\ On July 6, 2009, the Exchange
filed with the Commission a proposed rule change to further extend this
temporary equity transaction fee

until July 31, 2009 (the ``July filing'').\7\ On August [sic] 31, 2009,
the Exchange filed with the Commission a proposed rule change to
further extend this temporary equity transaction fee until October 31,
2009 (the ``October filing'').\8\ Through this filing, the Exchange
proposes to extend this equity transaction fee to be effective upon
filing through January 31, 2010.
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    \4\ See Securities Exchange Act Release No. 59229 (January 12,
2009) 74 FR 3119 (January 16, 2009) (SR-NYSE-2009-01).
    \5\ See Securities Exchange Act Release No. 59491 (March 3,
2009) 74 FR 10107 (March 9, 2009) (SR-NYSE-2009-20).
    \6\ See Securities Exchange Act Release No. 59864 (May 5, 2009)
74 FR 22194 (May 12, 2009) (SR-NYSE-2009-44).
    \7\ See Securities Exchange Act Release No. 60278 (July 10,
2009) 74 FR 34615 (July 16, 2009) (SR-NYSE-2009-67).
    \8\ See Securities Exchange Act Release No. 60439 (July 31,
2009) [sic] 74 FR 40270 (August 11, 2009) (SR-NYSE-2009-78).
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    Prior to the January filing, the equity transaction fee was $.0015
per share executed on the MatchPoint system. In the January filing, the
Exchange proposed to adopt a scaled fee for MatchPoint users based on
the average daily volume of shares executed during a calendar month
through the MatchPoint system as follows:

------------------------------------------------------------------------
    Average daily volume of shares
               executed                               Rate
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50,000 shares or less.................  $.0015 per share.
Over 50,000 to 499,999................  $.0010 per share.
500,000 and greater...................  $.0005 per share.
------------------------------------------------------------------------

    The March, April, July and October filings proposed to continue
this fee schedule.
    The Exchange believes that the extension of the fee schedule
through January 31, 2010 will continue to reward those who have been
using the MatchPoint system for share execution, and will provide a
continued incentive for new participants in MatchPoint.
2. Statutory Basis
    The basis under the Securities Exchange Act of 1934 (the ``Act'')
\9\ for the proposed rule change is the requirement under Section
6(b)(4) that an exchange have rules that provide for the equitable
allocation of reasonable dues, fees and other charges among its members
and other persons using its facilities. The Exchange believes the fees
are reasonable in that they carry forward a reduction in fees that the
January filing established and that the March, April, July and October
filings extended, and are equitable in that they are available to all
members who access the MatchPoint system.
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    \9\ 15 U.S.C. 78a.
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

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

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \10\ of the Act and subparagraph (f)(2) of Rule
19b-4\11\ thereunder, because it establishes a due, fee, or other
charge imposed by the NYSE.
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(2).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2009-110 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NYSE-2009-110. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 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; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSE-2009-110 and should be
submitted on or before December 4, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-27255 Filed 11-12-09; 8:45 am]

BILLING CODE 8011-01-P


To: EPA OAR Docket EPA HQ OAR 2006 0306 From Donna Lee Jones, EPA/ OAQPS/ SPPD ( MD D243 02) 919 541 5251 Employee ID No. 25010 Date March 28, 2006 Re Public Access to Docket EPA HQ OAR 2006 0306 Please make the above docket open to the public. Over 1,000 survey recipients are expected to need access to electronic files and copies of the surveys. The docket system is the best mechanism for distribution of the electronic survey since these same people will use the docket to view the FR proposal notice and make comments.


[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43149-43153]
[FR Doc No: 2011-18125]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2011-0031; FRL-9440-7]

Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Prevention of Significant Deterioration; Greenhouse Gas
Tailoring Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the New Mexico Environment Department (NMED) to EPA on
December 1, 2010. This SIP revision modifies New Mexico's Prevention of
Significant Deterioration (PSD) program to establish appropriate
emission thresholds for determining which new stationary sources and
modification projects become subject to New Mexico's PSD permitting
requirements for their greenhouse gas (GHG) emissions. EPA is fully
approving New Mexico's December 1, 2010, PSD SIP revision because the
Agency has determined that this PSD SIP revision is in accordance with
section 110 and part C of the Federal Clean Air Act and EPA regulations
regarding PSD permitting for GHGs.

DATES: This final rule will be effective August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-OAR-2011-0031. 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
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 related to this SIP revision, and which is part
of the EPA docket, is also available for public inspection at the State
Air Agency listed below during official business hours by appointment:
    New Mexico Environment Department, Air Quality Bureau, 1190 St.
Francis Drive, Santa Fe, New Mexico 87502.

FOR FURTHER INFORMATION CONTACT: If you have questions concerning
today's final rule, please contact Ms. Melanie Magee (6PD-R), Air
Permits Section, Environmental Protection Agency, Region 6, 1445 Ross
Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number
is<PHONE_NUMBER>. Ms. Magee can also be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, whenever ``we'',
``us'', or ``our'' is used, we mean the EPA.

Table of Contents

I. What final action is EPA taking?
II. What is the background for this action?
III. What are EPA's responses to comments received on the proposed
action?
IV. Statutory and Executive Order Reviews

I. What final action is EPA taking?

    EPA is fully approving New Mexico's December 1, 2010, SIP
submittal, relating to PSD requirements for GHG-emitting sources.
Specifically, New Mexico's December 1, 2010, proposed SIP revision
establishes appropriate emissions thresholds for determining PSD
applicability to new and modified GHG-emitting sources in accordance
with EPA's Tailoring Rule. EPA has made the determination that this SIP
submittal is approvable because it is in accordance with the Clean Air
Act (CAA) and EPA regulations regarding PSD permitting for GHGs.
    As explained in our proposed approval of the New Mexico December 1,
2010, SIP revision, 76 FR 20907 (April 14, 2011), since EPA is
finalizing its approval of New Mexico's changes to its air quality
regulations to incorporate the appropriate thresholds for GHG
permitting applicability into New Mexico's SIP, then paragraph (d) in
Sec.  52.1634 of 40 CFR part 52, added in EPA's PSD SIP Narrowing Rule
to codify the limitation of EPA's approval of New Mexico's PSD SIP to
exclude the applicability of PSD to GHG-emitting sources below the
Tailoring Rule thresholds, is no longer necessary. In today's action,
EPA is also amending Sec.  52.1634 of 40 CFR part 52 to remove this
unnecessary regulatory language.
    Today, we are approving the December 1, 2010, New Mexico PSD SIP
revision as we proposed and find that the SIP revision complies with
section 110 and part C of the Federal Clean Air Act and EPA regulations
regarding PSD permitting for GHGs.

II. What is the background for this action?

    This section briefly summarizes EPA's recent GHG-related actions
that provide the background for today's action. More detailed
discussion of the background is found in the preambles for those
actions, particularly in the background section of what we call the PSD
SIP Narrowing Rule.\1\
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    \1\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December
30, 2010).
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A. GHG-related Actions

    EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's final action on
the New Mexico SIP. Four of these actions include, as they are commonly
called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\2\ the ``Johnson
Memo Reconsideration,'' \3\ the ``Light-Duty Vehicle Rule,'' \4\ and
the ``Tailoring Rule.'' \5\ Taken together and in conjunction with the
CAA, these actions established regulatory requirements for GHGs emitted
from new motor vehicles and new motor vehicle engines; determined that
such regulations, when they took effect on January 2, 2011, subjected
GHGs emitted from stationary sources to PSD requirements; and limited
the applicability of PSD requirements to GHG sources on a phased-in
basis. EPA took this last action in the Tailoring Rule, which, more
specifically, established appropriate GHG emission thresholds for
determining the applicability of PSD requirements to GHG-emitting
sources.
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    \2\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
    \3\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
    \4\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
    \5\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
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    PSD is implemented through the SIP system, and so in December 2010,
EPA promulgated several rules to implement the new GHG PSD SIP program.
Recognizing that some states had approved SIP PSD programs that did not
apply PSD to GHGs, EPA issued a SIP call and, for some of these states,
a FIP.\6\ Recognizing that other states had approved SIP PSD programs
that do apply PSD to GHGs, but that do so for sources that emit as
little as 100 or 250 tons per year (tpy) of GHG, and that do not limit
PSD applicability to GHGs to the higher thresholds in the Tailoring
Rule, EPA issued the GHG PSD SIP Narrowing Rule. Under that rule, EPA

withdrew its approval of the affected SIPs to the extent those SIPs
applied PSD requirements to GHG emissions from GHG-emitting sources
below the Tailoring Rule thresholds.
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    \6\ Specifically, by notice dated December 13, 2010, EPA
finalized a ``SIP Call'' that would require those states with SIPs
that have approved PSD programs but do not authorize PSD permitting
for GHGs to submit a SIP revision providing such authority. ``Action
To Ensure Authority To Issue Permits Under the Prevention of
Significant Deterioration Program to Sources of Greenhouse Gas
Emissions: Finding of Substantial Inadequacy and SIP Call,'' 75 FR
77698 (Dec. 13, 2010). EPA has begun making findings of failure to
submit that would apply in any state unable to submit the required
SIP revision by its deadline, and finalizing FIPs for such states.
See, e.g., ``Action To Ensure Authority To Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Failure To Submit State
Implementation Plan Revisions Required for Greenhouse Gases,'' 75 FR
81874 (December 29, 2010); ``Action To Ensure Authority To Issue
Permits Under the Prevention of Significant Deterioration Program to
Sources of Greenhouse Gas Emissions: Federal Implementation Plan,''
75 FR 82246 (December 30, 2010). Because New Mexico's SIP already
authorizes New Mexico to regulate GHGs once GHGs become subject to
PSD requirements on January 2, 2011, New Mexico is not subject to
the proposed SIP Call or FIP.
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B. New Mexico's Actions

    On June 24, 2010, New Mexico provided a letter to EPA, in
accordance with a request to all States from EPA in the Tailoring Rule,
with confirmation that the State has the authority to regulate GHG in
its PSD program. The letter confirmed that current New Mexico rules
require regulating GHGs at the existing 100/250 tpy threshold, rather
than at the higher thresholds set in the Tailoring Rule because the
state does not have the authority to apply the meaning of the term
``subject to regulation'' established in the Tailoring Rule. New Mexico
also submitted a letter on September 14, 2010, in response to the
proposed GHG SIP Call, again confirming that EPA correctly classified
New Mexico as a state with authority to apply PSD requirements to GHGs.
The September 14, 2010, letter also states that NMED is pursuing
rulemaking activity to define the terms ``greenhouse gas'' and
``subject to regulation.'' See the docket for this proposed rulemaking
for copies of New Mexico's June 24, 2010, and September 14, 2010,
letters.
    In the PSD SIP Narrowing Rule, published on December 30, 2010, EPA
withdrew its approval of New Mexico's SIP--among other SIPs--to the
extent that SIP applies PSD permitting requirements to GHG emissions
from sources emitting at levels below those set in the Tailoring
Rule.\7\ As a result, New Mexico's current approved SIP provides the
state with authority to regulate GHGs, but only at and above the
Tailoring Rule thresholds, and thus federally requires new and modified
sources to receive a PSD permit based on GHG emissions only if they
emit at or above the Tailoring Rule thresholds.
---------------------------------------------------------------------------

    \7\ ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources
in State Implementation Plans; Final Rule.'' 75 FR 82536 (December
30, 2010).
---------------------------------------------------------------------------

    New Mexico has amended its state regulations to incorporate the
Tailoring Rule thresholds, and has submitted the adopted regulations as
revisions to the New Mexico SIP. EPA's approval of the New Mexico
revisions will clarify the applicable thresholds in the New Mexico SIP
and incorporate state law changes adopted at the local level into the
federally-approved SIP.
    The basis for this SIP revision is that limiting PSD applicability
to GHG sources to the higher thresholds in the Tailoring Rule is
consistent with the SIP provisions that provide required assurances of
adequate resources, and thereby addresses the flaw in the SIP that led
to the PSD SIP Narrowing Rule. Specifically, CAA section 110(a)(2)(E)
includes as a requirement for SIP approval that States provide
``necessary assurances that the State * * * will have adequate
personnel [and] funding `` to carry out such [SIP].'' In the Tailoring
Rule, EPA established higher thresholds for PSD applicability to GHG-
emitting sources on grounds that the states generally did not have
adequate resources to apply PSD to GHG-emitting sources below the
Tailoring Rule thresholds,\8\ and no State, including New Mexico,
asserted that it did have adequate resources to do so.\9\ In the PSD
SIP Narrowing Rule, EPA found that the affected states, including New
Mexico, had a flaw in their SIPs at the time they submitted their PSD
programs, which was that the applicability of the PSD programs was
potentially broader than the resources available to them under their
SIP.\10\ Accordingly, for each affected state, including New Mexico,
EPA concluded that EPA's action in approving the SIP was in error,
under CAA section 110(k)(6), and EPA rescinded its approval to the
extent the PSD program applies to GHG-emitting sources below the
Tailoring Rule thresholds.\11\ EPA recommended that States adopt a SIP
revision to incorporate the Tailoring Rule thresholds, thereby (i)
assuring that under State law, only sources at or above the Tailoring
Rule thresholds would be subject to PSD; and (ii) avoiding confusion
under the federally-approved SIP by clarifying that the SIP applies to
only sources at or above the Tailoring Rule thresholds.\12\
---------------------------------------------------------------------------

    \8\ Tailoring Rule, 75 FR 31,517/1.
    \9\ SIP Narrowing Rule, 75 FR 82,540/2.
    \10\ Id. at 82,542/3.
    \11\ Id. at 82,544/1.
    \12\ Id. at 82,540/2.
---------------------------------------------------------------------------

    The portions of the submitted SIP revision at <IP_ADDRESS>(AL)(3) NMAC
and <IP_ADDRESS>(AZ)(6) NMAC act to limit the enforceability of the
definition of ``subject to regulation'' in the event of an adverse
federal court determination in certain GHG-related matters. EPA
received a comment regarding the effect of such court actions, and now
clarifies its interpretation of these provisions in response. The
provisions state that in the event of a federal court determination
that invalidates or renders unenforceable the Tailoring Rule, ``the
definition `subject to regulation' shall be enforceable by the
Department only to the extent that it is enforceable by US EPA.'' EPA
reads this provision to mean that the state will wait for and follow
EPA's interpretation of the effect of such a court decision regarding
the enforceability of these SIP revisions by EPA before altering its
own application of that term. EPA approves the SIP on the basis of this
interpretation. If a court issues such a decision, EPA intends to
promptly describe the impact of the court's decision on the
enforceability of its regulations.

III. What are EPA's responses to comments received on the proposed
action?

    EPA received one comment letter from Tri-State Generation and
Transmission Association, Inc. in response to the proposed rulemaking.
The comment letter is available for review in the docket for this
rulemaking. A summary of the comments and EPA's responses are provided
below.
    Comment 1: Commenter states that its comments pertain to EPA's
proposed approval of the PSD portion of the New Mexico GHG Tailoring
Rule. Commenter maintains a policy position opposing regulation of
greenhouse gas emissions under the Clean Air Act, including its
permitting provisions. The fact that PSD and Title V permitting
thresholds need ``tailoring'' to be appropriate for greenhouse gases
demonstrates that the Clean Air Act is not intended to regulate
greenhouse gas emissions.
    Response 1: We refer Commenter to the ``Tailoring Rule''
(Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule; Final Rule'' 75 FR 31514 (June 3, 2010)) as well as our
proposed rulemaking notice at 76 FR 20907 (April 14, 2011) that cites
to and provides information on our national GHG actions and that
provides the general basis for the regulation of GHGs under PSD
permitting requirements. See footnotes 1-4 at 76 FR 20908, Footnote 6
at 20909. As we have detailed in those notices, EPA established that
PSD applies to all pollutants newly subject to regulation, including
non-NAAQS pollutants such as GHGs, in prior actions, and EPA has not
re-opened that issue in this rulemaking. Accordingly, we do not believe
these comments are relevant to this rulemaking.
    Comment 2: Commenter is mindful of the many legal challenges to
EPA's authority to regulate GHGs, and is concerned about what effect a
stay, remand, or vacatur of one or all of the federal GHG-related rules
would have on the New Mexico SIP revision. Commenter supports inclusion
of

``enforceability'' language at <IP_ADDRESS>(AL)(3) NMAC and
<IP_ADDRESS>(AZ)(6) NMAC.
    Response 2: As discussed above, EPA is finalizing its approval of
the enforceability clause at <IP_ADDRESS> and interprets that clause to
indicate that the state will wait for and follow EPA's interpretation
of the effect of any adverse court decision regarding the
enforceability of these SIP revisions. If a court acts adversely, EPA
intends to promptly describe the impact of the court's decision on the
enforceability of its regulations.
    Comment 3: Commenter understands the importance of having the
Tailoring Rule amendments in place at the state level. It would create
an unreasonable burden on NMED's Air Quality Bureau, and all permit
holders, should it be required that GHGs be permitted at the 100/250
tpy levels. Within that context, Commenter remains concerned about the
practicalities of regulation of GHGs via air quality permits.
    Response 3: We refer Commenter to our proposal for this final
action that discusses the basis for a SIP revision that limits PSD
applicability to GHG sources to the higher thresholds in the Tailoring
Rule. While we appreciate Commenter's general concern about the
practicalities of regulating of GHGs through air quality permits,
Commenter did not provide any specific examples in the record to be
able to adequately respond to this generalized statement. In addition,
as discussed above, the requirement that sources seek PSD permits for
GHG emissions was not established in this rulemaking, and was not
reopened in this rulemaking. In fact, the State makes clear that GHG
PSD permitting was required under its SIP prior to this rulemaking. We
refer Commenter to New Mexico's June 24, 2010, and September 14, 2010,
letters (mentioned elsewhere in this notice) and that are in the docket
for this rulemaking.
    Comment 4: Commenter states the SIP revision was made in an
expedited timeframe, despite the fact that NMED, through its membership
in the National Association of Clean Air Agencies (NACAA) and NACAA's
December 28, 2009 letter to EPA about the Tailoring Rule, requested
that EPA provide more time to states to afford consideration of the
effects of and necessary regulatory changes for the implementation of
the federal Tailoring Rule. EPA's expedited timeframe contributes to
regulatory uncertainty.
    Response 4: While we hear Commenter's concerns, we do not believe
the comment is relevant to the scope of the action before us and we
disagree with Commenter. We refer Commenter to the proposal for this
action, which states that New Mexico amended its state regulations to
incorporate the Tailoring Rule thresholds and timely submitted the
state-adopted regulations as revisions to the state's SIP thereby
contributing to regulatory certainty.
    Comment 5: Commenter states that in the state administrative
rulemaking hearing, several of Commenter's issues were addressed,
however inconclusively. Since uncertainty remains on various issues
Commenter raised, Commenter re-states some of those issues. In short,
Commenter raises issues related to Best Available Control Technology
(BACT), New Source Performance Standards (NSPS) for GHG, Carbon Capture
Sequestration (CCS) and GHG Reporting and Cap and Trade issues.
    Response 5: This current rulemaking action concerns whether the
regulatory revisions relating to PSD requirements for GHG-emitting
sources that NMED submitted to EPA on December 1, 2010, that seek to
establish the appropriate emission thresholds for determining PSD
applicability to new and modified GHG-emitting sources in accordance
with EPA's Tailoring Rule, are approvable. The above comments raise
issues that are outside the scope of this narrow rulemaking action and
that we do not believe are relevant to the current action.

IV. 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 September 19, 2011. 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, and Reporting and recordkeeping
requirements.

    Dated: June 30, 2011.
Al Armendariz,
Regional Administrator, Region 6.
    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 GG--New Mexico

0
2. Section 52.1620 is amended in paragraph (c) by revising the entry
for Part 74 under ``New Mexico Administrative Code (NMAC) Title 20--
Environment Protection Chapter 2--Air Quality'' to read as follows:

Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                                       EPA Approved New Mexico Regulations
----------------------------------------------------------------------------------------------------------------
                                                         State approval/
        State citation               Title/subject          effective       EPA approval date        Comments
                                                              date
----------------------------------------------------------------------------------------------------------------
          New Mexico Administrative Code (NMAC) Title 20--Environment Protection Chapter 2--Air Quality
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Part 74......................  Permits--Prevention of          1/1/2011  7/20/2011 [Insert FR
                                Significant                               page number where
                                Deterioration.                            document begins].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

Sec.  52.1634  [Amended]

0
3. Section 52.1634 is amended by removing and reserving paragraph (d).

[FR Doc. 2011-18125 Filed 7-19-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: July 2, 2009 (Volume 74, Number 126)]
[Notices]
[Page 31779-31781]
[DOCID:fr02jy09-102]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60159; No. SR-FINRA-2009-041]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing of Proposed Rule Change To Amend
Rules 12100, 12506, and 12902 of the Code of Arbitration Procedure for
Customer Disputes and Rule 13100 of the Code of Arbitration Procedure
for Industry Disputes To Implement Conforming Changes

June 22, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that Financial Industry Regulatory Authority, Inc.
(``FINRA'' or the ``Corporation'') (f/k/a National Association of
Securities Dealers, Inc. (``NASD'')) filed with the Securities and
Exchange Commission (``SEC'' or ``Commission'') on June 5, 2009, the
proposed rule change as described in Items I, II, and III below, which
Items have been substantially prepared by FINRA. 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

    FINRA is proposing to amend the Code of Arbitration Procedure for
Industry Disputes (``Industry Code'') to amend Rules 12100(r),
12506(a), and 12902(a) of the Code of Arbitration Procedure for
Customer Disputes (``Customer Code'') and Rule 13100(r) of the Code of
Arbitration Procedure for Industry Disputes (``Industry Code'') to
amend the definition of ``associated person,'' streamline a case
administration procedure, and clarify that customers could be assessed
hearing session fees based on their own claims for relief in connection
with an industry claim.
    The text of the proposed rule change is available on FINRA's Web
site at http://www.finra.org, at the principal office of FINRA 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, FINRA 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. FINRA 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
    On January 24, 2007, the SEC approved amendments to the NASD Code
of Arbitration Procedure (``old Code'') in connection with rules
applicable to customer disputes and to industry disputes,\3\ a final
step in the reorganization of the old Code into three separate
procedural codes: the Customer Code, the Industry Code, and the
Mediation Code (the ``Code Revision'').\4\ The Code Revision simplified
the language of the old Code, codified current dispute resolution
practices, and implemented several substantive changes to dispute
resolution rules. Since the SEC approved the Code Revision, Dispute
Resolution staff (``staff'') has found rule language that was omitted
inadvertently from the Customer Code and the Industry Code
(collectively, ``Codes''), as well as rule language that could be
improved to better convey FINRA's intent or to clarify current practice
regarding certain dispute resolution rules. To address these concerns,
FINRA is proposing to amend:
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 55158 (January 24,
2007); 72 FR 4574 (January 31, 2007) (File Nos. SR-NASD-2003-158 and
SR-NASD-2004-011).
    \4\ The Mediation Code was filed separately with the Commission
as SR-NASD-2004-013. The Commission approved the Mediation Code on
October 31, 2005, and it became effective on January 30, 2006. See
Order Granting Approval to Proposed Rule Change and Amendments Nos.
1 and 2 Thereto, and Notice of Filing and Order Granting Accelerated
Approval to Amendment No. 3, to Amend NASD Rules for Mediation
Proceedings, Securities Exchange Act Rel. No. 52705 (October 31,
2005), 70 FR 67525 (November 7, 2005) (SR-NASD-2004-013).
---------------------------------------------------------------------------

     Rules 12100(r) and 13100(r) of the Codes (the definition
of ``person associated with a member'') so that the definition in the
Codes conforms to the definition in FINRA's By-Laws;
     Rule 12506(a) of Customer Code (Document Production Lists)
to encourage parties to download the Discovery Guide from FINRA's Web
site instead of having a copy mailed to them automatically when a claim
is filed; and
     Rule 12902(a) of the Customer Code (Hearing Session Fees,
and Other Costs and Expenses) to clarify that the arbitrators may
assess hearing session fees against a customer in connection with a
claim filed by a member against a customer in cases where there is also
a responsive customer claim.
    A discussion of the proposed amendments to each rule follows.
Rules 12100(r) and 13100(r)--Person Associated With a Member
    A ``person associated with a member'' or an ``associated person''
is an individual who is licensed by FINRA to buy and sell securities
for a FINRA member and its customers.\5\ An associated person works for
a member and, in most cases, is the individual with whom customers
communicate to discuss their accounts or securities transactions.
---------------------------------------------------------------------------

    \5\ Rules 12100(r) and 13100(r) define ``person associated with
a member'' to mean:
    (1) A natural person registered under the Rules of FINRA; or
    (2) A sole proprietor, partner, officer, director, or branch
manager of a member, or a natural person occupying a similar status
or performing similar functions, or a natural person engaged in the
investment banking or securities business who is directly or
indirectly controlling or controlled by a member, whether or not any
such person is registered or exempt from registration with FINRA
under the By-Laws or the Rules of FINRA.
    For purposes of the Code, a person formerly associated with a
member is a person associated with a member.
---------------------------------------------------------------------------

    FINRA intended the definition of associated person in the Codes to
match the By-Laws definition,\6\ except for one phrase relating only to
Procedural Rule 8210. To that end, FINRA is proposing to amend Rules
12100(r) and 13100(r) of the Codes to make these definitions consistent
with the definition in FINRA's By-Laws. The proposal would amend the
definition of ``person associated with a member'' in the Codes in two
ways: (1) Insert the word ``other''

before the second reference to ``natural person'' to clarify that the
definition does not include corporate entities; and (2) insert the
criterion that a natural person includes someone who has applied for
registration.
---------------------------------------------------------------------------

    \6\ FINRA's By-Laws define ``person associated with a member or
associated person of a member'' as (1) a natural person who is
registered or has applied for registration under the Rules of the
Corporation; (2) a sole proprietor, partner, officer, director, or
branch manager of a member, or other natural person occupying a
similar status or performing similar functions, or a natural person
engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by a member,
whether or not any such person is registered or exempt from
registration with the Corporation under these By-Laws or the Rules
of the Corporation; and (3) for purposes of Rule 8210, any other
person listed in Schedule A of Form BD of a member. See By-Laws of
the Corporation, Article I, Definitions (rr).
---------------------------------------------------------------------------

    FINRA believes that amending the definition in Rules 12100(r) and
13100(r) to clearly exclude corporate entities from the definition of
associated person would remove any ambiguity concerning how the
definition will be applied. Further, amending these rules to expand the
forum's jurisdiction to natural persons who have applied for
registration would ensure that these individuals, who may be working in
some capacity with a firm while awaiting their license, are subject to
FINRA's rules, and hence would be required to arbitrate should a
dispute involving them arise. Moreover, FINRA notes that this amendment
would conform the definitions under the Codes to the Corporation's
definition of person associated with a member.\7\
---------------------------------------------------------------------------

    \7\ See supra note 6.
---------------------------------------------------------------------------

Rule 12506--Document Production Lists
    During the arbitration process, parties can request discovery of
documents, names of witnesses, and other information from each other to
prepare their cases for the arbitration hearing. To help parties
understand what information they should disclose, staff provides a copy
of the FINRA Discovery Guide \8\ to parties when the Director serves
the statement of claim. The Discovery Guide provides parties in
customer cases with guidance on which documents they should exchange
without arbitrator or staff intervention (called Document Production
Lists) \9\ and provides guidance to arbitrators in determining which
documents parties are presumptively required to produce.\10\
---------------------------------------------------------------------------

    \8\ In January 1996, FINRA (then-NASD) created a Discovery Guide
to assist customers in an arbitration with directing discovery and
resolving discovery disputes. The Discovery Guide was approved by
the SEC after a public comment period, see Exchange Act Release No.
41833 (September 2, 1999), 64 FR 49256 (September 10, 1999). and was
made available for use in arbitration proceedings involving customer
disputes upon the publication of Notice to Members 99-90 (November
1999).
    \9\ Many of the provisions of the Discovery Guide were
incorporated into the Codes as part of the Code Revision. See supra
note 3.
    \10\ Although there are discovery rules in each Code, the
Discovery Guide applies only in customer arbitration disputes.
---------------------------------------------------------------------------

    Rule 12506 of the Customer Code states that when the Director
serves the statement of claim, ``the Director will provide the FINRA
Discovery Guide and Document Production Lists to the parties.'' In
light of the availability of Dispute Resolution forms, guides and the
claim filing system on FINRA's Web site, FINRA believes that it is no
longer necessary to disseminate the Discovery Guide to parties
automatically when they file a claim in the dispute resolution forum.
Further, many parties and counsel who use FINRA's arbitration forum are
repeat users who are likely to have a current copy of the Discovery
Guide in their files. Due to these circumstances, FINRA believes that
automatic distribution of the Discovery Guide is not an efficient use
of resources.
    Therefore, FINRA is proposing to amend Rule 12506(a) to state that,
when the Director serves the statement of claim, the Director will
notify parties of the location of the Discovery Guide (which includes
the Document Production Lists) on FINRA's Web site, but will not
provide a copy except upon request. FINRA believes the proposed change
would enhance the efficiency of the case administration process, and
would reduce FINRA's printing and mailing costs. Moreover, the proposal
would encourage parties, especially those who frequently use the forum,
to download relevant information from FINRA's Web site as needed.
Rule 12902--Hearing Session Fees, and Other Costs and Expenses
    Under the old Code, arbitrators could allocate hearing session fees
against any party. Rule 10332(c) \11\ of the old Code protected
customers from potentially higher forum fees (now hearing session fees)
triggered by amounts sought in industry claims by prohibiting the
arbitrators from assessing forum fees against customers if the industry
claim was dismissed. Moreover, the rule protected customers from higher
forum fees by requiring the amount of the forum fees to be based on the
amount awarded to an industry party and not on the amount of damages
requested by the industry claim. However, Rule 10332(c) also provided
that customers could be fairly subject to potential forum fees based on
their own claims for relief in connection with the industry claim.\12\
---------------------------------------------------------------------------

    \11\ Rule 10332(c) of the old Code stated, in relevant part,
that ``no fees shall be assessed against a customer in connection
with an industry claim that is dismissed; however, in cases where
there is also a customer claim, the customer may be assessed forum
fees based on the customer claim.''
    \12\ For example, if a member filed a claim against a customer,
and the arbitrators dismissed the claim, the customer would not be
assessed any forum fees. However, if, in connection with the
industry claim, the customer filed a counterclaim against the
member, the customer would be subject to potential forum fees based
on the customer's own claim for relief.
---------------------------------------------------------------------------

    During the Code Revision, FINRA inadvertently omitted from the
corresponding provision, Rule 12902(a)(4) of the Customer Code, the
provision in old Rule 10332(c) that permitted the forum to assess fees
against the customer based on the customer's claim in an industry
dispute. Thus, FINRA is proposing to amend Rule 12902(a)(4) to
incorporate the omitted language at the end of the rule. Specifically,
the new language would state that ``in cases where there is also a
customer claim, the customer may be assessed a filing fee under Rule
12900(a), and may be subject to hearing session fees under Rule
12902(a).''
    FINRA notes that the proposed amendment does not reflect a change
in FINRA's stated policy or practice. Under the Customer Code, if a
customer files a claim, counterclaim, cross claim or third party claim,
Rule 12900(a)(1) requires the customer to pay a filing fee. Moreover,
the first sentence of Rule 12902(a)(4) addresses the instance in which
a customer may be assessed hearing session fees in connection with a
claim filed by a member or associated person.\13\ Similarly, the
proposed amendment to Rule 12902(a)(4) would make clear to customers
that if they file a claim in connection with a claim filed by a member,
they may be subject to filing fees and hearing session fees based on
their own claim for relief. FINRA believes the proposed amendment would
clarify the forum's policy concerning fees in connection with a
customer counterclaim for relief and make the Code easier to administer
for staff.
---------------------------------------------------------------------------

    \13\ Rule 12902(a)(4) maintains the protection of old Rule
10332(c) by requiring that ``the amount of hearing session fees the
customer must pay must be based on the amount actually awarded to
the member or associated person, rather than on the amount claimed
by the member or associated person.''
---------------------------------------------------------------------------

2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\14\ which requires, among
other things, that the Association's rules must be designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, and, in general, to protect investors
and the public interest. The proposed rule change is consistent with
FINRA's statutory obligations under the Act to protect investors and
the public interest because the proposal would ensure that individuals
who have applied for registration are bound by FINRA's rules, and
therefore subject to the jurisdiction

of the dispute resolution forum, and would assist in the efficient
administration of the arbitration process by streamlining certain
procedures and clarifying the allocation of hearing fees.\15\
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78o-3(b)(6).
    \15\ The rationale for the proposed rule change was confirmed in
a phone conversation with Mignon McLemore of FINRA, on June 22,
2009.
---------------------------------------------------------------------------

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

    FINRA does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.

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

    Written comments were neither solicited nor received by FINRA.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be 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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2009-041 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-FINRA-2009-041. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to the File
Number SR-FINRA-2009-041 and should be submitted on or before July 23,
2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-15610 Filed 7-1-09; 8:45 am]