[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Notices]
[Pages 20123-20126]
[FR Doc No: 2018-09571]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83141; File No. SR-Phlx-2018-32]

Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Adopt a New
Market Order Spread Protection

May 1, 2018.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 20, 2018, Nasdaq PHLX LLC (``Phlx'' or ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I and II below, which Items
have been prepared by the Exchange. The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to adopt a new Market Order Spread
Protection.
    The text of the proposed rule change is available on the Exchange's
website at http://nasdaqphlx.cchwallstreet.com/, at the principal
office of the Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The purpose of this rule change is to adopt a new Market Order
Spread Protection rule similar to The Nasdaq

Options Market LLC (``NOM'').\3\ The Exchange also proposes an
amendment to Rule 1099, entitled ``Order Protections.''
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    \3\ See NOM Rules at Chapter VI, Section 6(c).
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    Today, Phlx Rule 1099 includes various order protections which
apply only to simple orders. The Exchange is proposing to amend Rule
1099 to include rule text which makes clear that the order protections
within Rule 1099 apply only to simple orders. Further, the Exchange
proposes to adopt Market Order Spread Protection functionality within
Rule 1099(d), which protection would similarly apply only to simple
orders.
    This new mandatory risk protection entitled Market Order Spread
Protection protects Market Orders \4\ from being executed in very wide
markets. This feature would be set at the same preset threshold \5\ for
all options traded on Phlx. The proposed new rule provides that a
Market Order will be rejected if the best of the NBBO and the internal
market PBBO \6\ is wider than a preset threshold, which is selected by
the Exchange and announced to members, at the time the Market Order is
received by the System. NOM has two non-displayed order types, Price-
Improving and Post-Only Orders, which may cause the order book on NOM
to be better than the NBBO. Phlx similarly has non-displayed order
types, all-or-none,\7\ stop orders \8\ and legging orders \9\
(collectively ``Non-Displayed Orders''). These Non-Displayed Orders may
cause the order book on Phlx to be better than the NBBO. The Exchange
also notes that orders which lock or cross another market \10\ will
cause the PBBO to reprice and also could result in the internal market
PBBO being better than the NBBO. The Exchange notes that Non-Displayed
Orders would be considered when validating orders on entry for the
proposed Market Order Spread Protection, except for all-or-none orders.
All-or-none orders have a quantity contingency requiring the full
quantity of the order to execute in order for any trade to take place,
which may cause the order to not execute. If an all-or-none contingency
cannot be met, the all-or-none order would be bypassed until such time
as the contingency could be met. For this reason, an all-or-none order
will not be considered during the validation of orders on entry for
purposes of Market Order Spread Protection. Below are some examples:
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    \4\ Market Orders are orders to buy or sell at the best price
available at the time of execution.
    \5\ This preset threshold would initially be $5, as explained in
more detail below.
    \6\ This is the best bid and offer on the Phlx order book
including non-displayed legging and stop orders. Resting AON orders
are not considered as part of the internal market PBBO in applying
the Market Order Spread Protection. Resting AON orders may be passed
by in allocation if the incoming order does have sufficient quantity
to satisfy the resting AON.
    \7\ An all-or-none order is a limit or market order that is to
be executed in its entirety or not at all.
    \8\ A stop order is a limit or market order to buy or sell at a
limit price when a trade or quote on the Exchange for a particular
option contract reaches a specified price. A stop-market or stop-
limit order shall not be elected by a trade that is reported late or
out of sequence or by a complex order trading with another complex
order.
    \9\ A legging order is a limit order on the regular order book
in an individual series that represents one leg of a two-legged
Complex Order (which improves the cPBBO) that is to buy or sell an
equal quantity of two options series resting on the CBOOK. Legging
orders are firm orders that are included in the Exchange's displayed
best bid or offer. Legging orders are not routable and are limit
orders with a time-in-force of DAY, as they represent an individual
component of a Complex Order. Legging orders are non-displayed
orders that are automatically generated. See Phlx Rule
1098(f)(iii)(C).
    \10\ Options Order Protection and Locked and Crossed Market
Rules are located at Phlx Rule 1083. In the event of a locked and
crossed market, the PBBO will be repriced and displayed in
accordance with Phlx Rule 1082(a)(ii)(3)(g)(v).
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Example No. 1
    If the Market Order Spread Protection threshold is set to $5.00,
and a Market Order to buy is received while the NBBO and internal PBBO
are both $1.00-$6.05 and there are no Non-Displayed Orders resting on
the book, such Market Order will be rejected. . [sic]
Example No. 2
    The following is an example of how a legging order interacts with
the Market Order Spread Protection. Assume an option minimum price
increment (MPV) is scaled in $0.05 increments and a limit buy order of
$0.05 exists on the Exchange. If the system generates a legging order
to sell at $ 0.11, this order will not be displayed at its limit of
$0.11, because the order is priced at a non-MPV increment. This order
will be displayed at the nearest MPV price of $0.15 (because of the
option's $0.05 MPV increment). Thus, the displayed spread is $0.10;
however the PBBO is $0.06. Assume this order makes up the best offer on
the Exchange. For this example, assume the Market Order Spread
Threshold in the System is set at $ 0.09. Further assume a Market Order
to buy is submitted to the Exchange. Based on the Exchange's proposed
implementation of Market Order Spread Protection, the Market Order to
buy would execute against the resting sell order at $0.11, since $0.11
is the best available offer and the internal market PBBO spread is
$0.06 (spread between the best bid of $0.05 and the best offer of $
0.11) which is less than the Market Order Spread Threshold of $0.09.
Example No. 3
    The following is an example of how an all-or-none order interacts
with Market Order Spread Protection. Assume an NBBO: 0 x 5.50 and a
PBBO of 0 x 5.45. Also assume an all-or-none order is resting in the
order book to sell 1000 at 4.95 and an incoming Market Order to buy 10.
The all-or-none order would not be considered in the validation and the
incoming Market Order would be rejected. In this example, if the all-
or-none order had been considered in the validation that Market Order
would have executed at 5.45, an inferior price because the full
quantity of the resting all-or-none order could not be satisfied.
    The proposed feature would assist with the maintenance of fair and
orderly markets by ensuring that the best bid and offer displayed on
the Exchange are within a reasonable range and preventing market orders
from trading outside of the reasonable range when the best bid and
offer displayed are not within the allowable range. The Exchange
proposes this feature to avoid executions of Market Orders when the
market is too wide for a reasonable execution.
    Today, the NOM threshold is set at $5. Phlx will initially set the
threshold to $5. Similar to NOM, the Exchange will notify Members of
the threshold with advanced notice to members through an Options Trader
Alert, and, thereafter, members will be notified in advance of any
subsequent changes to the threshold. NOM set the differential at $5 to
match the bid/ask differential permitted for quotes on the
Exchange.\11\ The Exchange would consider a subsequent change to the
threshold if it believed that the $5 initial threshold was too wide or
too restrictive as between the bid and offer to create a reasonable
range for executions. Phlx has the same differential.\12\ Thus, the
presence of a quote on the Exchange will ensure the NBBO is at least $5
wide. The Exchange believes the

presence of a quote on the Exchange, or a bid/ask differential of the
NBBO, which is no more than $5 wide affords Market Orders proper
protection against erroneous execution and in the event a bid/ask
differential is more than $5, then a Market Order is rejected. The
threshold is appropriate because it seeks to ensure that the displayed
bid and offer are within reasonable ranges and do not represent
erroneous prices. The protection would reject Market Orders which are
outside of the parameters of the Market Order Spread Protection. The
Exchange's proposed threshold is a reasonable measure to ensure prices
remain within the preset threshold set by the Exchange, which will be
initially set at $5. This protection will bolster the normal resilience
and market behavior that persistently produces robust reference prices.
This feature should create a level of protection that prevents Market
Orders from entering the Order Book outside of an acceptable range for
the Market Order to execute.
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    \11\ See Chapter VII, Section 6(d)(ii) of NOM Rules which
describes the bid/ask differentials. Options on equities (including
Exchange-Traded Fund Shares), and on index options must be quoted
with a difference not to exceed $5 between the bid and offer
regardless of the price of the bid, including before and during the
opening. However, respecting in-the-money series where the market
for the underlying security is wider than $5, the bid/ask
differential may be as wide as the quotation for the underlying
security on the primary market. The Exchange may establish
differences other than the above for one or more series or classes
of options.
    \12\ See Phlx Rule 1014(c)(i)(A)(2).
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    Finally, the Market Order Spread Protection will be the same for
all options traded on the Exchange, and is applicable to all Members
that submit Market Orders. The Market Order Spread Protection would not
apply during the Opening Process and trading halts, similar to the
manner in which it operates today on NOM. Both the Opening Process and
trading halts have their own more restrictive boundaries than those
proposed for the Market Order Spread Protection. With respect to the
Opening Process, a Quality Opening Market is required. A Quality
Opening Market requires a bid/ask differential applicable to the best
bid and offer from all Valid Width Quotes defined in a table \13\ to be
determined by the Exchange.\14\ The Exchange's requirements during the
Opening Process are more restrictive than the proposed initial setting
for the Market Order Spread Protection, which is proposed at $5. As
provided in Phlx Rule 1047(g), trading halts are subject to the
reopening process as provided for in Phlx Rule 1017(e). The same
protections noted for the Opening Process above will apply for trading
halts. The Exchange believes that the Market Order Spread Protection is
unnecessary during the Opening Process and during a trading halt
because other protections are in place to ensure that the best bid and
offer displayed on the Exchange are within a reasonable range.
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    \13\ The table is published on the Exchange's website at: http://www.nasdaqtrader.com/content/phlx/phlx_systemtime.pdf.
    \14\ The calculation of Quality Opening Market is based on the
best bid and offer of Valid Width Quotes. The differential between
the best bid and offer are compared to reach this determination. The
allowable differential, as determined by the Exchange, takes into
account the type of security (for example, Penny Pilot versus non-
Penny Pilot issue), volatility, option premium, and liquidity. The
Quality Opening Market differential is intended to ensure the price
at which the Exchange opens reflects current market conditions. See
Phlx Rule 1017(a)(viiii).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\15\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\16\ in particular, in that it is designed to
promote just and equitable principles of trade and to protect investors
and the public interest by mitigating risk to market participants. By
adopting this mandatory risk protection, similar to NOM, the Exchange
will protect market participants from the execution of erroneous Market
Orders. The proposed feature would assist with the maintenance of fair
and orderly markets by ensuring that the best bid and offer displayed
on the Exchange are within a reasonable range and further the
protection would prevent market orders from trading outside of the
reasonable range when the best bid and offer displayed are not within
the allowable range.
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    \15\ 15 U.S.C. 78f(b).
    \16\ 15 U.S.C. 78f(b)(5).
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    This feature should create a level of protection that prevents
erroneous Market Orders from entering the Order Book and thereby reduce
the negative impacts of sudden, unanticipated volatility, and serve to
preserve an orderly market in a transparent and uniform manner,
increase overall market confidence, and promote fair and orderly
markets and the protection of investors. This feature is not optional
and is applicable to all members submitting Market Orders.
    Permitting the rejection of the Market Order at the better of the
NBBO or Reference PBBO does not otherwise create an impediment to a
free and open market because Non-Displayed Orders exist today on NOM
with this same protection and provide investors the opportunity to
trade at a better price than would otherwise be available, e.g., inside
the disseminated best bid and offer for a security, which could result
in better executions for investors. The Exchange's exclusion of all-or-
none orders when validating orders on entry for purposes of Market
Order Spread Protection is consistent with the protection of investors
and the public interest. This contingency order is already bypassed
today for purposes of priority when the contingency cannot be
satisfied. The Exchange notes that because all-or-none orders have a
size contingency, which may cause this order type not to execute, the
result of including the all-or-none order in the validation of incoming
orders could result in executions at inferior prices.
    The Exchange's proposal to not apply the Market Order Spread
Protection during the Opening Process and during is consistent with the
Act because protections exist within those mechanisms to ensure that
the best bid and offer displayed on the Exchange are within a
reasonable range. The Exchange's Opening Process Rule 1017 \17\ and the
Trading Halt Rule 1047 \18\ both contain more restrictive boundaries
than those proposed for the Market Order Spread Protection. With
respect to the Opening Process, a Quality Opening Market is required. A
Quality Opening Market requires a bid/ask differential applicable to
the best bid and offer from all Valid Width Quotes defined in a table
to be determined by the Exchange. The Exchange's requirements during
the Opening Process are more restrictive than the proposed initial
setting for the Market Order Spread Protection, which is proposed at
$5. As provided in Phlx Rule 1047(g), trading halts are subject to the
reopening process as provided for in Phlx Rule 1017(e). The same
protections noted for the Opening Process above will apply for trading
halts. The Exchange believes that the Market Order Spread Protection is
unnecessary during the Opening Process and during a trading halt
because other protections are in place to ensure that the best bid and
offer displayed on the Exchange are within a reasonable range.
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    \17\ With respect to the Opening Process, a Quality Opening
Market is required. A Quality Opening Market a bid/ask differential
applicable to the best bid and offer from all Valid Width Quotes
defined in a table to be determined by the Exchange and published on
the Exchange's website. See Phlx Rule 1017(a)(viiii).
    \18\ With respect to trading halts, Opening Process procedures
will be used to reopen an option series after a trading halt,
therefore, the same protections noted for the Opening Process will
apply for a trading halt and the same restrictive boundaries would
apply. See Phlx Rule 1017(e).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange believes that the
proposed amendments do not impose an undue burden on competition
because the Market Order Spread Protection will be mandatory for all
market participants.

The Marker Order Spread Protection feature will provide market
participants with additional price protection from anomalous
executions. The Exchange does not believe the proposal creates any
significant impact on competition.
    The Exchange does not believe that accounting for Non-Displayed
Orders, except for all-or-none orders, or repricing due to trade-
through and locked and crossed market restrictions creates an undue
burden on competition because it will serve to provide members with
additional information in the rule text to anticipate the impact of the
Market Order Spread Protection feature. Today, members are able to
submit orders or quotes priced between the MPV for display at the
nearest MPV.
    The Exchange does not believe that not applying the Market Order
Spread Protection during the Opening Process and during a trading halt
creates an undue burden on competition because these mechanisms offer
more restrictive protections than the proposed initial setting for the
Market Order Spread Protection, which is proposed at $5.

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

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not (i)
significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \19\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\20\
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    \19\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \20\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days after the date of its filing. However,
Rule 19b-4(f)(6)(iii) \21\ permits the Commission to designate a
shorter time if such action is consistent with the protection of
investors and the public interest. The Exchange has requested that the
Commission waive the 30-day operative delay so that the proposed rule
change will become operative on filing. The Exchange states that waiver
of the 30-day operative delay would allow the Exchange to immediately
offer a mandatory risk protection, similar to NOM, for all market
participants transacting in simple orders to protect market
participants from entering Market Orders outside of a reasonable range
for execution. Based on the foregoing, the Commission believes that
waiving the 30-day operative delay is consistent with the protection of
investors and the public interest. Therefore, the Commission hereby
waives the operative delay and designates the proposed rule change
operative upon filing.\22\
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    \21\ 17 CFR 240.19b-4(f)(6)(iii).
    \22\ For purposes only of waiving the 30-day operative delay,
the Commission also has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-Phlx-2018-32 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-Phlx-2018-32. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-Phlx-2018-32, and should be submitted on
or before May 29, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-09571 Filed 5-4-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Rules and Regulations]
[Pages 79317-79319]
[FR Doc No: 2013-31269]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-R08-OAR-2013-0330, FRL-9904-88-Region 8]

Approval of Request for Delegation of Authority for Prevention of
Accidental Release, North Dakota Department of Agriculture

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve North Dakota Department of Agriculture's (NDDA's)
request for partial delegation of the Risk Management Program (RM
Program) for facilities with an anhydrous ammonia storage capacity of
ten thousand pounds or more that is intended to be used as fertilizer
or in the manufacturing of a fertilizer (``agricultural anhydrous
ammonia facilities'') in the state of North Dakota. EPA retains
authority for the RM Program for all other regulated chemicals which
may be present at these facilities and for the RM Program generally in
North Dakota for all other facilities.

DATES: This final rule is effective January 29, 2014.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R08-OAR-2013-0330. All documents in the docket are
listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, e.g., Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Preparedness Program, Environmental Protection Agency
(EPA), Region 8 (8EPR-ER), 1595 Wynkoop Street, Denver, Colorado 80202-
1129. The EPA requests that if at all possible, you contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You may view the hard copy of the
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal
holidays.

FOR FURTHER INFORMATION CONTACT: Brent Truskowski, Acting RMP
Coordinator, Emergency Response and Preparedness Program, U.S.
Environmental Protection Agency (EPA), Region 8 (8EPR-ER), 1595 Wynkoop
Street, Denver, Colorado 80202-1129,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The word and initials RM Program means Risk Management Program
    (iii) The initials NDDA mean North Dakota Department of Agriculture
    (iv) The initials RMP mean Risk Management Plan
    (v) The initials CFR mean Code of Federal Regulations
    (vi) The initials FR mean Federal Register
    (vii) The initials NDCC mean North Dakota Century Code
    (viii) The initials NDAC mean North Dakota Administrative Code

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On June 20, 1996, the EPA promulgated the RM Program regulations
(40 CFR Part 68) which were mandated under the accidental release
prevention provisions of section 112(r)(7) of the CAA (61 FR 31668,
June 20, 1996). These regulations require owners and operators of
stationary sources subject to the regulations to submit risk management
plans (RMPs) to a central location specified by the EPA. These
regulations also encourage sources to reduce the probability of
accidentally releasing substances that have the potential to cause harm
to public health and the environment, and stimulate dialogue between
industry

and the public to improve accident prevention and emergency response
practices.
    Section 112(l) of the CAA and 40 CFR part 63, Subpart E authorize
the EPA to approve state rules and programs to be implemented and
enforced in place of certain CAA requirements, including the RM Program
set forth at 40 CFR part 68. Under 40 CFR 63.95(b), the State's Part 68
program shall contain the following elements, consistent with the
procedures in section 63.91, that an approvable State Accidental
Release Prevention program is regulating:
     A demonstration of the State's authority and resources to
implement and enforce regulations that are no less stringent than the
regulations of 40 CFR Part 68, Subparts A through G and section CFR
68.200;
     A requirement that any source subject to the State's Part
68 program submit a RMP that reports at least the same information in
the same format as required under Part 68, Subpart G;
     Procedures for reviewing RMPs and providing technical
assistance to stationary sources including small businesses; and
     A demonstration of the State's authority to enforce all
Part 68 requirements must be made, including an auditing strategy that
complies with section 68.220.
    For a program that covers all of the federally-listed chemicals (a
``complete program'') or a program covering less than all of the
federally-listed chemicals (a ``partial program'') the State must take
delegation of the full part 68 program for the federally-listed
chemicals it regulates. For additional details regarding these
requirements, refer to our proposal notice cited above.
    The NDDA has a program in place for regulation of anhydrous ammonia
facilities under authority of North Dakota Century Code (NDCC) 19-20.2
and 19-20.3 and promulgated in North Dakota Administrative Code (NDAC)
7-12-03-03, which addresses RM Program requirements and adopts 40 CFR
Part 68 requirements by reference.
    NDCC 19-20.2 provides general authority for the NDDA to license and
regulate anhydrous ammonia facilities with a capacity exceeding six
thousand gallons, engineering requirements for tanks, valve fittings,
and other equipment, and siting requirements that specify minimum
distances between anhydrous ammonia storage tanks and adjoining
property lines, residences, places of public assembly, and
institutional residences. NDCC 19-20.2 also provides the NDDA authority
to enter any public or private premises to inspect equipment and
respond to complaints. If violations are found, NDCC 19-20.2 allows the
NDDA to issue cease and desist orders, revoke or suspend facility
licenses, and issue civil penalties.
    NDCC 19-20.3-01 gives the Agriculture Commissioner authority to
determine compliance with the RM Program requirements set forth in 40
CFR Part 68 by providing the Commissioner authority to:
    1. Request information from any person that sells, stores, or
handles anhydrous ammonia for agricultural purposes, and is required to
comply with the RM Program requirements.
    2. Conduct inspections of any person that sells, stores, or handles
anhydrous ammonia for agricultural purposes, and is required to comply
with the RM Program requirements.
    3. Obtain and review RMPs required under 40 CFR Part 68, and other
records applicable to any person that sells, stores, or handles
anhydrous ammonia for agricultural purposes, and is required to comply
with the RM Program requirements.
    The NDAA has requested partial delegation of the RM Program for
facilities with an anhydrous ammonia storage capacity of ten thousand
pounds or more that is intended to be used as fertilizer or in the
manufacturing of a fertilizer (``agricultural anhydrous ammonia
facilities''). After a thorough review (as described in detail in our
proposal notice) of North Dakota's partial delegation request, the
pertinent statutes and regulations, and after appropriate public notice
of the proposed delegation, Region 8 finds that such a delegation is
appropriate in that North Dakota has satisfied the criteria in 40 CFR
63.91 and 63.95 by demonstrating it has adequate and effective
authorities, resources, and procedures in place for implementation and
enforcement of agricultural anhydrous ammonia facilities subject to the
RM Program. As approved, North Dakota has the primary authority and
responsibility to carry out elements of the RM Program for agricultural
anhydrous ammonia facilities within the State, including on-site
inspections, recordkeeping reviews, audits, compliance assistance and
outreach, and non-criminal enforcement. The EPA will retain the RM
Program for all other regulated chemicals which may be present at these
facilities. See 40 CFR 68.130. For additional information, please see
the proposed rule, ``Approval of North Dakota Request for Partial
Delegation of Prevention of Accidental Release, Clean Air Act Section
112(r) Program'' EPA-R08-OAR-2013-0330, 78 FR 66321 (Nov. 5, 2013).

II. Response to Comments

    We received no comments on our proposed approval of NDDA's request
for delegation.

III. Final Action

    The EPA is approving NDDA's request for partial delegation of
authority to implement and enforce (with the exception of criminal
enforcement) the RM Program for agricultural anhydrous ammonia
facilities as defined by NDAC 7-12-03-03. This delegation will extend
to agricultural anhydrous ammonia facilities in North Dakota that are
sources subject to the accidental release prevention regulations in 40
CFR Part 68,\1\ with the exception of sources in Indian country as
defined by 18 U.S.C. 1151.
---------------------------------------------------------------------------

    \1\ EPA notes that under 40 CFR 68.125, ammonia used as an
agricultural nutrient, when held by farmers, is exempt from all
provisions of part 68.
---------------------------------------------------------------------------

    If the EPA determines that NDDA's procedures for enforcing or
implementing the 40 CFR part 68 requirements are inadequate, or are not
being effectively carried out, this delegation may be revoked in whole
or in part in accordance with the procedures set out in 40 CFR
63.96(b). In instances where there is a conflict between a NDDA
interpretation and a Federal interpretation of applicable regulations
in 40 CFR part 68, the Federal interpretation must be applied if it is
more stringent than that of the NDDA. The Administrator retains the
specific authorities under 40 CFR 68.120 regarding the petition process
for modifying the list of regulated substances identified in 40 CFR
68.130.\2\ Although the NDDA has primary authority and responsibility
to implement and enforce the chemical accident prevention provisions
for agricultural anhydrous ammonia, nothing shall preclude, limit, or
interfere with the authority of the EPA to exercise its enforcement,
investigatory, and information gathering authorities concerning this
part of the Act.
---------------------------------------------------------------------------

    \2\ Accordingly, the NDDA rules do not incorporate by reference
40 CFR 68.120.
---------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Regional Administrator is authorized to approve
program delegation when that program complies with the provisions of
the CAA and applicable federal regulations (42 U.S.C. 7410(k), 40 CFR
52.02(a)). Thus, in reviewing delegation requests, the EPA's role is to
review and approve state programs provided that they meet the criteria
of the CAA. Accordingly,

this proposed action merely approves a state program and does not
impose additional requirements beyond those imposed by state law. For
that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and,
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the state program is not approved to regulate in Indian country
located in North Dakota, and the EPA notes that it will not impose
substantial direct costs on Tribal governments or preempt Tribal law.
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 28, 2014. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action, pertaining to the approval of the NDDA's delegation of
authority for the chemical accident prevention provisions (CAA section
112), may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 63

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Intergovernmental relations, Risk management
program.

    Dated: December 13, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.

    40 CFR part 63 is amended as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart E--Approval of State Programs and Delegation of Federal
Authorities

0
2. Section 63.99 is amended by adding paragraph (a)(35) to read as
follows:

Sec.  63.99  Delegated Federal authorities.

    (a) * * *
    (35) North Dakota. The North Dakota Department of Agriculture is
delegated the authority to implement and enforce the provisions of 40
CFR part 68 at facilities with an anhydrous ammonia storage capacity of
ten thousand pounds or more that is intended to be used as fertilizer
or in the manufacturing of a fertilizer within North Dakota and that
are subject to the requirements of 40 CFR part 68, in accordance with
the final rule, dated December 30, 2013.
[FR Doc. 2013-31269 Filed 12-27-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: March 3, 2009 (Volume 74, Number 40)]
[Proposed Rules]
[Page 9180-9185]
[DOCID:fr03mr09-11]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 55

[EPA-R10-OAR-2009-0111; FRL-8777-6]

Outer Continental Shelf Air Regulations Consistency Update for
Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule-consistency update.

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

SUMMARY: EPA is proposing to update a portion of the Outer Continental
Shelf (``OCS'') Air Regulations. Requirements applying to OCS sources
located within 25 miles of States' seaward boundaries must be updated
periodically to remain consistent with the requirements of the
corresponding onshore area (``COA''), as mandated by the Clean Air Act
(``the Act''). The portion of the OCS air regulations that is being
updated pertains to the requirements for OCS sources in the State of
Alaska. The intended effect of approving the OCS requirements for the
State of Alaska is to regulate emissions from OCS sources

in accordance with the requirements onshore. The change to the existing
requirements discussed below is proposed to be incorporated by
reference into the Code of Federal Regulations and is listed in the
appendix to the OCS air regulations.

DATES: Written comments must be received on or before April 2, 2009.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R10-OAR-2009-0111, by one of the following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov: Follow
the on-line instructions for submitting comments;
    B. E-Mail<EMAIL_ADDRESS>    C. Mail: Natasha Greaves, Federal and Delegated Air Programs Unit,
U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue,
Suite 900, Mail Stop: AWT-107, Seattle, WA 98101;
    D. Hand Delivery: U.S. Environmental Protection Agency Region 10,
Attn: Natasha Greaves (AWT-107), 1200 Sixth Avenue, Seattle, Washington
98101, 9th Floor. Such deliveries are only accepted during normal hours
of operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OAR-
2009-0111. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (``CBI'') or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://
www.regulations.gov or in hard copy during normal business hours at the
Office of Air, Waste and Toxics, U.S. Environmental Protection Agency,
Region 10, 1200 Sixth Avenue, Seattle, Washington 98101.

FOR FURTHER INFORMATION CONTACT: Natasha Greaves, Federal and Delegated
Air Programs Unit, Office of Air, Waste, and Toxics, U.S. Environmental
Protection Agency, Region 10, 1200 Sixth Avenue, Suite 900, Mail Stop:
AWT-107, Seattle, WA 98101; telephone number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information
    Why Is EPA Taking This Action?
II. EPA's Evaluation
    What Criteria Were Used To Evaluate Rules Submitted To Update 40
CFR Part 55?
III. Administrative Requirements
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Coordination With Indian Tribal
Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. Background Information

Why Is EPA Taking This Action?

    On September 4, 1992, EPA promulgated 40 CFR part 55,\1\ which
established requirements to control air pollution from OCS sources in
order to attain and maintain federal and state ambient air quality
standards and to comply with the provisions of part C of title I of the
Act. Part 55 applies to all OCS sources offshore of the States except
those located in the Gulf of Mexico west of 87.5 degrees longitude.
Section 328 of the Act requires that for such sources located within 25
miles of a State's seaward boundary, the requirements shall be the same
as would be applicable if the sources were located in the COA. Because
the OCS requirements are based on onshore requirements, and onshore
requirements may change, section 328(a)(1) requires that EPA update the
OCS requirements as necessary to maintain consistency with onshore
requirements.
---------------------------------------------------------------------------

    \1\ The reader may refer to the Notice of Proposed Rulemaking,
December 5, 1991 (56 FR 63774), and the preamble to the final rule
promulgated September 4, 1992 (57 FR 40792) for further background
and information on the OCS regulations.
---------------------------------------------------------------------------

    Pursuant to Sec.  55.12 of the OCS rule, consistency reviews will
occur (1) at least annually; (2) upon receipt of a Notice of Intent
under Sec.  55.4; or (3) when a state or local agency submits a rule to
EPA to be considered for incorporation by reference in part 55. This
proposed action is being taken in response to the submittal of a Notice
of Intent on January 9, 2009 by Shell Offshore, Inc. of Houston, Texas.
Public comments received in writing within 30 days of publication of
this proposed rule will be considered by EPA before publishing a final
rule.
    Section 328(a) of the Act requires that EPA establish requirements
to control air pollution from OCS sources located within 25 miles of
States' seaward boundaries that are the same as onshore requirements.
To comply with this statutory mandate, EPA must incorporate applicable
onshore rules into part 55 as they exist onshore. This limits EPA's
flexibility in deciding which requirements will be incorporated into
part 55 and prevents EPA from making substantive changes to the
requirements it incorporates. As a result, EPA may be incorporating
rules into part 55 that do not conform to all of EPA's state
implementation plan (``SIP'') guidance or certain requirements of the
Act.
    Consistency updates may result in the inclusion of state or local
rules or regulations into part 55, even though the same rules may
ultimately be disapproved for inclusion as part of the SIP. Inclusion
in the OCS rule does not imply that a rule meets the requirements of
the Act for SIP approval, nor does it imply that the rule will be
approved by EPA for inclusion in the SIP.

II. EPA's Evaluation

What Criteria Were Used To Evaluate Rules Submitted To Update 40 CFR
Part 55?

    In updating 40 CFR part 55, EPA reviewed the rules submitted for
inclusion in part 55 to ensure that they are rationally related to the
attainment or maintenance of federal or state ambient air quality
standards or part C of title I of the Act, that they are not designed
expressly to prevent exploration and development of the OCS and that
they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated
the rules to ensure they are not arbitrary or capricious. 40 CFR 55.12
(e). In addition, EPA has excluded administrative or procedural
rules,\2\ and requirements that regulate toxics which are not related
to the attainment and maintenance of federal and state ambient air
quality standards.
---------------------------------------------------------------------------

    \2\ Each COA which has been delegated the authority to implement
and enforce part 55, will use its administrative and procedural
rules as onshore. However, in those instances where EPA has not
delegated authority to implement and enforce part 55, as in Alaska,
EPA will use its own administrative and procedural requirements to
implement the substantive requirements. See 40 CFR 55.14 (c)(4).
---------------------------------------------------------------------------

III. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (``OMB'')
review and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 and is therefore not subject to OMB
Review. This rule implements requirements specifically and explicitly
set forth by the Congress in section 328 of the Clean Air Act, without
the exercise of any policy discretion by EPA. These OCS rules already
apply in the COA, and EPA has no evidence to suggest that these OCS
rules have created an adverse material effect. As required by section
328 of the Clean Air Act, this action simply updates the existing OCS
requirements to make them consistent with rules in the COA.

B. Paperwork Reduction Act

    The OMB has approved the information collection requirements
contained in 40 CFR part 55, and by extension this update to the rules,
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2060-0249. The OMB Notice of
Action is dated January 15, 2009. The approval expires January 31,
2012.
    OMB's Notice of Action dated January 15, 2007 indicated that the,
the annual public reporting and recordkeeping burden for collection of
information under 40 CFR part 55 is estimated to average 112 hours per
response. Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9 and are identified on
the form and/or instrument, if applicable.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA'') generally requires an
agency to conduct a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
    This rule will not have a significant economic impact on a
substantial number of small entities. This rule implements requirements
specifically and explicitly set forth by the Congress in section 328 of
the Clean Air Act, without the exercise of any policy discretion by
EPA. These OCS rules already apply in the COA, and EPA has no evidence
to suggest that these OCS rules have had a significant economic impact
on a substantial number of small entities. As required by section 328
of the Clean Air Act, this action simply updates the existing OCS
requirements to make them consistent with rules in the COA. Therefore,
I certify that this action will not have a significant economic impact
on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),
Public Law 104-4, establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
tribal governments and the private sector. Under section 202 of the
UMRA, EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million of more in any one year.
    Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments,

enabling officials of affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
    Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector that may result in
expenditures of $100 million or more for State, local, or tribal
governments, in the aggregate, or to the private sector in any one
year. This rule implements requirements specifically and explicitly set
forth by the Congress in section 328 of the Clean Air Act without the
exercise of any policy discretion by EPA. These OCS rules already apply
in the COA, and EPA has no evidence to suggest that these OCS rules
have created an adverse material effect. As required by section 328 of
the Clean Air Act, this action simply updates the existing OCS
requirements to make them consistent with rules in the COA.

E. Executive Order 13132: Federalism

    Executive Orders 13132, entitled ``Federalism'' (64 FR 43255
(August 10, 1999)), requires EPA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule implements
requirements specifically and explicitly set forth by the Congress in
section 328 of the Clean Air Act, without the exercise of any policy
discretion by EPA. As required by section 328 of the Clean Air Act,
this rule simply updates the existing OCS rules to make them consistent
with current COA requirements. This rule does not amend the existing
provisions within 40 CFR part 55 enabling delegation of OCS regulations
to a COA, and this rule does not require the COA to implement the OCS
rules. Thus, Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comments on this proposed rule
from State and local officials.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249 (November 9, 2000)),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This rule does not have a
substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes and thus does not have ``tribal
implications,'' within the meaning of Executive Order 13175. This rule
implements requirements specifically and explicitly set forth by the
Congress in section 328 of the Clean Air Act, without the exercise of
any policy discretion by EPA. As required by section 328 of the Clean
Air Act, this rule simply updates the existing OCS rules to make them
consistent with current COA requirements. In addition, this rule does
not impose substantial direct compliance costs on tribal governments,
nor preempt tribal law. Consultation with Indian tribes is therefore
not required under Executive Order 13175. Nonetheless, in the spirit of
Executive Order 13175 and consistent with EPA policy to promote
communications between EPA and tribes, EPA specifically solicits
comments on this proposed rule from tribal officials.

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

    Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885 (April 23, 1997)), applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because
it is not economically significant as defined in Executive Order 12866.
In addition, the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportional risk to children.

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

    This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' [66 FR 28355 (May 22, 2001)] because it
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable laws
or otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decided not to use
available and applicable voluntary consensus standards.
    As discussed above, this rule implements requirements specifically
and explicitly set forth by the Congress in section 328 of the Clean
Air Act, without the exercise of any policy discretion by EPA. As
required by section 328 of the Clean Air Act, this rule simply updates
the existing OCS rules to make them consistent with current COA
requirements. In the absence of a prior existing requirement for the
state to use voluntary consensus standards and in light of the fact
that EPA is required to make the OCS rules consistent with current COA
requirements, it would be inconsistent with applicable law for EPA to
use voluntary consensus standards in this action. Therefore, EPA is not
considering the use of any voluntary consensus standards. EPA welcomes

comments on this aspect of the proposed rulemaking and, specifically,
invites the public to identify potentially applicable voluntary
consensus standards and to explain why such standards should be used in
this regulation.

List of Subjects in 40 CFR Part 55

    Environmental protection, Administrative practice and procedures,
Air pollution control, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer
Continental Shelf, Ozone, Particulate matter, Permits, Reporting and
recordkeeping requirements, Sulfur oxides.

    Dated: February 20, 2009.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

    Title 40, chapter I of the Code of Federal Regulations, is proposed
to be amended as follows:

PART 55--[AMENDED]

    1. The authority citation for part 55 continues to read as follows:

    Authority: Section 328 of the Act (42 U.S.C. 7401, et seq.) as
amended by Public Law 101-549.

    2. Section 55.14 is amended by revising paragraph (e)(2)(i)(A) to
read as follows:

Sec.  55.14  Requirements that apply to OCS sources located within 25
miles of States' seaward boundaries, by State.

* * * * *
    (e) * * *
    (2) * * *
    (i) * * *
    (A) State of Alaska Requirements Applicable to OCS Sources,
November 9, 2008.
* * * * *
    3. Appendix A to CFR part 55 is amended by revising paragraph
(a)(1) under the heading ``Alaska'' to read as follows:

Appendix A to Part 55--Listing of State and Local Requirements
Incorporated by Reference Into Part 55, by State

* * * * *

Alaska

    (a) * * *
    (1) The following State of Alaska requirements are applicable to
OCS Sources, December 3, 2005, Alaska Administrative Code--
Department of Environmental Conservation. The following sections of
Title 18, Chapter 50:

Article 1. Ambient Air Quality Management

18 AAC 50.005. Purpose and Applicability of Chapter (effective 1/18/
97)
18 AAC 50.010. Ambient Air Quality Standards (effective 1/18/97)
18 AAC 50.015. Air Quality Designations, Classification, and Control
Regions (effective 1/18/97) except (d)(2)
Table 1. Air Quality Classifications
18 AAC 50.020. Baseline Dates and Maximum Allowable Increases
(effective 1/18/97)
Table 2. Baseline Dates
Table 3. Maximum Allowable Increases
18 AAC 50.025. Visibility and Other Special Protection Areas
(effective 1/18/97)
18 AAC 50.030. State Air Quality Control Plan (effective 1/18/97)
18 AAC 50.035. Documents, Procedures, and Methods Adopted by
Reference (effective 1/18/97)
18 AAC 50.040. Federal Standards Adopted by Reference (effective 1/
18/97) except (a)(H), (a)(I). (a)(N) through (a)(P), (a)(R) through
(a)(U), (a)(W), (a)(Y), (a)(AA), (a)(CC) through (a)(EE),
(a)(II)(a)(KK), (c)(4), (c)(5), (c)(12), (c)(14) through (c)(16),
(c)(18), (c)(20), (c)(25), (c)(26) through (c)(29), (c)(30), (c)(31)
and (g)
18 AAC 50.045. Prohibitions (effective 1/18/97)
18 AAC 50.050. Incinerator Emissions Standards (effective 1/18/97)
Table 4. Particulate Matter Standards for Incinerators
18 AAC 50.055. Industrial Processes and Fuel-Burning Equipment
(effective 1/18/97) except (a)(3) through (a)(9), (b)(2)(A), (b)(4)
through (b)(6), (e) and (f)
18 AAC 50.065. Open Burning (effective 1/18/97)
18 AAC 50.070. Marine Vessel Visible Emission Standards (effective
1/18/97)
18 AAC 50.075. Wood-Fired Heating Device Visible Emission Standards
(effective 1/18/97)
18 AAC 50.080. Ice Fog Standards (effective 1/18/97)
18 AAC 50.085. Volatile Liquid Storage Tank Emission Standards
(effective 1/18/97)
18 AAC 50.090. Volatile Liquid Loading Racks and Delivery Tank
Emission Standards (effective 1/18/97)
18 AAC 50.100. Nonroad Engines (effective 10/1/04)
18 AAC 50.110. Air Pollution Prohibited (effective 5/26/72)

Article 2. Program Administration

18 AAC 50.200. Information Requests (effective 1/18/97)
18 AAC 50.201. Ambient Air Quality Investigation (effective 1/18/97)
18 AAC 50.205. Certification (effective 1/18/97)
18 AAC 50.215. Ambient Air Quality Analysis Methods (effective 1/18/
97)
Table 5. Significant Impact Levels (SILs)
18 AAC 50.220. Enforceable Test Methods (effective 1/18/97)
18 AAC 50.225. Owner-Requested Limits (effective 1/18/97) except (c)
through (g)
18 AAC 50.230. Preapproved Emission Limits (effective 1/18/97)
except (d)
18 AAC 50.235. Unavoidable Emergencies and Malfunctions (effective
1/18/97)
18 AAC 50.240. Excess Emissions (effective 1/18/97)
18 AAC 50.245. Air Episodes and Advisories (effective 1/18/97)
Table 6. Concentrations Triggering an Air Episode
18 AAC 50.260. Guidance for Best Available Retrofit Technology under
the Regional Haze Rule (effective 12/30/07)

Article 3. Major Stationary Source Permits

18 AAC 50.301. Permit Continuity (effective 10/1/04) except (b)
18 AAC 50.302. Construction Permits (effective 10/01/04)
18 AAC 50.306. Prevention of Significant Deterioration (PSD) Permits
(effective 10/01/04) except (c)(2) and (e)
18 AAC 50.311. Nonattainment Area Major Stationary Source Permits
(effective 10/01/04) except (c)
18 AAC 50.316. Preconstruction Review for Construction or
Reconstruction of a Major Source of Hazardous Air Pollutants
(effective 10/01/04) except (c)
18 AAC 50.321. Case-By-Case Maximum Achievable Control Technology
(effective 12/01/04)
18 AAC 50.326. Title V Operating Permits (effective 10/01/04) except
(c)(1), (h), (i)(3), (j)(5), (j)(6), (k)(1)(k)(3), (k)(5), and
(k)(6)
18 AAC 50.345. Construction, Minor and Operating Permits: Standard
Permit Conditions (effective 1/18/97)
18 AAC 50.346. Construction and Operating Permits: Other Permit
Conditions (effective 10/01/04)
Table 7. Standard Operating Permit Condition

Article 4. User Fees

18 AAC 50.400. Permit Administration Fees (effective 1/18/97) except
(c)(1) through (c)(3), (c)(6), (k)(3) and (m)(3)
18 AAC 50.403. Negotiated Service Agreements (effective 1/29/05)
18 AAC 50.405. Transition Process for Permit Fees (effective 1/29/
05)
18 AAC 50.410. Emission Fees (effective 1/18/97)
18 AAC 50.499. Definition for User Fee Requirements (effective 1/29/
05)

Article 5. Minor Permits

18 AAC 50.502. Minor Permits for Air Quality Protection (effective
10/1/04) except (b)(1) through (b)(3), (b)(5), (d)(1) and (d)(2)
18 AAC 50.508. Minor Permits Requested by the Owner or Operator
(effective 10/1/04)
18 AAC 50.509. Construction of a Pollution Control Project without a
Permit (effective 10/1/04)
18 AAC 50.540. Minor Permit: Application (effective 10/1/04)
18 AAC 50.542. Minor Permit: Review and Issuance (effective 10/1/04)
except (a), (b)(1), (b)(2), (b)(4), (b)(5), and (d)
18 AAC 50.544. Minor Permits: Content (effective 10/1/04)
18 AAC 50.546. Minor Permits: Revisions (effective 10/1/04)
18 AAC 50.560. General Minor Permits (effective 10/1/04) except (b)

Article 9. General Provisions

18 AAC 50.990. Definitions (effective 1/18/97)
* * * * *

 [FR Doc. E9-4465 Filed 3-2-09; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Notices]
[Pages 7834-7835]
[FR Doc No: 2022-02771]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R09-OAR-2022-0135; FRL-9524-01-R9]

Adequacy Status of Motor Vehicle Emissions Budgets in 1997 Annual
PM2.5 Serious Area and Section 189(d) Attainment Plan Revision for San
Joaquin Valley; California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of adequacy.

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SUMMARY: The Environmental Protection Agency (EPA or ``Agency'') is
notifying the public that the Agency has found motor vehicle emissions
budgets (``budgets'') adequate in a California state implementation
plan (SIP) submittal for the San Joaquin Valley. Specifically, our
finding relates to budgets in the area's ``Attainment Plan Revision for
the 1997 Annual PM2.5 Standard'' (``15 [mu]g/m\3\ SIP
Revision''), submitted by the California Air Resources Board (CARB) on
November 8, 2021. We find that these budgets are adequate for
transportation conformity purposes for the 1997 annual fine particulate
matter (PM2.5) national ambient air quality standards
(NAAQS). Upon the effective date of this notice of adequacy, the San
Joaquin Valley metropolitan planning organizations (MPOs) and the U.S.
Department of Transportation must use these adequate budgets in future
transportation conformity determinations. Furthermore, once the San
Joaquin Valley MPOs have used the adequate budgets to demonstrate
conformity of their transportation plans to the 15 [micro]g/m\3\ SIP
Revision, the conformity freeze put in place as of December 27, 2021,
will be lifted.

DATES: This finding is effective February 25, 2022.

FOR FURTHER INFORMATION CONTACT: Ashley Graham, Air Planning Office
(ARD-2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105;
(415) 972-3877 or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or
``our'' refer to the EPA.
    This notice is simply an announcement of a finding that we have
already made. By letter dated February 1, 2022, EPA Region IX notified
CARB that the budgets in the 15 [micro]g/m\3\ SIP Revision for the
reasonable further progress (RFP) year of 2020 and the attainment year
of 2023 are adequate.\1\ The finding is available at the EPA's
conformity website.\2\ We announced the availability of the 15
[micro]g/m\3\ SIP Revision and related motor vehicle emissions budgets
on the EPA's transportation conformity website on November 15, 2021,
and requested comments by December 15, 2021. We received no comments in
response to the adequacy review posting. The adequate motor vehicle
emissions budgets are provided in the following table:
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    \1\ Letter dated February 1, 2022, from Matthew Lakin, Acting
Director, Air and Radiation Division, EPA Region IX, to Richard
Corey, Executive Officer, CARB.
    \2\ https://www.epa.gov/state-and-local-transportation/conformity-adequacy-review-region-9.

       Adequate Motor Vehicle Emission Budgets for the San Joaquin Valley for the 1997 Annual PM2.5 NAAQS
                                              [Annual average, tpd]
----------------------------------------------------------------------------------------------------------------
                                                          2020 (RFP year)             2023 (attainment year)
                     County                      ---------------------------------------------------------------
                                                       PM2.5            NOX            PM2.5            NOX
----------------------------------------------------------------------------------------------------------------
Fresno..........................................             0.9            25.3             0.8            15.1

Kern (San Joaquin Valley portion)...............             0.8            23.3             0.7            13.3
Kings...........................................             0.2             4.8             0.2             2.8
Madera..........................................             0.2             4.2             0.2             2.5
Merced..........................................             0.3             8.9             0.3             5.3
San Joaquin.....................................             0.6            11.9             0.6             7.6
Stanislaus......................................             0.4             9.6             0.4             6.1
Tulare..........................................             0.4             8.5             0.4             5.2
----------------------------------------------------------------------------------------------------------------

    Transportation conformity is required by Clean Air Act section
176(c). The EPA's conformity rule requires that transportation plans,
transportation improvement programs, and transportation projects
conform to a state's SIP and establishes the criteria and procedures
for determining whether or not they conform. Conformity to a SIP means
that transportation activities will not produce new air quality
violations, worsen existing violations, or delay timely attainment of
the NAAQS.
    The criteria we use to determine whether a SIP's motor vehicle
emissions budgets are adequate for conformity purposes are outlined in
40 CFR 93.118(e)(4), promulgated on August 15, 1997.\3\ We further
described our process for determining the adequacy of submitted SIP
budgets in our final rule dated July 1, 2004, and we used the
information in these resources in making our adequacy determination.\4\
Please note that an adequacy review is separate from the EPA's
completeness review and should not be used to prejudge the EPA's
ultimate action on the SIP submittal. Even if we find a budget
adequate, the SIP submittal could later be disapproved.
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    \3\ 62 FR 43780, 43781-43783.
    \4\ 69 FR 40004, 40038-40047.
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    Pursuant to 40 CFR 93.104(e), within two years of the effective
date of this notice, San Joaquin Valley MPOs and the U.S. Department of
Transportation will need to demonstrate conformity to the new budgets
if the demonstration has not already been made.\5\ Once the San Joaquin
Valley MPOs have used the adequate budgets to demonstrate conformity of
their transportation plans to the 15 [micro]g/m\3\ SIP Revision, the
conformity freeze put in place as of December 27, 2021, under 40 CFR
93.120(a)(2) \6\ will be lifted. For demonstrating conformity to the
budgets in this plan, the on-road motor vehicle emissions from
implementation of the transportation plan or program should be
projected consistently with the budgets in this plan, i.e., by taking
the emissions results derived from CARB's EMFAC model (short for
EMission FACtor) and then rounding the emissions up to the nearest
tenth of a ton per day. The trading mechanism for the budgets in the 15
[micro]g/m\3\ SIP Revision for the 1997 annual PM2.5 NAAQS
is not yet approved. The EPA will consider approval of the trading
mechanism as part of the action on the submittal.
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    \5\ 73 FR 4420 (January 24, 2008).
    \6\ On November 26, 2021 (86 FR 67329), the EPA disapproved the
RFP and attainment demonstrations and associated budgets in the
``2018 Plan for the 1997, 2006, and 2012 PM2.5
Standards'' for the 1997 annual PM2.5 NAAQS. Upon the
effective date of that final action (i.e., December 27, 2021), the
San Joaquin Valley area became subject to a conformity freeze under
40 CFR 93.120 of the transportation conformity rule.
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    Authority: 42 U.S.C. 7401 et seq.

    Dated: February 3, 2022.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2022-02771 Filed 2-9-22; 8:45 am]
BILLING CODE 6560-50-P