UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

	WASHINGTON, D.C. 20460

										OFFICE OF

										PREVENTION, PESTICIDES

										AND TOXIC SUBSTANCES

MEMORANDUM

Date:		April 13, 2007

Subject:	Risk Mitigation Options to Address Handler, Bystander, Reentry
Exposures from Methyl Bromide’s Greenhouse, Residential and Structural
Uses

From:		Steven Weiss, Chemical Review Manager

Special Review Branch,

Special Review and Reregistration Division (7508P)

Through:	Robert McNally, Chief

Special Review Branch,

Special Review and Reregistration Division (7508P)

To:		Methyl Bromide Docket (EPA-HQ-OPP-2005-0123)

Background

	The Report of Food Quality Protection Act (FQPA) Tolerance Reassessment
and Risk Management Decision (TRED) for Methyl Bromide and
Reregistration Eligibility Decision (RED) for Methyl Bromide’s
Commodity Uses was completed on August 9, 2006.  The Environmental
Protection Agency (hereafter referred to as EPA or the Agency) is
opening Phase 5 of the Public Participation Process for methyl bromide
other uses in May 2007.  This document outlines the risk management
options that EPA is considering to address acute human inhalation risks
from methyl bromide’s greenhouse, residential, and structural uses.
EPA seeks public comment on these risk mitigation options, particularly
comments addressing cost, feasibility, and effectiveness.  A separate
document is included in the docket that addresses risk management
options for methyl bromide’s soil uses along with the other soil
fumigants being evaluated by the Agency.

	End-use products for the uses described in this document also contain
varying percentages of chloropicrin.  Risk mitigation for exposure
related to all chloropicrin uses is also being evaluated by the Agency
and will be addressed separately as part of the chloropicrin RED
process.

Summary of Risks

	A full discussion of the risks to humans associated exposure to methyl
bromide is included in the following documents which can be found on the
federal electronic docket management and comment system located at
HYPERLINK "http://www.regulations.gov"  http://www.regulations.gov .

Methyl Bromide: Phase 5 Health Effects Division (HED) Human Health Risk
Assessment For Soil, Greenhouse, and Residential/Structural Uses.  PC
Code: 053201, DP Barcode: D337288 (April 10, 2007)

  SEQ CHAPTER \h \r 1 Methyl Bromide: Phase 5 Health Effects Division
(HED) Human Health Risk Assessment For Commodity Uses.  PC Code: 053201,
DP Barcode: D304623 (  SEQ CHAPTER \h \r 1 March 10, 2006)

Addendum To Phase 5 Health Effects Division (HED) Human Health Risk
Assessment For Commodity Uses.  PC Code: 053201, DP Barcode: D304619
(July 12, 2006)

The Agency’s risk assessments indicate that the primary risk concerns
from methyl bromide’s greenhouse, residential and structural uses
involve the acute exposures experienced by handlers, bystanders, and
person(s) reentering treated areas. Acute risks to bystanders, during
and after fumigations, may be of concern depending on the level of
exposure and toxicity of the fumigant.  MeBr air concentrations that
exceed 1 ppm for an 8 hour time weighted average (TWA) and 0.33 ppm for
a 24-hour TWA exceed the Agency’s level of concern for acute
inhalation exposure.   Exposure depends on a number of factors including
application rate, size of enclosure being fumigated, weather conditions,
leakage of the enclosures, aeration methods, and proximity to the
treated area.

Risk Management Options

	The Agency is soliciting comments on the risk mitigation options
outlined below which are based on the revised risk assessments,
California Department of Pesticide Regulation (CDPR) guidelines for
fumigants, EPA’s mitigation measure requirements for methyl
bromide’s commodity uses, and input from growers, registrants, and
other stakeholders.  It is the Agency’s intent to develop risk
mitigation measures that are clear, enforceable and that reduce acute
inhalation and other risks for:

Bystanders who live and/or work near fumigation sites;

Handlers involved in the fumigant application; and,

Workers and residents reentering treated areas.

	At the same time, the Agency is mindful of the importance of fumigation
to commerce.  Thus, the Agency’s goal is to reduce risk while
carefully weighing the important role a fumigant plays.   For the
mitigation options that follow, please provide comments for the
following general questions, as appropriate and specific questions
listed under each mitigation option:

General Mitigation Option Questions

Which use pattern and geographic regions do your comments address?

What is the feasibility of implementing this option on a national level?

What are the economic costs and impacts associated with this option?

How effectively would this option mitigate acute inhalation and other
risks?

Are there alternative approaches to this option? If so, please describe
and include the rationale for your alternate approach.

	For any other options you would like to suggest, please answer the
above questions as appropriate.   All comments should be submitted to
the public docket on the web at   HYPERLINK
"http://www.regulations.gov/"  http://www.regulations.gov/ .  When
submitting, please identify the question(s) to which you are responding
and include discussions, explanations, and references where possible.

	The Agency has identified four mitigation measures that, if required,
would directly reduce potential acute inhalation and other risks
associated with greenhouse, residential, and structural fumigation
applications:

Buffer zones;

Timing of applications;

Respiratory protection; and

Reentry-restrictions.

	In addition, EPA has identified eight mitigation measures that could
affect potential risks indirectly.   These options would facilitate and
ensure compliance, enforcement, and planning of fumigant applications.
With these measures, the Agency is confident that the measures that
directly reduce risk would achieve their intended purpose.   These
indirect choices include requirements for:

Site-specific fumigation management plan (FMP);

Defining the responsible party;

Certification of FMP;

Record keeping/reporting/tracking;

Notification/posting;

Best Management Practices (BMPs);

Fumigation manual; and

Stewardship program.

Buffer Zones

General

	Establishing a buffer zone around a treated area is an effective method
for managing the risks from acute inhalation exposure to bystanders.
The distance between the application site and the bystanders allows
airborne residues to disperse before reaching the bystanders.  The
greater the distance, the greater the potential for residues to
disperse, thus deceasing the likelihood that air concentrations where
bystanders are located will cause acute adverse effects.  EPA’s goal
is to determine distances, or buffer zones, which will adequately
protect bystanders from acute exposures, but which are not so great as
to eliminate benefits of fumigant use. The distance or size of the
buffer zones would be based on several factors that include application
rates, field size, leakage rates of the enclosure, and aeration methods
used. Air dispersion modeling based on these factors can be used to help
determine appropriate buffer zones distances.

	The Agency is considering requiring treatment and aeration buffer zones
for residential, greenhouse, and structural MeBr uses.  Treatment buffer
zones would begin as soon as MeBr application started and would last
until aeration period was initiated.  The aeration buffer zones would
begin with the start of the aeration period and last until MeBr
concentrations at ventilation discharge points (or within the enclosure)
is 5 ppm or less.  Although the aeration buffer zone may stop at this
point, the aeration period would need to continue until air
concentrations dissipate to levels that are no longer a risk concern.

Specific Mitigation Option Questions

Please estimate the quantitative impacts of requiring buffer zones set
at the following distances:  10 feet, 10 to 30 feet, 30 to 100 feet, and
greater than 100 feet.

To the extent possible, describe what buffer zone distance is not
feasible.

Fixed Buffer Zones

	Fixed buffer zone distances for fumigants and other pesticides have
been used by the Agency in the past.   In this case, the required buffer
zone distances provide limited or no adjustment for rate, enclosure
size, or other site conditions.  One example of a fixed buffer zone is
the furfural fumigant uses in greenhouses.  Buffer zones of 90 feet are
required for greenhouses less than 5,000 sq. ft and 300 feet for buffer
zones for greenhouses greater than 5,000 square feet.   This type of
buffer zone is more easily understood and easier to enforce than the
scenario-based buffer zones.  The Agency believes that the use of fixed
buffer zone distances may be adequate for some scenarios, especially
when worst case buffer distances are workable for fumigators.  However,
it may be difficult to implement fixed buffer zone distances for all
scenarios that are both sufficiently protective and workable.

Scenario-Based Buffer Zones

	While EPA could establish a nationally uniform buffer zone distance for
all applications, the Agency is considering giving fumigators the
ability to determine buffer zone distances based on relevant site
conditions (application rate, enclosure size, enclosure leakage rate,
and aeration method, etc.).  This mitigation option provides flexibility
and decreases the likelihood of overly restrictive buffers based only on
worst case conditions, or buffers which are not adequately protective.
Buffer zone look-up tables could be provided to determine required
distances.  However, this flexibility also comes with added complexity
in terms of understanding how to use look-up tables and utilize options
for obtaining smaller buffers, educating fumigators, devising easily
understood labels, and enforcing these label requirements.

Specific Mitigation Option Questions

If scenario-based buffer zones were required by the Agency, please
provide increments of application rates and enclosure sizes that should
be reflected in buffer zones look-up tables.

Geographic/Site-Specific Buffer Zones

	The Agency has used air dispersion modeling with empirically-derived
emission data combined with measured meteorological data to help inform
its decision making in determining appropriate buffer zones.  Some
geographical areas of the US may not be reflected in the available
emission and meteorological data sets.  As described in the revised risk
assessments, there is some level of uncertainty when applying the
modeling results to the entire country.  The Agency is considering
allowing site-specific buffer zone distances to be based on the results
of modeling performed using more refined site- or region- specific
conditions (e.g., using local weather data).  This modeling could be
conducted by the fumigator, registrant, grower, or other party according
to detailed guidance provided by EPA.   A fumigation manual is a
possible method for providing guidance on how to perform this modeling.

Minimum Buffer Zones

	Using both empirical data and computer modeling, the Agency’s risk
assessments show that in some cases target air concentrations will not
be exceeded even without a buffer zone. While the assessments may
indicate instances where no buffer is needed, EPA requests comment on
whether to require a minimum buffer zone for all fumigant uses due to
potential variability in emission rate over the application area and
other factors not accounted for by the computer model.

Occupied Structures

	The Agency is considering allowing buffer zones to contain structures
(e.g. homes or other buildings) that are normally occupied if the
responsible party can temporarily relocate occupants who voluntarily
agree to move during the buffer zone period and take steps to ensure
that no unauthorized persons enter the structure during the buffer zone
period (see section 6.0 for further description of the responsible
party).

Exemptions

	The Agency is considering allowing transit activities on streets,
roads, roads within agricultural property, highways, and other similar
sites of travel provided they are not within the minimum buffer zone
distances (as described above in the minimum buffer zone section).   The
Agency believes that persons traveling through buffer zones for short
durations (beyond the minimum buffer) will not exceed the Agency’s
level of concern.

Specific Mitigation Option Questions

Should EPA’s regulatory position allow exemptions in the circumstances
described above?

Are there any additional exemptions that the Agency should consider?

Buffer Zones Extending into Adjoining Properties

	There may be situations where the required buffer zone extends onto
adjacent properties owned by other parties.  If such a situation exists,
the Agency is considering a requirement that the responsible party
receives written permission from the adjacent property owner for the
buffer to extend onto their property and that the responsible party must
verify that there are no locations within the buffer zone where
bystanders are likely to be.

Specific Mitigation Option Questions

What information should be included on a written commitment from
adjacent property owners?

What form should it take?

 Work Activity Restrictions

	Application sites are often located near properties where workers
(i.e., bystanders) are present who are not under the control of the
fumigant applicator, grower (who owns, is leasing, or manages the
application site), or designated responsible party.  EPA believes that
the responsible party must take reasonable steps to ensure that persons
other than authorized handlers involved in the fumigation do not enter
the buffer zone.  If the responsible party cannot ensure that
unauthorized persons do not enter the buffer zone, the responsible party
will be required to post signs identifying the boundary of the buffer
zone.

  Sensitive Sites

	The Agency believes that it may be prudent to require additional
protective measures for schools, child day care facilities, hospitals,
nursing homes, prisons, and other sensitive sites:  for example, a
prohibition on a fumigation application while school is in session
within a certain distance (e.g., half mile) of the application block.
Sensitive sites differ from occupied areas (e.g. homes and businesses)
in that their occupants cannot readily evacuate in the event of mishap,
are usually present for extended periods of time, and may have increased
sensitivity to adverse health effects (e.g. occupants of nursing homes,
hospitals, etc.)

Specific Mitigation Option Questions

Are there areas not identified above that should be considered to be
sensitive sites?

Timing of Applications

	Generally, less stable atmospheric conditions occur during the daylight
hours and therefore dissipate the fumigant more rapidly than more stable
night time conditions.  The Agency seeks comments and suggestions on
whether application time restrictions would help ensure that periods of
peak emissions do not coincide with stable atmospheric conditions
occurring at night.

 Respiratory Protection for Occupational Activities

	Revised risk assessments for MeBr identify inhalation hazard levels
(i.e., endpoints and uncertainty factors) for occupational risk
assessment.  The revised risk assessments show risk concerns for several
handler scenarios when no respiratory protection is used.  In some cases
inhalation risks can be mitigated with the use of air purifying
respirators equipped with approved respirator cartridge filters or with
self-contained breathing apparatus (SCBA).  Revised risk assessments do
indicate that even with the use of SCBA, exposure for certain scenarios
exceed the Agency’s level of concern.  EPA is considering requiring
that labels identify appropriate respiratory protection based on
applicable air concentration levels and/or specific work activities.

	Assigned protection factors (APFs) for respirators are used to
determine the reduction of exposure, and are based on the assumption
that users have been fit tested, medically qualified, and trained (these
are not currently required by the Agency).

	In order to ensure compliance with respirator requirements specified on
labels,  the Agency is considering requiring that occupational and area
air monitoring be conducted to quantify potential exposures.  Of
particular concern are handlers without respiratory protection working
within the buffer zone area.  Such monitoring would need to utilize
appropriate analytical methods given the concentration of concern.   For
example, monitoring methods would need to have a limit of quantification
(LOQ) that is equal or less than the exposure limit.

Specific Mitigation Option Questions

To what extent are workers who are currently required to wear
respirators fit-tested, medically qualified, and trained?  Please
specify if fit testing is qualitative or quantitative.

What procedures, if any, should the EPA require to ensure that workers
who are required to wear respirators are fit-tested, medically
qualified, and trained (e.g., recordkeeping)?

Fumigators or growers, please describe what air monitoring is currently
performed during and after each fumigation application. Please also
include measurement method(s) as well as LOQ.

 Reentry Restrictions

	For residential, structural, and greenhouse uses, the Agency is
considering lengthening current entry-restricted periods until air
concentrations in the treated area decline to levels that will not
exceed the Agency’s level of concern (1 part per million for 8-hour
time weighted average and 0.33 for 24-hour time weighted average.   See
respirator section for additional requirements for handlers.

Residential and Commercial Structures

	Current labels require a minimum 7-day aeration period if
non-mechanical or natural ventilation is used, 72-hour aeration period
if using mechanical aeration capable of 5,000 cubic feet per minute
(cfm) rate is used, and reentry without SCBA only when air
concentrations are less than 3 ppm (measured inside the walls).

Greenhouses

	Current labels prohibit reentry for persons other than handlers for 48
hours, allow reentry of handlers without SCBA only when air
concentrations are less than 5 ppm, and allow reentry by non-handlers
after the aeration period without SCBA only when concentrations are less
than 5 ppm. The label recommends aeration periods of 14 days.

Specific Mitigation Option Questions

What impact, if any would result from extending the current
entry-restricted period for greenhouses, residential, and structural
uses?

Are current air monitoring requirements on labels adequate for ensuring
that exposure after reentry do not exceed 1 ppm for 8-hour TWA and 0.33
for 24-hour TWA?

 Site-specific Fumigation Management Plan (FMP)

	There is risk reduction value in encouraging fumigators to anticipate,
recognize, and evaluate the factors that could lead to bystander
exposures that are of concern.  A valuable supplement to other
requirements is a comprehensive site-specific fumigant management plan.
FMPs were required by the Agency for methyl bromide’s commodity uses,
and public comments submitted to the docket for this requirement were
generally supportive.  FMPs are also required for the structural
fumigations with phosphine gas.  It should be noted that fumigation
applications are complex operations, and to ensure that all label
requirements are met, EPA believes that an FMP is necessary for adequate
planning, compliance, and enforcement.  A sample of elements that the
Agency believes should be included in a comprehensive FMP was provided
TRED/RED document and is available in the docket.   EPA is considering
applying the same requirements for those FMP elements to residential,
greenhouse, and structural uses.

	In addition to helping ensure fumigators successfully plan all aspects
of a safe fumigation, FMPs will also likely be a major tool for federal,
state, and local regulators to ensure compliance with labeling and
regulations associated with fumigations (see record keeping section
below).

Specific Mitigation Option Questions

To what extent are fumigators currently using FMPs?

Should FMPs be required for greenhouse, residential, and structural
uses?

Are there any FMP elements that should be required for greenhouse,
residential, and structural uses that are not listed in the TRED/RED for
commodity uses?

Responsible Party

	For each fumigation event, the Agency is considering requiring that
there be a clear identification of the party who is responsible for
ensuring compliance with label requirements.  The responsible party and
their applicable duties that may impact their own risk as well as other
handlers, bystanders, and persons re-entering treated areas must be
identified in the FMP.

Specific Mitigation Option Questions

Should the fumigator/applicator be the responsible party for all aspects
of the fumigant application process in regard to label requirements
including tarp cutting and removal?

What is the impact of allowing the responsible party duties to be shared
among different parties (e.g., fumigator, growers, and other parties)?

Certification of an FMP

	The Agency is considering requiring that the person supervising the
fumigation, or the responsible party, certify in writing that he/she has
reviewed the FMP and that it addresses all elements required by product
labels, and that all decisions on the fumigation processes, buffer
zones, and PPE are appropriate and protective.  EPA is also considering
allowing state or local governments the option of implementing their own
FMP certification process, or allowing fumigators to either self-certify
or contract a third-party for FMP certification.  The Agency believes
that since most of the states do not have an infrastructure like
California with county agricultural commissioners, this option of
allowing self- or third-party certification becomes an important
compliance assurance tool and can be potentially implemented without
placing the responsibility of reviewing FMPs on states that choose not
to assume that role.

Record Keeping, Reporting, and Tracking

	There are currently no requirements on EPA labels for applicators or
growers to keep records of applications made. However, MeBr fumigant
products are restricted use products (RUPs) and certain records must be
kept. Reporting and tracking of applications as part of a site-specific
FMP could be a major tool for federal, state, and local regulators to
ensure compliance with labeling and regulations associated with
fumigations.

Notification/Posting

	If buffer zones are used, bystanders will need to be informed about the
location and timing of the fumigation to ensure they do not enter areas
designated as part of the buffer zone. Furthermore, EPA believes that
bystanders not involved in the fumigation could take other steps to
protect themselves if they were aware of potential risks associated with
fumigations that are occurring near where they live and work.  This can
be accomplished by posting signs, as well as through other communication
methods (e.g., verbal and/or written notification).  Providing access to
site-specific fumigation management plans (FMPs) is one option that may
be used to convey useful information to potential bystanders.  The
Agency does recognize that some of the information in the FMPs may be
confidential and other information included in the FMPs may not be
useful to neighbors.  EPA believes the critical information that must be
communicated to all bystanders includes:

Location of the application site including address

Fumigant(s) applied including EPA Registration #

Potential symptoms and adverse health effects from exposure

Applicator license number and contact information

Responsible party for all aspects of the fumigation process

Location of buffer zones

Date/time for start and stop of buffer zones

Reentry restrictions

Emergency procedures and contacts

Notification of local fire departments and first responders

Specific Mitigation Option Questions

What information not listed above should be provided to potential
bystanders?  Include rationale for providing information.

Who should be notified prior to applications?

When should notification be given?

How often should notification be given?

 Best Management Practices (BMPs)

	The Agency believes requiring BMPs to be included on labels (e.g., site
preparation, sealing enclosures, aeration methods, weather criteria,
etc.) will minimize inhalation and other risks from fumigant
applications.  Several fumigant products already incorporate some of
these measures on their labels.

Fumigation Manual

	The Agency is considering developing a manual to provide guidance to
fumigators, growers, and other stakeholders on how to conduct
fumigations that are in compliance with EPA labels.  The manual could
potentially include guidance on how to determine buffer zones with
site-specific modeling and monitoring data.   As previously mentioned,
scenario based buffer zones involve some complexity that will require
growers, applicators, and other stakeholders to be adequately educated
on the requirements of the EPA labels.  The Agency is currently
developing a similar manual for MeBr commodity uses.

Stewardship Program

	The Agency is considering requiring fumigant registrants to conduct a
stewardship program independently or together with the other fumigant
registrants, with the following elements:

Educational/ training materials in both English and Spanish that are
designed to educate workers regarding work practices that can reduce
exposure to fumigants, including:

Best Management Practices (BMPs) that reduce emissions and minimize
bystander exposure;

The recognition of symptoms associated with fumigant exposures; and,

How to seek medical attention in the event workers experience such
symptoms.

Development of channels for disseminating these training materials to
workers involved in the application of fumigants or in agricultural work
practices that may result in exposure to fumigants and a means of
certifying applicators periodically (e.g. every 2 years).

A description of how and who will conduct the training.

Page   PAGE  1  of   NUMPAGES  11


[Federal Register Volume 86, Number 157 (Wednesday, August 18, 2021)]
[Notices]
[Pages 46296-46297]
[FR Doc No: 2021-17673]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92657; File No. SR-NYSEARCA-2021-71]

Self-Regulatory Organizations; NYSEARCA, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend Rule 7.34-
E

August 12, 2021.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on August 4, 2021, NYSE Arca, Inc. (``NYSE Arca'' or the
``Exchange'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 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 Rule 7.34-E (Trading Sessions) to
begin accepting orders 90 minutes before the Early Trading Session
begins. The proposed rule change is available on the Exchange's website
at www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Rule 7.34-E (Trading Sessions) to
begin accepting orders 90 minutes before the Early Trading Session
begins.
    Currently, Rule 7.34-E(a)(1) provides that the Early Trading
Session will begin at 4:00 a.m. Eastern Time and conclude at the
commencement of the Core Trading Session. The Rule further provides
that the Exchange will begin accepting orders 30 minutes before the
Early Trading Session begins and that the Early Open Auction will begin
the Early Trading Session.
    The Exchange proposes to amend Rule 7.34-E(a)(1) to provide that
the Exchange would begin accepting orders 90 minutes before the Early
Trading Session begins, i.e., at 2:30 a.m. Eastern Time. The Exchange
proposes to begin accepting orders earlier to compete with non-exchange
trading venues that begin accepting orders before 3:30 a.m. Eastern
Time. By moving the Exchange's order acceptance time earlier, ETP
Holders that route orders to multiple venues before 3:30 a.m. Eastern
Time would be able to include the Exchange in their early morning
routing determinations. The Exchange does not propose to change the
time when the Early Trading Session would begin or make any other rule
changes.
    Because of the technology changes required to implement this
change, subject to effectiveness of this proposed rule change, the
Exchange will announce via Trader Update when the Exchange would begin
accepting orders 90 minutes before the Early Trading Session begins,
which the Exchange anticipates would be in August 2021.
2. Statutory Basis
    For the reasons set forth above, the Exchange believes the proposed
rule change is consistent with Section 6(b) of the Act \4\ in general,
and furthers the objectives of Sections 6(b)(5) of the Act,\5\ in that
it is designed to promote just and equitable principles of trade,
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.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f(b).
    \5\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed rule change would remove
impediments to and perfect the mechanism of a free and open market and
a national market system because it would not change any trading
functions on the Exchange and would only move up the time when the
Exchange would begin accepting order flow for trading in the Early
Trading Session. In addition, an ETP Holder that opts to send in orders
during this earlier time period could, as today, designate which
trading session such orders would be eligible to trade, including per
Rule 7.34-E(b), a trading session later in the trading day (``an order
designated for a later trading session will be accepted but not
eligible to trade until the designated trading session begins'') or
choose to cancel such orders before they become eligible to trade. The
Exchange further believes that the proposed rule change would promote
competition among the Exchange and non-exchange venues because it would
allow ETP Holders that currently route to non-exchange trading venues
prior to 3:30 a.m. Eastern Time to include the Exchange in their early
morning routing determinations.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange believes that
the proposed rule change would promote intermarket competition between
the Exchange and non-exchange trading venues that accept order flow
before 3:30 a.m. Eastern Time.

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

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

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \6\ and Rule 19b-4(f)(6) thereunder.\7\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \7\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    The Exchange has asked the Commission to waive the 30-day operative
delay.\8\ The Commission finds that waiving the 30-day operative delay
is consistent with the protection of

investors and the public interest because waiver of the operative delay
will allow ETP Holders that route orders to non-exchange venues that
accept order flow before 3:30 a.m. Eastern Time the opportunity to
include the Exchange in its early morning routing determinations.
According to the Exchange, this proposed rule change will not change
any Exchange trading functions, including when the Early Trading
Session begins, and the technology to support this proposed rule change
will be available less than 30 days after filing. Accordingly, the
Commission hereby waives the 30-day operative delay and designates the
proposal operative upon filing.\9\
---------------------------------------------------------------------------

    \8\ 17 CFR 240.19b-4(f)(6)(iii).
    \9\ For purposes only of waiving the 30-day operative delay, the
Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such 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 under
Section 19(b)(2)(B) \10\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-NYSEARCA-2021-71 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-NYSEARCA-2021-71. 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-NYSEARCA-2021-71 and should be submitted
on or before September 8, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-17673 Filed 8-17-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: August 20, 2009 (Volume 74, Number 160)]
[Notices]
[Page 42142-42144]
[DOCID:fr20au09-98]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2009-0008]

Beall Corporation; Grant of Application for a Temporary Exemption
From FMVSS No. 224

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

ACTION: Grant of petition for temporary exemption.

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SUMMARY: In accordance with 49 CFR part 555, this notice grants the
Beall Corporation's application for a temporary exemption from the
requirements of Federal Motor Vehicle Safety Standard (``FMVSS'') No.
224, ``Rear Impact Protection.'' The exemption applies to the company's
dump body trailers. The basis for the grant is that compliance would
cause substantial economic hardship to a manufacturer that has tried in
good faith to comply with the standard. The exemption is effective for
three years.

DATES: The exemption from the applicable FMVSS is effective from August
20, 2009 through August 20, 2012.

FOR FURTHER INFORMATION CONTACT: Ari Scott, Office of the Chief
Counsel, NCC-112, National Highway Traffic Safety Administration, 1200
New Jersey Avenue, SE., West Building 4th Floor, Room W41-326,
Washington, DC 20590. Telephone:<PHONE_NUMBER>; Fax:<PHONE_NUMBER>;
E-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

a. Rear Impact Protection

    FMVSS No. 224, Rear Impact Protection, requires all trailers with a
gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) (10,000
pounds) or more be fitted with a rear impact guard that conforms to
FMVSS No. 223, ``Rear impact guards.'' This requirement, however, has
presented problems for certain specialized vehicles, such as road
construction vehicles, where interaction between the rear impact guard
and the specialized paving or dumping equipment can cause engineering
hurdles. In accordance with 49 U.S.C. 30113 and the procedures in 49
CFR part 555, Beall Corporation, d/b/a Power Truckweld (``Beall''), a
dump body trailer manufacturer, petitioned the agency for a temporary
exemption from the rear impact protection requirements in FMVSS No. 224
(49

CFR 571.224) based on economic hardship.\1\
---------------------------------------------------------------------------

    \1\ In accordance with the requirements of 49 U.S.C.
30113(b)(2), we published a notice of receipt of the application and
asked for public comments. To view the application, notice, or
response to the notice (no comments were received), please go to:
http://www.regulations.gov (Docket No. NHTSA-2009-0008).
---------------------------------------------------------------------------

b. Statutory Background of Petition for Economic Hardship

    The National Traffic and Motor Vehicle Safety Act (Vehicle Safety
Act), codified as 49 U.S.C. Chapter 301, provides the Secretary of
Transportation authority to exempt, on a temporary basis and under
specified circumstances, motor vehicles from a motor vehicle safety
standard or bumper standard. This authority is set forth at 49 U.S.C.
30113. The Secretary has delegated the authority for this section to
NHTSA.
    NHTSA established Part 555, ``Temporary Exemption from Motor
Vehicle Safety and Bumper Standards,'' to implement the statutory
provisions concerning temporary exemptions. Vehicle manufacturers may
apply for temporary exemptions on several bases, one of which is
substantial economic hardship to a manufacturer that has tried to
comply with the standard in good faith. A petitioner must provide
specified information in submitting a petition for exemption. These
requirements are specified in 49 CFR 555.5 and 555.6, and include a
number of items, including the reasons why the exemption would be in
the public interest and consistent with the objectives of 49 U.S.C.
Chapter 301. A manufacturer is eligible to apply for a hardship
exemption if its total motor vehicle production in the year preceding
the filing of its application did not exceed 10,000 vehicles (49 CFR
555.6(a)(2)(v)).

 c. The Petition

    Beall manufactures trailers in Washington and Oregon. The company
has been in existence for over a decade. Beall requested an exemption
for a period of three years upon the grant of the petition. The
following is a brief summary of the salient points of Beall's petition.
More complete information can be found by examining the notice of
receipt or the petition itself, available in the NHTSA docket (NHTSA-
2009-0008).
    In its petition, Beall stated that the total number of vehicles
produced in the 12-month period prior to filing the petition was 79. Of
those vehicles, 64 were dump body type trailers that would be covered
by the requested temporary exemption. The largest number of Dump Body
trailers the petitioner sold in recent years is 79 in 2005.
    Beall stated that the denial of the requested exemption will result
in substantial economic hardship. According to the statements of the
petitioner, the denial of exemption could cost the company 40 percent
of its projected sales during the period covered by the exemption, a
situation which could cause the layoff of 100% of its employees.
Additionally, Beall asserted that if the exemption is denied, it would
lose the entire $800,000 goodwill investment associated with the 2001
purchase of Pioneer Truckweld. It also noted that several of its
competitors, such as Reliance and Columbia Body Manufacturing, have
received exemptions from FMVSS No. 224, and that it needs to be able to
compete effectively with these entities in the dump body trailer sales
market, as well as the dump body truck market, as many customers will
not allow a manufacturer to bid on a dump body truck if they cannot
supply a dump body trailer.
    Beall also provided specific financial information with its
statement for the years 2004 through 2006. In 2004, it indicated that
it posted a loss of over $200,000. In 2005, that loss was approximately
$138,000. Finally, in 2006, the total loss was over $53,000. In the
event that the petition were denied, Beall estimated that it will lose
over $24,000 in the year following the denial. While Beall did not
provide specific financial information regarding the projected
financial impact of a grant, it stated that such a grant is necessary
for the survival of the Power Truckweld division.
    The petitioner believed that it is impossible to estimate the cost
of compliance because the method by which compliance may be achieved is
unknown at this time, and requires substantial further engineering
analysis. Beall stated that it has tried, unsuccessfully, to design or
outsource the design of a device that would satisfy FMVSS No. 224 for
dump body trailers.
    In explaining why it has not been currently able to meet the rear
impact protection requirements, Beall pointed to a number of technical
challenges associated with designing a compliant rear impact protection
system. Namely, it stated that a device designed to satisfy FMVSS No.
224 for dump body applications must also be capable of moving clear, so
that the hopper of the paving machines can pass through the space
initially occupied by the rear impact protection device. It argued that
if the paving machine cannot position itself underneath the dump body,
the asphalt will spill out as the dump body raises and unloads the
asphalt. The petitioner stated that it has been pursuing the design of
acceptable systems in a joint project with the Mechanical Engineering
department at Montana State University, using techniques such as Finite
Element analysis and physical testing devices. In addition, it claimed
to have designed acceptable guards for a number of non-asphalt paving
applications.
    Beall stated it has considered several alternative means of
compliance. These include plastically deforming devices and hinged and
retractable devices. However, the petitioner believed that there are a
number of problems with regard to these solutions. First, due to
clearance issues, space for retractable devices is not readily
available, and redesign of the vehicle to accommodate such devices
could result in decreased stability. Second, the petitioner stated that
asphalt paving surface has the effect of rendering these sorts of
devices unusable over time. Finally, Beall noted that trailers could be
operated with these devices in the retracted position, resulting in no
safety benefits.
    Beall stated that under a temporary exemption, it would continue to
pursue a compliant rear impact protection device that would meet the
current standards, including attachment and methods of maintenance to
ensure proper function while in service. The petitioner stated that it
will continue to work with others in the paving industry to develop an
acceptable solution.
    Beall's believed that the public interest would benefit from this
exemption, stating the following:

    It would be in the public's interest to allow Pioneer Truckweld
to manufacture the equipment required to improve and expand the road
building effort in the Western United States while an intense effort
is maintained by Pioneer Truckweld to design an acceptable under
ride device that will perform well in a paving operation.

    Additionally, in its petition, Beall noted that the failure to
receive an exemption could cause the closure of the Pioneer Truckweld
operation and the layoff of 38 employees in U.S. operations.

d. Notice of Receipt

    On February 12, 2009 (74 FR 7102), we published a notice announcing
receipt of an application from Beall for a temporary exemption from the
requirements of FMVSS No. 224 for its dump body trailer designs. We
invited public comment on Beall's application,

but received no comment in response to the publication.

e. Final Decision

    We are granting Beall's petiton for exemption. The manufacturer
satisfies the criterion that its total motor vehicle production in its
most recent year of production does not exceed 10,000. In its petition,
Beall noted that it produced 79 vehicles in the 12 months period prior
to requesting the exemption, of which 64 were dump body type trailers
that would be covered by the requested temporary exemption. Based on
this, we conclude that Beall is eligible for the requested exemption.
    The agency may grant such a petition if it finds that the
petitioner would suffer financial hardship if an exemption were not
granted, that the petitioner has tried in good faith to comply with the
standard, and that an exemption would be in the public interest and
consistent with the purposes of the Vehicle Safety Act.
    The fundamental problem which is causing Beall to be unable to
fully comply with the rear impact requirements relates to the design
and function of the vehicle. As stated in the petition for exemption,
the bodies at issue are raised as to discharge out of the rear.
Therefore, they require the area to the rear of the vehicle, where the
rear impact protection material would ordinarily be located, to be
clear enough for the discharge to proceed smoothly. Despite significant
expenditures of capital and labor in pursuit of compliance, Beall was
unable to bring its vehicle into compliance. While engineering research
and possible alternative solutions are being considered, the company
currently requires a temporary exemption in order to sell its vehicles
in their current state.
    Beall has shown the necessary aspects to receive a temporary
exemption on the basis of financial hardship. These include
demonstrated financial hardship, good faith efforts to comply with the
standard, and a showing that receiving the exemption would be in the
public interest. We discuss these below.
    First, Beall's financial statements show substantial financial
hardship. As stated above, Beall estimates that it could lose
substantial money if it is unable to sell its dump body trailers.
Furthermore, given the economic downturn in recent months, we believe
that it is likely that Beall's economic condition has deteriorated
further since it originally submitted its petition.
    Second, the petitioner has shown a good faith effort to comply with
the standard. Again, as stated above, the petitioner has undertaken
substantial research and design efforts in order to try and comply with
the standard. It has worked on designing internal solutions, partnered
with the Mechanical Engineering department at Montana State University,
and tried to find third-party suppliers that could design equipment
that could overcome the formidable design challenges. It has also
searched for alternative means of compliance, such as plastically
deforming devices and mounting the box higher on the vehicle. Finally,
it continues to work on design changes that could allow it to comply
with the full FMVSSs.
    Third, we believe that the public interest is served by granting
this exemption. There is a problem in practicability in complying with
the requirements of the standard. This is a trailer that requires a
controlled release of the materials from the dump body, which
complicates the ability to install a rear impact protection system that
does not interfere with the trailer's operation. Additionally, these
trailers are used primarily in road construction applications, thereby
removing them generally from the flow of traffic (although they may
still be used in some in-traffic situations, such as transport to and
from road construction sites). Coupled with the very low number of
vehicles expected to be produced during the temporary exemption, the
negative safety impact of the exemption will be insignificant. In
contrast, permitting this type of vehicle to be sold to the public
serves the public interest.
    Public Interest Considerations. Dump body trailers are used
primarily for road-paving and other construction tasks, and frequently
discharge road material via the rear of the vehicle. In considering
whether granting a petition is in the public interest, NHTSA also
considers the impact of not granting the exemption on consumer choice
and the economy, as well as the relative impact of the exemption on
safety. Beall states that the failure to receive an exemption could
cause the closure of the Pioneer Truckweld operation and the layoff of
38 employees in U.S. operations. Given the relatively few companies
that produce these sort of specialized trailers, we believe that the
exemption would have benefits with regard to enhancing consumer choice
and facilitating construction projects. Also, we note again that given
the relatively low number of vehicles produced by the petitioner over
its history, and the fact that they are primarily used in road
construction tasks as opposed to being driven in the flow of traffic,
the safety impact of the lack of required rear impact protection
equipment is likely to be relatively small.
    In consideration of the foregoing, we conclude that compliance with
the requirements of FMVSS No. 224, Rear Impact Protection, would cause
substantial economic hardship to a manufacturer that has tried in good
faith to comply with the standard. We further conclude that granting of
an exemption would be in the public interest and consistent with the
objectives of traffic safety.
    In accordance with 49 U.S.C. 30113(b)(3)(B)(i), Beall Corporation
is granted NHTSA Temporary Exemption No. EX 09-03, from FMVSS No. 224.
The exemption covers only dump body trailers manufactured by the
company. The exemption shall remain for three years as indicated in the
DATES section of this notice.

(49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and
501.8)

    Issued on: August 14, 2009.
Ronald L. Medford,
Acting Deputy Administrator.
[FR Doc. E9-19956 Filed 8-19-09; 8:45 am]

BILLING CODE 4910-59-P


  SEQ CHAPTER \h \r 1 	SIP Completeness Checklist

State:  New Jersey

Date of Letter:  July 8, 2010

Date Received:   July 19, 2010

Title:  Proposed Revision to the Enhanced Inspection and Maintenance (I/M) Program for the State of New Jersey: Extension of the New Vehicle Inspection Exemption from 4 Years to 5 Years

Reviewer's Name:  Jenna Salomone

Review Date:  July 29, 2010

Result of Review:

Submission ID Number:  __________________

OAQPS Number:  __________________________

Determination of Completeness Checklist

The following checklist is to be used to determine if a formal SIP revision submittal is complete, or if a State's request for parallel processing is adequate to initiate the federal rulemaking process.  The entire checklist should be used to determine whether a formal SIP revision submittal is complete, including a formal submittal of a revision for which a notice of proposed rulemaking was published via parallel processing on a proposed/draft version of the revision.  An asterisk * indicates the portions of the checklist that are to be used to determine if a State's request for parallel processing is adequate to initiate federal rulemaking.

The checklist serves as a guide to State/local agencies in preparing reviewable SIP packages, and for the EPA reviewers in determining whether to initiate the federal rulemaking process or return the submittal to the State/local agency.  Common sense judgment must be used in assessing the completeness of a package.  In doing so the reviewer must keep in mind the objectives of the completeness policy: (1) prompt return of SIP submittals that are inherently inadequate for review; (2) objective and consistent application of objective, understandable screening criteria; (3) reduction of the overall time and resources expended by both State/local agencies and EPA in the preparation and review of SIP submittals.

	Administrative Materials

1) A formal letter of submittal from the Governor or designee requesting EPA approval of the revision.	 Yes	Formal Letter from Commissioner Bob Martin

	* A formal letter from the Governor or designee requesting that EPA propose approval of a proposed revision by parallel processing.	Yes Included in the Formal Letter from Commissioner Bob Martin

2) Evidence that the State has adopted the revision in the State code or body of regulations; or issued the permit, order, consent agreement (hereafter document) in final form.  That evidence should include the date of adoption or final issuance as well as the effective date of the revision if different from the adoption/issuance date.

	* Schedule for final adoption or issuance should be included in a State's request for parallel processing.

3) Evidence that the State has the necessary legal authority under State law to adopt and implement the revision.

	* Same evidence should accompany a request for parallel processing of a Proposed State revision.

4) A copy of the actual regulation, or document submitted for approval and incorporation by reference into the SIP, including indication of the changes made to the existing approved SIP, where applicable.  The submittal should be a copy of the official state regulation/document signed, stamped, dated by the appropriate State official indicating that it is fully enforceable by the State.  The effective date of the regulation/document should, whenever possible, be indicated in the document itself.

	* A copy of the proposed/draft regulation or document must be included in a State's request for parallel processing.

5) Evidence that the State followed all of the requirements of its Administrative Procedures Act (or equivalent) in conducting and completing the adoption/issuance of the revision.

6) Evidence that Public Notice was given of the proposed change consistent with procedures approved by EPA, including the date of publication of such notice.

7) Certification that public hearing(s) were held in accordance with the information provided in the public notice and the State's Administrative Procedures Act (or equivalent). if applicable.

8) Compilation of public comments and the State's response thereto.

NOTE: Items 5 - 8 are not required for a request to parallel process a proposed/draft revision.

	Technical Support

* Requests for parallel processing should include all of the Technical Support required for formal submittals as follows:

1) Identification of all regulated pollutants affected by the revision.

2) Identification of the locations of affected sources including the EPA attainment/nonattainment designation of the locations and the status of the attainment plan for the affected area(s).

3) Quantification of the changes in SIP allowable emissions from the affected sources.  Estimates of changes in current actual emissions from affected sources or, where appropriate, quantification of changes in actual emissions from affected sources through calculations of the differences between certain baseline levels and allowable emissions anticipated post revision.

4) Demonstration that the NAAQS/PSD increments/RFP demonstration/visibility are protected if revision is approved and implemented.

5) Modeling information required to support the proposed revision, including input data, output data, models used, justification of model selections, ambient monitoring data used, meteorological data used, justification for use of offsite data (where used), modes of models used, assumptions, etc.

6) Evidence, where necessary, that emission limitations are based on continuous emission reduction technology, e.g., add-on controls, industrial/process equipment designs, reformulated materials, etc.

7) Evidence that a revision contains emission limitations, work practice standards and recordkeeping/reporting requirements, where necessary, to ensure emission levels.

8) Compliance/enforcement strategies including how compliance will be determined in practice, and at what frequency.

9) As appropriate, special economic and technological justifications per applicable EPA policies.  For example, economic an整档潮潬楧慣番瑳晩捩瑡潩潦⁲污整湲瑡癩 䅒呃潦⁲潬杮琭牥癡牥条湩景嘠䍏攠業獳潩楬 業獴牯琠畳灰牯⁴畢扢敬瀠潲潰慳獬ܮ܇ഇ̍഍ഄ̍ ഍ഄ഍഍഍഍

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