[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Proposed Rules]
[Pages 80746-80747]
[FR Doc No: 2010-32234]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 135

[Docket No. FAA-2010-1259]

Interpretation of Rest Requirements

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed interpretation.

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SUMMARY: This action proposes to interpret the application of 14 CFR
135.263 and the rest requirements of Sec.  135.267(d) to situations in
which a flight crewmember's flight time exceeds the permissible limits
due to circumstances beyond his or her control. As discussed below, the
FAA issued several interpretations addressing this issue in the 1990s.
However, because the proposed interpretation relies heavily on a
seminal FAA interpretation issued in 2000, the proposed interpretation
would supersede any previous contrary interpretations of Sec. Sec.
135.263 and 135.267(d).

DATES: Comments must be received on or before January 24, 2011.

ADDRESSES: You may send comments identified by docket number FAA-2010-
1259 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send Comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, West Building Ground Floor,
Washington, DC 20590-0001.
     Hand Delivery: Take comments to Docket Operations in Room
W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue,
SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
     Fax:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Alex Zektser, Attorney, Regulations
Division, Office of Chief Counsel, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-
3073; e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to submit written comments,
data, or views concerning this proposal. The most helpful comments
reference a specific portion of the proposal, explain the reason for
any recommended change, and include supporting data. To ensure the
docket does not contain duplicate comments, please send only one copy
of written comments, or if you are filing comments electronically,
please submit your comments only one time.
    The FAA will file in the docket all comments received, as well as a
report summarizing each substantive public contact with FAA personnel
concerning this proposal. Before acting on this proposal, the FAA will
consider all comments received on or before the closing date for
comments and any late-filed comments if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of comments received.

Availability of This Proposed Interpretation

    You can get an electronic copy using the Internet by--
    (1) Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the docket number or notice number of this proposal.

Background

    The FAA has been asked to provide a legal interpretation regarding
the application of 14 CFR 135.263 and 135.267(d) to the following
factual scenario.
    An operator plans a flight that is anticipated to be completed
within a 13.5-hour duty day. However, unanticipated delays (such as
late passengers and late cargo) occur before the last leg of the
flight, and these delays would extend the flight beyond a 14-hour duty
day if the last leg is completed. The proposed interpretation would
clarify whether the crew may take off on the last leg of the flight,
knowing in advance that they will not receive the 10 hours of rest
required in a 24-hour period by section 135.267(d).

Discussion of the Proposal

    Section 135.267(d) of Title 14 of the Code of Federal Regulations
requires that a flight assignment operating under section 135.267(b)
and (c) must provide for at least 10 consecutive hours of rest during
the 24-hour period that precedes the planned completion time of the
assignment. Under this section, a duty day may not exceed 14 hours in a
24-hour period without infringing on the required rest time. However,
section 135.267(d) works in conjunction with 14 CFR 135.263(d), which
provides that:

    A flight crewmember is not considered to be assigned flight time
in excess of flight time limitations if the flights to which he is
assigned normally terminate within the limitations, but due to
circumstances beyond the control of the certificate holder or flight
crewmember (such as adverse weather conditions), are not at the time
of departure expected to reach their destination within the planned
flight time.

    In the 1990s, the FAA interpreted sections 135.263(d) and
135.267(d) to permit flight crewmembers to take off on flights that
were scheduled to be completed within a 14-hour duty period even though
circumstances beyond the crewmembers' control extended the actual duty
time beyond the permissible 14-hour period. See, e.g., Aug. 30, 1993,
Letter to Mr. Ross from Donald P. Byrne, Assistant Chief Counsel for
Regulations and Enforcement; Mar. 30, 1992, Letter to Kevin Wilson from
Donald P. Byrne.
    However, in 2000, the FAA issued a seminal interpretation of a
section that is nearly identical to section 135.263(d). That section,
14 CFR 121.471(g), states that:

    A flight crewmember is not considered to be scheduled for flight
time in excess of flight time limitations if the flights to which he
is assigned are scheduled and normally terminate within the
limitations, but due to circumstances beyond the control of the
certificate holder (such as adverse weather conditions), are not at
the time of departure expected to reach their destination within the
scheduled time.

The FAA's 2000 interpretation stated that the language of section
121.471(g) created an exception to pilot flight time limitations, but
did not provide an exception for pilot rest requirements. See Nov. 20,
2000, Letter to Captain Richard D. Rubin from James W. Whitlow, Deputy
Chief Counsel (``Whitlow Letter''). The Whitlow Letter's validity was
subsequently upheld by the U.S. Court of Appeals for the DC Circuit,
and since that time, the FAA has consistently applied the Whitlow
Letter in its interpretations of section 121.471(g). See Air Transport
Ass'n of America, Inc. v. F.A.A., 291 F.3d 49 (DC Cir. 2002) (upholding
the validity of the Whitlow Letter). See, e.g., Mar. 18, 2009, Letter
to William E. Banks, Jr. from Rebecca B. MacPherson, Assistant Chief
Counsel for Regulations (noting that section 121.471(g) does not
provide an exception for rest requirements); Jan. 11, 2005, Letter to
Jan Marcus from Rebecca B. MacPherson, Assistant Chief Counsel for
Regulations (same).
    The FAA has determined that it is illogical that the nearly-
identical regulatory language in sections 121.471(g) and 135.263(d) is
interpreted in two different ways. See Air Transport Ass'n, 291 F.3d at
51 n.1 (stating that ``[t]he substance of the rules in Parts 121 and
135 is essentially the same and the rules are likewise interpreted'').
As such, the FAA proposes to apply the Whitlow Letter's interpretation
of 121.471(g) to sections 135.263(d) and 135.267(d). Because the
Whitlow Letter and the subsequent interpretations based on the Whitlow
Letter are more recent than the 1990s interpretations of sections
135.263(d) and 135.267(d), the Whitlow Letter line of interpretations
best reflects the FAA's current understanding of the pertinent
regulatory language. As such, the proposed application of the Whitlow
Letter to sections 135.263(d) and 135.267(d) would supersede any
contrary pre-Whitlow interpretations of these sections.
    Under the proposed interpretation, section 135.263(d) would not
create an exception for flight crewmember rest requirements. As such,
if a flight crewmember was to be aware at the time of departure on the
last leg of the flight that he or she has not had the required rest, 14
CFR 135.267(d) would prohibit him or her from departing on the last leg
of the flight.

    Issued in Washington, DC, on December 17, 2010.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations, AGC-200.
[FR Doc. 2010-32234 Filed 12-22-10; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Notices]
[Pages 72624-72629]
[FR Doc No: 2016-25350]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79103; File No. SR-BatsBZX-2016-60]

Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of
Filing of a Proposed Rule Change to Bats BZX Rule 14.13, Company
Listing Fees, and to the Bats BZX Fee Schedule; Suspension of and Order
Instituting Proceedings To Determine Whether To Approve or Disapprove
the Proposed Rule Change

October 14, 2016.
    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 September 29, 2016, Bats BZX Exchange, Inc. (the ``Exchange''
or ``BZX'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons and is, pursuant to
Section 19(b)(3)(C) of the Act, hereby: (1) Temporarily suspending the
proposed rule change; and (2) instituting proceedings to determine
whether to approve or disapprove the proposal.
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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 filed a proposal to amend the fees applicable to
securities listed on the Exchange, which are set forth in BZX Rule
14.13 as well as to amend the fee schedule applicable to Members \3\
and non-Members of the Exchange pursuant to Exchange Rules 15.1(a) and
(c). Changes to the Exchange's fees pursuant to this proposal are
effective upon filing.
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    \3\ A Member is defined as ``any registered broker or dealer
that has been admitted to membership in the Exchange.'' See Exchange
Rule 1.5(n).
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    The text of the proposed rule change is available at the Exchange's
Web site at www.batstrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    On August 30, 2011, the Exchange received approval of rules
applicable to the qualification, listing, and delisting of companies on
the Exchange,\4\ which it modified on February 8, 2012 in order to
adopt pricing for the listing of exchange traded products (``ETPs'')
\5\ on the Exchange,\6\ which it subsequently modified again on June 4,
2014.\7\ On October 16, 2014, the Exchange modified Rule 14.13,
entitled ``Company Listing Fees'' to eliminate the annual fees for ETPs
not participating in the Exchange's Competitive Liquidity Provider
Program pursuant to Rule 11.8, Interpretation and Policy .02 (the ``CLP
Program'').\8\ On May 22, 2015, the Exchange further modified Rule
14.13 to eliminate the $5,000 application fee for ETPs, effectively
eliminating any compulsory fees for both new ETP issues and transfer
listings in ETPs on the Exchange.\9\ On October 1, 2015, the Exchange
started offering an incentive payment to ETPs listed on the Exchange
based on the consolidated average daily volume (``CADV'') of the ETP
(the ``Issuer Incentive Program'') \10\ and subsequently made an
administrative change to the Issuer Incentive Program that required an
issuer to enroll in order to receive payment.\11\ The Exchange is now
proposing to amend the Issuer Incentive Program such that series of
Portfolio Depository Receipts, Index Fund Shares, Trust Issued
Receipts, and Managed Fund Shares (``Funds'') listed on the Exchange
will no longer be eligible to receive payments under the Issuer
Incentive Program. The Exchange is also proposing that the LMM \12\ in
a Fund \13\ would receive a payment from the Exchange based on the CADV
of the Fund, as described below (the ``LMM Partnership Program'').
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    \4\ See Securities Exchange Act Release No. 65225 (August 30,
2011), 76 FR 55148 (September 6, 2011) (SR-BATS-2011-018).
    \5\ As defined in BZX Rule 11.8(e)(1)(A), the term ``ETP'' means
any security listed pursuant to Exchange Rule 14.11.
    \6\ See Securities Exchange Act Release No. 66422 (February 17,
2012), 77 FR 11179 (February 24, 2012) (SR-BATS-2012-010).
    \7\ See Securities Exchange Act Release No. 72377 (June 12,
2014), 79 FR 34822 (June 18, 2014) (SR-BATS-2014-024).
    \8\ See Securities Exchange Act Release No. 73414 (October 23,
2014), 79 FR 64434 (October 29, 2014) (SR-BATS-2014-050).
    \9\ See Securities Exchange Act Release No. 75085 (June 1,
2015), 80 FR 32190 (June 5, 2015) (SR-BATS-2015-39).
    \10\ See Securities Exchange Act Release No. 76113 (October 8,
2015), 80 FR 62142 (October 15, 2015) (SR-BATS-2015-80) (the
``Issuer Incentive Program Filing'').
    \11\ See Securities Exchange Act Release No. 77960 (June 1,
2016), 81 FR 36632 (June 7, 2016) (SR-BatsBZX-2016-20).
    \12\ As defined in Rule 11.8(e)(1)(B), the term LMM means a
Market Maker registered with the Exchange for a particular LMM
Security that has committed to maintain Minimum Performance
Standards in the LMM Security.
    \13\ As noted above, the term ``Fund'' includes Portfolio
Depository Receipts, Index Fund Shares, Trust Issued Receipts, and
Managed Fund Shares, which are defined in Rule 14.11(b), 14.11(c),
14.11(f), and 14.11(i), respectively, which the Exchange may propose
to expand in the future as it adds products which may be listed on
the Exchange. Any such expansion would require the Exchange to file
a proposal with the Commission under Rule 19b-4 of the Act.
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    Specifically, the Exchange is proposing that the Exchange would
provide payments to the LMM in a Fund on a quarterly basis as follows:
\14\
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    \14\ The Exchange notes that the CADV standards and proposed
payments applicable to the LMM Partnership Program are identical to
the standards and payments currently applicable under the Issuer
Incentive Program.

------------------------------------------------------------------------
                                                              Annualized
                         CADV range                             payment
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1,000,000-3,000,000 shares..................................      $3,000
3,000,001-5,000,000 shares..................................      10,000
5,000,001-10,000,000 shares.................................      50,000
10,000,001-20,000,000 shares................................     100,000

20,000,001-35,000,000 shares................................     250,000
Greater than 35,000,000 shares..............................     400,000
------------------------------------------------------------------------

    The LMM would only be eligible to receive such payments in quarters
during which it is a Qualified LMM \15\ for each full month that the
Fund was listed on the Exchange.
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    \15\ As defined in the fee schedule, the term ``Qualified LMM''
means an LMM that meets the Minimum Performance Standards, as
defined in Rule 11.8(e)(1)(D).
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    Because the payments would be provided for each trading day, where
a Fund had a CADV of 4,000,000 over the course of a full calendar
quarter that it was listed on the Exchange, the LMM for that Fund would
receive a payment of $2,500 (.25 * $10,000, the annualized payment for
that CADV) at the end of the quarter. Where the same Fund had a CADV of
4,000,000, but was only listed on the Exchange for exactly half of the
trading days in the calendar quarter, the LMM for that Fund would
receive a payment of $1,250 ((.25 * $10,000) * .5) at the end of the
quarter.
    The Exchange is proposing to make these changes as a means to
equitably allocate the revenues and expenses associated with bringing a
successful Fund to market among the issuer, the listing exchange, and
the LMM. For example, in new Funds, the cost to a firm of making a
market as an LMM, such as holding inventory in the security, is often
not fully offset by the revenue provided through enhanced LMM rebates,
as further discussed below, that it receives from the Exchange. In such
cases, LMMs often take on the role as LMM despite the negative
economics based on the hope, without guarantee, that the costs for
acting as an LMM will eventually be reduced to a level lower than the
gradually decreasing enhanced LMM rebates. Without an LMM taking this
risk to make markets in these new Funds, the products would likely be
significantly less liquid and would have a greatly reduced likelihood
of achieving success.
    As highlighted in the Issuer Incentive Program Filing, the primary
listing exchange for a Fund earns additional trading fees through the
outsized share of intraday trading volume that a primary listed
security typically garners for the listing exchange as well as trading
fees for orders participating in the opening and closing auctions. Such
trading fees generally increase as the CADV for a Fund increases.
Similarly, as the CADV increases for a Fund, so does the amount of
assets under management (``AUM'') for a Fund tend to increase and AUM
is a common measure of a Fund's success and is the basis for certain
fees charged by a Fund. As such, both the primary listing exchange and
the issuer experience financial benefits as the CADV for a Fund
increases. For LMMs, however, as the CADV increases, the enhanced
rebates that LMMs receive in securities for which they are an LMM
decrease.\16\ While this structure provides the potential for an LMM to
financially share in the success of a Fund with a high CADV if the
costs of making a market in the Fund, the enhanced LMM rebates, and the
typical market conditions in the Fund align properly, it does not
guarantee it and, further, even if the economics do align properly, the
rebate structure fails to account for the LMM's importance in that Fund
achieving a high CADV.
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    \16\ See Exchange Fee Schedule, Footnote 14. The Exchange offers
standard credits for LMM orders that add liquidity in securities for
which they are the LMM as follows: $0.0045 per share for securities
with a CADV less than 1,000,000 shares; $0.0040 per share for
securities with a CADV from 1,000,000 shares to 5,000,000 shares;
$0.0035 per share for securities with a CADV greater than 5,000,000
shares. See also NYSE Arca Equities, Inc. Schedule of Fees and
Charges for Exchange Services, https://www.nyse.com/publicdocs/nyse/markets/nyse-arca/NYSE_Arca_Marketplace_Fees.pdf. Standard credits
for LMM orders that add liquidity in securities for which they are
an LMM are as follows: $0.0045 per share for securities with a CADV
less than 1,000,000 shares; $0.0040 per share for securities with a
CADV between 1,000,000 shares and 3,000,000 shares; $0.0033 per
share for securities with a CADV greater than 3,000,000 shares.
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    Based on the foregoing, the Exchange believes that the current
model of compensation for LMMs could be amended to better reflect the
role that LMMs play in the success of Funds by having the Exchange
direct payments to the LMM. While the Issuer Incentive Program was
originally designed to create a more equitable and appropriate
allocation based on revenue and expenses associated with listing Funds,
upon further examination, the Exchange believes that allowing LMMs to
receive payment under the LMM Partnership Program will further enhance
the equitability of the distribution of revenues and expenses
associated with bringing a successful Fund to market. As such, the
Exchange is proposing to adopt the above described tiered payment
structure for LMMs in Funds listed on the Exchange under the LMM
Partnership Program.
    The Exchange is not proposing to make any changes to the Issuer
Incentive Program as it currently applies to ETPs that are not Funds.
    The Exchange proposes to implement the amendments to Rule
14.13(b)(2)(C) and to its fee schedule effective October 3, 2016.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder that are applicable to a national securities exchange, and,
in particular, with the requirements of Section 6 of the Act.\17\
Specifically, the Exchange believes that the proposed rule change is
consistent with Section 6(b)(4) and 6(b)(5) of the Act,\18\ in that it
provides for the equitable allocation of reasonable dues, fees and
other charges among issuers and its Members and is designed to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, 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, and are not designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers.
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    \17\ 15 U.S.C. 78f.
    \18\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that the proposed amendment to the fee
schedule to provide payment to the LMM for a Fund listed on the
Exchange based on the CADV of the Fund is reasonable, fair and
equitable, and not an unfairly discriminatory allocation of fees and
other charges, would promote just and equitable principles of trade,
foster cooperation with persons engaged in facilitating transactions in
securities, and remove impediments to and perfect the mechanism of a
free and open market and a national market system because it would
apply equally to all LMMs and create a distribution of fees and other
charges that reflects a more equitable distribution among the Exchange,
issuer, and LMM of revenue that a Fund listed on the Exchange creates.
The Exchange believes that each of the issuer, the exchange, and the
LMM play a key role in the ultimate success of a Fund. While no single
party can take an action that will determine the ultimate success of a
Fund, if just one of the three parties falters at any point in the life
of the Fund, it can determine the Fund's failure. As such, the process
of bringing a successful Fund to market requires the full commitment of
all three of the issuer, the exchange, and the LMM. As described above,
trading fees for the primary listing exchange generally increase as the
CADV for a Fund increases. Similarly, as the CADV

increases for a Fund, so does the amount of AUM for a Fund tend to
increase, which is a common measure of a Fund's success and the basis
for certain fees charged by a Fund. As such, both the primary listing
exchange and the issuer experience financial benefits as the CADV for a
Fund increases and are rewarded for their commitment to the Fund. For
LMMs, however, as the CADV increases, the enhanced rebates that LMMs
receive in securities for which they are an LMM decrease. On its face,
this rebate structure makes sense: As the CADV for a Fund increases,
the market for that Fund becomes more liquid, spreads become tighter,
and the cost associated with making a market in that Fund should
generally decrease. Practically, however, the rebate structure fails to
account for the LMM's important role in the Fund's success. The LMM
Partnership Program, on the other hand, acknowledges the additional
revenue brought to the Exchange by virtue of a Fund listing on the
Exchange and moves to share that revenue in a more equitable manner
based on the integral role that all three parties--the issuer, the
exchange, and the LMM--play in the ultimate success of a Fund.
Specifically, the proposal is designed to reward the LMM in that Fund
for such additional revenue, which the Exchange believes creates a more
equitable and appropriate relationship between the Exchange, issuers,
and LMMs. As such, the Exchange believes that it is reasonable, fair
and equitable, and not unfairly discriminatory allocation of fees and
other charges to provide payment to LMMs in Funds listed on the
Exchange under the LMM Partnership Program.
    The Exchange also believes that the proposed amendment to its fee
schedule to provide tiered payments to LMMs in Funds listed on the
Exchange based on the CADV of a Fund is a reasonable, fair and
equitable, and not unfairly discriminatory allocation of fees and other
charges because it would create a distribution of fees and other
charges applicable to all LMMs that are commensurate with the
additional revenue that a Fund listed on the Exchange creates for the
Exchange through executions occurring in the auctions and additional
shares executed on the Exchange. As described above, where the CADV of
a Fund increases, so does the additional trading fee revenue earned by
the primary listing exchange. Similarly, as the CADV increases for a
Fund, typically so does the amount of AUM for a Fund, which is the
basis for certain fees charged by a Fund. As such, both the primary
listing exchange and the issuer experience financial benefits as the
CADV for a Fund increases. Accordingly, the proposed tiers within the
LMM Partnership Program are designed to reward the LMM in a Fund on the
basis of the additional revenue potential that the Fund brings to the
Exchange and the issuer through increased CADV. Further to this point,
the Exchange does not believe that the proposal is unfairly
discriminatory because, as described above, the annualized payments
associated with the various CADV tiers in the LMM Partnership Program
are designed based on the approximate additional revenue that the
Exchange will receive from a Fund listed on the Exchange within a
particular CADV tier and are identical to those currently provided
under the Issuer Incentive Program. The Exchange notes that certain
LMMs in Funds in the proposed tiers with higher CADV would receive
disproportionately higher rebates than LMMs in Funds in other tiers
with lower CADV. The Exchange believes it is equitable and not unfairly
discriminatory to provide a disproportionately higher payment to LMMs
of Funds in higher tiers because such Funds would likely bring a
disproportionately larger amount of revenue to the Exchange from the
auctions the Exchange would conduct for such securities and increased
trading activity on the Exchange in such securities. The Exchange
believes that the additional revenue it will generate from Funds that
are eligible for the LMM Partnership Program, including Funds that
qualify for the higher tiers, will exceed the amount of such payments
to LMMs. To the extent the additional revenue generated by Funds that
are eligible to participate in the LMM Partnership Program does not
exceed the amount of such payments to LMMs, the Exchange will modify
the structure of the LMM Partnership Program such that the program does
generate revenue for the Exchange.
    The Exchange further believes that it is reasonable, fair and
equitable, and not unfairly discriminatory allocation of fees and other
charges, would promote just and equitable principles of trade, foster
cooperation with persons engaged in facilitating transactions in
securities, and 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 to provide payment to LMMs in
Funds listed on the Exchange through the LMM Partnership Program
because receiving payment under the LMM Partnership Program will
provide additional incentives for market makers to act as LMM in all
BZX-listed Funds, including newly listed Funds. For the vast majority
of Funds, the LMM does not change after the Fund is launched. Stated
another way, the LMM for a Fund at launch is very likely to be the LMM
for the Fund for the foreseeable future. Because of this low turnover
in LMMs, the Exchange believes that providing payments to LMMs on the
basis of CADV will incentivize more market makers to seek to act as an
LMM in more BZX-listed Funds. In particular, the Exchange believes that
the implementation of the LMM Partnership Program in conjunction with
the low turnover in LMMs for Funds would make it more attractive for a
market maker to become an LMM at the launch of a Fund in order to
ensure that the market maker does not miss out on the opportunity to
receive a payment under the LMM Partnership at some point in the
future. This incentive to register as an LMM in new Funds will benefit
such Funds by creating greater interest in acting as an LMM and meeting
the associated quoting requirements. The same mechanics under the LMM
Partnership Program that incentivize market makers to register as LMMs
in Funds would also incentivize LMMs in Funds to create the best market
conditions for a Fund to increase its CADV and help it attract assets,
which likely includes quoting in tighter spreads and at greater depth
than they otherwise would in the absence of the LMM Partnership
Program. Such tighter spreads and greater depth would result in
enhanced market quality in BZX-listed Funds, which would also benefit
all market participants. As such, the Exchange believes that aligning
the interests and incentives of the LMMs, Fund issuers, and the
Exchange will create an ecosystem that benefits all participants.
    The Exchange further believes that it is reasonable, fair and
equitable, and not unfairly discriminatory allocation of fees and other
charges, would promote just and equitable principles of trade, foster
cooperation with persons engaged in facilitating transactions in
securities, and 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 because it is designed to
attract additional Fund listings to the Exchange. Based on
conversations with numerous market participants, the Exchange believes
that the equitable allocation of revenue generated from a Fund listed
on the Exchange under the LMM Partnership Program would make

the Exchange a more attractive listing venue from both issuers' and
LMMs' perspectives. As such, the Exchange believes that the proposal is
reasonable, fair and equitable, and not unfairly discriminatory in that
the Exchange believes that it will attract additional Fund listings and
LMMs in Funds, which will, in turn, benefit the Exchange and all other
BZX-listed Funds.
    In addition, the Exchange does not believe that it is unfairly
discriminatory to exclude Funds with a CADV of less than 1,000,000 from
the LMM Partnership Program because such Funds do not typically
generate revenue to the same degree as the higher CADV products. The
Exchange notes that Funds with a CADV of less than 1,000,000 are
eligible to participate in the ETP CLP Program, which is designed to
incentivize market makers to provide liquidity in less actively traded
products with the goal of facilitating the growth of such products.\19\
---------------------------------------------------------------------------

    \19\ Pursuant to Rule 11.8, Interpretation and Policy .03(n), a
security participating in the ETP CLP Program will no longer be
eligible to participate once such security sustains CADV of
1,000,000 shares or more for three consecutive months.
---------------------------------------------------------------------------

    Based on the foregoing, the Exchange believes that the proposed
amendment to the fee schedule to provide payment to the LMM for a Fund
listed on the Exchange under the LMM Partnership Program is a
reasonable, equitable, and non-discriminatory allocation of fees to
issuers and LMMs.
    The Exchange believes that the proposed amendment to the annual
listing fees in Rule 14.13(b)(2)(C) to eliminate the payment to Funds
under the Issuer Incentive Program is reasonable, fair and equitable,
and not an unfairly discriminatory allocation of fees and other charges
because it would apply equally to all Funds and eliminating the payment
will allow the Exchange to better allocate its resources in order to
make BZX a more attractive listing venue for Funds. The payment to
Funds under the Issuer Incentive Program has not had the impact that
the Exchange sought when it was implemented. As noted above,
eliminating the payment to all Funds under the Issuer Incentive Program
will allow the Exchange to reallocate its resources in order to make
BZX a more attractive listing venue for Funds. The Exchange does not
believe that it is unfairly discriminatory to have Funds participate in
the LMM Partnership Program and non-Funds remain under the Issuer
Incentive Program because the only ETPs currently listed on the
Exchange are Funds and the Exchange will continue to evaluate both of
the LMM Partnership Program and the Issuer Incentive Program and how
they should best apply to Funds and non-Funds moving forward. As such,
the Exchange believes that the proposal is reasonable, fair and
equitable, and not an unfairly discriminatory allocation of fees and
other charges.

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

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended. With
respect to the proposed new pricing, the Exchange does not believe that
the changes burden competition, but instead, enhance competition, as
they are intended to increase the competitiveness of the Exchange's
listings program by eliminating certain payments under the Issuer
Incentive Program that have not garnered their intended results and
will providing [sic] LMMs in Funds with quarterly payments based on the
CADV of the Fund, which the Exchange believes will be directly related
to the amount of additional revenue that the Exchange receives from
additional transactions in the Fund. As such, the proposal is a
competitive proposal that is intended to attract additional Fund
listings and LMMs in Funds, which will, in turn, benefit the Exchange
and all other BZX-listed Funds.

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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any written comments from members or other interested parties.

III. Suspension of SR-BatsBZX-2016-60

    Pursuant to Section 19(b)(3)(C) of the Act,\20\ at any time within
60 days of the date of filing of a proposed rule change pursuant to
Section 19(b)(1) of the Act,\21\ the Commission summarily may
temporarily suspend the change in the rules of a self-regulatory
organization 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. The
Commission believes it is appropriate in the public interest to
temporarily suspend the proposal to solicit comment on and further
evaluate the statutory basis for BZX's proposal to adopt the proposed
LMM Partnership Program.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(3)(C).
    \21\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

    In temporarily suspending the proposal, the Commission intends to
further assess whether the LMM Partnership Program is consistent with
the statutory requirements applicable to a national securities exchange
under the Act. In particular, the Commission will assess whether the
proposed rule change satisfies the requirements of the Act and the
rules thereunder requiring, among other things, that an exchange's
rules provide for the equitable allocation of reasonable fees among
members, issuers, and other persons using its facilities; not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers; and do not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of the Act.\22\
---------------------------------------------------------------------------

    \22\ See 15 U.S.C. 78f(b)(4), (5) and (8).
---------------------------------------------------------------------------

    Therefore, the Commission finds that it is appropriate in the
public interest,\23\ for the protection of investors, and otherwise in
furtherance of the purposes of the Act, to temporarily suspend the
proposed rule change.
---------------------------------------------------------------------------

    \23\ For purposes of temporarily suspending the proposed rule
change, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

IV. Proceedings To Determine Whether To Approve or Disapprove SR-
BatsBZX-2016-60

    The Commission is instituting proceedings pursuant to Sections
19(b)(3)(C) \24\ and 19(b)(2) of the Act \25\ to determine whether
BZX's proposed rule change should be approved or disapproved. Pursuant
to Section 19(b)(2)(B) of the Act,\26\ the Commission is providing
notice of the grounds for disapproval under consideration. As discussed
above, the Exchange proposes to make quarterly payments to LMMs in
Funds with CADV of 1,000,000 or higher. These payments would increase

as the CADV of the Fund increases, up to a maximum annual payment of
$400,000 to the LMM of a Fund with a CADV of 35,000,000 or more, and
they would not be accompanied by enhanced market-quality requirements
for the LMM or be determined based on the actual quoting or trading
activity of the LMM.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, Section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under Section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
    \25\ 15 U.S.C. 78s(b)(2).
    \26\ 15 U.S.C. 78s(b)(2)(B). Section 19(b)(2)(B) of the Act also
provides that proceedings to determine whether to disapprove a
proposed rule change must be concluded within 180 days of the date
of publication of notice of the filing of the proposed rule change.
Id. The time for conclusion of the proceedings may be extended for
up to 60 days if the Commission finds good cause for such extension
and publishes its reasons for so finding. Id.
---------------------------------------------------------------------------

    As noted above, the Exchange asserts that the LMM Partnership
Program is designed to ``equitably allocate the revenues and expenses
associated with bringing a successful Fund to market among the issuer,
the listing exchange, and the LMM.'' The Exchange notes that the
Exchange's LMM rebate structure ``fails to account for the LMM's
important role in [a] Fund's success,'' because ``as the CADV
increases, the enhanced rebates that LMMs receive in securities for
which they are an LMM decrease.'' \27\ The Exchange believes that the
LMM Partnership Program will ``provide additional incentives for market
makers to act as LMM in all [Exchange]-listed Funds, including newly
listed Funds.'' \28\
---------------------------------------------------------------------------

    \27\ See Section II.A.1, supra.
    \28\ See Section II.A.2, supra.
---------------------------------------------------------------------------

    The Commission believes there are questions as to whether the
Exchange has adequately explained why it is consistent with the Act to
make substantial additional payments to LMMs in the most-liquid ETFs--
where performance incentives would seem least necessary to maintain
market quality--without the imposition of any additional performance
standards. While the Exchange asserts that the LMM Partnership Program
may incent market makers to become LMMs in newly listed Funds, the
Commission does not believe it is clear how higher payments to LMMs in
the most-liquid ETFs will encourage them to become LMMs in less-liquid
ETFs, particularly given that the LMM Partnership Program does not
obligate participants to become LMMs in any less-liquid ETFs or impose
additional performance standards on them. As a result, the connection
between the proposed LMM incentives and the desired LMM behavior
appears indirect and tenuous.
    The Commission believes it is appropriate to institute proceedings
at this time in view of the legal and policy issues raised by the
proposal. Institution of proceedings does not indicate, however, that
the Commission has reached any conclusions with respect to the issues
involved. The sections of the Act and the rules thereunder which are
applicable to the proposed rule change include:
     Section 6(b)(4) of the Act,\29\ which requires that the
rules of a national securities exchange ``provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other persons using its facilities.''
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

     Section 6(b)(5) of the Act,\30\ which requires that the
rules of a national securities exchange be designed to, among other
things, ``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'' and not be ``designed to permit
unfair discrimination between customers, issuers, brokers, or
dealers.''
---------------------------------------------------------------------------

    \30\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

     Section 6(b)(8) of the Act,\31\ which requires that the
rules of a national securities exchange ``not impose any burden on
competition not necessary or appropriate'' in furtherance of the Act.
---------------------------------------------------------------------------

    \31\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as other relevant
concerns. Such comments should be submitted by November 10, 2016.
Rebuttal comments should be submitted by November 25, 2016. Although
there do not appear to be any issues relevant to approval or
disapproval which would be facilitated by an oral presentation of
views, data, and arguments, the Commission will consider, pursuant to
Rule 19b-4, any request for an opportunity to make an oral
presentation.\32\
---------------------------------------------------------------------------

    \32\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by a self-regulatory
organization. See Securities Act Amendments of 1975, Senate Comm. on
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st
Sess. 30 (1975).
---------------------------------------------------------------------------

    The Commission asks that commenters address the sufficiency and
merit of the Exchange's statements in support of the proposal, in
addition to any other comments they may wish to submit about the
proposed rule change. Interested persons are invited to submit written
data, views, and arguments concerning the proposed rule change,
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-BatsBZX-2016-60 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-BatsBZX-2016-60. 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
10:00 a.m. and 3:00 p.m. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make publicly available. All submissions should refer to File Number
SR-BatsBZX-2016-60 and should be submitted on or before November 10,
2016. Rebuttal comments should be submitted by November 25, 2016.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Act,\33\ that File Number SR-BatsBZX-2016-60, be and hereby is,
temporarily suspended. In addition, the Commission is instituting
proceedings to determine whether the proposed rule changes should be
approved or disapproved.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78s(b)(3)(C).

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

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\34\
---------------------------------------------------------------------------

    \34\ 17 CFR 200.30-3(a)(57) and (58).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-25350 Filed 10-19-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 228 (Friday, November 27, 2015)]
[Notices]
[Pages 74196-74199]
[FR Doc No: 2015-30164]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2007-29035; FMCSA-2008-0293; FMCSA-2009-0242; FMCSA-
2011-0277; FMCSA-2011-0278; FMCSA-2013-0184; FMCSA-2013-0187; FMCSA-
2013-0190]

Qualification of Drivers; Exemption Applications; Diabetes

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

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

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

SUMMARY: FMCSA announces its decision to renew the exemptions of 133
individuals from its rule prohibiting persons with insulin-treated
diabetes mellitus (ITDM) from operating commercial motor vehicles
(CMVs) in interstate commerce. FMCSA has statutory authority to exempt
individuals from this rule if the exemptions granted will not
compromise safety. The Agency has concluded that granting these
exemption renewals will provide a level of safety that is equivalent to
or greater than the level of safety maintained without the exemptions
for these CMV drivers.

DATES: Each group of renewed exemptions are effective from the dates
stated in the discussions below. Comments must be received on or before
December 28, 2015.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) numbers: Docket No. FMCSA-2007-29035; FMCSA-
2008-0293; FMCSA-2009-0242; FMCSA-2011-0277; FMCSA-2011-0278; FMCSA-
2013-0184; FMCSA-2013-0187; FMCSA-2013-0190, using any of the following
methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and
5 p.m., Monday through Friday, except Federal Holidays.
     Fax: 1-202-493-2251.
    Instructions: Each submission must include the Agency name and the
docket number for this notice. Note that DOT posts all comments
received without change to http://www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Federal Docket Management System (FDMS) is
available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the Federal Docket
Management System (FDMS) published in the Federal Register on January
17, 2008 (73 FR 3316).

FOR FURTHER INFORMATION CONTACT: Christine A. Hydock, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-113,
Washington, DC 20590-0001. Office hours are from 8 a.m. to 5:30 p.m.
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the Federal Motor Carrier Safety Regulations 2-year period if it
finds ``such exemption would likely achieve a level of safety that is
equivalent to or greater than the level that would be achieved absent
such exemption.'' The statute also allows the Agency to renew
exemptions at the end of the 2-year period. The 133 individuals listed
in this notice have recently become eligible for a renewed exemption
from the diabetes prohibition in 49 CFR 391.41(b)(3), which applies to
drivers of CMVs in interstate commerce. The drivers remain in good
standing with the Agency, have maintained their required medical
monitoring and have not exhibited any medical issues that

would compromise their ability to safely operate a CMV during the
previous 2-year exemption period.

Exemption Decision

    This notice addresses 133 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. These 133 drivers
remain in good standing with the Agency, have maintained their required
medical monitoring and have not exhibited any medical issues that would
compromise their ability to safely operate a CMV during the previous 2-
year exemption period. Therefore, FMCSA has decided to extend each
exemption for a renewable two-year period. Each individual is
identified according to the renewal date.
    The exemptions are renewed subject to the following conditions: (1)
That each individual submit a quarterly monitoring checklist completed
by the treating endocrinologist as well as an annual checklist with a
comprehensive medical evaluation; (2) that each individual reports
within 2 business days of occurrence, all episodes of severe
hypoglycemia, significant complications, or inability to manage
diabetes; also, any involvement in an accident or any other adverse
event in a CMV or personal vehicle, whether or not it is related to an
episode of hypoglycemia; (3) that each individual submit an annual
ophthalmologist's or optometrist's report; and (4) that each individual
provide a copy of the annual medical certification to the employer for
retention in the driver's qualification file, or keep a copy in his/her
driver's qualification file if he/she is self-employed. The driver must
also have a copy of the certification when driving, for presentation to
a duly authorized Federal, State, or local enforcement official.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. The following groups of
drivers received renewed exemptions in the month of December and are
discussed below.
    As of December 1, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 10 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (74 FR 48338; 74 FR
62883):

Charles E. Boyd (NE)
Warren B. Copple, Jr. (MI)
Hernan Hernandez (CT)
Jeffrey E. Kiehl (MI)
Jesus G. Maesse (TX)
Jackson R. Olive (NY)
Thomas N. Pico (PA)
Paul Ramirez (OK)
Jon C. Thomas (MT)
Dennis M. Thyfault (UT)

    The drivers were included in Docket No. FMCSA-2009-0242. Their
exemptions are effective as of December 1, 2015 and will expire on
December 1, 2017.
    As of December 10, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 7 individuals, have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce (73 FR 63042; 73 FR
75163):

Herschel J. Crawford (AK)
James E. Gaines (NJ)
Allan D. Gralapp (IA)
Scott L. Halm (OH)
Jason P. Smith (GA)
Dean A. Sullivan (KY)
Lawrence W. Thomas (AR)

    The drivers were included in Docket No. FMCSA-2008-0293. Their
exemptions are effective as of December 10, 2015 and will expire on
December 10, 2017.
    As of December 17, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 60 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (78 FR 63298; 78 FR
76397):

James L. Barnes (GA)
Toni Benfield (SC)
Peter J. Benz (FL)
Robert J. Berger, III (PA)
Daniel A. Bryan (PA)
Travis D. Clarkston (IN)
Romero Coleman (WI)
Michael L. Collins (WA)
Thomas S. Crawford (NY)
Stephen A. Cronin (FL)
Steven M. Dent (IA)
John S. Duvall (PA)
Robert S. Engel (IN)
Steven M. Ference (CT)
David W. Foster (TN)
Francis M. Garlach III (PA)
Allen D. Goddard (MO)
Brian L. Gregory (IL)
Alfonso Grijalva (CA)
Jason E. Jacobus (KY)
Bobby H. Johnson (GA)
Isadore Johnson Jr. (NY)
Jerry D. Joseph (OH)
Neal S. Kassebaum (TN)
Ervin A. Klocko, Jr.
Kevin E. Kneff (MO)
Margaret Lopez (NY)
John D. May (KS)
Kenneth B. Maynard, Jr. (NH)
Mike C. McDowell (TX)
Charles B. McKay (FL)
Norman C. Mertz (PA)
Travis F. Moon (GA)
Ronald Mooney (ID)
Martin J. Mostyn (OH)
Floyd P. Murray, Jr. (UT)
Steven D. Nowakowski (MD)
Gary D. Peters (NE)
Mark A. Pille (IA)
Stephen Plesz (CT)
Glen E. Pozernick (ID)
Jody R. Prause (MI)
Walter A. Przewrocki, Jr. (PA)
Andrew Quaglia (NY)
Stanley A. Sabin (KY)
Joseph F. Schafer, Jr. (PA)
Francis J. Schultz (PA)
Gary A. Sjokvist (ND)
Gary L. Snelling (AL)
Charles W. Sterling (WA)
Thomas L. Stoudnour (PA)
Matthew S. Thompson (PA)
Robin S. Travis (CO)
Richard A. Treadwell (PA)
James R. Troutman (PA)
William R. Van Gog (WA)
Charles S. Watson (IL)
William E. Wyant III (IA)
Mark A. Yurian (MT)
David M. Zanicky (PA)

    The drivers were included in Docket No. FMCSA-2013-0187. Their
exemptions are effective as of December 17, 2015 and will expire on
December 17, 2017.
    As of December 19, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 27 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (72 FR 62514; 72 FR
71996; 76 FR 64165; 76 FR 78718):

Robin R. Baumgartner (WI)
Joseph K. Beasley (GA)
Toni A. Brown (AR)
Glenn W. Burke (NY)
David P. Charest (FL)
Charles Demesmin (NJ)
Derek E. Dowling (PA)
Donald E. Dupke, Jr. (IN)
Frederick E. Dyer (MA)
Donald N. Ellis (IN)
Tim E. Holmberg (WI)
Russell D. Jordan (ND)
Warren D. Knabe (NE)
Jackie L. Lane (TX)
Dennis L. Lorenz (IN)
Robert J. Malone (NJ)
Clayton A. Powers (CA)
Dennis R. Scheel (SD)
Michael K. Schulist (MI)
Andrew P. Shirk (MS)
Jerry L. Smit (MN)
Reese L. Sullivan (TX)

Randy J. Voss (IL)
Robert M. Walker (PA)
Robert E. Weiss (MI)
Robert A. Wild (OR)
Randy L. Wyant (OR)

    The drivers were included in Docket No. FMCSA-2007-29035; FMCSA-
2011-0277. Their exemptions are effective as of December 19, 2015 and
will expire on December 19, 2017.
    As of December 22, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 11 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (76 FR 66120; 76 FR
79759):

Lennie D. Cook (OH)
David R. Cornelius (IL)
Scott A. Edwards (PA)
Ronald J. Ezell (MO)
Marcus M. Gagne (ME)
David P. Govero (MO)
Christopher A. Jones (WY)
Donald R. McClure, Jr. (PA)
Clyde G. Rishel, Jr. (PA)
Kurt Schneider (VT)
Douglas O. Sundby (ND)

    The drivers were included in Docket No. FMCSA-2011-0278. Their
exemptions are effective as of December 22, 2015 and will expire on
December 22, 2017.
    As of December 24, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following 17 individuals have satisfied the renewal
conditions for obtaining an exemption from the rule prohibiting drivers
with ITDM from driving CMVs in interstate commerce. (78 FR 64267; 78 FR
77784):

John D. Clark (NJ)
David S. Monroe (KS)
William I. Harbolt (MT)
Mark G. Kahler (TX)
Larry W. Hines (NM)
Theeir L. Coleman (VA)
Michael W. McCrary (GA)
Jerry D. Zimmerman (ND)
James S. Tracy (ID)
John Baltich (PA)
Donald A. Spivey (TN)
Thomas B. Quirk (CT)
Steven M. Oliver (AZ)
Sean T. McMahon (WI)
David G. Shultz (PA)
Ryan L. Harrier (MI)
John E. Parker (KS)

    The drivers were included in Docket No. FMCSA-2013-0184. Their
exemptions are effective as of December 24, 2015 and will expire on
December 24, 2017.
    As of December 31, 2015, and in accordance with 49 U.S.C. 31136(e)
and 31315, the following individual, Gary L. Crawford (OH), has
satisfied the renewal conditions for obtaining an exemption from the
rule prohibiting drivers with ITDM from driving CMVs in interstate
commerce (78 FR 65034; 79 FR 3917).
    The driver was included in Docket No. FMCSA-2013-0190. The
exemption is effective as of December 31, 2015 and will expire on
December 31, 2017.
    Each of the 133 drivers in the aforementioned groups qualifies for
a renewal of the exemption. They have maintained their required medical
monitoring and have not exhibited any medical issues that would
compromise their ability to safely operate a CMV during the previous 2-
year exemption period.
    These factors provide an adequate basis for predicting each
driver's ability to continue to drive safely in interstate commerce.
Therefore, FMCSA concludes that extending the exemption for each of the
133 drivers for a period of two years is likely to achieve a level of
safety equal to that existing without the exemption. The drivers were
included in docket numbers FMCSA-2007-29035; FMCSA-2008-0293; FMCSA-
2009-0242; FMCSA-2011-0277; FMCSA-2011-0278; FMCSA-2013-0184; FMCSA-
2013-0187; FMCSA-2013-0190.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by December 28, 2015.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 133 individuals from rule
prohibiting persons with ITDM from operating CMVs in interstate
commerce in 49 CFR 391.41(b)(3). The final decision to grant an
exemption to each of these individuals was made on the merits of each
case and made only after careful consideration of the comments received
to its notices of applications. The notices of applications stated in
detail the medical condition of each applicant for an exemption from
rule prohibiting persons with ITDM from operating CMVs in interstate
commerce. That information is available by consulting the above cited
Federal Register publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

Submitting Comments

    You may submit your comments and material online or by fax, mail,
or hand delivery, but please use only one of these means. FMCSA
recommends that you include your name and a mailing address, an email
address, or a phone number in the body of your document so that FMCSA
can contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and
in the search box insert the docket numbers FMCSA-2007-29035; FMCSA-
2008-0293; FMCSA-2009-0242; FMCSA-2011-0277; FMCSA-2011-0278; FMCSA-
2013-0184; FMCSA-2013-0187; FMCSA-2013-0190 and click the search
button. When the new screen appears, click on the blue ``Comment Now!''
button on the right hand side of the page. On the new page, enter
information required including the specific section of this document to
which each comment applies, and provide a reason for each suggestion or
recommendation. If you submit your comments by mail or hand delivery,
submit them in an unbound format, no larger than 8\1/2\ by 11 inches,
suitable for copying and electronic filing. If you submit comments by
mail and would like to know that they reached the facility, please
enclose a stamped, self-addressed postcard or envelope.
    We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.

Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this
preamble, to submit your comment online, go to http://www.regulations.gov and in the search box insert the docket number
FMCSA-2007-29035; FMCSA-2008-

0293; FMCSA-2009-0242; FMCSA-2011-0277; FMCSA-2011-0278; FMCSA-2013-
0184; FMCSA-2013-0187; FMCSA-2013-0190 and click ``Search.'' Next,
click ``Open Docket Folder'' and you will find all documents and
comments related to the proposed rulemaking.

    Issued on: November 16, 2016.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2015-30164 Filed 11-25-15; 8:45 am]
 BILLING CODE 4910-EX-P


Kathy Kaufman/RTP/USEPA/US

04/30/2008 04:11 PM

To

Eileen Pritchard/DC/USEPA/US@EPA

cc

Tricia Crabtree/RTP/USEPA/US@EPA, "Joseph-J Dougherty" <EMAIL_ADDRESS>Lydia Wegman/RTP/USEPA/US@EPA, Mary Henigin/DC/USEPA/US@EPA, Neal Fann/RTP/USEPA/US@EPA, Ron Evans/RTP/USEPA/US@EPA, Rosalina Rodriguez/RTP/USEPA/US@EPA, "Alan Rush" <EMAIL_ADDRESS> Subject

Fw: Updated lead benefits chapter

Eileen:  By this email OAQPS is transmitting revised  Chapters 1 through 7 of the Pb NAAQS RIA, as well as  the Executive Summary, to OPEI for OMB review.   Changes in response to OMB comments are highlighted or colored in blue or red.

The chapters are attached below.

Thanks!

-- Kathy

Kathy Kaufman

EPA/OAQPS Mail Code C539-03

Research Triangle Park, NC 27711

Phone<PHONE_NUMBER>

Fax<PHONE_NUMBER>


[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Proposed Rules]
[Pages 39641-39644]
[FR Doc No: 2018-17139]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 61 and 63

[EPA-R06-OAR-2008-0063; FRL-9972-26--Region 6]

National Emission Standards for Hazardous Air Pollutants;
Delegation of Authority to Oklahoma

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Oklahoma Department of Environmental Quality (ODEQ) has
submitted updated regulations for receiving delegation and approval of
its program for the implementation and enforcement of certain National
Emission Standards for Hazardous Air Pollutants (NESHAP) for all
sources (both part 70 and non-part 70 sources), as provided for under
previously approved delegation mechanisms. The updated state
regulations incorporate by reference certain NESHAP promulgated by the
EPA at parts 61 and 63, as they existed through September 1, 2016. The
EPA is proposing to approve ODEQ's requested delegation update.

DATES: Written comments on this proposed rule must be received on or
before September 10, 2018.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2008-0063, at http://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Mr. Rick Barrett, 214-
665-7227, [email protected]. For the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Mr. Rick Barrett (6MM-AP), (214) 665-
7227; email: [email protected]. To inspect the hard copy
materials, please schedule an appointment with Mr. Rick Barrett or Mr.
Bill Deese at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. What does this action do?
II. What is the authority for delegation?
III. What criteria must Oklahoma's program meet to be approved?
IV. How did ODEQ meet the NESHAP program approval criteria?
V. What is being delegated?
VI. What is not being delegated?
VII. How will statutory and regulatory interpretations be made?
VIII. What authority does the EPA have?
IX. What information must ODEQ provide to the EPA?
X. What is the EPA's oversight role?
XI. Should sources submit notices to the EPA or ODEQ?
XII. How will unchanged authorities be delegated to ODEQ in the
future?
XIII. Proposed Action
XIV. Statutory and Executive Order Reviews

I. What does this action do?

    EPA is proposing to update its approval of Oklahoma's program for
the implementation and enforcement of certain NESHAP. If finalized, the
delegation will provide ODEQ with the primary responsibility to
implement and enforce the delegated standards.

II. What is the authority for delegation?

    Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize
the EPA to delegate authority for the implementation and enforcement of
emission standards for hazardous air pollutants to a State or local
agency that satisfies the statutory and regulatory requirements in
subpart E. The hazardous air pollutant standards are codified at 40 CFR
parts 61 and 63.

III. What criteria must Oklahoma's program meet to be approved?

    Section 112(l)(5) of the CAA requires the EPA to disapprove any
program submitted by a State for the delegation

of NESHAP standards if the EPA determines that:
    (A) The authorities contained in the program are not adequate to
assure compliance by the sources within the State with respect to each
applicable standard, regulation, or requirement established under
section 112;
    (B) adequate authority does not exist, or adequate resources are
not available, to implement the program;
    (C) the schedule for implementing the program and assuring
compliance by affected sources is not sufficiently expeditious; or
    (D) the program is otherwise not in compliance with the guidance
issued by the EPA under section 112(l)(2) or is not likely to satisfy,
in whole or in part, the objectives of the CAA.
    In carrying out its responsibilities under section 112(l), the EPA
promulgated regulations at 40 CFR part 63, subpart E setting forth
criteria for the approval of submitted programs. For example, in order
to obtain approval of a program to implement and enforce Federal
section 112 rules as promulgated without changes (straight delegation)
for part 70 sources, a State must demonstrate that it meets the
criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim
or final Title V program approval will satisfy the criteria of 40 CFR
63.91(d).\1\ The NESHAP delegation for Oklahoma, as it applies to both
part 70 and non-part 70 sources, was most recently approved on December
13, 2005 (70 FR 73595).
---------------------------------------------------------------------------

    \1\ Some NESHAP standards do not require a source to obtain a
title V permit (e.g., certain area sources that are exempt from the
requirement to obtain a title V permit). For these non-title V
sources, the EPA believes that the State must assure the EPA that it
can implement and enforce the NESHAP for such sources. See 65 FR
55810, 55813 (Sept. 14, 2000). EPA previously approved Oklahoma's
program to implement and enforce the NESHAP as they apply to non-
part 70 sources. See 66 FR 1584 (Dec. 5, 2001).
---------------------------------------------------------------------------

IV. How did ODEQ meet the NESHAP program approval criteria?

    As to the NESHAP standards in 40 CFR parts 61 and 63, as part of
its Title V submission ODEQ stated that it intended to use the
mechanism of incorporation by reference to adopt unchanged Federal
section 112 into its regulations. This commitment applied to both
existing and future standards as they applied to part 70 sources. EPA's
final interim approval of Oklahoma's Title V operating permits program
delegated the authority to implement certain NESHAP, effective March 6,
1996 (61 FR 4220, February 5, 1996). On December 5, 2001, EPA granted
final full approval of the State's operating permits program (66 FR
63170). These interim and final Title V program approvals satisfy the
up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR
63.91(d)(2), once a State has satisfied up-front approval criteria, it
needs only to reference the previous demonstration and reaffirm that it
still meets the criteria for any subsequent submittals for delegation
of the section 112 standards. ODEQ has affirmed that it still meets the
up-front approval criteria. With respect to non-part 70 sources, the
EPA has previously approved delegation of NESHAP authorities to ODEQ
after finding adequate authorities to implement and enforce the NESHAP
for such sources. See 66 FR 1584 (January 9, 2001).

V. What is being delegated?

    By letter dated June 25, 2018, the EPA received a request from ODEQ
to update its existing NESHAP delegation.\2\ With certain exceptions
noted in section VI below, Oklahoma's request included NESHAP in 40 CFR
part 61 and 40 CFR part 63. ODEQ's request included newly incorporated
NESHAP promulgated by the EPA and amendments to existing standards
currently delegated, as they existed though September 1, 2016. This
proposed action is being taken in reponse to ODEQ's request noted
above.
---------------------------------------------------------------------------

    \2\ ODEQ's June 25, 2018 letter rescinds its previous three
letters, dated January 11, 2008, August 23, 2012, and October 16,
2017, requesting EPA approval to update Oklahoma's NESHAP
delegation. As such, the EPA's proposed rulemaking (80 FR 9678,
February 24, 2015) associated with ODEQ's January 11, 2008 letter is
hereby withdrawn.
---------------------------------------------------------------------------

VI. What is not being delegated?

    All authorities not affirmatively and expressly proposed for
delegation by this action will not be delegated. These include the
following part 61 and 63 authorities listed below:
     40 CFR part 61, subpart B (National Emission Standards for
Radon Emissions from Underground Uranium Mines);
     40 CFR part 61, subpart H (National Emission Standards for
Emissions of Radionuclides Other Than Radon From Department of Energy
Facilities);
     40 CFR part 61, subpart I (National Emission Standards for
Radionuclide Emissions from Federal Facilities Other Than Nuclear
Regulatory Commission Licensees and Not Covered by Subpart H);
     40 CFR part 61, subpart K (National Emission Standards for
Radionuclide Emissions from Elemental Phosphorus Plants);
     40 CFR part 61, subpart Q (National Emission Standards for
Radon Emissions from Department of Energy facilities);
     40 CFR part 61, subpart R (National Emission Standards for
Radon Emissions from Phosphogypsum Stacks);
     40 CFR part 61, subpart T (National Emission Standards for
Radon Emissions from the Disposal of Uranium Mill Tailings);
     40 CFR part 61, subpart W (National Emission Standards for
Radon Emissions from Operating Mill Tailings); and
     40 CFR part 63, subpart J (National Emission Standards for
Polyvinyl Choride and Copolymers Production).
    In addition, the EPA regulations provide that we cannot delegate to
a State any of the Category II Subpart A authorities set forth in 40
CFR 63.91(g)(2). These include the following provisions: Sec.  63.6(g),
Approval of Alternative Non-Opacity Standards; Sec.  63.6(h)(9),
Approval of Alternative Opacity Standards; Sec.  63.7(e)(2)(ii) and
(f), Approval of Major Alternatives to Test Methods; Sec.  63.8(f),
Approval of Major Alternatives to Monitoring; and Sec.  63.10(f),
Approval of Major Alternatives to Recordkeeping and Reporting. Also,
some part 61 and part 63 standards have certain provisions that cannot
be delegated to the States. Furthermore, no authorities are being
proposed for delegation that require rulemaking in the Federal Register
to implement, or where Federal overview is the only way to ensure
national consistency in the application of the standards or
requirements of CAA section 112. Finally, this action does not propose
delegation of any authority under section 112(r), the accidental
release program.
    If finalized, all questions concerning implementation and
enforcement of the excluded standards in the State of Oklahoma should
be directed to the EPA Region 6 Office.
    EPA is proposing a determination that the NESHAP program submitted
by Oklahoma meets the applicable requirements of CAA section 112(l)(5)
and 40 CFR part 63, subpart E. This delegation to ODEQ to implement and
enforce certain NESHAP does not extend to sources or activities located
in Indian country, as defined in 18 U.S.C. 1151. Oklahoma is not
seeking delegation for such areas, and neither the EPA nor ODEQ is
aware of any existing facilities in Indian country subject to the
NESHAP being delegated. ODEQ may submit a request to expand this
program to non-reservation areas of Indian country in the future, at
which time the EPA would evaluate the request through the appropriate
process.

VII. How will statutory and regulatory interpretations be made?

    If this NESHAP delegation is finalized, ODEQ will obtain
concurrence from the EPA on any matter involving the interpretation of
section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that
implementation or enforcement of these provisions have not been covered
by prior EPA determinations or guidance.

VIII. What authority does the EPA have?

    We retain the right, as provided by CAA section 112(l)(7) and 40
CFR 63.90(d)(2), to enforce any applicable emission standard or
requirement under section 112. In addition, the EPA may enforce any
federally approved State rule, requirement, or program under 40 CFR
63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make
certain decisions under the General Provisions (subpart A) of parts 61
and 63. We are proposing to delegate to the ODEQ some of these
authorities, and retaining others, as explained in sections V and VI
above. In addition, the EPA may review and disapprove State
determinations and subsequently require corrections. See 40 CFR
63.91(g)(1)(ii). EPA also has the authority to review ODEQ's
implementation and enforcement of approved rules or programs and to
withdraw approval if we find inadequate implementation or enforcement.
See 40 CFR 63.96.
    Furthermore, we retain any authority in an individual emission
standard that may not be delegated according to provisions of the
standard. Finally, we retain the authorities stated in the original
delegation agreement. See ``Provisions for the Implementation and
Enforcement of NSPS and NESHAP in Oklahoma,'' effective March 25, 1982,
a copy of which is included in the docket for this action. The
delegation table as of now and how it would look if this proposal is
finalized may be found in the Technical Support Document (TSD) included
in the docket for this action. The table also shows the authorities
that cannot be delegated to any State or local agency.

IX. What information must ODEQ provide to the EPA?

    ODEQ must provide any additional compliance related information to
EPA, Region 6, Office of Enforcement and Compliance Assurance within 45
days of a request under 40 CFR 63.96(a). In receiving delegation for
specific General Provisions authorities, ODEQ must submit to EPA Region
6 on a semi-annual basis, copies of determinations issued under these
authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 standards, these
determinations include: Sec.  63.1, Applicability Determinations; Sec.
63.6(e), Operation and Maintenance Requirements--Responsibility for
Determining Compliance; Sec.  63.6(f), Compliance with Non-Opacity
Standards--Responsibility for Determining Compliance; Sec.  63.6(h),
Compliance with Opacity and Visible Emissions Standards--Responsibility
for Determining Compliance; Sec.  63.7(c)(2)(i) and (d), Approval of
Site-Specific Test Plans; Sec.  63.7(e)(2)(i), Approval of Minor
Alternatives to Test Methods; Sec.  63.7(e)(2)(ii) and (f), Approval of
Intermediate Alternatives to Test Methods; Sec.  63.7(e)(iii), Approval
of Shorter Sampling Times and Volumes When Necessitated by Process
Variables or Other Factors; Sec.  63.7(e)(2)(iv), (h)(2) and (3),
Waiver of Performance Testing; Sec.  63.8(c)(1) and (e)(1), Approval of
Site-Specific Performance Evaluation (Monitoring) Test Plans; Sec.
63.8(f), Approval of Minor Alternatives to Monitoring; Sec.  63.8(f),
Approval of Intermediate Alternatives to Monitoring; Sec. Sec.  63.9
and 63.10, Approval of Adjustments to Time Periods for Submitting
Reports; Sec.  63.10(f), Approval of Minor Alternatives to
Recordkeeping and Reporting; and Sec.  63.7(a)(4), Extension of
Performance Test Deadline.

X. What is the EPA's oversight role?

    The EPA oversees ODEQ's decisions to ensure the delegated
authorities are being adequately implemented and enforced. We will
integrate oversight of the delegated authorities into the existing
mechanisms and resources for oversight currently in place. If, during
oversight, we determine that ODEQ made decisions that decreased the
stringency of the delegated standards, then ODEQ shall be required to
take corrective actions and the source(s) affected by the decisions
will be notified, as required by 40 CFR 63.91(g)(1)(ii) and (b). We
will initiate withdrawal of the program or rule if the corrective
actions taken are insufficient. See 51 FR 20648 (June 6, 1986).

XI. Should sources submit notices to the EPA or ODEQ?

    For the delegated NESHAP standards and authorities covered by this
proposed action, if finalized, sources would submit all of the
information required pursuant to the general provisions and the
relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63)
directly to the ODEQ at the following address: State of Oklahoma,
Department of Environmental Quality, Air Quality Division, P.O. Box
1677, Oklahoma City, Oklahoma 73101-1677. The ODEQ is the primary point
of contact with respect to delegated NESHAP. Sources do not need to
send a copy to the EPA. The EPA Region 6 proposes to waive the
requirement that notifications and reports for delegated standards be
submitted to EPA in addition to ODEQ in accordance with 40 CFR
63.9(a)(4)(ii) and 63.10(a)(4)(ii).\3\ For those standards and
authorties not delegated as discussed above, sources must continue to
submit all appropriate information to the EPA.
---------------------------------------------------------------------------

    \3\ This waiver only extends to the submission of copies of
notifications and reports; the EPA does not waive the requirements
in delegated standards that require notifications and reports be
submitted to an electronic database (e.g., 40 CFR part 63, subpart
HHHHHHH).
---------------------------------------------------------------------------

XII. How will unchanged authorities be delegated to ODEQ in the future?

    As stated in previous NESHAP delegation actions, the EPA has
approved Oklahoma's mechanism of incorporation by reference of NESHAP
standards into ODEQ regulations, as they apply to both part 70 and non-
part 70 sources. See, e.g., 61 FR 4224 (February 5, 1996) and 66 FR
1584 (January 9, 2001). Consistent with the EPA regulations and
guidance,\4\ ODEQ may request future updates to Oklahoma's NESHAP
delegation by submitting a letter to the EPA that appropriately
identifies the specific NESHAP which have been incorporated by
reference into state regulation, reaffirms that it still meets up-front
approval delegation criteria for part 70 sources, and demonstrates that
ODEQ maintains adequate authorites and resources to implememnt and
enforce the delegated NESHAP requirements for all sources. We will
respond in writing to the request stating that the request for
delegation is either granted or denied. A Federal Register action will
be published to inform the public and affected sources of the updated
delegation, indicate where source notifications and reports should be
sent, and amend the relevant portions of the Code of Federal
Regulations identifying which NESHAP standards have been delegated to
the ODEQ. We have not been using this informational notice process but
intend to from now on upon

receipt of the next NESHAP delegation request from ODEQ.\5\
---------------------------------------------------------------------------

    \4\ See Harardous Air Pollutants: Amendments to the Approval of
State Programs and Delegation of Federal Authorities, Final Rule (65
FR 55810, September 14, 2000); and ``Straight Delegation Issues
Concerning Sections 111 and 112 Requirements and Title V,'' by John
S. Seitz, Director of Air Qualirty Planning and Standards, EPA,
dated December 10, 1993.
    \5\ A request from ODEQ that raises an isuse not previously
subject to comment, presents new data, requires EPA to examine its
interpretion of the applicable law, or where EPA wishes to re-
examine its present position on a matter will be processed through
notice and comment rulemaking in the Federal Register.
---------------------------------------------------------------------------

XIII. Proposed Action

    In today's action, the EPA is proposing to approve an update to the
Oklahoma NESHAP delegation that would provide the ODEQ with the
authority to implement and enforce certain newly incorporated NESHAP
promulgated by the EPA and amendments to existing standards currently
delegated, as they existed though September 1, 2016. As requested in
ODEQ's June 25, 2018 letter, this proposed delegation to ODEQ does not
extend to sources or activities located in Indian country, as defined
in 18 U.S.C. 1151.

XIV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to approve
section 112(l) submissions that comply with the provisions of the Act
and applicable Federal regulations. In reviewing section 112(l)
submissions, the EPA's role is to approve state choices, provided that
they meet the criteria and objectives of the CAA and of the EPA's
implementing regulations. Accordingly, this proposed action would
merely approve the State's request as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

List of Subjects

40 CFR Part 61

    Environmental protection, Administrative practice and procedure,
Air pollution control, Arsenic, Benzene, Beryllium, Hazardous
substances, Mercury, Intergovernmental relations, Reporting and
recordkeeping requirements, Vinyl chloride.

40 CFR Part 63

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.

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

    Dated: July 25, 2018.
Wren Stenger,
Multimedia Division Director, Region 6.
[FR Doc. 2018-17139 Filed 8-9-18; 8:45 am]
 BILLING CODE 6560-50-P