[Federal Register Volume 86, Number 159 (Friday, August 20, 2021)]
[Notices]
[Page 46847]
[FR Doc No: 2021-17868]

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ENVIRONMENTAL PROTECTION AGENCY

[ER-FRL-9057-9]

Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General
Information<PHONE_NUMBER> or https://www.epa.gov/nepa.

Weekly receipt of Environmental Impact Statements (EIS)
Filed August 9, 2021 10 a.m. EST Through August 16, 2021 10 a.m. EST
Pursuant to 40 CFR 1506.9.

    Notice: Section 309(a) of the Clean Air Act requires that EPA make
public its comments on EISs issued by other Federal agencies. EPA's
comment letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

EIS No. 20210117, Draft, NOAA, CA, Amendment 6 to the Fishery
Management Plan for West Coast Highly Migratory Species Fisheries:
Authorization of Deep-set Buoy Gear, Comment Period Ends: 10/04/2021,
Contact: Amber Rhodes<PHONE_NUMBER>.
EIS No. 20210118, Draft Supplement, NHTSA, REG, Model Year 2024-2026
Corporate Average Fuel Economy Standards, Comment Period Ends: 10/04/
2021, Contact: Vinay Nagabhushana<PHONE_NUMBER>.
EIS No. 20210119, Final, AZDOT, AZ, North-South Corridor Study Tier 1,
Contact: Katie Rodriguez<PHONE_NUMBER>.

    Under 23 U.S.C. 139(n)(2), AZDOT has issued a single document that
consists of a final environmental impact statement and record of
decision. Therefore, the 30-day wait/review period under NEPA does not
apply to this action.

EIS No. 20210120, Final, BLM, NV, Relief Canyon Mine Project, Review
Period Ends: 09/20/2021, Contact: Jeanette Black<PHONE_NUMBER>.
EIS No. 20210121, Final, BOEM, MA, South Fork Wind Farm and South Fork
Export Cable Project, Review Period Ends: 09/20/2021, Contact: Michelle
Morin<PHONE_NUMBER>.

    Dated: August 16, 2021.
Candi Schaedle,
Acting Director, NEPA Compliance Division, Office of Federal
Activities.
[FR Doc. 2021-17868 Filed 8-19-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 222 (Tuesday, November 17, 2020)]
[Notices]
[Pages 73302-73304]
[FR Doc No: 2020-25271]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90390; File No. SR-NASDAQ-2020-076]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Harmonize Exchange Rules 1015, 9261, 9524 and 9830 With Recent Changes
by the Financial Industry Regulatory Authority, Inc.

November 10, 2020.
    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 November 5, 2020, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``Commission'') the proposed rule change as described in
Items I, II, and III, below, which Items have been prepared by the
Exchange. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to harmonize Exchange Rules 1015, 9261, 9524
and 9830 with recent changes by the Financial Industry Regulatory
Authority, Inc. (``FINRA''). These amendments would temporarily grant
the Exchange's Office of Hearing Officers (``OHO'') and the Exchange
Review Council (``ERC'') authority \3\ to conduct hearings in
connection with appeals of Membership Application Program decisions,
disciplinary actions, eligibility proceedings and temporary and
permanent cease and desist orders by video conference, if warranted by
the current COVID-19-related public health risks posed by an in-person
hearing. As proposed, these temporary amendments would be in effect
through December 31, 2020.\4\
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    \3\ For OHO hearings under Exchange Rules 9261 and 9830, the
proposed rule change temporarily grants authority to the Chief or
Deputy Chief Hearing Officer to order that a hearing be conducted by
video conference. For ERC hearings under Exchange Rules 1015 and
9524, this temporary authority is granted to the ERC or relevant
Subcommittee.
    \4\ If the Exchange requires temporary relief from the rule
requirements identified in this proposal beyond December 31, 2020,
the Exchange may submit a separate rule filing to extend the
expiration date of the temporary amendments under these rules. The
amended Exchange rules will revert back to their current state at
the conclusion of the temporary relief period and any extension
thereof.
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    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, 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 Exchange proposes to harmonize Exchange Rules 1015, 9261, 9524
and 9830 with recent changes by FINRA to its Rules 1015, 9261, 9524 and
9830 in order to temporarily grant its OHO and the ERC authority to
conduct hearings in connection with appeals of Membership Application
Program decisions, disciplinary actions, eligibility proceedings and
temporary and permanent cease and desist orders by video conference, if
warranted by the current COVID-19-related public health risks posed by
an in-person hearing. As proposed, these temporary amendments would be
in effect through December 31, 2020.
Background
    The Exchange's rules regarding hearing and evidentiary processes as
set forth in Rules 1015, 9261, 9524 and 9830 model FINRA rules. As
adopted, the text of Exchange Rule 1015 is substantially the same as
FINRA Rule 1015, excepting additional provisions for Ex Parte
Communications, Recusal or Disqualification, and conforming and
technical differences. Similarly, the text of Exchange Rules 9261, 9524
and 9830 are substantially the same as FINRA Rules 9261, 9524 and 9830,
except for conforming and technical differences.
    In view of the ongoing spread of COVID-19 and its effect on FINRA's
adjudicatory functions nationwide, FINRA recently filed a temporary
rule change to grant FINRA's OHO and the National Adjudicatory Council
(``NAC'') the authority to conduct certain hearings by video
conference, if warranted by the current COVID-19-related public health
risks posed by in-person hearings.\5\ Accordingly, the Exchange
proposes to file this temporary rule change to align with FINRA.
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    \5\ See Securities Exchange Act Release Nos. 89737 (September 2,
2020), 85 FR 55712 (September 9, 2020) (SR-FINRA-2020-027) (``FINRA
Filing'').
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A. OHO Hearings

    FINRA represented in its filing that its protocol for conducting
hearings by video conference would ensure that such hearings maintain
fair process for the parties by, among other things, FINRA's use of a
high quality, secure and user-friendly video conferencing service and
provide thorough instructions, training and technical support to all
hearing participants.\6\ According to FINRA, the proposed changes were
a reasonable interim solution to allow FINRA's critical adjudicatory
processes to continue to function while protecting the health and
safety of hearing participants as FINRA works towards resuming in-
person hearings in a manner that is compliant with the current guidance
of public health authorities.\7\
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    \6\ See id. at 55713.
    \7\ See id.
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    Pursuant to a regulatory services agreement (``RSA'') between the
Exchange and FINRA, FINRA's OHO administers all aspects of
adjudications, including assigning hearing officers to serve as
Exchange hearing officers. A hearing officer from the OHO, among other
things, presides over the disciplinary hearing, selects and chairs the
hearing panel, and prepares and issues written decisions. The Chief or
Deputy Hearing Officer for all Exchange disciplinary hearings are
currently drawn from the OHO and are all FINRA employees. The Exchange
believes that the OHO will utilize the same video conference protocol
and processes for Exchange matters under the RSA as it proposes for
FINRA matters.
    Given that FINRA and its OHO administer disciplinary hearings on
the Exchange's behalf, and given that the public health concerns
addressed by FINRA's amendments apply equally to the Exchange's
disciplinary hearings, the Exchange proposes to temporarily amend its
disciplinary rules to allow FINRA, pursuant to the RSA, to conduct
virtual hearings on its behalf.

B. ERC Hearings

    Mirroring FINRA's NAC, the ERC is the Exchange's appellate body,
which reviews initial decisions issued by its OHO and--through
Subcommittees--holds evidentiary hearings for Membership Application
Program decision appeals and eligibility proceedings under Exchange
Rules 1015 or 9524. As with OHO hearings discussed above, this
temporary proposed rule change will allow the ERC or relevant
Subcommittee to make an assessment as to whether an in-person hearing
would compromise the health and safety of the hearing participants such
that the hearing should proceed by video conference.
Proposed Rule Change
    Consistent with FINRA's temporary amendment to FINRA Rules 1015,
9261, 9524 and 9830, the Exchange proposes to temporarily grant its OHO
and the ERC authority to conduct hearings in connection with appeals of
Membership Application Program decisions, disciplinary actions,
eligibility proceedings and temporary and permanent cease and desist
orders by video conference, if warranted by the current COVID-19-
related public health risks posed by an in-person hearing. The proposed
change will permit the OHO and the ERC to make an assessment, based on
critical COVID-19 data and criteria and the guidance of health and
security consultants, whether an in-person hearing would compromise the
health and safety of the hearing participants such that the hearing
should proceed by video conference. As noted, FINRA has adopted a
detailed and thorough protocol to ensure that hearings conducted by
video conference will maintain fair process for the parties.\8\ The
Exchange believes that this is a reasonable procedure to follow in
hearings under Rules 1015, 9261, 9524 and 9830.\9\
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    \8\ See id. at 55713.
    \9\ The Exchange notes, as did FINRA, that SEC's Rules of
Practice pertaining to temporary cease-and-desist orders provide
that parties and witnesses may participate by telephone or, in the
Commission's discretion, through the use of alternative technologies
that allow remote access, such as a video link. See SEC Rule of
Practice 511(d)(3); Comment (d); see also FINRA Filing, 85 FR at
55714, n. 21.
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    To effectuate these changes, the Exchange proposes to add the
following sentence to Rule 1015(f):

    Upon consideration of the current public health risks presented
by an in-person hearing, the Exchange Review Council or Subcommittee
may, on a temporary basis, determine that the hearing shall be
conducted, in whole or in part, by video conference.

    The proposed text is substantially the same as the language adopted
by FINRA, excepting conforming and technical differences.\10\
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    \10\ See FINRA Filing, 85 FR at 55712.
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    Similarly, the Exchange proposes to add the following sentence to
Rule 9261(b):

    Upon consideration of the current public health risks presented
by an in-person hearing, the Chief Hearing Officer or Deputy Chief
Hearing Officer may, on a temporary basis, determine that the
hearing shall be conducted, in whole or in part, by video
conference.

    The proposed text is identical to the language adopted by
FINRA.\11\
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    \11\ Id.
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    Similarly, the Exchange proposes to add the following sentence to
Rule 9524(a):

    Upon consideration of the current public health risks presented
by an in-person hearing, the Exchange Review Council or Review
Subcommittee may, on a temporary basis, determine that the hearing
shall be conducted, in whole or in part, by video conference.

    The proposed text is substantially the same as the language adopted
by FINRA, excepting conforming and technical differences.\12\
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    \12\ Id.
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    Similarly, the Exchange proposes to add the following sentence to
Rule 9830(a):

    Upon consideration of the current public health risks presented
by an in-person hearing, the Chief Hearing Officer or Deputy Chief
Hearing Officer may, on a temporary basis, determine that the
hearing shall be conducted, in whole or in part, by video
conference.

    The proposed text is identical to the language adopted by
FINRA.\13\
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    \13\ Id.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\14\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\15\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest, by providing greater harmonization between the Exchange rules
and FINRA rules of similar purpose, resulting in less burdensome and
more efficient regulatory compliance.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
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    As previously noted, with certain exceptions, the text of Exchange
Rules 1015, 9261, 9524 and 9830 are substantially the same as FINRA's
rules. As such, the proposed rule change will foster cooperation and
coordination with persons engaged in facilitating transactions in
securities and will remove impediments to and perfect the mechanism of
a free and open market and a national market system.
    The Exchange believes that the proposed temporary rule change will
permit the Exchange \16\ to effectively conduct hearings during the
COVID-19 pandemic in situations where in-person hearings present likely
public health risks. The ability to conduct hearings by video
conference will thereby permit the adjudicatory functions of the
Exchange's rules to continue unabated, thereby avoiding protracted
delays. The Exchange believes that this is especially important in
matters where temporary and permanent cease and desist orders are
sought because the proposed rule change would enable those hearings to
proceed without delay, thereby enabling the Exchange to take immediate
action to stop significant, ongoing customer harm, to the benefit of
the investing public.
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    \16\ As noted herein, FINRA and its OHO administer disciplinary
hearings on the Exchange's behalf.
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    Conducting hearings via video conference will give the parties and
adjudicators simultaneous visual and oral communication without the
risks inherent in physical proximity during a pandemic. Temporarily
permitting hearings to proceed by video conference maintains fair
process by providing respondents a timely opportunity to address and
potentially resolve any allegations of misconduct.
    As noted, FINRA will use a high quality, secure video conferencing
technology with features that will allow the parties to reasonably
approximate those tasks that are typically performed at an in-person
hearing, such as sharing documents, marking documents, and utilizing
breakout rooms. FINRA will also provide training for participants on
how to use the video conferencing platform and detailed guidance on the
procedures that will govern such hearings. Moreover, the Chief or
Deputy Chief Hearing Officer may take into consideration, among other
things, a hearing participant's access to connectivity and technology
in scheduling a video conference hearing and can also, at their
discretion, allow a party or witness to participate by telephone, if
necessary, to address such access issues.
    The Exchange believes that the temporary proposed rule change
strikes

an appropriate balance between providing fair process and enabling the
Exchange to fulfill its statutory obligations to protect investors and
maintain fair and orderly markets, while accounting for the significant
health and safety risks of in-person hearings stemming from the
outbreak of COVID-19.

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 proposed rule change is not
intended to address competitive issues but is rather intended solely to
provide temporary relief given the impacts of the COVID-19 pandemic. In
its filing, FINRA provides an abbreviated economic impact assessment
maintaining that the changes are necessary to temporarily rebalance the
attendant benefits and costs of the obligations under FINRA Rules 1015,
9261, 9524 and 9830 in response to the impacts of the COVID-19 pandemic
that is equally applicable to the changes the Exchange proposes.\17\
The Exchange accordingly incorporates FINRA's abbreviated economic
impact assessment by reference.
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    \17\ See FINRA Filing, 85 FR at 55716.
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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 \18\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\19\
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    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 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 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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    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 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_ADDRESS>Please include
File Number SR-NASDAQ-2020-076 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2020-076. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly.
    All submissions should refer to File Number SR-NASDAQ-2020-076 and
should be submitted on or before December 8, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
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    \20\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-25271 Filed 11-16-20; 8:45 am]
BILLING CODE 8011-01-P


To: Bill Neuffer/RTP/USEPA/US@EPA
From: Larry Fitzwater<EMAIL_ADDRESS>Date: 01/16/2012 04:00PM
Cc: "Gershman, Lorraine"<EMAIL_ADDRESS>Subject: Nitric Acid 30-Day Rolling Average Data for NSPS Background
(See attached file: El Dorado Weak Acid Air Permit Section.pdf)
(See attached file: Cherokee Weak Acid Air Permit Section.pdf)
(See attached file: 2011 Cherokee Nitrogen #2 Acid Plant NOx Background Data for EPA NSPS.xlsx)
(See attached file: DMW hourly data with 30 day rolling 2011 FINAL (LP) (2).xlsx)
(See attached file: East hourly data with 30 day rolling 2011 FINAL BP.xlsx)
(See attached file: EPA 011312 Extended absorbtion.pdf)
(See attached file: Nitric Acid Info to Bill Neuffer at EPA 1-16-2012.docx)

Bill,

Here are the data files we promised to provide as background to our comments for the proposed nitric acid NSPS standard.

*         Excerpts of the current Title V air permits for the referenced units are included.

*         The Cherokee No.2 nitric acid unit and the El Dorado DMW nitric acid unit are Weatherly technology mono-pressure plant with extended absorption but no tertiary NOx abatement.

*         The El Dorado East and West nitric acid units are C&I Girdler Technology mono-pressure units with SCRs.  The NOx data for these units are emission levels after SCR treatment.  The NOx levels prior to the SCR are typically in excess of 3,000 ppmv.

*         The data are for tail gas stack emissions only and do not include the fugitives, storage and shipment facilities, etc.

*         We did not submit data for our No.1 Cherokee acid unit (idle in 2011), the El Dorado Direct Strong Nitric (DSN) acid plant which uses Uhde technology to produce 98+% nitric acid, the Pryor Chemical Facility or the El Dorado Nitrogen Facility in Baytown, TX which EPA cites in the proposed NSPS.

*         The Cherokee facility only had time to do daily data.  PPMV NOx to pounds conversions are estimated by factor based on the most recent RATA test stack flow factor.  They do not have a stack flow meter.

*         The El Dorado facility has volumetric flow rate monitoring in the nitric acid tail gas stacks and used that data to convert from PPMV NOx to pounds.  They had hourly data readily available.

Please call me if you have any questions.   We appreciate your willingness to consider this additional data.

Larry

CONFIDENTIALITY NOTICE:  This e-mail message and any attachments may contain confidential and privileged information intended solely for the addressee.  Please do not open any attachments or read, copy, disclose or disseminate this e-mail or any attachments unless you are the addressee.  If you have received this transmission in error, please call immediately at<PHONE_NUMBER> and ask to speak with the message sender.  Also, please forward the message and any attachments back to the message sender and delete this transmission from your system.  No waiver of any attorney-client or work product privilege is intended by the transmission of this message or any attachments.


U. S. A. CUN2003/ 050  EGGPLANT FIELD EGGPLANT GROWN OUTDOORS ON PLASTIC MULCH TABLE OF CONTENTS Introduction ................................................................................................................................ 2 Critical Need for Methyl Bromide............................................................................................... 2 Economic Impact ........................................................................................................................ 2 Response to Questions From MBTOC/ TEAP.............................................................................. 2 Historical Emission Reductions & Methyl Bromide Dosage Rates ............................................ 10 Virtually Impermeable Film ( VIF) Tarps .................................................................................. 10 Market Window Information..................................................................................................... 11 Definitions ................................................................................................................................ 13 References ................................................................................................................................ 14 LIST OF TABLES Table 1. Region, Key Pests, and Critical Need for Methyl Bromide ........................................... 2 Table 2. Methyl Bromide Alternatives in a Bell Pepper Squash Rotation in 1998 99.................. 4 Table 3. Fumigant Alternatives to Methyl Bromide for Polyethylene Mulched Tomato ( Locascio et al. 1997). ......................................................................................................................... 5 Table 4. Historical Use of Methyl Bromide in the Eggplant Sector............................................. 7 Table 5. Calculation of the Nominated Amount of Methyl Bromide in the Eggplant Sector........ 7 Table 6. Herbicides Registered in the United States in Eggplant.................................................. 9 Page 2 INTRODUCTION The U. S nomination for methyl bromide ( MB) for use on eggplant is a critical need only for an amount of MB associated with moderate to severe pest pressure, because there are no feasible alternatives for such areas ( see Table 1). The nomination notes that progress has been made in adopting emission reduction technologies and changing formulations and application rates to reduce MB dosage rates to some of the lowest in the world, and that further trials are being conducted to test ways of overcoming constraints in further lowering MB formulations and adopting tarps with higher gas impermeability values.

CRITICAL NEED FOR METHYL BROMIDE TABLE 1. REGION, KEY PESTS, AND CRITICAL NEED FOR METHYL BROMIDE.

Region Key Pests Critical Need for MB Georgia Fruit and Vegetable Growers Association   Eggplant ( CUE 02 0050)

Florida Fruit and Vegetable Association   Eggplant ( CUE 02 0054) Weeds: The weeds yellow nutsedge ( Cyperus esculentum), and purple nutsedge ( C. rotundus), root damaging nematodes ( many species)

Diseases: Soil inhabiting fungal pathogens ( Phytophthora capsici, Rhizoctonia spp., Pythium spp, and Sclerotium rolfsii At moderate to severe pest pressure only MB can currently provide effective and reliable control in these regions. In some areas the use of alternatives is limited due to a number of factors, including inappropriate soil characteristics ( e. g. karst topography, which increases the chance of ground water contamination) and regulatory restrictions such as mandatory buffers around inhabited structures. MB applications in eggplants are typically made using a 67: 33 mixture with chloropicrin under plastic.

ECONOMIC IMPACT None of the alternatives were considered technically feasible; therefore no economic analysis was conducted.

RESPONSE TO QUESTIONS FROM MBTOC/ TEAP 1. Provide details of the reasoning and assumptions used to calculate the nominated amount.

The details of the reasoning and assumptions used to calculate the nominated amount are shown in Table 5.

The methodology used by the U. S. carefully scrutinized applications from the user community and took out ( 1) double counting; ( 2) any requested growth beyond historical acreage planted, and ( 3) requested amounts that fall under QPS. Furthermore, the USA adjusted the requests from the user community, when they had not already done so, to change the amount of methyl bromide nominated to account for ( 1) only the area where pest pressure cannot be controlled by alternatives, ( 2) the area where regulatory Page 3 constraints limit adoption of alternatives, such as buffers near inhabited areas, and ( 3) the area where soil/ geological features limit use of alternatives, such as groundwater contamination in areas with karst topography. The nominated amount incorporates minimum efficacious use rates, mixtures of methyl bromide with chloropicrin, and the use of tarps to improve efficacy and reduce emissions.

2. List the registration status of herbicides for this crop and provide data on why these are not suitable for nutgrass control ( the main reason why MB is used in southeastern USA).

A list of herbicides with activity against nutsedge species, which are currently registered for eggplants in the United States, is provided in Table 6. Herbicides not currently registered for eggplant, but which have shown some activity against nutsedge in vegetables, are also listed. None of the herbicides in Table 6 provide adequate control of nutsedge in areas of moderate to severe pest pressure.

3. As the CUN specifically requests MB for areas where nutgrass exists in heavy infestations, the Party is requested to clarify the exact amount of MB required for this use and to validate the amount of MB required for those areas where 1,3 D is not available through local restrictions ( e. g., township caps, Karst topography).

The CUN is meant to cover areas where nutgrass exists in moderate to severe infestations and/ or where 1,3 D is not available due to local restrictions and soil characteristics. The amounts for these uses are noted in Table 5 and followed by an explanatory note.

4. It is also requested that the Party consider recalculating the quantity nominated, consistent with the use of emission control technologies coupled with minimizing MB dosages, such as when applied in conjunction with chloropicrin where feasible.

The U. S. nomination considered the historical efforts to reduce emissions and to reduce MB dosages described in the section below titled, " Historical Emission Reductions & MB Dosage Rates." This section demonstrates notable success in the United States at efficiently using MB at low dosages with emission control technologies to control key pests. As the 2002 MBTOC report states, " in some countries ( e. g., the U. S.) the potential for reducing MB dosages for soil fumigation compared to many other countries will be less because dosages are already low." The U. S. nomination already assumes reductions in use rates that are 12 16% lower than 2001 use rates. Because the original U. S. nomination for eggplant already accounted for the use of emission control technologies and minimizing MB dosages to 15  16g/ m2, no recalculation in the nomination was needed.

5. The nomination did not give comparative data, except some yields, to determine the technical feasibility of many alternatives and their comparative performance compared to MB under the circumstances of the nomination.

A bell pepper squash rotation field study with chisel injected applications of 1,3 D + chloropicrin resulted in yield losses ranging up to 40 percent compared to MeBr ( see Page 4 Table 2 below). Further, by the end of the season, only MeBr treatments effectively controlled nutsedge ( Webster et al., 2001). Interviews with growers indicated pepper yield losses of 10 to 20 percent, and increases of nutsedge and nightshade populations of approximately 30 percent with 1,3 D treatments compared to MB. Another field study on tomatoes ( see Table 3 below) with high nutsedge pressure ( 300 plants/ m ² for the nontreated control) showed that yield losses of 30 percent could be expected with 1,3 D + 17 % chloropicrin as compared to MB + chloropicrin ( 67%: 33%). Nutsedge populations were also significantly higher for 1,3 D + chloropicrin ( 340 nutsedge plants/ m ² ) , as compared to MB + chloropicrin ( 90 nutsedge plants/ m ² ) . It should be noted that this study also contained a treatment with 1,3 D + chloropicrin + Pebulate ( an herbicide that is no longer registered in the U. S.), and that the results were not significantly different from MB + chloropicrin, indicating that 1,3 D + chloropicrin may be feasible once a suitable herbicide alternative is found and registered on the affected crops ( Locasio et al., 1997).

Research was conducted in Florida on tomatoes comparing solarization to MB and 1,3 D + chloropicrin + Pebulate ( Gilreath et al., 2001). In the original research report on tomatoes there is no quantitative description of the pest pressure other than to say there was a " low population of root knot nematodes". Based on additional descriptions of the pest pressure in the report this would potentially qualify as what the United States considers a low level of pest pressure where the use of MB would not be recommended.

The study shown in Table 2 demonstrates an enhanced yield ( 33% higher) to a 95 % yield loss when comparing methyl bromide to Telone + C 35. This test illustrates the influence of pepper cultivar on the interaction between nutsedge and pepper plants and possibly disease or nematode resistance on plant productivity. It also demonstrates the wide variability seen with field studies comparing soil fumigants.

TABLE 2. METHYL BROMIDE ALTERNATIVES IN A BELL PEPPER SQUASH ROTATION IN 1998 99 ( Webster et al., 2001).

Chemicals Rate ( kg ai/ ha) Nutsedge (#/ plot) Yield ( ton/ ha) % Yield Loss ( compared to MB)

Plants through plastic Plants through crop hole Cultivar A Cultivar B Cultivar A Cultivar B Nontreated 64 10 0.4 c 0.3 c 93.1% 95.7%

MeBr 440 0 0 5.7 b 7.6 a

Telone + C 35 ( chisel) 146 + 83 2 1 8.6 a 4.6 b ( 33.3%) 39.3%

Telone + C 35 ( drip) 146 + 83 40 8 1.6 c 0.4 c 72% 95.4%

Notes: Numbers followed by the same letter ( within a column) are not significantly different at the 0.05 level of probability. Nutsedge notes: Low population of nutsedge ( plot size = 27.4 m ² ) . First number for weed density is number of nutsedge plants growing through the plastic. The second nutsedge number is for the number of plants through the crop hole. Page 5 TABLE 3. FUMIGANT ALTERNATIVES TO METHYL BROMIDE FOR POLYETHYLENE MULCHED TOMATO ( LOCASCIO ET AL., 1997).

Chemicals Rate (/ ha) Nutsedge (#/ m2) Yield ( ton/ ha) % Yield Loss ( compared to MB)

Nontreated  300 a c 20.1 f 59.1%

MB + Pic 67 33 390 kg 90 e 49.1 a

Telone + Pic ( C 17) 327 L 340 a 34.6 bc 29.5%

Telone + Pic ( C 17) + Peb* 327 L + 4.5 kg 150 de 42.5 ab 13.4%

Notes: Numbers followed by the same letter ( within a column) are not significantly different at the 0.05 level of probability.

6. The nomination does not discuss key alternatives reported by MBTOC.

The nomination did address the full list of key alternatives that MBTOC had provided at the time of writing ( in December 2002   please see pages 7 8 of the original application). Economic feasibility was not assessed since no alternative was found to be technically feasible. A brief synopsis of the detailed discussion of the technical feasibility of each MBTOC listed alternative, which was included in the nomination, follows below. Relevant references can be found in the corresponding sections of the nomination.

Solarization Solarization is a weather sensitive process that requires ideal soil moisture and sunlight conditions. This treatment is most successful in regions with continuous high temperature periods during summer. Temperatures of 65 degrees C for 30 minutes will control many soil borne fungi, nematodes and weeds, with the exception of Cyperus species. Response of Cyperus species to solarization is not well understood. Field studies indicate that raising and maintaining soil temperatures throughout the soil profile to levels shown to control nutsedge is extremely difficult. Nutsedges have shown ability to emerge from deep in the soil profile and to re invade from areas outside the solarization zone, so solarization alone will not be an effective and dependable control method for nutsedge. Furthermore, solarization treatments will take fields out of production since solarization would be conducted during the spring and into the summer months, which are optimal for eggplant production in the USA.

Solarization/ Fungicides Fungicides are not effective for control of weeds and nematodes; therefore, their use in combination with solarization is no more efficacious than solarization alone.

Flooding and Water Management Flooding is not a technically feasible alternative to MB for several reasons. First, eggplant requires well drained, sandy loam soil and so planting beds must be designed to provide good drainage. Also, flooding does not provide adequate control of the total pest complex affecting USA eggplants, particularly nematodes and nutsedge. Cyperus species have shown tolerance to flooding. In one study, submergence of nutsedge tubers for periods of 8 days to 4 weeks had no effect on the sprouting capabilities of the tubers. Studies in Florida showed ineffective nematode, disease, and nutsedge control in vegetable crops. Additionally, federal and state water management regulations, land Page 6 configuration, the frequency and severity of droughts, and the economics of developing and managing flood capabilities all contribute to the technical infeasibility of using flooding as a pest management tool in U. S. eggplants.

Grafting/ Resistant Rootstock/ Plant Breeding Grafting, resistant rootstock and plant breeding are not adequate replacements for MB use on the pest complex in eggplant. Resistant rootstock and plant breeding are primarily developed for nematode control and disease management. However, there is no evidence that they can be used successfully against weed competition. Grafting has shown some promise against Fusarium diseases in other crops ( though not eggplant) ( Miguel 2002), but EPA has no evidence that it counteracts the effects of weeds, nematodes, or the fungal pathogens cited as key pests in this nomination. Plant breeding may be adapted for the management of soil borne diseases as part of an IPM program, though this has not been fully developed for USA eggplants yet. Furthermore, EPA has found no evidence that this alternative is applicable to nutsedge control in eggplants.

Organic Amendments/ Compost The use of compost as a pest control tool is still new and not clearly understood for eggplants. Available data suggest that the use of compost is a viable alternative for suppression of some diseases, especially when used with IPM. However, results are inconsistent and therefore this cannot yet be considered a stand alone alternative to MB for solanaceous crop production. Furthermore, organic amendments and compost do not control nutsedge.

Resistant Cultivars Resistant cultivars are not technically feasible as a single replacement for MB. Resistant cultivars provide little control against weed pressures in general and nutsedge in particular. While the use of resistant cultivars as an alternative to MB is potentially suited for the management of soil borne diseases as part of an IPM program, this has not been developed for eggplant crops as yet. It is also important to note that there are no eggplant cultivars identified with resistance to Phytophthora and Meloidogyne pathogens.

Substrates and Plug Transplants Substrates ( alternative growth media) and plug transplants ( small plugs of soil containing seedlings) are also not technically feasible as stand alone replacements for MB. Plug transplants are already extensively used on high value vegetable crops like eggplants. However, even with plug transplants pre fumigation with MB is still necessary to provide control of the pest complex in the US. Plug transplants do not control nutsedge. Even when amended with biological control organisms, substrates and plug transplants provide limited disease resistance and control, due to the species specific nature of the beneficial microorganisms involved, and the heterogeneous distribution of pathogens in soils. Page 7 TABLE 4. HISTORICAL USE OF METHYL BROMIDE IN THE EGGPLANT SECTOR*.

Historical Use Average Use Rates ( kg/ ha) Total Amount ( kg) Area Treated ( ha)

1997 208 233,647 1,256 1998 208 191,131 1,058 1999 174 175,107 1,060 2000 156 165,891 1,061 2001 178 198,281 1,054 * Acres planted in U. S.: 5,830 ( 2,359 ha). Percent of U. S. eggplant acreage requested: 45% Source: Rates, amounts, and area treated are from applicant's information. Percent of U. S. acreage is from USDA, 2001. National Agricultural Statistics Service, Agricultural Statistics 2001 TABLE 5. CALCULATION OF THE NOMINATED AMOUNT OF METHYL BROMIDE IN THE EGGPLANT SECTOR Calculation of Nominated Amount 0050   Georgia Fruit and Vegetable Growers Association   Eggplant 0054   Florida Fruit and Vegetable Growers Association   Eggplant Hectares ( ha) 325 728 % of Regional hectares ( ha)( A) 65 113 Applicant Request for 2005 Kilograms ( kg) of MB 48,868 114,305 Double Counted hectares ( ha)( B)     Growth / Increasing Production hectares ( ha)( C)     Quarantine and Pre Shipment hectares ( ha)( D)     Adjustments to Request Adjusted Hectares Requested ( ha)( E) 325 728 Key Pest Impacts (%)( F) 30 30 Regulatory Impacts (%)( G) 0 1 Soil Impacts (%)( H) 0 40 Impacts to Adjusted Hectares Total Combined Impacts (%)( I) 30 50 Qualifying Area ( ha)( J) 98 364 Use Rate ( kg/ ha)( K) 150 157 CUE Amount Nominated ( kg)( L) 14,660 57,152 % Reduction from Initial Request ( M) 70 50 Sum of all CUE Nominations in Sector ( kg)( N) 71,812 Multiplier for Margin of Error ( O) 1.0244 Total U. S. Sector Nomination ( kg)( P) 73,565 Page 8 Footnotes for Table 5:

Values may not sum exactly due to rounding.

A. Percent of regional hectares is the area in the applicant's request divided by the total area planted in that crop in the region covered by the request as found in the USDA National Agricultural Statistics Service ( NASS). Note, however, that the NASS categories do not always correspond one to one with the sector nominations in the U. S. CUE nomination ( e. g., roma and cherry tomatoes were included in the applicant's request, but were not included in NASS surveys). Values greater than 100 percent are due to the inclusion of these varieties in the U. S. CUE request that were not included in the USDA NASS: nevertheless, these numbers are often instructive in assessing the requested coverage of applications received from growers. B. Double counted hectares is the area counted in more than one application or rotated within one year of an application to a crop that also uses MB. There was no double counting in this sector. C. Growth / increasing production acreage is the amount of area requested by the applicant that is greater than that historically treated or treated at a higher use rate. Values in parentheses indicate negative values. No growth was requested. D. Quarantine and pre shipment ( QPS) hectares is the area in the applicant's request subject to QPS treatments. None of the amount requested was for quarantine or pre shipment purposes. E. Adjusted hectares requested is the hectares in the applicant's request minus the acreage affected by double counting, growth / increasing production, and quarantine and pre shipment. F. Key pest impacts are the percent (%) of the requested area with moderate to severe pest problems. Key pests are those that are not adequately controlled by MB alternatives. For both Georgia and Florida nutsedge is the key pest. G. Regulatory impacts are the percent (%) of the requested area where alternatives cannot be legally used ( e. g., township caps). An estimated 1% of the acreage devoted to eggplant production is impacted by a buffer requirement of 30 meters to inhabited structures. H. Soil impacts are the percent (%) of the requested area where alternatives cannot be used due to soil type ( e. g., heavy clay soils may not show adequate performance). An estimated 40% of the eggplant growing regions in Florida has Karst topography and the use of 1,3 D is not allowed due to groundwater impacts. I. Total combined impacts are the percent (%) of the requested area where alternatives cannot be used due to key pest, regulatory, or soil impacts. In each case the total area impacted is the area, which is impacted by one or more of the individual impacts. For each application the assessment was made by biologists familiar with the specific situation and able to make judgments about the extent of overlap of the impacts. For example, in some situations the impacts are mutually exclusive   in heavy clay soils 1,3D will not be effective because it does not penetrate these soils evenly, but none of the heavy soil areas will be impacted by township ( regulatory) caps because no one will use 1,3D in this situation, so this soils impact must be added to the township cap regulatory impact in a California application. In other words there is no overlap. In other situations one area of impact might be a subset of another impact. In these cases, the combined impact is equal to the largest individual impact. J. Qualifying area is calculated by multiplying the adjusted hectares requested by the total combined impacts. K. Use rate is the requested use rate for 2005. This rate may be adjusted downward based on historical use patterns. L. CUE amount nominated is calculated by multiplying the qualifying area by the use rate. M. Percent Reduction from initial request is the percentage of the initial request that did not qualify for the CUE nomination. N. Sum of all CUE nominations in sector. Self explanatory. O. Multiplier for margin of error. This amount is one percentage point of the original ( 1991) baseline amount. This factor is intended to compensate for the compounding influence of using the low end of the range for all input parameters in the calculation of the US nomination ( i. e., using the lowest percent impact on the lowest number of acres at the lowest dosage is likely to result in values that are unrealistically too small). The U. S. nominated included some sectors for 100% of the amount requested, therefore the portion of the multiplier from these sectors were added equally across all other sectors resulting in a final multiplier of 1.0244, or a 2.44% increase from the calculated amount, to these remaining sectors. P. Total U. S. sector nomination is calculated by multiplying the summed sector nominations by the margin of error multiplier. Page 9 TABLE 6. HERBICIDES REGISTERED IN THE UNITED STATES IN EGGPLANT.

Herbicide U. S. Registration Status* Major Comments Halosulfuron methyl Yes Potential crop injury; plant back restrictions ( see notes below)

Pebulate No Was registered for use in tomatoes but registration lapsed December 31, 2002 ( registrant corporation went out of business)

S metolachlor No Registered ONLY in tomatoes; does not control purple nutsedge Glyphosate Yes Non selective; will not control nutsedge in the plant rows; does not provide residual control Paraquat Yes Non selective; will not control nutsedge in the plant rows; does not provide residual control Terbacil No Registered ONLY in strawberries; rotation restrictions Rimsulfuron No Registered ONLY in tomatoes; rotational restrictions Trifloxysulfuron No Registration pending ONLY in tomatoes * Yes = Registered for use; No = Not registered for use Additional notes on specific herbicides listed: Halosulfuron methyl In December 2002, halosulfuron methyl ( Sandea ® ) was registered to control nutsedge in tomatoes, peppers, eggplant, and cucurbits. This recent registration was not on the list of alternatives from MBTOC. There are several limitations to halosulfuron which, when combined, may limit its technical feasibility and adoption by growers in the United States. Given these limitations, several years will be needed to see if it can be adopted for even a portion of the US request. Limitations include: ° Excessive amounts of water ( greater than 1 inch) soon after a pre emergent application may cause crop injury. Rainfall within four hours after a post emergence application may reduce effectiveness. Sudden storms with greater than 1 inch of rainfall are not uncommon, especially in the southeastern United States. ° Not all hybrids/ varieties have been tested for sensitivity to halosulfuron methyl. Halosulfuron may also delay maturity of treated crops. ° This herbicide has plant back restrictions from 0 to 36 months. Many of the vegetable crops fall within the 4 to 12 month range, although some are longer. ° Halosulfuron should not be applied if the crop or target weeds are under stress due to drought, water saturated soils, low fertility, or other poor growing conditions. ° This herbicide cannot be applied to crops treated with soil applied organophosphate insecticides. Foliar applications of organophosphate insecticides may not be made within 21 days before or 7 days after halosulfuron application. Note: All the limitations above are listed in the US registration label for halosulfuron, which in turn is based on proprietary data submitted to EPA by the registrant company. Glyphosate Glyphosate is a non selective herbicide that only suppresses, but does not control, nutsedge development. Additionally, glyphosate provides no residual ( long term) weed control. Glyphosate may be applied prior to planting or ONLY between vegetable rows. Contact of glyphosate with the crop will likely cause severe injury. Row middle application use is limited because of the potential of glyphosate drift to the crop causing severe injury. Paraquat Paraquat is a non selective herbicide that provides poor control of nutsedge. Additionally, paraquat does not provide residual weed control. Paraquat may be applied prior to planting or ONLY between vegetable rows. Contact of paraquat with the crop can cause severe injury. Page 10 HISTORICAL EMISSION REDUCTIONS & METHYL BROMIDE DOSAGE RATES In Georgia, data was gathered on the MB dosage rate under tarped beds since 1992. In 1992, the MB dosage rate below tarped beds was 34 g/ m2. By 2002, the MB dosage rate under tarped beds had dropped to 15 g/ m2. All areas growing fresh vegetables in the Georgia inject MB+ Pic formulation approximately 30 centimeters below the surface of the tarped bed. The success in lowering the dosage rate is due principally to a switch from a 98: 2 to a 67: 33 formulation, but also was accomplished through a reduction in application rates since 1992.

In the Florida, the MB dosage rate under tarped beds in 1997 was 22 g/ m2. By 2002, the MB dosage rate under tarped beds had dropped to 16 g/ m2. All areas in the Florida inject MB+ Pic formulation 31   46 centimeters below the soil surface and beds are built above the soil surface and tarped, so the formulation is injected 46   61 centimeters below the surface of the tarped bed. The success in lowering the dosage rate is due principally to a switch from a 98: 2 formulation to a 67: 33 formulation, but is also due to a reduction in application rates.

VIRTUALLY IMPERMEABLE FILM ( VIF) TARPS Although many sectors are continuing to test VIF tarps in trials throughout the country, at this time VIF tarps are generally not technically and economically feasible for the following reasons ( U. S. EPA, January 26, 1998):

Disposal Issues

Landfill disposal of VIF and VIF burning have come under increasing restrictions in some jurisdictions ( e. g., California, Department of Pesticide Regulation, 00 001; Florida   62 256.300 F. A. C.)

Landfill and other disposal methods are labor intensive and costly.

Ingredients in VIF limit recycling into end use products.

Cost

Average cost of VIF tarps is $ 580/ acre, whereas average cost of low density polyethylene ( LDPE) tarps is $ 275/ acre, and high density polyethylene ( HDPE) tarps is $ 393/ acre.

Farmers in some regions report VIF tarp removal and disposal costs of more than $ 240 per acre compared to removal and disposal costs of approximately $ 60 per acre for tarps used in flat fumigation.

Environmental Consequences

Inorganic bromide residues in soil are higher when VIF tarps are used; further, the hydrolysis of MB in water may result in the accumulation of bromide ions, thus increasing the chances for groundwater contamination.

Evidence suggests that VIF tarping could actually lead to increased levels of emissions when the tarps are removed, thus increasing exposure to workers and nearby structures.

VIF Supply & Demand Logistics

VIF tarps are currently manufactured only in Europe, and current VIF tarp production capacity in Europe is not high enough to meet U. S. demands.

VIF tarps manufactured in Europe do not meet U. S. application size and criteria. Page 11

European firms are unlikely to make the investment necessary to ensure a viable supply of adequate VIF tarps to U. S. farmers before the 2005 phase out date.

VIF Challenges to Agricultural Practices

A glue to join sheets of VIF is still not available.

Increasing cover times with VIF to between 10 20 days can disrupt double cropping schedules and cause growers to miss optimum marketing windows.

Photo degradation of VIF makes it brittle and ineffective at controlling weeds over months of double cropping systems ( current non VIF tarps remain on beds for 12 15 months after one MB fumigation).

MARKET WINDOW INFORMATION The series below indicate the importance of considering market windows, and the concomitant large difference in prices that accompany them, when deciding if alternatives to methyl bromide are economically feasible. Although such detailed series are not available for all crops, both tomatoes and strawberries demonstrate large fluctuations in prices over three week intervals from peak price to the midseason price. This pattern is also observable for other fresh fruit and vegetable crops, and it is likely to prevail for eggplant.

Prices received by strawberry growers rapidly decline from their early season peak. The average price received by Florida Strawberry growers dropped 30% between February and March in 1999, 37% in 2000, and 40% in 2001. In California strawberry prices declined in this time period 19% in 1999, 29% in 2000, and 23% in 2001.

The existence of these sharp declines in prices which occur after a short period of high prices ( a period know as ` the market window') ensure that revenue losses caused by the longer plant back periods required when using certain alternatives will not be proportional to the lost production time but will, rather, be amplified by the lower commodity price of the post` market window'. The result is a decline in crop revenue, which in the case of Florida strawberries would be approximately 40% of gross revenue apart from any losses due to reduced production.

Fresh strawberries ( winter and spring), prices received per cwt, monthly, 2001 Source, NASS Annual Price Report 2002 $ 0.00 $ 20.00 $ 40.00 $ 60.00 $ 80.00 $ 100.00 $ 120.00 $ 140.00 $ 160.00 $ 180.00 $ 200.00 Jan 01 Feb 01 Mar 01 Apr 01 May 01 Jun 01 Jul 01 Aug 01 Sep 01 Oct 01 Nov 01 Dec 01 FL CA Page 12 Fresh strawberries ( winter and spring), prices received per cwt, monthly, 1999  2001 Source, NASS Annual Price Report 2002 $ 0.00 $ 20.00 $ 40.00 $ 60.00 $ 80.00 $ 100.00 $ 120.00 $ 140.00 $ 160.00 $ 180.00 $ 200.00 Jan 99 Mar 99 May 99 Jul 99 Sep 99 Nov 99 Jan 00 Mar 00 May 00 Jul 00 Sep 00 Nov 00 Jan 01 Mar 01 May 01 Jul 01 Sep 01 Nov 01 FL CA Though the pattern is not as well defined, prices for eggplant follow a similar cycle. Three weeks is the added plant back time required when using 1,3 D or chloropicrin. When using MITC generators, recommended plant back can increase to six weeks.

Fresh tomatoes, prices received per cwt, monthly, 2001 Source, NASS Annual Price Report 2002 $ 0.00 $ 10.00 $ 20.00 $ 30.00 $ 40.00 $ 50.00 $ 60.00 Jan 01 Feb 01 Mar 01 Apr 01 May 01 Jun 01 Jul 01 Aug 01 Sep 01 Oct 01 Nov 01 Dec 01 FL CA Fresh tomatoes, prices received per cwt, monthly, 1999  2001 Source, NASS Annual Price Report 2002 $ 0.00 $ 10.00 $ 20.00 $ 30.00 $ 40.00 $ 50.00 $ 60.00 Jan  99 Mar 99 May 99 Jul 99 Sep 99 Nov 99 Jan 00 Mar 00 May 00 Jul 00 Sep  00 Nov 00 Jan  01 Mar 01 May 01 Jul 01 Sep 01 Nov 01 FL CA Page 13 DEFINITIONS THAT MAY BE RELEVANT TO THIS CUN Source of yield loss estimates Where published studies of yield losses under conditions of moderate to severe key pest pressure were not available ( the situation for which the U. S. is requesting continued use of methyl bromide), the U. S. developed such estimates by contacting university professors conducting experiments using methyl bromide alternatives in the appropriate land grant institutions. The experts were asked to develop such an estimate based on their experience with methyl bromide and with alternatives. The results of this process were used when better data were not available.

Source of buffer restriction implications for methyl bromide use Estimates of the impact of buffers required when using some methyl bromide alternatives on the proportion of acreage where such alternatives could be used were developed from confidential information submitted to EPA in support of a registration application for a methyl bromide alternative. Because at the time of the analysis, a request to reduce the size of the required buffer for some alternatives was under consideration, a smaller buffer was selected for the analysis. Since that time the size of the regulatory buffer has been reduced so that it now conforms to the buffer selected for this analysis.

Source of area impacted by key pests estimates One of the important determinants of the amount of methyl bromide requested has been the extent of area infested with ` key pests', that is, pests which cannot be controlled by alternatives to methyl bromide when such pests are present at moderate to severe levels. Because there are few surveys that cover substantial portions of the areas for which methyl bromide is requested, we have relied on a variety of sources in addition to the surveys. These sources include websites of land grant universities; discussions with researchers, both those employed by USDA in the Agricultural Research Service ( ARS) and those at land grant universities; discussions with growers whose operations cover widely different locations encompassing different incidences of key pests; information from pesticide applicators; and, information taken from the applications themselves.

Source of area impacted by regulations estimates There are two main sources used to develop the estimate of area impacted by regulations. First, for the impact of Township caps in California we have used a series of papers by Carpenter, Lynch, and Trout, supplemented by discussions with Dr. Trout to ensure that any recent regulatory changes have been properly accounted for. Second, the estimate of the area impacted by buffers, is described above.

Source of area impacted by soil type estimates First, for the area impacted by karst topography, estimates were developed and mapped by he Florida Department of Environmental Protection. The area of California used for agriculture and which is made of clay soils unsuitable for pest control with a methyl bromide alternative has been determined by discussions with agricultural researchers and agricultural extension agents in California, and discussion with other knowledgeable individuals such as pesticide applicators. The estimates for California understate the areas in which alternatives to methyl bromide are not suitable because no effort was made to estimate the extent of hilly terrain where currently available substitutes cannot be applied at uniform dosages. Page 14 Source of area impacted by combined impacts estimate Combined impacts were determined on a case by case basis for each specific crop/ location combination after consultation with individuals knowledgeable with the specific circumstances. The nature of the individual impacts is such that in some situations they are independent of each other, in some they are mutually exclusive, and in some cover identical areas. It was not, therefore, possible to have a formula that would arrive at an appropriate estimate of combined impacts. A more detailed description is found in the footnotes to the ` calculation' table.

REFERENCES Gilreath, J. P., Noling, J. W., Jones, J. P, Locascio, S. J., and Chellemi, D. O. 2001. Three years of soil borne pest control in tomato with 1,2 D + chloropicrin and solarization. Proceedings of the Annual International Research Conference on Methyl Bromide Alternative and Emissions Reductions. Nov 5 9, 2001, San Diego.

Locascio, S. J., J. P. Gilreath, D. W. Dickson, T. A. Kucharek, J. P. Jones, and J. W. Noling. 1997. Fumigant Alternatives to Methyl Bromide for Polyethylene Mulched Tomato. HortScience 32 ( 7): 1208 1211.

MBTOC. 2002. 2002 Report of the Methyl Bromide Technical Options Committee, 2002 Assessment. Pg 368 371.

Miguel. A. 2002. Grafting as a non chemical alternative to MB for tomatoes in Spain. In: Proceedings of International Conference on Alternatives to Methyl Bromide. T. A. Batchelor and J. M. Bolivar ( eds). Available on the Web at: http:// europa. eu. int/ comm/ environment/ ozone/ conference U. S. Environmental Protection Agency, January 26, 1998," Feasibility of Using Gas permeable Tarps to Reduce Methyl Bromide Emissions Associated with Soil Fumigation in the United States."

Webster, T. M., A. S. Csinos, A. W. Johnson, C. C. Dowler, D. R. Sumner, and R. L. Fery. 2001. Methyl Bromide Alternatives in a Bell Pepper Squash Rotation. Crop Rotation 20: 605 614


Further, the back trajectories used by Kentucky were limited to
evaluating transport of air parcels over a relatively short 24-hour
period, which limits their use for evaluating long-distance transport
of emissions from Kentucky to the Fairfield, Connecticut receptors and
the Harford, Maryland receptor. In contrast, EPA's analysis of
transported emissions as discussed in section III.A uses updated,
photochemical grid modeling designed to assess ozone transported to
downwind monitors across the entire region and over extended timeframes
that fully account for fate and transport of ozone-precursors over
longer distances.
    Kentucky's SIP submission states that the Fairfield County ozone
monitors are located in the New York Metro Area, in close proximity to
the I-95 transportation artery. The Commonwealth's analysis asserts a
high VMT and number of commuters in the area indicating the presence of
mobile emissions that could be the cause of violating monitors along
the I-95 corridor. Kentucky's SIP also mentions two additional coastal
monitor sites (Westport Sherwood and Stratford Point Lighthouse)
located less than three miles from the I-95 corridor that also show a
pattern of ozone violations. Kentucky raises similar points regarding
the effect of mobile source emissions along the I-95 corridor in
Maryland near the Edgewood receptor. Further, Kentucky asserts that
both the Connecticut and Maryland receptor sites may be particularly
impacted by unique coastal conditions associated with the Long Island
Sound and the Chesapeake Bay. While it is true that both of these
monitors are affected by coastal meteorological conditions such as
complex land-water wind flows and mixing heights, a large portion of
anthropogenic ozone at these locations is the result of transport from
upwind states. In addition, as noted above, EPA's most recent modeling
shows that Kentucky is linked to a receptor in Bucks County,
Pennsylvania which is inland and not influenced by coastal meteorology.
    The relevance of the points raised by Kentucky regarding the
HYSPLIT back trajectories related to the evaluation of Kentucky's good
neighbor obligations is not clear. As already discussed, the statute
and the case law (particularly the holdings in Wisconsin and Maryland)
make clear that good neighbor obligations are not merely supplementary
to or deferable until after local emission reductions are achieved.
Further, all of the receptors to which Kentucky is linked are heavily
impacted by upwind state emissions in addition to local sources and
conditions. The Wisconsin decision's holding regarding international
contribution (discussed in section III.A) is equally applicable to an
upwind state's claims that some other state's emissions, or local
emissions, are ``more to blame'' than its own emissions. See 938 F.3d
303 at 323-25 (``an upwind State can `contribute' to downwind
nonattainment even if its emissions are not the but-for cause'').
5. Evaluation of Kentucky's Approach to Maintenance Receptors
    Kentucky's SIP argues that states linked only to maintenance
receptors should be held to less stringent standards of emissions
reductions compared to states linked to a nonattainment receptor. Thus,
as the Edgewood monitor was identified as a maintenance receptor in
EPA's March 2018 memorandum modeling, the Commonwealth asserts that no
further reductions from Kentucky sources other than on-the-books
controls should be required. Although the Harford monitor is no longer
linked to Kentucky based on EPA's updated modeling,\67\ emissions from
the Commonwealth are linked to the Bucks County, Pennsylvania (ID:
420170012) maintenance-only receptor. Additionally, MOG argues that
states should be absolved from additional emissions controls to address
a maintenance monitor if the upwind state can show that either the
monitor is likely to remain in attainment for a period of 10 years or
that the upwind state's emissions will not increase for 10 years after
the attainment date.\68\
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    \67\ See Table 1, shown previously in this notice.
    \68\ Kentucky did not rely on MOG's proposed approach in its SIP
submittal, therefore EPA does not comprehensively evaluate MOG's
suggestion. However, EPA's definition of maintenance receptors
already accounts for, and projects whether, receptors may have
trouble attaining the NAAQS, through the use of projected maximum
design values in the relevant analytic year. Further, EPA's modeling
of the relevant analytic year also already accounts for projected
emissions trends of the upwind state (among others) and may (and
often does) identify a linkage to areas that may struggle to
maintain the NAAQS despite an overall declining emissions trend.
This is not surprising. First, most maintenance receptors in EPA's
projections are currently measuring nonattainment, meaning that,
despite projecting improved air quality in the future analytic year,
the receptor location is currently, and may continue to be, near the
level of the NAAQS. Second, ozone levels are influenced by
meteorological variability and thus high ozone levels may persist
despite declining emissions as a result of recurring or worsening
ozone-conducive atmospheric conditions (e.g., higher temperatures).
It is unclear how MOG's approach would account for this variability
or ensure that projected emissions reductions from linked states are
rendered certain and enforceable.
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    Under the D.C. Circuit's decision in North Carolina, states and EPA
are required to give independent significance to the ``interference
with maintenance'' prong of section 110(a)(2)(D)(i)(I). See 531 F.3d at
910. Since CSAPR, EPA's nationally consistent policy framework for
addressing interstate ozone transport has given meaning to this prong
through a separate definition of maintenance receptors at Step 1 of the
4-step interstate transport framework. For states linked only to those
receptors, EPA has found it appropriate to apply an emissions control
solution that is uniform with the strategy applied for states that are
linked to nonattainment receptors. See 76 FR at 48271. EPA's approach
to addressing interference with maintenance under prong 2 for ozone
NAAQS has been upheld twice. See EME Homer City Generation, L.P., 795
F.3d at 136; Wisconsin, 938 F.3d at 325-27. See also 86 FR at 23054
(April 30, 2021).\69\
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    \69\ In the main text of its SIP submittal conclusion regarding
interstate transport, Kentucky incorrectly attributes statements
regarding the ``interfere with maintenance'' prong to the U.S.
Supreme Court. See Submittal at 45-46. A footnote, however,
correctly attributes this language to the D.C. Circuit's original
opinion in EME Homer City v EPA, 696 F.3d 7 (D.C. Cir. 2012). This
decision was reversed and remanded by the Supreme Court, and on
remand, the D.C. Circuit affirmed EPA's approach to implementing
prong 2, see 795 F.3d at 136.
---------------------------------------------------------------------------

    Particularly given this context, Kentucky's SIP submission does not
provide information sufficient to support less stringent standards of
emissions reductions than would result from EPA's historical approach
of addressing emissions activities from upwind states that are linked
to maintenance-only receptors. The Commonwealth does not explain how
the obligations of upwind states linked to maintenance-only receptors
should be treated differently than the obligations of upwind states
linked to nonattainment receptors.
    Further, EPA believes it would be inconsistent with the CAA for EPA
to identify receptors that are at risk of NAAQS violations given
certain conditions due to transported upwind emissions and then not
prohibit the emissions that place the receptor at risk. The Supreme
Court held that it was a permissible interpretation of the statute to
apportion responsibility for states

linked to nonattainment receptors considering ``both the magnitude of
upwind States' contributions and the cost associated with eliminating
them.'' EME Homer City, 134 S. Ct. at 1606. It is equally reasonable
and permissible to use these factors to apportion responsibility among
upwind states linked to maintenance receptors because the goal in both
instances is to prohibit the ``amounts'' of pollution that will either
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS downwind. EPA's updated modeling indicates that the
Commonwealth is still linked to downwind nonattainment and maintenance
receptors for the 2015 8-hour ozone standard. Consequently, EPA
believes Kentucky's assertion that upwind states linked to maintenance-
only receptors should be held to less stringent standards of emissions
reductions (as compared to states linked to a nonattainment receptor)
is also inappropriate for new downwind linkages.
6. Evaluation of Weighted Step 3 Approach
    Although Kentucky did not adopt this approach in its SIP submittal,
the MOG materials Kentucky appended provided arguments suggesting a
``weighted'' approach to Step 3 similar to an approach that
stakeholders had identified to EPA (as listed in Attachment A to EPA's
March 2018 memorandum). Under this approach, upwind-state emission
reduction obligations would be allocated in proportion to the size of
their contribution to downwind nonattainment. MOG determined the
proportional reduction requirement associated with the relative
significant contribution from each upwind state to the Harford County,
Maryland monitor including Kentucky, which resulted in an additional
emission reduction obligation for Kentucky of 0.02 ppb, as MOG proposed
would be the appropriate proportion of reductions necessary for
attainment at the Harford receptor. This approach would have imposed
additional emissions reductions for Kentucky sources. Kentucky's final
SIP did not consider MOG's proposal, and did not provide an explanation
for why it was rejecting this approach to allocating upwind emission
reductions, even though it appended this recommendation to its SIP
submittal.
    In summary, EPA has newly available information that confirms
sources in Kentucky are linked to downwind air quality problems for the
2015 8-hour ozone standard. Kentucky's SIP submittal did not include an
accounting of emissions sources and activity in the Commonwealth along
with an analysis of potential NOX emissions control
technologies, their associated costs, estimated emissions reductions,
and downwind air quality improvements. Nor did Kentucky present an
alternative approach to assess which of its emissions should be deemed
``significant.'' EPA proposes to find that Kentucky's analysis--
including reliance on on-the-books state and Federal measures
(including prior CSAPR programs) and claimed on-the-way emission
reductions, as well as other air quality, emissions, and geographic
factors--is insufficient to support the Commonwealth's claim that its
SIP adequately prohibits emissions within Kentucky in a manner
sufficient to address the State's interstate transport obligations for
the 2015 8-hour ozone.

E. Evaluation of Information Provided by Kentucky Regarding Step 4

    Step 4 of the 4-step interstate transport framework calls for
development of permanent and federally enforceable control strategies
to achieve the emissions reductions determined to be necessary at Step
3 to eliminate significant contribution to nonattainment or
interference with maintenance of the NAAQS. Kentucky indicates that
certain upcoming planned fuel switches or shutdowns at EGUs will occur
before the end of 2023, for which Kentucky cites a press release and a
closure plan developed by each plant's parent company.\70\ As discussed
in section III.D., Kentucky's analysis is insufficient to demonstrate
that these reductions are sufficient to address the Commonwealth's
interstate transport obligations; however, the Commonwealth also did
not provide a separate SIP revision to ensure the reductions were
permanent and enforceable. As a result, EPA proposes to disapprove
Kentucky's January 11, 2019, submittal on the separate, additional
basis that the Commonwealth has not developed permanent and enforceable
emissions reductions necessary to meet the obligations of CAA section
110(a)(2)(d)(i)(I).
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    \70\ Pointing to anticipated upcoming emission reductions, even
if they were not included in the analysis at Steps 1 and 2, is not
sufficient as a Step 3 analysis, for the reasons discussed in
section III.C. In this section, EPA explain that to the extent such
anticipated reductions are not included in the SIP and rendered
permanent and enforceable, reliance on such anticipated reductions
is also insufficient at Step 4.
---------------------------------------------------------------------------

F. Conclusion

    Based on EPA's evaluation of Kentucky's SIP submission, EPA is
proposing to find that the interstate transport portion of Kentucky's
January 11, 2019, SIP submission addressing CAA section
110(a)(2)(D)(i)(I) does not meet the Commonwealth's interstate
transport obligations because it fails to contain the necessary
provisions to eliminate emissions that will contribute significantly to
nonattainment or interfere with maintenance of the 2015 8-hour ozone
NAAQS in any other state.

IV. Proposed Action

    EPA is proposing to disapprove the 2015 8-hour ozone good neighbor
interstate transport SIP revision from Kentucky, dated January 11,
2019. Under CAA section 110(c)(1), if finalized, this disapproval would
establish a 2-year deadline for EPA to promulgate a FIP for Kentucky to
address the CAA section 110(a)(2)(D)(i)(I) interstate transport
requirements pertaining to significant contribution to nonattainment
and interference with maintenance of the 2015 8-hour ozone NAAQS in
other states, unless EPA approves a SIP that meets these requirements.
However, under the CAA, a good neighbor SIP disapproval does not start
a mandatory sanctions clock.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget for
review.

B. Paperwork Reduction Act (PRA)

    This proposed action does not impose an information collection
burden under the PRA because it does not contain any information
collection activities.

C. Regulatory Flexibility Act (RFA)

    This action merely proposes to disapprove a SIP submission as not
meeting the CAA for Kentucky. EPA certifies that this proposed rule
will not have a significant economic impact on a substantial number of
small entities under the RFA (5 U.S.C. 601 et seq.).

D. Unfunded Mandates Reform Act (UMRA)

    This proposed action does not contain any unfunded mandate as
described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or
uniquely affect small governments. This proposed action imposes no
enforceable duty on any state, local, or tribal governments or the
private sector.

E. Executive Order 13132: Federalism

    This proposed action 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.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This proposed action does not have tribal implications as specified
in Executive Order 13175. This proposed action does not apply on any
Indian reservation land, any other area where EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction, or non-reservation
areas of Indian country. Thus, Executive Order 13175 does not apply to
this action.

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

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order. This proposed action is not subject to Executive
Order 13045 because it merely proposes to disapprove a SIP submission
from Kentucky as not meeting the CAA.

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

    This proposed action is not subject to Executive Order 13211,
because it is not a significant regulatory action under Executive Order
12866.

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by
this action will not have potential disproportionately high and adverse
human health or environmental effects on minority, low-income or
indigenous populations. This action merely proposes to disapprove a SIP
submission as not meeting the CAA.

K. CAA Section 307(b)(1)

    Section 307(b)(1) of the CAA governs judicial review of final
actions by EPA. This section provides, in part, that petitions for
review must be filed in the D.C. Circuit: (i) When the agency action
consists of ``nationally applicable regulations promulgated, or final
actions taken, by the Administrator,'' or (ii) when such action is
locally or regionally applicable, if ``such action is based on a
determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based
on such a determination.'' For locally or regionally applicable final
actions, the CAA reserves to EPA complete discretion whether to invoke
the exception in (ii).\71\
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    \71\ In deciding whether to invoke the exception by making and
publishing a finding that an action is based on a determination of
nationwide scope or effect, the Administrator takes into account a
number of policy considerations, including his judgment balancing
the benefit of obtaining the D.C. Circuit's authoritative
centralized review versus allowing development of the issue in other
contexts and the best use of agency resources.
---------------------------------------------------------------------------

    If EPA takes final action on this proposed rulemaking, the
Administrator intends to exercise the complete discretion afforded to
him under the CAA to make and publish a finding that the final action
(to the extent a court finds the action to be locally or regionally
applicable) is based on a determination of ``nationwide scope or
effect'' within the meaning of CAA section 307(b)(1). Through this
rulemaking action (in conjunction with a series of related actions on
other SIP submissions for the same CAA obligations), EPA interprets and
applies section 110(a)(2)(d)(i)(I) of the CAA for the 2015 8-hour ozone
NAAQS based on a common core of nationwide policy judgments and
technical analysis concerning the interstate transport of pollutants
throughout the continental U.S. In particular, EPA is applying here
(and in other proposed actions related to the same obligations) the
same, nationally consistent 4-step framework for assessing good
neighbor obligations for the 2015 8-hour ozone NAAQS. EPA relies on a
single set of updated, 2016-base year photochemical grid modeling
results of the year 2023 as the primary basis for its assessment of air
quality conditions and contributions at Steps 1 and 2 of that
framework. Further, EPA proposes to determine and apply a set of
nationally consistent policy judgments to apply the 4-step framework.
EPA has selected a nationally uniform analytic year (2023) for this
analysis and is applying a nationally uniform approach to nonattainment
and maintenance receptors and a nationally uniform approach to
contribution threshold analysis.\72\ For these reasons, the
Administrator intends, if this proposed action is finalized, to
exercise the complete discretion afforded to him under the CAA to make
and publish a finding that this action is based on one or more
determinations of nationwide scope or effect for purposes of CAA
section 307(b)(1).\73\
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    \72\ A finding of nationwide scope or effect is also appropriate
for actions that cover states in multiple judicial circuits. In the
report on the 1977 Amendments that revised section 307(b)(1) of the
CAA, Congress noted that the Administrator's determination that the
``nationwide scope or effect'' exception applies would be
appropriate for any action that has a scope or effect beyond a
single judicial circuit. See H.R. Rep. No. 95-294 at 323, 324,
reprinted in 1977 U.S.C.C.A.N. 1402-03.
    \73\ EPA may take a consolidated, single final action on all of
the proposed SIP disapproval actions with respect to obligations
under CAA section 110(a)(2)(D)(i)(I) for the 2015 8-hour ozone
NAAQS. Should EPA take a single final action on all such
disapprovals, this action would be nationally applicable, and EPA
would also anticipate, in the alternative, making and publishing a
finding that such final action is based on a determination of
nationwide scope or effect.
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List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Ozone.

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

    Dated: February 3, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-02947 Filed 2-18-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 9 (Friday, January 13, 2012)]
[Notices]
[Pages 2112-2114]
[FR Doc No: 2012-527]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66119; File No. SR-CBOE-2011-126]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Notice of Filing of a Proposed Rule Change Relating to
the CBOE Stock Exchange Request for Quote Rules

January 9, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on December 27, 2011, the Chicago Board Options Exchange,
Incorporated (the ``Exchange'' or ``CBOE'') filed with the Securities
and Exchange Commission (the ``Commission'') the proposed rule change
as described in Items I, II and III below, which Items have been
prepared by the Exchange. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to amend its rules relating to requests for
quotes on the CBOE Stock Exchange (``CBSX''). The text of the proposed
rule change is available on the Exchange's Web site (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's
Office of the Secretary, and at the Commission.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
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
    CBSX is a stock-trading facility of CBOE. Prior to the
establishment of CBSX, CBOE adopted trading rules in Chapters 50-54 for
the purely electronic trading of non-option securities.\3\ Those rules,
which were based, to an extent, on CBOE's screen-based trading rules in
Chapters 40-46, contemplated the use of request-for-quote messages
(RFQs). Chapters 50-54 were subsequently modified in connection with
the introduction of CBSX.\4\ The provisions related to RFQs were not
materially changed at that time. RFQ messages are generally intended to
prompt market-makers in a given security to respond with a quote. RFQs
are generally beneficial when seeking liquidity for a security in which
a quote does not exist.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 54422 (September 11,
2006), 71 FR 54537 (September 15, 2006) approving SR-CBOE-2004-21.
    \4\ See Securities Exchange Act Release No. 55392 (March 2,
2007), 72 FR 10572 (March 8, 2007) approving SR-CBOE-2006-112.
---------------------------------------------------------------------------

    The purpose of this filing is to delete Rule 50.1 regarding the
definition of RFQ, Rule 52.9 regarding RFQ processing, and references
to RFQs in Rule 53.23 regarding CBSX Remote Market-Maker obligations.
There are two reasons behind the Exchange's desire to eliminate RFQs on
CBSX: (1) Because

CBSX Remote Market-Makers are required by rule to maintain two-sided
quotations and because CBSX links orders to NBBO markets when CBSX is
not quoting at the NBBO, CBSX participants have never inquired about
utilizing RFQs; and (2) the functionality for users to transmit RFQs on
CBSX is not fully supported by the system.
    As more fully set forth in CBSX Rule 53.23 Interpretation and
Policy .01, CBSX Remote Market-Makers are required to maintain two-
sided quotations throughout the trading day using prices that are no
further than a designated percentage from the national best bid and
offer (``NBBO''). This requirement, the fact that the CBSX market is
typically competitive in terms of displayed prices, and the fact that
CBSX transmits orders to other market centers displaying the NBBO when
CBSX is not posting the NBBO, obviates the need for an RFQ process.\5\
---------------------------------------------------------------------------

    \5\ The Exchange notes that it is working with SEC Staff on
enhancements to the CBSX Market-Maker obligations and that those
revisions do not contemplate the use of RFQs.
---------------------------------------------------------------------------

    The Exchange also has realized that the ability of a CBSX
participant to submit an RFQ is not currently functional. Accordingly,
the Exchange believes it is appropriate to delete RFQ processes from
the CBSX trading rules. This will ensure that CBSX participants or
other interested parties are not confused by these rules and do not
expect to be able to submit RFQs on CBSX. The Exchange notes that it is
not aware of any CBSX participants, or any other party, having
expressed an interest in utilizing RFQs.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') \6\ and the rules and
regulations thereunder and, in particular, the requirements of Section
6(b) of the Act.\7\ Specifically, the Exchange believes the proposed
rule change is consistent with the Section 6(b)(5) \8\ requirements
that the rules of an exchange be designed to remove impediments to and
to perfect the mechanism for a free and open market in that elimination
of references to RFQs in the CBSX trading rules will remove any
potential confusion caused by having rules that reference functionality
that is not operational.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s(b)(1)[sic].
    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    CBOE 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.

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

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

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

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) by order approve or disapprove 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 email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2011-126 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CBOE-2011-126. 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 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 Web site 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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-CBOE-2011-126 and should be
submitted on or before February 3, 2012.
---------------------------------------------------------------------------

    \9\ 17 CFR 200.30-3(a)(12).

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    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-527 Filed 1-12-12; 8:45 am]
BILLING CODE 8011-01-P