When EPA describes the kinds of considerations that the agency must weigh in determining whether regulating EGUs under section 112 is appropriate, EPA is fairly expansive: " In evaluating hazards to public health under section 112( n)( 1)( A) we look at various factors, including, for example, the affected population, the characteristics of exposure ( e. g., level and duration), the nature of the data, including the uncertainties associated with the data, and the nature and degree of health effects." 70 Fed. Reg. at 15,998. In the end, however, EPA largely ignores these factors in favor of focusing on one issue   the level of exposure ( i. e., the amount of " utility attributable" methylmercury 60 in various watersheds)   and thus acts arbitrarily and capriciously by ignoring essential information.

First, EPA has not given any indication that it took into account the duration of the harm that methylmercury exposure can cause. A child exposed as a fetus to unsafe levels of methylmercury is at risk of a lifetime of lowered IQ and other neurological harms.

Second, the agency's analysis does not seem to have been informed by the size of the affected population, even though EPA itself acknowledges that hundreds of thousands of children are born each year at risk of harm from methylmercury exposure. Moreover,

recent research suggests that because methylmercury levels in fetal cord blood is higher than that of the mother, " a [ blood total mercury level of] 3.5 µ g/ L may be associated with increased risk to the developing fetal nervous system." Approximately 15.7 percent of women of childbearing age have blood levels equal to or above 3.5 µ g/ L. 48 Third, EPA's " appropriateness" finding does not account for uncertainties in the data. To the contrary, although this petition demonstrates the degree to which this rulemaking is fraught with assumptions and uncertain data, the agency is using its predicted levels of " utility attributable" methylmercury concentrations in fish tissue as a regulatory trigger.

Fourth, EPA has soft pedaled the nature of the health effects at issue in this case,

particularly with respect to populations that the Agency has previously asserted are of most concern   including native American tribes. Compare 69 Fed. Reg. 4654, 4702,

4707, 4709 ( Jan. 30, 2004) ( identifying native Americans as at greater risk for the 48 Mahaffey, K. R., Clickner, R. P., Bodurow, C. C., 2004. Blood Organic Mercury and Dietary Mercury Intake: National Health and Nutrition Examination Survey, 1999 and 2000. Environ. Health Persp. 112( 5); 562 570. 61 adverse health effects from mercury due to increased exposure) with 70 Fed. Reg. at 16,024 & 16,034 ( dismissing native American fish consumption data as " of limited value" and failing altogether to consider comments addressing certain tribes' patterns of consumption of contaminated mammalian species). Several tribes of native Americans alerted the Agency to the fact that not only has their traditional subsistence fish consumption been adversely affected by mercury contamination, but that they are impacted as well by significant mercury contamination in " other food sources, such as muskrat, beaver, small game waterfowl," mink and river otter. Comments of the Penobscot Indian Nation, Docket No. A 2002 0056, at 1 2 ( May 5, 2004); Comments of the Aroostook Band of Micmacs, Docket No. A 2002 0056 2483, at 1 2 ( April 30,

2004). 49 Their submissions demonstrate that impacts on species other than fish present public health risks to populations of greatest concern, not simply environmental effects,

and yet EPA completely ignored these potential adverse health effects in its final rule.

This complete turnaround in the Agency's perspective on the concerns with respect to native American subpopulations ( not to mention the legal rights of the native American tribes) is not only unanticipated, it is illegal. 50 Fifth, although the agency recognizes the potential for neurological damage, EPA gives short shrift to a significant body of evidence that methylmercury causes cardiovascular disease. Although some fish species contain beneficial omega 3 fatty 49 Despite the fact that the Penobscot Nation submitted their comments by mail well within the deadline for receipt of such comments, they do not appear in EPA's docket index for the final rule as of May 31, 2005. A copy is attached. 50 The Penobscot, and the Micmacs, for example, are federally recognized native American Indian tribes for whom the United States government and its agencies have a trust responsibility. Comments of the Penobscot Indian Nation at 1; Comments of the Aroostook Band of Micmacs at 2; see also Exec. Order 13175: Consultation and Coordination with Indian Tribal Governments, 65 Fed. Reg. 67,249 ( Nov. 6, 2000) ( requiring EPA to develop an accountable process to ensure tribal input in the development of regulations that have Tribal implications). 62 acids, and fish is a low fat source of protein, recent studies raise the possibility that moderate mercury content in fish may in fact diminish the protective effect of fish intake.

A 2000 study of 1,014 Finnish men ranging in ages from 42 to 60 years old reported an association between moderate hair mercury content and accelerated hardening of the carotid arteries leading to the brain. 51 Hair mercury levels greater than 2 ppm ( well within the range of the U. S. adult population) showed a doubling of the risk of cardiovascular mortality. 52 This study was recently updated and reported that mercury in hair above 2 ppm may be a risk factor for acute coronary events and cardiovascular disease, coronary heart disease, and overall mortality. 53 Similarly, a study published in the New England Journal of Medicine reported that toenail mercury level was directly associated with the risk of heart attack. 54 Researchers studied men in eight European countries and Israel who had their first diagnosed heart attack. The authors report that the mercury levels in the patients were 15 percent higher than those in controls, such that the 20 percent of people with the highest mercury levels had a more than twofold increase in the risk of heart attack than those with mercury levels in the lowest 20 percent. Although a third study on cardiovascular health was unable to replicate these findings, the study population consisted largely of dentists who had occupational exposure to elemental mercury, and the elemental mercury exposure could have confounded detection of a 51 Salonen, J. T., Seppanen, K., Lakka, T. A., Salonen, R., Kaplan, G. A. 2000. Mercury accumulation and accelerated progression of carotid atherosclerosis: a population based prospective 4 year follow up study in men in eastern Finland. Atherosclerosis, 148( 2); 265 273 52 Id. 53 Virtanen JK, Voutilainen S, Rissanen TH, Mursu J, Tuomainen TP, Korhonen MJ, Valkonen VP, Seppanen K, Laukkanen JA, Salonen JT. Mercury, Fish Oils, and Risk of Acute Coronary Events and Cardiovascular Disease, Coronary Heart Disease, and All Cause Mortality in Men in Eastern Finland. Arterioscler Thromb Vasc Biol. 2004 Nov 11; [ Epub ahead of print] 54 Guallar, E., Sanz Gallardo, M. I., van't Veer, P., Bode, P., Aro, A., Gomez Aracena, J., Kark, J. D., Riemersma, R. A., Martin Moreno, J. M., Kok, F. J. 2002. Mercury, fish oils, and the risk of myocardial infarction. N Engl J Med, 347( 22); 1747 1754 63 methylmercury effect. In fact, when the dentists were removed from the study, an association with cardiovascular outcomes ( albeit not statistically significant, possibly due to the smaller sample size) was seen with mercury exposure. 55 Although the agency acknowledges studies linking mercury exposure to cardiovascular harms, and recognizes " plausible biological mechanisms" by which exposure could do damage, 70 Fed. Reg. at 16,011, its " appropriate" finding does not consider this evidence, instead concluding that the issue " warrant[ s] additional research in this area." Id. Nor does EPA give any apparent weight to the calculations that significant monetary benefits could be realized from controlling mercury pollution and avoiding cardiovascular harms. See, e. g., Letter from Arthur Marin, Northeast States for Coordinated Air Use Management, to EPA Air Docket OAR 2002 0056, docket item 5747, at 4 ( Feb. 22, 2005) ( summarizing findings of study titled " Economic Valuation of Human Health Benefits of Controlling Mercury Emissions from U. S. Coal Fired Power Plants"; noting that the benefits of a 70 percent mercury control scenario from avoiding cardiovascular events and premature mortality could range from $ 86 million per year to $ 4.9 billion, depending on the number of people affected).

5. EPA May Regulate EGUs Under Section 112 of the Clean Air Act Based Upon Environmental Impacts Alone.

In the final rule, EPA asserts that environmental impacts from EGUs, no matter how severe, could not provide the legal basis for requiring regulation under section 112,

unless coupled with a finding about EGUs' impact on public health. In particular, the agency now argues that it could not find that regulation is " appropriate and necessary"

55 Yoshizawa, K., Rimm, E. B., Morris, J. S., Spate, V. L., Hsieh, C. C., Spiegelman, D., Stampfer, M. J., Willett, W. C. 2002. Mercury and the risk of coronary heart disease in men. N Engl J Med, 347( 22); 1755 1760 64 under section 112( n)( 1)( A) if EGUs cause important environmental effects but EPA concludes that EGUs do not, by themselves, cause public health concerns under the extremely limited approach outlined by the agency. Specifically, EPA states:

EPA must reconcile the broad discretion to determine what is " appropriate and necessary" with the implicit Congressional decision that information about environmental effects unrelated to human health effects was not needed for that determination. Rather than conclude that EPA is prohibited from considering environmental effects, however, EPA interprets section 112( n)( 1)( A) to permit the agency to consider other relevant factors as part of its " appropriate and necessary" determination, as refined further below, but these factors may not independently, or in conjunction with one another, justify regulation under section 112( n) when EPA has concluded that hazards to U. S. public health are not reasonably anticipated to occur.

70 Fed. Reg. at 15,998. This argument is both new and unsupported.

In the proposed rule, EPA did not take the position that its authority to consider environmental effects was limited for purposes of determining whether regulation is " appropriate and necessary." The agency only mentioned environmental effects in claiming that " the Utility [ Report to Congress], consistent with CAA section 112( n)( 1)( A), focused solely on hazards to public health, not the environment," and that therefore the agency lacked the facts to have made the 2000 finding based on such effects. 69 Fed. Reg. at 4,683.

The agency's new interpretation is unreasonable. EPA draws its view from the fact that section 112( n)( 1)( A) of the Act specifies that the agency should study public health concerns, without mentioning environmental effects. 70 Fed. Reg. at 16,002 03.

However, EPA argues elsewhere in the Final Rule preamble that the requirement to perform the study does not constrain the agency from considering facts beyond those contained in the study when assessing whether regulation is appropriate and necessary.

See id. at 15,999. Specifically, EPA notes: 65 nothing in section 112( n)( 1)( A) suggests that EPA is precluded from considering new relevant information obtained after completion of the Utility Study in determining whether regulation of Utility Units under section 112 is appropriate and necessary. Indeed, the term " considering" in section 112( n)( 1)( A) is analogous to the terms " based on" or " including," which are neither limiting nor exclusive terms.

Id. By saying that the study requirement is an " implicit Congressional decision" to limit the use of environmental concerns, however, EPA is interpreting the same provision   the requirement to perform a study   to be limiting. That is, in a single rule, EPA gives the same language two entirely different meanings to promote two different aspects of the agency's agenda   a classic example of arbitrary and capricious decisionmaking.

EPA's argument in the Final Rule is also contrary to other requirements of the CAA. Section 112 contains several indications that environmental considerations alone are an appropriate basis for regulation under that section. For instance, section 112( f)( 2)( A) demands that controls under that subsection be imposed to prevent an " adverse environmental effect," where various factors support regulation. 42 U. S. C. § 7412( f)( 2)( A). In addition, section 112( c)( 9)( B)( ii) provides that a source category may not be deleted from the list of industries for which MACT must be implemented if any plant in the category emits non carcinogenic HAPs that cause an " adverse environmental effect." Id. § 7412( c)( 9)( B)( ii). Indeed, with respect to EGU pollution, section 112( n)( 1)( B) directs EPA to study " mercury emissions from electric utility steam generating units, municipal waste combustion units, and other sources, including area sources," and to " consider the rate and mass of such emissions, the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies." Id. § 7412( n)( 1)( B) ( emphasis added).

By contrast, where Congress wanted to preclude EPA from relying exclusively on 66 environmental considerations to regulate under section 112, it said so explicitly. See id. § 7412( b)( 2) (" No substance, practice, process or activity regulated under title VI of this Act shall be subject to regulation under this section solely due to its adverse effects on the environment."). The absence of an equivalent provision in section 112( n)( 1)( A) reveals that Congress did not intend to prohibit EPA from relying on environmental effects ( even exclusively) in deciding to subject EGUs to section 112 standards.

The issue of EPA's authority to consider environmental effects alone as the basis for regulating EGUs under section 112 is centrally relevant to the Final Rule. Recent evidence indicates that there are numerous strictly environmental reasons to aggressively curb utility HAP emissions. The journal Ecotoxicology recently devoted a special issue to publishing 21 academic papers about mercury in the environment and in wild animals, 56 including several remarkable findings:

  " At least 44% of waters across [ northeastern U. S. and eastern Canada] had sediments [ with mercury concentrations] in excess of U. S. guidelines." Biodiversity Research Institute, Mercury Connections: The extent and effects of mercury pollution in northeastern North America, at 12 13 ( 2005) ( summarizing Ecotoxicology papers).   " 92% of adult loons in Kejimkujik National Park in Nova Scotia had blood mercury levels > 4.0 ppm, levels associated with lowered reproduction." Id.   Forest songbirds   which do not eat fish   " are accumulating mercury," suggesting that " airborne mercury is pervasive and its impacts are no longer limited to surface waters and the wildlife that use them." Id. at 16.   Mink and otter are adversely affected by mercury contaminations, to the extent that 36 % of the animals sampled had mercury in fur levels that exceed the threshold for adverse health effects. This research also demonstrates that mercury reductions will produce improvements in mink and otter contamination. Id. at 18, 20.

56 These papers were submitted to the docket for this rulemaking, but there is no indication that EPA considered them in any way in its final rule. See U. S. EPA, Electronic Docket Index No. OAR 2002 0056, docket items 5826 30, 5832, 5834 36, 5839, 5841, 5846 57 ( Mar. 15, 2005) ( submissions by Ann Weeks, CATF, and Felice Stadler, National Wildlife Federation). 67 Simply said, there are real environmental consequences from mercury pollution, which is why EPA's new and unlawful interpretation of the CAA must be rejected.

Moreover, as we describe above, EPA's attempt to segregate this research from consideration on the basis that it is purely welfare related   that is, that the effects it describes are purely environmental and not public health related   fly directly in the face of information EPA has received from various native American tribes. These tribes regularly consume mammalian and bird species that are identified in the research as adversely affected by mercury pollution. This has a direct effect on the tribes, which EPA has completely failed to consider, both in terms of the public health of tribal members who consume these species, and in terms of the cultural vitality of the tribes,

insofar as they use the species in ceremonial activities. See Comments of Aroostook Band of Micmacs, Docket No. A 2002 0056 2483 at 1; Comments of the Penobscot Indian Nation, Docket No. A 2002 0056 at 1 2.

6. EPA Unlawfully Refuses to Regulate Nickel Pollution from Oil Fired Plants.

We also petition for administrative reconsideration of EPA's final action reversing its December 20, 2000 Regulatory Determination that it is " appropriate" to regulate nickel from oil fired units, see 65 Fed. Reg. at 79,830, a determination that was reinforced in EPA's 2004 notice of proposed rulemaking, See 69 Fed. Reg. at 4,688 (" the record supports a distinction between the treatment of Ni emissions from oil fired Utility Units and the emissions of other non Hg metallic HAP. Such a distinction is warranted based on the relative magnitude of Ni that is emitted from oil fired utility units on an annual basis and the scope and number of adverse health effects associated with such emissions."). EPA based its sharp reversal on: "( 1) The significant reductions in the 68 total nationwide inventory of oil fired Utility Units; and ( 2) the changing fuel mixtures being used at the remaining units." 70 Fed. Reg. at 16,007.

EPA radically reversed its prior policy to regulate nickel from oil fired utility units without serving notice to the public that it was considering an all out abandonment of the " appropriate" finding. 57 Because the Agency never suggested it was re evaluating its position on the appropriateness of regulating nickel, it was impracticable for the public to address or object to the Agency's new position. Moreover, the opportunity to provide such objection is manifestly of central relevance to the outcome of the rule because it is directly related to the pivotal, determinative question whether EPA had a reasoned basis to reverse its publicly enunciated position and exclude nickel from regulation.

EPA asserts that of the 42 oil fired utility units with cancer risk greater than one in a million, 12 have ceased operation and five have switched to burning natural gas exclusively. 70 Fed. Reg. at 16,007 08. EPA also claims that the risk from other units is lessened because they either are burning more natural gas, burning more distillate oil or have accepted permit limits on their residual oil use. But a closer look at EPA's rationale indicates that only two of the units have limited use of residual oil through permit restrictions. Id. For those two units EPA makes no attempt to quantify the remaining nickel emissions or the associated cancer risk.

57 Although EPA requested comment on " all aspects of our proposed revised determination that it is necessary and appropriate to regulate Ni emissions from oil fired Utility Units under section 112," 69 Fed. Reg. at 4,659, that request is far too open ended to provide adequate notice. Moreover, because the key " revision" that EPA had proposed was to change its " necessary" finding, but leave in place its " appropriate" finding, commenters reasonably would have focused on the " necessary" prong of the analysis. Similarly, although EPA requested information about " the current operating status and anticipated mode of operation in the future of potentially affected oil fired Utility Units, including current control technology," and about " whether data exists as to whether emissions from these plants no longer pose [ a greater than one in a million cancer] risk," it did not do so in the context of proposing to change the " appropriate" finding. Instead, the agency indicated that its request was simply to have the best available data: " we would like to have up to date information on fuel use, emissions, stack parameters and other location specific data that would be relevant to the assessment of emissions, dispersion, and ambient air quality." Id. 69 Moreover, EPA has utterly failed to quantify the cancer risk due to the fuel mix now used at the other units to which it points or, critically, to determine whether the fuel mix changes will in fact be permanent and enforceable. This includes six units now reporting some component of natural gas in their fuel mix, and another five units using distillate oil rather than residual oil. EPA superficially suggests that relying to some degree on natural gas or distillate oil in the fuel mix will lead to less emissions of nickel than the status quo ante. But EPA makes no attempt to quantify the likely reduction in nickel emissions and associated cancer risk or to determine whether the change in fuel mix is likely to be lasting. In other words, EPA relies on mere conjecture about the current and prospective operating conditions of oil fired units to reverse its determination that those units should be regulated. EPA even concedes that some plants have taken no action whatsoever to mitigate nickel emissions. 59 Fed. Reg. 16,008.

Further, in the industry comments that EPA relies on as the basis for its reversal,

the underlying documents reveal that several of the oil fired plants originally determined by EPA to pose a maximum individual risk of greater than one in a million are still in service or do not contain any known legal constraints on their discretion to combust residual oil. See generally Comments of the Clean Energy Group, docket item 2046 ( April 27, 2004). Table 1 on pages 12 and 13 of the Clean Energy Group comments shows that several high risk utility units discharging significant amounts of nickel are still in service in Hawaii, New York, Massachusetts, and Florida. The same table also shows that several more units in Texas, Florida and California have an unknown status.

Further, the Clean Energy Group comments pointedly describe conditions under which some plants in New York City, Long Island and California are required to operate on oil 70 even when natural gas is readily available and even when it is not economic for such units to operate. Id. at 10. Thus, EPA fundamentally erred in reversing its determination to regulate oil fired utility units on the basis of information from industry that, if anything, suggests continued operation of several significant oil fired utility units.

EPA also pointed to a long term energy forecast by DOE's Energy Information Administration predicting waning reliance on oil fired generation. 70 Fed. Reg. at 16,008; EIA, " Annual Energy Outlook 2005: With Projections to 2025" ( Feb. 2005).

But a speculative forecast about aggregate national reliance on oil fired generation cannot be the basis for a determination to remove oil fired utility units from regulation under section 112.

It is manifest that a decision to remove oil fired utility units from regulation under section 112 requires a technical basis and legal findings EPA never adduced in the final rule. Nickel compounds are included on the congressionally enunciated list of hazardous air pollutants. 42 U. S. C. § 7412( b)( 1). EPA may not delete oil fired electric generating units from the protections of section 112 based on some generalized information or aggregate data. Rather, EPA must determine that no single individual oil fired electric generating unit ( or group of units) emits hazardous air pollutants in quantities which may cause a lifetime risk of cancer greater than one in one million to the maximally exposed individual. Id. § 7412( c)( 9)( B). The record relied on by the Agency to reverse its regulation of nickel from oil fired units shows that several of the units originally the basis for EPA's decision to regulate nickel continue in operation today and that for others little information about their current emissions and risk is known. Congress required rigor not generalized conjecture in removing source categories from section 112 protections. 71 Moreover, Congress required that the public be given an opportunity to review and comment on the basis for such momentous decisions. But the public was impermissibly deprived of the right to comment on EPA's pivotal decision and the underlying technical rationale that EPA relied on, and EPA must therefore convene a proceeding to reconsider its final decision.

7. EPA May Not Ignore Statutory Requirements for Removing Industries from the Section 112( c) MACT Regulatory List.

In December 2000, EPA added EGUs to the section 112( c) list of industries requiring MACT regulation. When the agency proposed to remove EGUs from the list last January, it attempted to explain why it was not intending to follow the delisting requirements of section 112( c)( 9) by saying that " that the de listing criteria in section 112( c)( 9) apply only where the original listing of a source category was consistent with the statutory listing criteria," and by arguing that it had concluded that the EGU category did not need to be listed. 69 Fed. Reg. at 4,689. In the Final Rule, EPA added a new argument to this circular logic; the agency now contends that it need not meet the requirements of section 112( c)( 9) because the " December 2000 appropriate and necessary finding and associated listing are not final agency actions." 70 Fed. Reg. at 16,033 ( citing the court's order dismissing Utility Air Regulatory Group ( UARG) v. EPA, No. 01 1074 ( D. C. Cir. July 26, 2001). Because this new rationale was not articulated in the proposal,

it was impracticable for the public to object during the comment period. Moreover,

because EPA's new views depend on a misconstruction of the Clean Air Act to justify the de listing decision, this objection is centrally relevant to the rulemaking. 58 58 In fact, EPA makes a second new legal argument which must be reconsidered, but which is so weak that it barely warrants mention. The agency contends that the EGU source category is unique for purposes of section 112( c)( 9) and " interprets section 112( n)( 1)( A) as providing [ EPA] authority to remove coal and 72 In the lawsuit cited by EPA, UARG challenged EPA's 2000 regulatory determination and decision to list coal and oil fired electric utility steam generating units ( EGUs) under section 112( c) of the Clean Air Act. However, section 112( e)( 4) of the Act provides that "[ n] otwithstanding [ CAA section 307], no action of the Administrator .

. . listing a source category or subcategory under [ section 112( c)] shall be a final agency action subject to judicial review, except that any such action may be reviewed under [ section 307] when the Administrator issues emission standards for such . . . category."

42 U. S. C. § 7412( e)( 4). Accordingly, the Court of Appeals' order dismissed the challenge as premature because section 112( e)( 4) of the Act expressly reserves judicial review of these decisions until such time as the section 112 regulations are issued. Order,

UARG v. EPA, No. 01 1074 at 1 ( D. C. Cir. July 26, 2001). The Court stated succinctly that "[ s] ection 112( e)( 4) of the Clean Air Act provides that judicial review of the listing of a source category under section 112( c) of the Act is not available until after emission standards are issued." Id.

Neither the statutory protection in section 112( e)( 4) nor the D. C. Circuit's decision in UARG mean that EPA can remove EGUs from the section 112( c) list without following section 112( c)( 9). Indeed, they prove the opposite   they illustrate that the decision to list EGUs in December 2000 triggered all of the requirements in section 112 that flow from a listing decision, including section 112( c)( 9). EPA has repeatedly oil fired units from the section 112( c) list at any time that it makes a negative appropriate and necessary finding under the section." As such, EPA says, "[ s] ection 112( n)( 1)( A) . . . occupies the field in section 112 with regard to Utility Units." 70 Fed. Reg. at 16,032 33. EPA knows this statement is false. See 56 Fed. Reg. 28,548, 28,550 51 ( June 21, 1991) ( proposing initial list of source categories to be regulated and noting that one of its options would be to add EGUs to the list " until such time as the conclusions of the section 112( n) ( 1) study indicate that these categories do not warrant regulation under section 112," but stating, "[ w] hile this alternative would appear to be more equitable, it would require an action to delete the utility categories from the list if the section 112( n)( 1) study concludes that these categories do not warrant regulation under section 112. Such a deletion action would be subject to the risk based findings required under section 112( c)( 9)"). 73 recognized that the December 2000 EGU listing decision had numerous statutory ramifications. First, EPA has acknowledged that by listing the utility industry, the agency incurred an obligation to promulgate MACT standards for utilities under section 112( d). See December 2000 Listing Decision, 65 Fed. Reg. at 79,830 ( discussing section 112( d) obligation); EPA Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Cross Motion for Summary Judgment on Remedy, Izaak Walton League v. Leavitt, Civ. Action No. 04

694 ( RWR), at 2 ( Nov. 18, 2004) (" Because Electric Utility Units are currently a listed source category under section 112( c), EPA does not dispute that it currently has a nondiscretionary duty to issue 112( d) standards for Electric Utility Units by December 20, 2002, and that it has not yet issued such standards.").

Second, the agency has recognized that, as a consequence of the listing decision,

" each coal or oil fired [ EGU] which is constructed or reconstructed" must comply with section 112( g)' s case by case standards " until the EPA promulgates a nationally applicable MACT standard to address hazardous air pollutants for this source category."

Memorandum from John Seitz, U. S. EPA, " Case by Case MACT for New Oil and Coalfired Electric Utility Steam Generating Units ( Aug. 1, 2001).

Third, of course, EPA was able to take advantage of section 112( e)( 4)' s shield from judicial review. In light of these repeated   and proper   acknowledgments of the effect of the December 2000 decision, it is disingenuous and arbitrary for EPA to argue now that one CAA provision   section 112( c)( 9)   was not triggered.

Moreover, EPA's new argument about the " finality" of the December 2000 determination and listing decision also leads to the incredible conclusion that Congress 74 never needed to draft section 112( e)( 4) in the first place. For if a listing decision simply is not " final," then section 112( e)( 4)' s limitation of judicial review under section 307 is entirely unnecessary. Congress would not have needed to clarify that judicial review of a listing decision is not available until after the emissions standards also have been issued.

EPA's argument, taken to its logical conclusion, impermissibly renders section 112( e)( 4)

a nullity.

On a related point, EPA is also incorrect to suggest that it must follow section 112( c)( 9) delisting procedures only when the listing was a final action subject to judicial review. For one thing, such an argument would prove far too much   section 112( e)( 4)

immunizes every listing decision from review at the time of listing, yet section 112( c)( 9)

still exists as a limitation on the ability to remove categories from the list. The plain text of section 112( c)( 9) nowhere limits the applicability of its provisions to " final" listings.

Instead, section 112( c)( 9) broadly states that " the Administrator may delete any source category from the list . . ., whenever the Administrator makes the [ specified finding or findings]." 42 U. S. C. § 7412 ( c)( 9). If Congress had intended for section 112( c)( 9) to apply only to " final" listings, it certainly knew how to specify that requirement.

Therefore, EPA must comply with the requirements of section 112( c)( 9) of the Act in order to delist the EGU industry.

CONCLUSION For the foregoing reasons, EPA must promptly grant reconsideration of its rescission rule and take action to restore EGUs to the section 112( c) regulatory list. In the meantime, EPA must stay the rule. 75 Respectfully submitted,

___________________ Jon P. Devine, Jr. John D. Walke Amanda Leiter Natural Resources Defense Council 1200 New York Avenue, NW Suite 400 Washington, DC 20005 ( 202) 289 6868 Counsel for Petitioner Natural Resources Defense Council _____________________ Ann Brewster Weeks Clean Air Task Force 18 Tremont Street, Suite 530 Boston, MA 02108 ( 617) 624 0234 Counsel for Petitioners Clean Air Task Force, Ohio Environmental Council, United States Public Interest Research Group, and Natural Resources Council of Maine _____________________ Douglas J. Luckerman Law Office of Douglas J. Luckerman 20 Outlook Drive Lexington, MA 02421 ( 781) 861 6535 Counsel for Aroostook Band of Micmacs, Houlton Band of Maliseet Indians, Penobscot Indian Nation, Passamaquoddy Tribe of Maine ( Indian Township and Pleasant Point) 76 Attachment 1 Comments of The Penobscot Indian Nation 77 5/ 05/ 04 U. S. Environmental Protection Agency, EPA West ( Air Docket), 1200 Pennsylvania Ave., NW, Room: B108, Mail code: 6102T, Washington, DC, 20460 Attention Docket ID No. A   2002   0056.

Re: Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ( 40 CFR 60 & 63).

Dear Administrator,

The Penobscot Indian Nation ( Nation) respectfully offers comments on the U. S.

Environmental Protection Agency's ( EPA) proposed National Emission Standards for Hazardous Air Pollutants ( NESHAP); and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources ( NSPS): Electric Utility Steam Generating Units ( 40 CFR 60 & 63) & ( 40 CFR Parts 60, 72, and 75) [ OAR   2002   0056;

FRL   7628   8.]

The Nation is a federally recognized tribe for whom the United States government and its agencies have a trust responsibility. The Penobscot Reservation consists of all islands in the Penobscot River ( north of and including Indian Island) and appurtenant water and ambient air rights. Tribal members use the Penobscot River and its islands for fishing, hunting, trapping, spiritual and cultural activities, recreation,

gathering fiddlehead ferns, and other gathering activities. Therefore, any potential threats to the natural resources of the Penobscot River, through water or air pathways,

are of the utmost concern to the tribe. 78 The negative impact of mercury ( Hg) emissions on human health and the environment is staggering. There are 412 coal fired power plants across the country that emitted an estimated 45  48 tons of Hg from 1999 data ( NESCAUM 2003 3.) " Mercury pollution has contaminated [ an estimated] 12 million acres of lakes, estuaries and wetlands   30% of the national total   and 473,000 miles of streams, rivers and coastlines ( NRDC 2004.)" " Mercury levels in Maine fish, loons, and eagles are among the highest in North America." Currently 44 states, including Maine, have fish consumption advisories due to mercury contamination ( MAB 2004.)" The State of Maine Bureau of Health has issued a statewide advisory recommending that pregnant women, women of childbearing age, and young children limit their fish consumption based on the type of fish they consume. The Maine advisory has been in place since 1994 and remains in effect today because mercury levels in fish have not decreased   but are actually on the rise. As Mercury emissions have continued without controls, levels of this neurotoxin have been steadily increasing, and all Maine residents are at an increasing risk. The time is now that Mercury is controlled to the maximum possible level under the authority of the Clean Air Act ( CAA.)

Penobscot tribal members have used the Penobscot River watershed and its abundant natural resources for physical and spiritual sustenance for 10,000 12,000 years.

Mercury is such a concern to the Penobscot, that many do not include fish from the river anymore as part of their diet. This is in violation of sustenance fishery rights guaranteed by the 1980 Maine Indian Land Claims Settlement Act. The tribe is also concerned about other food sources, such as muskrat, beaver, small game waterfowl, being further 79 contaminated as these river based species rely on a food chain that is part and parcel of the river ecosystem.

The Nation strongly opposes the three offered proposals of the Utility Mercury Rule and Supplemental Rule [ FR / Vol. 69, No. 51 / March 16, 2004/ 4652 4752] and find none of these acceptable under the terms of the CAA. We recognize that mercury emissions from power plants are currently unregulated, and the EPA proposal would impose controls for the first time. MACT rules though direct the EPA to control emissions at the maximum possible level. Coal fired power plants emit an estimated 48 tons of mercury every year ( EPA 1997.) The EPA has also proposed to weaken and delay efforts to clean up mercury emissions from the nation's 412 coal fired power plants, the largest unregulated individual source of mercury ( NRDC 2004.) Current research has shown that Mercury ( Hg) air emission deposition is a significant contributor to methylmercury bioaccumulation in food chains. Medical studies have also shown a growing number of negative health impacts from this neurotoxin on humans. 1 For these reasons,

Hg must be treated as a Hazardous Air Pollutant ( HAP) under the most stringent terms of the CAA using Maximum Achievable Control Technology ( MACT) standards. Our comments below will detail our opposition to the various proposed rules posited by the EPA.

1. Mercury is a listed Hazardous Air Pollutant mandated under the Clean Air Act to be placed under a MACT Standard for Enforcement and Compliance of Emissions.

In the Utility Mercury Rule, the EPA has proposed three different approaches to developing a Mercury standard. These include the appropriate CAA § 112( d) as a Maximum Achievable Control Technology ( MACT) standard,

and two questionable " cap and trade" programs under § 111 and § 112( n). 80 Mercury is one of the 188 chemicals designated, under § 112( b) in the 1990 CAA Amendments that are to be regulated by source categories under § 112( c). Section 112( d)

directs the EPA to develop and implement MACT standards for both existing and new sources ( See § 112( d)( 3)) of listed hazardous air pollutants ( HAPs) ( emphasis added.)

There are 67 HAPs identified as toxic emissions from coal fired power plants, including hg, arsenic, nickel, hydrogen chloride and dioxins, et. al. ( Praveen 2002.) These HAPs represent some of the worst air toxics released into the environment. Mercury was determined to be pose the, " greatest potential concern," and the EPA was directed,

under § 112( n) of the CAA, to study the reasonably anticipated public health hazards caused by Mercury emissions from electric utility steam generating units and to promulgate control standards for utilities under the MACT process ( 40 U. S. C. . § 7412.)"

" The EPA also expressed potential concern about other HAPs, including arsenic,

chromium nickel, and cadmium, which are of potential concern for carcinogenic effects,

and dioxins, hydrogen chloride, and hydrogen flouride, which are of potential public health concern [ as well] ( see: 65 Fed. Reg. 79,825, 79,827.)" Thus in choosing an appropriate MACT standard, the current EPA should not push aside regulating these other HAPs. The MACT that the EPA has proposed falls far short of being effective from a public health standpoint and should be discarded. An Hg standard, with stringent emission limits and expeditious deadlines should be developed. ( see technical discussion on MACTs below.)

The EPA had failed to promulgate a Mercury MACT on schedule for Electric Generating Units ( EGUs) and was subsequently forced to produce a rule by a court ordered consent decree. The CAA § 112( d) proposal calls for Hg to be 81 regulated under a MACT standard that would be implemented by a court ordered deadline of December 2007 ( see: Izaak Walton League of America, Natural Resources Council of Maine, et. al., v. USEPA 2004 926 ( litigation pending.)) The Nation supports a stringent MACT standard that all the other source categories that standards have been developed. The intent of Congress will only be met through the CAA § 112( d) option. Based on a multi group stakeholder assessment, a realistic and achievable MACT standard was upwards of 85% to 90% reductions of Hg coal content or a rate based 0.6 lbs/ Trillion British Thermal Unit ( TBtu) ( NESCAUM 2003 4.) When fully implemented, this reduction/ control rate would result in roughly 7 tons of Hg emissions annually in the country ( 4.)

The EPA prefers a " cap and trade" alternative rather than a MACT under § 112( d). The EPA has proposed these two alternate approaches under CAA § 111 and § 112( n)( 1)( a) trading programs. " Cap and Trade" programs have been previously used for conventional criteria pollutants, such as nitrates ( NOx) and sulfates ( SOx), and were not originally intended to be used to reduce HAP emissions under the authority of the CAA. MACT standards are promulgated through identified source categories.

Aggregated source categories have been used for previous cap and trades, but these did not fall under the authority of maximum reductions through MACT standards. To date,

no other HAP source category has been controlled under a trading plan, solely to reduce an air toxic. Researchers believe that criteria pollutants are better suited because these transport over longer distances, thus dispersing their concentration, albeit only 82 spreading the same volume at times ( Jeantheau 2004.). Mercury though is a bioaccumulative neuro toxin and does not transport over as long of distances. Power plants that buy up Hg credits without installing effective controls will only concentrate Mercury in local and regionally areas ( Jeantheau 2004.) The EPA posits that these " hot spots" will not result in a cap and trade program for Mercury, and if there is, it will be a local problem that would need to be addressed by the States ( 60 FR 4702.) The SO2 Capand Trade is a good example of criteria pollutant command and control   but SOx still pose a serious health risk   even though the EPA promotes it as a success to be used for Mercury. The overall emissions of SO2 are down, but the dispersion trend has lead to more concentrated areas being affected by acid rain ( Jeantheau 2004.) The EPA wrongly views this relationship inversely by suggesting that large Utility Units can control their emissions more and sell allowances to smaller Utility Units rather than the reverse scenario of larger units aggregating large allowances to meet their demand ( 60 FR 4702.)

This approach is faulty because larger units will need large allowances and retiring them without adding the necessary controls will be almost impossible until a projected 2018 when trading allowances are fully utilized ( Chadwick 2004.)

Under § 111, the " Standards of Performance for New Stationary Permits"

amendment, the EPA would postpone any regulation until 2010 as well as delay a proposed inadequate 69 percent cap until between 2025 and 2030. This proposal is wrought with illegalities. In no part of the Section does it retain authority of regulating a HAP under the CAA. The process by which the EPA promulgates this proposal is also faulty. Under § 111( f)( 3), the EPA Administrator, " shall consult with appropriate representatives of the Governors and of State air pollution control agencies." The Administrator has failed to convene with these parties because a majority of them have 83 steadfastly opposed the " cap and trade" proposals. The EGU and energy industry should not be construed as legitimate consultation that meets the requirements of § 111 ( f)( 3). The administrator is also directed by this process to incorporate technologies posited by the States as being viable controls for the New Source Performance Standard.

Many States have maintained ACI and sorbents work § 111 ( g)( 4). The EPA posits the " cap and trade," relying on, again, the co benefit reductions from the NOx and SOx rule reductions. Finally, the EPA can not promulgate a rule that will impact the health of the public, unless it demonstrates that these impacts will not occur § 111 ( g)( 2). The EPA fails to demonstrate remotely that Hg will not impact the public because of the § 111 proposal. For this, the Nation adamantly opposes a § 111 " cap and trade" program.

Under § 112( n)( 1)( a), the EPA was to evaluate alternative control mechanisms developed and described in their control strategies report to Congress, and if these controls were " appropriate and necessary," authority for regulating EGUs could be granted from this sub section ( 1990 CAA Amendments, Title 1, Part A, § 112 ( n)( 1)( a)).

To disregard the effectiveness and development potential of the technical controls, in favor of a control mechanism, such ass a " cap and trade" program, is also a disregard of the intent, authority, and progressive nature of the Clean Air Act. The Nation is of the opinion that CAA § 112( n)( 1)( a) does not confer the EPA the authority to instill a "

capand trade" over the development of effective control strategies.

The Nation adamantly maintains that treatment of Hg as a non MACT HAP, through a " cap and trade" is clearly the wrong approach in reducing mercury emissions and protecting human health. First, the proposed emission limits for mercury are extremely weak. EPA's proposal under Section 111 of the 84 Clean Air Act calls for an interim emissions cap to be achieved by 2010 that, in fact, does not require any additional control of mercury beyond the co benefits expected from other programs aimed at reducing emissions of sulfur dioxide and nitrogen oxide. EPA has indicated it expects this interim mercury cap to be set at 34 tons per year. Moreover, while EPA specifies a 15 ton final cap to be achieved in 2018, the agency acknowledges in its proposal that mercury emissions could reach 22 tons ( or only a 54 percent reduction) in 2020, when banking and trading are utilized. We believe this does not adequately reflect what is technologically feasible and falls far short of what is needed to provide appropriate public health and environmental protection. Instead, the Nation recommends emission limits reductions between 85 90 percent Hg content, a standard posited by many other entities following this rule development.

Due to the long delay of developing a control strategy for Hg emissions, many tons of Hg has needlessly been released. To the extent that EPA misses the deadlines for promulgation of an Hg standard, source specific MACT requirements can be set through State permit programs, but states have also generally delayed their own implementation, waiting on the USEPA's final rule making for guidance. The Nation stresses that the EPA should re evaluate all three Hg control options, incorporate the work and assessment of the Mercury Outcome Stakeholder Group's recommendations, and proceed to develop a better rule with more stringent outcomes. Until this occurs, many more tons of 85 Hg will be released, while the rule is tied up by almost certain litigation by States, Tribes, and Environmental groups.

2. Maximum Achievable Control Technology Standards for Mercury.

EPA's Hg air emissions control analysis is incomplete at best. The CAA requires, " that the MACT limit be at least as stringent as the average emissions limitation achieved by the best performing 12 percent of the existing sources." In the proposed rule, the EPA's incorrectly claims that advanced technologies for Hg control are not currently available and will take almost ten years to develop ( EPA 2004.) A MACT standard must also be equal to at least the level of control achieved by the best performing 12 percent of regulated sources within the same source category. When a category has fewer than 30 sources. MACT is defined as at least the level of control activity achieved by the best five sources. New source standards may be more stringent than existing source standards, and existing sources are subject to statutory schedules for retrofitting necessary technology ( Brownell 1998 124.)"

EPA posits that a " brand new" control for Hg will need to be developed in order to achieve higher efficiency than what they have proposed in their rule.

A few progressive coal fired power plants already have already used commercially available powdered activated carbons in retrofitted bag houses 86 ( i. e. Activated Carbon Injection processes) ( ACI) as a means towards better combustion/ Hg collection frequency ( Bustard 2002.)

The EPA also asserts that ACI processes will be too costly to install at this time.

These considerations are not consistent with the EPA's Mercury Study Report to Congress in December 1997, which identified carbon based processes as one of the lower cost technologies for control of mercury emissions from utility flue gas among the available controls being researched ( Chen 1998.) Recent Power Plant Activated Carbon Injection Demonstration Projects, including;

Alabama Power E. C. Gaston: unit 3, 135 MW equivalent, low sulfur eastern bituminous coals   Longest continuous short term test run   9 days   equipped with both a fabric filter and an electrostatic precipitator, Long term test (~ 1 year) underway,

WEPCO Pleasant Prairie: unit 2, 150 MW equivalent, Powder River Basin, subituminous coal Longest continuous short term test run   5 days,

PG& E Brayton Point:: unit 1, 245 MW, low sulfur bituminous coal,

PGE Salem Harbor: 85 MW, low sulfur bituminous coal,

have shown upwards of 90% Hg reductions even though the test runs have been relatively short term. ACI is the most advanced technology to control exhaust gas Hg and is capable of handling the " incoming variability" by adding more or less activated carbon ( or by using more advanced forms of activated carbon) and other system controls ( NESCAUM 2004 5.) The positive variable is that municipal waste incinerators were faced with the same challenge early on and successful retrofits were summarily developed and made commercially available well within the ten years that the EPA's proposed rule predicts for a Utility Mercury Rule. The EPA has generally adhered to the 87 principal that control technologies are market driven, a position they have seemingly abandoned with the promulgation of the mercury cap and trade.

Cost impacts considering selected variables, including existing controls and necessary retrofitting, coal ranks, and removal ratios ( in comparison to NOx technologies) were researched using pilot scale projects as recently as 2001 ( Srivastava 2001.) While the EPA surmises that these pilot studies won't result in commercial production of ACI technologies for almost ten years, it fails to consider that other pollutant controls were expedited by regulatory drivers, including catalytic converters in addressing leaded gasoline pollutants, and NOx controls through the NOx SIP Call rule. These pilot projects have also addressed the issue of what is the best control for individual coal types. " Moreover, the Agency's decision to establish subcategories in the MACT standard by type of coal is unwarranted at best. Different types of boilers can be made to combust more than one type of coal. EPA's proposal merely guarantees the continued use of particularly mercury heavy fuels ( Minott 2004.)"

The EPA believes that " co benefits" of Hg reductions will be realized with the implementation of the Interstate Air Quality Rule ( FR 4691.) Instead of requiring an ACI type control, the EPA looks to control Hg capture by ranking by coal type, and seeking the highest ratio by rank. Control technology research has shown that Hg doesn't bind well to particulate matter, and the controls used for PM captures 30 40% at best ( RTC 1997.) No matter how much the reduction of PM pollutants, there will be unnecessary Hg emissions released, while relying on a wrongfully considered " co benefit." Control research as validly shown that facilities using ESPs or Fabric filters cannot adequately control Hg and that these toxic emissions can only be decreased by the addition of a carbon sorbent injection system somewhere along the process. Thus, the control related 88 to the Interstate Air Quality Rule are not even some of the more reliable controls for mercury.

Conclusion:

The Nation respectfully asks that the EPA reconsider the various rules it has proposed for Utility Mercury Rule, i. e. National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ( 40 CFR 60 & 63).

The Penobscot Nation is a Native American Tribe that relies heavily on our surroundings to maintain a sustenance culture. Hazardous air pollutants, such as Mercury, bio accumulate in our food chains and pose a serious risk to our people.

Research has shown that Hg levels will continue to increase unless stringent standards are set and enforcement and compliance is successful. As it stands now, the EPA will be failing to uphold their federal trust responsibility to tribes, if they pursued the options they have proposed. We ultimately hope that the EPA will implement a stringent MACT standard for coal fired EGUs, nothing less will be sufficient to the Penobscot Nation. 89 Sources:

Amar, Praveen. ( 2002) State and Local Air Pollution Control Officals Recommendations for Utility MACT Standards: Sept. 9, 2002 & Oct. 17, 2002 Utility MACT Workgroup Meetings and Amended Oct. 22, 2002.

Brownell, F. William. ( 1998) Clean Air Handbook. Rockville, Md. 3rd Ed.

Bustard, C. Jean. " Full Scale Evaluation of Mercury Control with Sorbent Injection and COHPAC at Alabama Power E. C. Gaston," Journal of. Air & Waste Management Association 52: 918 926 ( 2002)

Chadwick, Cory. ( 2004) Testimony on behalf of the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials on the U. S. Environmental Protection Agency's Proposed Rule to Control Emissions of Hazardous Air Pollutants from Utilities ( January 30, 2004, 69 Federal Register 4652): Docket ID No. OAR 2002 0056 and Proposed Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone ( Interstate Air Quality Rule) ( January 30, 2004, 69 Federal Register 4566) Docket ID No. OAR 2003 0053, February 25, 2004 Chen, Shiaoguo. Preparation and Evaluation of Novel Activated Carbons from Illinois Coal for Mercury Removal. Final Technical Report. Illinois State Geological Survey. ( 1998)

Gallagher, Dawn R., ( 2004) Oral Testimony on behalf of the Northeast States for Coordinated Air Use Management on the U. S. Environmental Protection Agency's Proposed Rule to Reduce Interstate Transport of Fine Particulate and Ozone ( 69 FR 4566 4650) and Proposed National Emission Standards for Hazardous Air Pollutants; and in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ( 69 FR 4652 4752) February 26, 2004 Philadelphia, Pennsylvania Jeantheau, Mark. ( 2004) " Why Mercury was not the God of " Cap and Trade" The Pros and Cons of Reducing Pollution Through Allowance Trading" Grinning Planet: Issue Number 42 Maine Department of Environment Protection   Air Bureau. ( 2004) Mercury: A Significant Environmental Problem. < http:// www. maine. gov/ dep/ mercury/> Minott, Joseph Otis. ( 2004) Testimony of Clean Air Council Before the U. S. Environmental Protection Agency: Public Hearing on Proposed Regulations for Mercury & Interstate Air Quality: February 25, 2004 ( Philadelphia)

Natural Resources Defense Council. ( 2004) NRDC Backgrounder: Bush Mercury Policy Threatens the Health of Women and Children , http:// www. nrdc. org/ media/ pressreleases/ 040227. asp Northeast States for Coordinated Air Use Management. 2004. Comments to Docket Number OAR 2002 0056 on: Proposed National Emission Standards for Hazardous Air Pollutants; and in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ( 69 FR 4652 4752) 11 p.

Northeast States for Coordinated Air Use Management. 2003. Mercury MACT under the Clean Air Act: An Assessment of the Mercury Emissions Outcomes of the Utility MACT Work Group Recommendations. ( May 8, 2003) 8 p.

Northeast States for Coordinated Air Use Management. 2003b. Mercury Emissions from Coal Fired Power pLants: The Case for Regulatory Action. ( October 2003) 58 p. 90 O'Neill, Catherine A. " Mercury, Risk, and Justice." Environmental Law Review 2004 Environmental Law Institute: DC.

Srivastava, Ravi, et. al. " Preliminary Estimates of Performance and Cost of Mercury Control Technolgy Applications on Electric Utility Boilers," Air and Waste Management Association 51: 1460 1470 ( 2001)

US Department of Energy. Mercury Controls. Office of Fossil Energy. Pollution Control Innovations.( 2004) http:// www. fe. doe. gov/ programs/ powersystems/ pollutioncontrols/ overvie w_ mercurycontrols. shtml U. S. Environmental Protection Agency ( 1997) " Mercury Study Report to Congress, Volume II: An Inventory of Anthropogenic Mercury Emissions in the United States," EPA 452/ R 97 004, 1997 U. S. Environmental Protection Agency, Taking Toxics Out of Air Pub. No. EPA/ 451/ K 98 001, 21 ( 1998)

Environmental Protection Agency. ( 2004) Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units. 40 CFR Parts 60 and 63, [ OAR   2002   0056; FRL   7606]


[Federal Register Volume 82, Number 81 (Friday, April 28, 2017)]
[Notices]
[Pages 19785-19786]
[FR Doc No: 2017-08641]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket Number NHTSA-2016-0131]

Reports, Forms and Recordkeeping Requirements

AGENCY: National Highway Traffic Safety Administration (NHTSA), U.S.
Department of Transportation.

ACTION: Notice and request for comments.

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SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) this notice announces NHTSA has submitted to the
Office of Management and Budget (OMB) a request for emergency clearance
and review for existing information collection 2127-0025. Approval of
this collection is essential to the mission of the agency.
    While NHTSA has requested a temporary emergency clearance for this
collection, the agency is also in the process of requesting a full
clearance for this collection and has already published a 30-day
Federal Register notice requesting comment. This notice repeats that
request for comments.

DATES: Comments on the already published request for comments must be
received on or before May 22, 2017. We

have requested that OMB take action on the emergency collection by
April 30, 2017.

ADDRESSES: Send comments, by May 22, 2017, to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street NW., Washington, DC 20503, Attention: NHTSA Desk Officer.

FOR FURTHER INFORMATION CONTACT: Michael Kuppersmith, National Highway
Traffic Safety Administration, Office of the Chief Counsel (NCC-0010),
(202) 366-5263, 1200 New Jersey Avenue SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: NHTSA has requested emergency Paperwork
Reduction Act clearance for its confidential business information
collection (2127-0025) given the agency's current collection expires
April 30, 2017, and use of this collection is essential to the mission
of the agency. NHTSA published a 60-day renewal for this collection on
December 28, 2016 (81 FR 95729), and received no comments. NHTSA
published a 30-day notice for this collection on April 21, 2017 (82 FR
18825), and the comment period remains open until May 22, 2017. The
agency again requests any comments from the public on this request by
that date.
    NHTSA expects that it will receive approximately 500 requests for
confidentiality per year. With an estimated eight hours of preparation
to collect and provide the information for each request, at an assumed
rate of $24.92 per hour, the annual estimated cost of collecting and
preparing the information necessary for 500 complete requests for
confidential treatment is about $99,680 (8 hours of preparation x 500
requests x $24.92). Adding in a postage cost of $3,325 (500 requests at
a cost of $6.65 for postage (priority flat rate envelope from USPS)),
we estimate that it will cost $103,005 per year for persons to prepare
and submit the information necessary to satisfy the confidential
business information provisions of 49 CFR part 512.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility; the accuracy of the Department's estimate of the burden of the
proposed information collection; ways to enhance the quality, utility
and clarity of the information to be collected; and ways to minimize
the burden of the collection of information on respondents, including
the use of automated collection techniques or other forms of
information technology. A comment to OMB is most effective if OMB
receives it by May 22, 2017.

    Issued in Washington, DC, under authority delegated in 49 CFR
1.95.
Jack Danielson,
Acting Deputy Administrator, NHTSA.
[FR Doc. 2017-08641 Filed 4-27-17; 8:45 am]
 BILLING CODE 4910-59-P


[Federal Register Volume 82, Number 43 (Tuesday, March 7, 2017)]
[Notices]
[Pages 12862-12863]
[FR Doc No: 2017-04440]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 32519; File No. 812-14719]

Victory Portfolios, et al.; Notice of Application

March 2, 2017.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order pursuant to: (a) Section
6(c) of the Investment Company Act of 1940 (``Act'') granting an
exemption from sections 18(f) and 21(b) of the Act; (b) section
12(d)(1)(J) of the Act granting an exemption from section 12(d)(1) of
the Act; (c) sections 6(c) and 17(b) of the Act granting an exemption
from sections 17(a)(1), 17(a)(2) and 17(a)(3) of the Act; and (d)
section 17(d) of the Act and rule 17d-1 under the Act to permit certain
joint arrangements and transactions. Applicants request an order that
would permit certain registered open-end management investment
companies to participate in a joint lending and borrowing facility.

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Applicants: Victory Portfolios, Victory Portfolios II, Victory
Institutional Funds and Victory Variable Insurance Funds (each a
``Trust''), each a Delaware statutory trust registered under the Act as
an open-end management investment company with multiple series,\1\ and
Victory Capital Management Inc. (the ``Adviser''), a New York
Corporation registered as an investment adviser under the Investment
Advisers Act of 1940.
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    \1\ In the future the Adviser may advise Funds (as defined
below) that are registered closed-end management investment
companies or Funds that are money market funds that comply with Rule
2a-7 under the 1940 Act. The Funds that are closed-end management
investment companies and money market funds will not participate as
borrowers in the interfund lending facility.

DATES: Filing Dates: The application was filed on December 2, 2016 and
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amended on January 17, 2017.

Hearing or Notification of Hearing: An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by writing to the Commission's
Secretary and serving applicants with a copy of the request, personally
or by mail. Hearing requests should be received by the Commission by
5:30 p.m. on March 27, 2017 and should be accompanied by proof of
service on the applicants, in the form of an affidavit, or, for
lawyers, a certificate of service. Pursuant to Rule 0-5 under the Act,
hearing requests should state the nature of the writer's interest, any

facts bearing upon the desirability of a hearing on the matter, the
reason for the request, and the issues contested. Persons who wish to
be notified of a hearing may request notification by writing to the
Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street NE., Washington, DC 20549-1090; Applicants: Victory Portfolios,
Victory Portfolios II, Victory Institutional Funds, Victory Variable
Insurance Funds and Victory Capital Management Inc., 4900 Tiedeman
Road, 4th Floor, Brooklyn, Ohio 44144.

FOR FURTHER INFORMATION CONTACT: Deepak T. Pai, Senior Counsel, at
(202) 551-6876 or Robert H. Shapiro, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or an applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Summary of the Application

    1. Applicants request an order that would permit the applicants to
participate in an interfund lending facility where each Fund could lend
money directly to and borrow money directly from other Funds to cover
unanticipated cash shortfalls, such as unanticipated redemptions or
trade fails.\2\ The Funds will not borrow under the facility for
leverage purposes and the loans' duration will be no more than 7
days.\3\
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    \2\ Applicants request that the order apply to the applicants
and to any existing or future registered open-end or closed-end
management investment company or series thereof for which the
Adviser or any successor thereto or an investment adviser
controlling, controlled by, or under common control with the Adviser
or any successor thereto serves as investment adviser (each a
``Fund'' and collectively the ``Funds'' and each such investment
adviser the ``Adviser''). For purposes of the requested order,
``successor'' is limited to any entity that results from a
reorganization into another jurisdiction or a change in the type of
a business organization.
    \3\ Any Fund, however, will be able to call a loan on one
business day's notice.
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    2. Applicants anticipate that the proposed facility would provide a
borrowing Fund with a source of liquidity at a rate lower than the bank
borrowing rate at times when the cash position of the Fund is
insufficient to meet temporary cash requirements. In addition, Funds
making short-term cash loans directly to other Funds would earn
interest at a rate higher than they otherwise could obtain from
investing their cash in repurchase agreements or certain other short
term money market instruments. Thus, applicants assert that the
facility would benefit both borrowing and lending Funds.
    3. Applicants agree that any order granting the requested relief
will be subject to the terms and conditions stated in the application.
Among others, the Adviser, through a designated committee, would
administer the facility as a disinterested fiduciary as part of its
duties under the investment management and administrative agreements
with the Funds and would receive no additional fee as compensation for
its services in connection with the administration of the facility. The
facility would be subject to oversight and certain approvals by the
Funds' Board, including, among others, approval of the interest rate
formula and of the method for allocating loans across Funds, as well as
review of the process in place to evaluate the liquidity implications
for the Funds. A Fund's aggregate outstanding interfund loans will not
exceed 15% of its net assets, and the Fund's loans to any one Fund will
not exceed 5% of the lending Fund's net assets.\4\
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    \4\ Under certain circumstances, a borrowing Fund will be
required to pledge collateral to secure the loan.
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    4. Applicants assert that the facility does not raise the concerns
underlying section 12(d)(1) of the Act given that the Funds are part of
the same group of investment companies and there will be no duplicative
costs or fees to the Funds.\5\ Applicants also assert that the proposed
transactions do not raise the concerns underlying sections 17(a)(1),
17(a)(3), 17(d) and 21(b) of the Act as the Funds would not engage in
lending transactions that unfairly benefit insiders or are detrimental
to the Funds. Applicants state that the facility will offer both
reduced borrowing costs and enhanced returns on loaned funds to all
participating Funds and each Fund would have an equal opportunity to
borrow and lend on equal terms based on an interest rate formula that
is objective and verifiable. With respect to the relief from section
17(a)(2) of the Act, applicants note that any collateral pledged to
secure an interfund loan would be subject to the same conditions
imposed by any other lender to a Fund that imposes conditions on the
quality of or access to collateral for a borrowing (if the lender is
another Fund) or the same or better conditions (in any other
circumstance).\6\
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    \5\ Applicants state that the obligation to repay an interfund
loan could be deemed to constitute a security for the purposes of
sections 17(a)(1) and 12(d)(1) of the Act.
    \6\ Applicants state that any pledge of securities to secure an
interfund loan could constitute a purchase of securities for
purposes of section 17(a)(2) of the Act.
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    5. Applicants also believe that the limited relief from section
18(f)(1) of the Act that is necessary to implement the facility
(because the lending Funds are not banks) is appropriate in light of
the conditions and safeguards described in the application and because
the open-end Funds would remain subject to the requirement of section
18(f)(1) that all borrowings of the open-end Fund, including combined
interfund loans and bank borrowings, have at least 300% asset coverage.
    6. Section 6(c) of the Act permits the Commission to exempt any
persons or transactions from any provision of the Act if such exemption
is necessary or appropriate in the public interest and consistent with
the protection of investors and the purposes fairly intended by the
policy and provisions of the Act. Section 12(d)(1)(J) of the Act
provides that the Commission may exempt any person, security, or
transaction, or any class or classes of persons, securities, or
transactions, from any provision of section 12(d)(1) if the exemption
is consistent with the public interest and the protection of investors.
Section 17(b) of the Act authorizes the Commission to grant an order
permitting a transaction otherwise prohibited by section 17(a) if it
finds that (a) the terms of the proposed transaction are fair and
reasonable and do not involve overreaching on the part of any person
concerned; (b) the proposed transaction is consistent with the policies
of each registered investment company involved; and (c) the proposed
transaction is consistent with the general purposes of the Act. Rule
17d-1(b) under the Act provides that in passing upon an application
filed under the rule, the Commission will consider whether the
participation of the registered investment company in a joint
enterprise, joint arrangement or profit sharing plan on the basis
proposed is consistent with the provisions, policies and purposes of
the Act and the extent to which such participation is on a basis
different from or less advantageous than that of the other
participants.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-04440 Filed 3-6-17; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 86 (Wednesday, May 4, 2016)]
[Notices]
[Pages 26803-26804]
[FR Doc No: 2016-10398]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2016-N-0012]

Natural History Studies for Rare Disease Product Development:
Orphan Products Research Project Grant (R01)

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) is announcing the
availability of grant funds for the support of FDA's Office of Orphan
Products Development (OOPD) Natural History Grants Program. The goal of
the Orphan Products Natural History Grants Program is to support
studies that advance rare disease medical product development through
characterization of the natural history of rare diseases/conditions,
identification of genotypic and phenotypic subpopulations, and
development and/or validation of clinical outcome measures, biomarkers
and/or companion diagnostics. The ultimate goal of these natural
history studies is to support clinical development of products for use
in rare diseases or conditions where no current therapy exists or where
the proposed product will be superior to the existing therapy. FDA
provides grants for natural history studies that will either assist or
substantially contribute to market approval of these products.
Applicants must include in the application's Background and
Significance section documentation to support that the estimated
prevalence of the orphan disease or condition in the United States is
less than 200,000 (or in the case of a vaccine or diagnostic,
information to support that the product will be administered to fewer
than 200,000 people in the United States per year), and an explanation
of how the proposed study will either help support product approval or
provide essential data needed for product development.

DATES: Important dates are as follows:
    1. The application due dates are October 14, 2016 and October 15,
2018.
    2. The anticipated start dates are March 2017 and March 2019.
    3. The opening dates are August 15, 2016 and August 15, 2018.
    4. The expiration date is October 16, 2018.

ADDRESSES: Submit electronic applications to: http://www.grants.gov.
For more information, see section III of the SUPPLEMENTARY INFORMATION
section of this notice.

FOR FURTHER INFORMATION AND ADDITIONAL REQUIREMENTS CONTACT: Katherine
Needleman, Office of Orphan Products Development, Food and Drug
Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5295, Silver
Spring, MD 20993-0002,<PHONE_NUMBER>, email:
<EMAIL_ADDRESS>or Daniel Lukash, Office of
Acquisitions and Grant Services, 5630 Fishers Lane, Rockville, MD
20857,<PHONE_NUMBER>, email<EMAIL_ADDRESS>    For more information on this funding opportunity announcement (FOA)
and to obtain detailed requirements, please refer to the full FOA
located at http://grants.nih.gov/grants/guide (select the ``Request for
Applications'' link), http://www.grants.gov (see ``For Applicants''
section), and http://www.fda.gov/orphan.

SUPPLEMENTARY INFORMATION:

I. Funding Opportunity Description

RFA-FD-16-043

93.103

A. Background

    The OOPD was created to identify and promote the development of
orphan products. Orphan products are drugs, biologics, medical devices,
and medical foods that are indicated for a rare disease or condition.
The term ``rare disease or condition'' is defined in section 528 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360ee). FDA generally
considers drugs, devices, and medical foods potentially eligible for
grants under the OOPD grant program if they are indicated for a disease
or condition that has a prevalence, not incidence, of fewer than
200,000 people in the United States. Diagnostics and vaccines are
considered potentially eligible for such grants only if the U.S.
population to whom they will be administered is fewer than 200,000
people in the United States per year.
    The natural history of a disease is the natural course of a disease
from the time immediately prior to its inception, progressing through
its pre-symptomatic phase and different clinical stages to the point
where the disease has ended without external intervention. Natural
history studies track the course of disease over time, identifying
demographic, genetic, environmental, and other variables that correlate
with its development and outcomes in the absence of treatment. Thorough
understanding of disease natural history is the foundation upon which a
clinical development program for drugs, biologics, medical foods or
medical devices is built.
    Rare diseases, as defined in the United States Orphan Drug Act
(ODA) (Pub. L. 97-414), are diseases or conditions with a prevalence of
fewer than 200,000 persons in the United States. Though individually
rare, together there are approximately 30 million Americans affected by
7,000 known rare diseases. Unlike common diseases, there is little
existing knowledge on the natural history of most rare diseases, which
makes natural history studies of particular importance for rare
diseases product development. In January 2014, the FDA organized a
Public Workshop on Complex Issues in Developing Drugs for Rare
Diseases. During the workshop, the lack of natural history studies was
reconfirmed by all stakeholders (patients, industry, researchers and
the FDA) as one of the most common and urgent issues that hinder
treatment development for rare diseases. The need for natural history
studies was also emphasized in the recently published (August 17, 2015)
draft FDA Guidance for Industry, ``Rare Diseases: Common Issues in Drug
Development,'' available at http://www.fda.gov/downloads/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/UCM458485.pdf.

B. Research Objectives

    The objective of FDA's Orphan Products Natural History Grants
Program is to support studies that characterize the natural history of
rare diseases/conditions, identify genotypic and phenotypic
subpopulations, and develop and/or validate clinical outcome measures,
biomarkers and/or companion diagnostics. The ultimate goal of these
natural history studies is to support clinical development of products
for use in serious rare diseases or conditions where no current therapy
exists or where the proposed product will be superior to the existing
therapy. FDA provides grants for natural history studies that will
either assist or substantially contribute to market approval of these
products. Applicants must include in the application's Background and
Significance section documentation to support that the estimated
prevalence of the orphan disease or condition in the United States is
less than 200,000 (or in the case of a vaccine or diagnostic,
information to support that the product will be administered to fewer
than 200,000 people in the United States per year), and an explanation
of how the proposed study will either help support product approval or
provide essential data needed for product development.

C. Eligibility Information

    The grants are available to any foreign or domestic, public or
private, for-profit or nonprofit entity (including State and local
units of government). Federal Agencies may not apply.

II. Award Information/Funds Available

A. Award Amount

    Of the estimated FY 2017 funding ($17.7 million), approximately $2
million will fund 2 to 5 new awards, subject to availability of funds.
Prospective Natural History Studies are eligible for grants of up to
$400,000 per year for up to 5 years. Retrospective Natural History
Studies or Surveys are eligible for grants of up to $150,000 per year
for up to 2 years. Please note that the dollar limitation will apply to
total costs (direct plus indirect). Budgets for each year of requested
support may not exceed the $150,000 or $400,000 total cost limit,
whichever is applicable.

B. Length of Support

    The length of support will depend on the nature of the study. For
those studies with an expected duration of more than 1 year, all future
years of noncompetitive continuation of support will depend on the
following factors: (1) Performance during the preceding year; (2)
compliance with regulatory requirements as applicable; and (3)
availability of Federal funds.

III. Electronic Application, Registration, and Submission

    Only electronic applications will be accepted. To submit an
electronic application in response to this FOA, applicants should first
review the full announcement located at http://grants.nih.gov/grants/guide. For all electronically submitted applications, the following
steps are required.

 Step 1: Obtain a Dun and Bradstreet (DUNS) Number
 Step 2: Register With System for Award Management (SAM)
(formerly Central Contractor Registration (CCR))
 Step 3: Obtain Username & Password on Grants.gov
 Step 4: Authorized Organization Representative (AOR)
Authorization
 Step 5: Track AOR Status
 Step 6: Register With Electronic Research Administration (eRA)
Commons

    Steps 1 through 5, in detail, can be found at http://www07.grants.gov/applicants/organization_registration.jsp. Step 6, in
detail, can be found at https://commons.era.nih.gov/commons/registration/registrationInstructions.jsp. After you have followed
these steps, submit electronic applications to: http://www.grants.gov.

    Dated: April 28, 2016.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2016-10398 Filed 5-3-16; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register: December 10, 2007 (Volume 72, Number 236)]
[Notices]
[Page 69720]
[DOCID:fr10de07-112]

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SECURITIES AND EXCHANGE COMMISSION

[File No. 500-1]

In the Matter of Roanoke Technology, Corp.; Order of Suspension
of Trading

December 6, 2007.
    It appears to the Securities and Exchange Commission
(``Commission'') that there is a lack of current and accurate
information concerning the securities of Roanoke Technology, Corp.
(``Roanoke''), because it is delinquent in its periodic filing
obligations under Section 13(a) of the Securities Exchange Act of 1934
(``Exchange Act'') and Rules 13a-1 and 13a-13 thereunder, having not
filed a periodic report after its Form 10-Q for the quarter ended July
31, 2005.
    The Commission is of the opinion that the public interest and the
protection of investors require a suspension of trading in the
securities of the above listed company.
    Therefore, it is ordered pursuant to Section 12(k) of the Exchange
Act, that trading in the above listed company is suspended for the
period from 9:30 a.m. EST on Thursday, December 6, 2007, through 11:59
p.m. EST on Wednesday, December 19, 2007.

    By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. 07-6005 Filed 12-6-07; 10:04 am]

BILLING CODE 8011-01-P


[Federal Register: June 19, 2008 (Volume 73, Number 119)]
[Notices]
[Page 34969-34970]
[DOCID:fr19jn08-99]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-57963; File No. SR-OCC-2008-08]

Self-Regulatory Organizations; The Options Clearing Corporation;
Notice of Filing of a Proposed Rule Change Relating to Its Facilities
Management Agreements

June 13, 2008.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ notice is hereby given that on January 9, 2008, The
Options Clearing Corporation (``OCC'') filed with the Securities and
Exchange Commission (``Commission'') the proposed rule change described
in Items I, II, and III below, which items have been prepared primarily
by OCC. The Commission is publishing this notice to solicit comments
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The proposed rule change would amend OCC Rule 309 to permit
expedited review of a managed clearing member's request to operate
without a facilities management agreement.

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

    In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A),
(B), and (C) below, of the most significant aspects of these
statements.\2\
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    \2\ The Commission has modified the text of the summaries
prepared by OCC.
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(A) Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    The purpose of the proposed rule change is to provide an expedited
process for reviewing a managed clearing member's request to operate
without a facilities management agreement (``FMA''). \3\
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    \3\ Article V, Section 1 of OCC's By-laws, including the
Interpretations and Policies thereunder, set forth the requirements
for membership. Interpretation and Policy .04 permits an applicant
for clearing membership (``managed clearing member'') to meet
specified membership requirements by entering into an FMA with
another clearing member (``managing clearing member'') pursuant to
which managing clearing member would perform certain of the
applicant's obligations as a clearing member (``managed services'').
An operationally capable clearing member also may elect to outsource
certain of its obligations as a clearing member, and thereby, become
a managed clearing member. OCC Rule 309(f).
---------------------------------------------------------------------------

    Under OCC Rule 309(e), a managed clearing member that desires to
terminate an FMA must withdraw from membership on the business day
before the proposed termination unless the Membership/Risk Committee
(``Committee'') has determined in accordance with Article V, section 1
of OCC's By-laws either that the managed

clearing member has the operational capability, experience and
competence to perform the managed services required of a clearing
member or the managed clearing member has entered into another
acceptable FMA that will be effective on or before such proposed
termination.
    From March, 2006 to February, 2008, the Committee reviewed three
requests to terminate FMAs, all of which were approved. In each case,
the managed clearing member was required to defer terminating its FMA
until the next regularly scheduled Committee meeting. To provide for a
more timely review of certain FMA terminations, OCC proposes to adopt a
new Interpretation and Policy .02 under Rule 309. Under the new policy,
a managed clearing member desiring to terminate its FMA would be
permitted to request an expedited review. If OCC consents to an
expedited review,\4\ the Chairman, the Management Vice Chairman, or the
President would be authorized to determine whether, as specified in
Rule 309(e), a managed clearing member had the operational capability,
experience, and competency to perform the managed services required of
a clearing member, and to approve or disapprove the termination.
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    \4\ OCC would use the expedited review process for FMA
terminations only in cases that present no significant or novel
issues. Requests involving complex issues would be presented to the
Committee at its next regularly scheduled meeting.
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    At the next regularly scheduled Committee meeting, the Committee
would independently review de novo whether the managed clearing member
met the requirements of Rule 309(e) and determine whether or not to
approve the FMA's termination. Notwithstanding that, if the Committee
modifies or reverses the action taken by the Chairman, the Management
Vice Chairman, or the President, any actions taken by OCC or the
clearing member prior to the modification or reversal would not be
invalidated and no rights of any person arising out of such actions
would be affected. In the unlikely event that the Committee disapproved
of a termination previously approved by OCC, the clearing member would
be given a reasonable time either to establish another FMA or to
withdraw from membership.
    This proposal is comparable to a process recently approved by the
Commission which permits the expedited review of requests by
operationally capable clearing members that desire to outsource certain
of their clearing member obligations by entering into FMAs.\5\ OCC
believes that the rationale for giving senior management the authority
to approve FMAs on an interim basis applies equally to FMA
terminations. The proposal strikes a reasonable balance between meeting
the business requirements of clearing members and continuing to ensure
appropriate review of their operational capabilities.
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    \5\ Interpretation & Policy .01 to Rule 309. See also Securities
Exchange Act Release No. 57535 (March 20, 2008), 73 FR 16086 (March
26, 2008) [SR-OCC-2008-01].
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    OCC believes that the proposed change is consistent with the Act
because it promotes the prompt and accurate clearance and settlement of
securities transactions by providing an expedited review process for
the termination of FMAs as proposed by managed clearing members. The
proposed rule change is not inconsistent with the existing rules of
OCC, including any other rules proposed to be amended.

(B) Self-Regulatory Organization's Statement on Burden on Competition

    OCC does not believe that the proposed rule change would impose any
burden on competition.

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

    Written comments were not and are not intended to be solicited with
respect to the proposed rule change, and none have been received.

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

    Within thirty-five 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 ninety 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-OCC-2008-08 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-OCC-2008-08. 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 such filing also will be available for
inspection and copying at the principal office of OCC and on OCC's Web
site at http://www.theocc.com/publications/rules/proposed_changes/sr_
occ_08_08.pdf. 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-OCC-
2008-08 and should be submitted on or before July 10, 2008.

    For the Commission by the Division of Trading and Markets,
pursuant to delegated authority.\6\
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    \6\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-13855 Filed 6-18-08; 8:45 am]

BILLING CODE 8010-01-P