UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION III

	1650 Arch Street

	Philadelphia, Pennsylvania  19103

DATE:       	April 30, 2014

SUBJECT:	Technical Support Document for the West Virginia State
Implementation Plan for the Infrastructure Requirements for the 2010
Sulfur Dioxide National Ambient Air Quality Standards

FROM:	Ellen Schmitt, Life Scientist              /s/  4/30/14

Office of Air Program Planning

TO:		File

THRU: 	Cristina Fernandez, Associate Director      /s/  4/30/14

Office of Air Program Planning

A.  INTRODUCTION

The Environmental Protection Agency (EPA) is taking action on a
submittal made by the State of West Virginia to meet the Clean Air Act
(CAA) section 110(a)(2) infrastructure requirements for the 2010 sulfur
dioxide (SO2) national ambient air quality standards (NAAQS).

B.  BACKGROUND

On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for the
1-hour primary SO2 at a level of 75 parts per billion (ppb), based on a
3-year average of the annual 99th percentile of 1-hour daily maximum
concentrations.

Section 110(a) of the CAA requires states to submit state implementation
plans (SIPs) that provide for the implementation, maintenance, and
enforcement of new or revised NAAQS within three years following the
promulgation of such NAAQS.  Section 110(a)(2) of the CAA lists specific
elements that states must meet or continue to meet in these SIP
submissions.  The requirements include SIP infrastructure elements such
as requirements for modeling, monitoring, and emissions inventories that
are designed to assure attainment and maintenance of the NAAQS.  For the
2010 SO2 NAAQS, states typically have met many of the basic program
elements required in section 110(a)(2) of the CAA through earlier SIP
submissions in connection with previous SO2 standards.

C.  EPA REQUIREMENTS

For the  2010 SO2 NAAQS, states must provide SIP submissions, or provide
certification that the existing SIP contains provisions addressing
relevant infrastructure SIP elements from sections 110(a)(2)(A) through
(M) of the CAA.

D.  STATE’S SUBMITTAL

On July 1, 2013, EPA received West Virginia Department of Environmental
Protection’s (WVDEP) submittal to satisfy the requirements of section
110(a)(2) of the CAA for the 2010 SO2 NAAQS.  This SIP revision, which
was submitted by WVDEP on June 25, 2013, addressed for the 2010 SO2
NAAQS the following infrastructure elements, or portions thereof, that
EPA is proposing to approve:  section 110(a)(2)(A), (B), (C), (D), (E),
(F), (G), (H), (J), (K), (L), and (M) of the CAA.  EPA will take
separate action on the portions of CAA section 110(a)(2) infrastructure
elements for the 2010 SO2 NAAQS as they relate to West Virginia’s
Prevention of Significant Deterioration (PSD) program, as required by
part C of Title I of the CAA, including portions of CAA section
110(a)(2)(C), (D)(i)(II) and (J).  EPA will also take later separate
action on CAA section 110(a)(2)(D)(i)(I), (D)(i)(II) (visibility
protection) and (E)(ii) for the 2010 SO2 NAAQS as it relates to
interstate transport of emissions, visibility protection, and CAA
section 128, “State Boards.”  EPA is not proposing any action for
CAA 110(a)(2)(I) and portions of elements that pertain to Part D
nonattainment area requirements.

E.  EVALUATION OF STATE SUBMITTAL

1.  Section 110(a)(2)(A)

EPA has determined that West Virginia has established laws and
regulations applicable to the 2010 SO2 NAAQS that include enforceable
emissions limitations and other control measures, means or techniques,
as well as schedules and timetables for compliance to meet the
applicable requirements of the CAA.  EPA finds the Secretary of WVDEP
holds the legislative authority to promulgate regulations concerning air
pollution control in accordance with the West Virginia Administrative
Procedures Act (W.Va. Code section 29A3-1 et seq.) and W.Va. Code
sections 22-1-3(a), 22-5-4(a)(4) and 22-5-4(a)(17).  Enforceable
emission limitations and other control measures for SO2 to meet the
applicable requirements of the CAA include the following SIP-approved
regulations: 45CSR10 (To Prevent and Control Air Pollution from the
Emissions of Sulfur  Oxides), 45CSR11 (Prevention of Air Pollution
Emergency Episodes), 45CSR13 (Permits for Construction, Modification,
Relocation and Operation of Stationary Sources of Air Pollutants,
Notification Requirements, Temporary Permits, General Permits, and
Procedures for Evaluation), 45CSR14 (Permits for Construction and Major
Modification of Major Stationary Sources of Air Pollution for the
Prevention of Significant Deterioration), 45CSR19 (Permits for
Construction and Major Modification of Major Stationary Sources of Air
Pollution Which Cause or Contribute to Nonattainment), and 45CSR41
(“Control of Annual Sulfur Dioxide Emissions to Mitigate Interstate
Transport of Fine Particulate Matter and Sulfur Dioxide”),

Additionally, the following state rules are applicable to sulfur oxide
emission limitations and control measures:  45CSR10A (Testing,
Monitoring, Recordkeeping and Reporting Requirements Under 45CSR10),
45CSR16 (Standards of Performance for New Stationary Sources), 45CSR18
(Control of Air Pollution from Combustion of Solid Waste), 45CSR33
(“Acid Rain Provisions and Permits”), and 45CSR30 (“Requirements
for Operating Permits”).  The latter rule, 45CSR30, which establishes
an EPA-approved Title V operating permit program, includes all the
enforceable emission limitations or control measures pursuant to
45CSR10, 45CSR11, 45CSR13, 45CSR14, 45CSR16, 45CSR18, 45CSR19, 45CSR33,
and 45CSR41.

Furthermore, in 2012, EPA granted limited approval and limited
disapproval of West Virginia’s regional haze SIP which also includes
emission measures related to SO2.  See 77 FR 16932 (March 23, 2012).
West Virginia’s regional haze SIP and the status of its approval are
discussed in greater detail for CAA 110(a)(2)(D)(i)(II) below.

West Virginia has two partial counties (Brooke and Marshall) designated
as nonattainment for the 2010 SO2 NAAQS.  Emissions limitations and
other control measures needed to attain the NAAQS in areas designated
nonattainment for the SO2 NAAQS are due on a different schedule from the
section 110 infrastructure elements and will be reviewed and acted upon
through a separate process at a later time.

On May 9, 2013, EPA finalized a narrow disapproval of a previous West
Virginia SIP submittal for PSD requirements because the West Virginia
PSD regulations did not properly address condensable emissions of
particulate matter within the definition of “regulated NSR
pollutant.”  See 78 FR 27062.   There are no sanctions associated with
this disapproval; however, EPA is required to promulgate a Federal
Implementation Plan (FIP) within two years of final disapproval if the
definition of “regulated NSR pollutant” is not corrected.  EPA had
previously approved West Virginia’s PSD program with the narrow
exception of the definition of regulated new source review pollutant for
its failure to include condensables.  See 77 FR 63736 (October 17,
2012).

In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during
Startup, Shutdown, and Malfunction (SSM) of operations at a facility.
EPA believes that a number of states have SSM provisions which are
contrary to the CAA and existing EPA guidance (August 11, 1999 Steven
Herman and Robert Perciasepe Guidance Memorandum, “State
Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown”), and the Agency is addressing
such state regulations in a separate rulemaking.  See 78 FR 12460
(February 22, 2013).  In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as possible.

Also in this action, EPA is not proposing to approve or disapprove any
existing West Virginia rules with regard to director’s discretion or
variance provisions.  EPA believes that a number of states have such
provisions which are contrary to the CAA and existing EPA guidance (see
52 FR 45109, November 1987), and the Agency is addressing such state
regulations in a separate rulemaking.  See 78 FR 12460.   In the
meantime, EPA encourages any state having a director’s discretion or
variance provision which is contrary to the CAA and EPA guidance to take
steps to correct the deficiency as soon as possible.

Based upon EPA’s review of the infrastructure SIP submittal, EPA finds
West Virginia’s June 25, 2013 infrastructure SIP submittal for the
2010 SO2 NAAQS meets the requirements of CAA section 110(a)(2)(A).

2.  Section 110(a)(2)(B)

According to WVDEP, the Secretary of WVDEP has the authority under W.Va.
Code section 22-5-4(a)(1) & (3) “to develop ways and means for the
regulation and control of pollution of the air of the state” and
“conduct such studies and research relating to air pollution and its
control and abatement.”  The Division of Air Quality (DAQ) of WVDEP
currently operates and maintains an established network of ambient air
monitors in West Virginia for the purpose of assessing compliance with
the 2010 SO2NAAQS.  All ambient air monitors within West Virginia’s
network are a) subject to the Quality Assurance requirements of 40 CFR
Part 58, Appendix A and b) have met the minimum siting requirements of
40 CFR Part 58, Appendix E.

West Virginia operates and maintains an established network of fourteen
ambient SO2 monitors in the state for the purpose of assessing
compliance with the 2010 SO2 NAAQS.  WVDEP informs EPA of planned
changes to the monitoring site by providing adequate prior notification.
 Pursuant to 40 CFR 58.10, WVDEP submits to EPA, on an annual basis, a
monitoring network plan, which describes how West Virginia is complying
with monitoring requirements and explains any changes to the monitoring
network.  West Virginia’s 2012 Annual Air Quality Monitoring Network
Design Plan was approved by EPA on February 21, 2013 and its 2013 Annual
Air Quality Monitoring Network Design Plan was approved by EPA on
December 10, 2013.

As provided in W.Va. Code sections 22-5-4(a)(2) and 22-5-10 and CAA
section 110(a)(2)(B), WVDEP collects and reports to EPA ambient air
quality data for SO2.  In accordance with EPA’s revised SO2 NAAQs
Amendments to Ambient Monitoring and Reporting Requirements, WVDAQ
collects and reports SO2 5-minute average data from the state’s
fourteen SO2 monitoring sites.  West Virginia submits to EPA quarterly
reports of air quality data to comply with the requirements of 40 CFR
58.16.  The air quality data for SO2 is reviewed, edited, validated, and
entered into the EPA air quality system (AQS) for updating pursuant to
prescribed AQS procedures, and is certified annually as required under
40 CFR 58.15.

Based upon EPA’s review of the SIP submittal, EPA finds West
Virginia’s infrastructure SIP submittal for the 2010 SO2 NAAQS meets
the requirements of CAA section 110(a)(2)(B).

3.  Section 110(a)(2)(C)

According to WVDEP, its Secretary has the statutory authority to enforce
any control measures for the 2010 SO2 NAAQS, pursuant to W.Va. Code
sections 22-1-3(a), 22-5-4(a)(4), 22-5-4(a)(5), 22-5-4(a)(9),
22-5-4(a)(16), 22-5-4(a)(17), 22-5-5, and 22-5-6.  West Virginia has an
established legal framework and ability to provide for the enforcement
of the measures described in the CAA section 110(a)(2)(A) infrastructure
element or contained in a permit issued under:  45CSR10, 45CSR13,
45CSR14, 45CSR18, 45CSR19, 45CSR30, 45CSR33, and 45CSR41.  EPA finds the
provisions described in West Virginia’s infrastructure SIP submittal
for the 2010 SO2 NAAQS meet the requirements for enforcement of the
measures described in section 110(a)(2)(C) of the CAA.

EPA will take separate action on the portion of section 110(a)(2)(C) of
the CAA for the 2010 SO2 NAAQS as it relates to West Virginia’s PSD
program as required by part C of Title I of the CAA.  EPA has previously
approved West Virginia’s PSD program with the narrow exception of the
definition of regulated new source review pollutant for its failure to
include condensables.  See 77 FR 63736 (October 17, 2012) and 78 FR
27062 (May 9, 2013).

In the approved West Virginia SIP, West Virginia has an EPA-approved
minor new source review (NSR) permitting program for regulation of minor
sources and minor modifications located in 45CSR13 (Permits for
Construction, Modification, Relocation and Operation of Stationary
Sources of Air Pollutants, Notification Requirements, Temporary Permits,
General Permits, and Procedures for Evaluation).

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(C) for enforcement of measures in
110(a)(2)(A) and regulation of minor sources and minor modifications.

4.  Section 110(a)(2)(D)

Section 110(a)(2)(D)(i)(I)

West Virginia’s June 25, 2013 infrastructure SIP submission for the
2010 SO2 NAAQS did not include a component to address
110(a)(2)(D)(i)(I).  At the time of West Virginia’s submission on June
25, 2013, a submission to address Section 110(a)(2)(D)(i)(I) was not
required.  See EME Homer City Generation, LP v. EPA, 696 F.3d 7 (D.C.
Cir. 2012), cert. granted, 133 U.S. 2857 (2013).  However, that
situation has since changed due to the decision by the United States
Supreme Court in EME Homer City on April 29, 2014.  Thus, in this
rulemaking action, EPA is not proposing to act on 110(a)(2)(D)(i)(I) for
West Virginia’s June 25, 2013 infrastructure SIP submission for the
2010 SO2 NAAQS and will take separate, later action on West Virginia’s
obligations for Section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS.

Section 110(a)(2)(D)(i)(II)

As discussed previously, EPA will take separate action on the portion of
the June 25, 2013 infrastructure SIP submittal which addresses section
110(a)(2)(D)(i)(II) of the CAA for the 2010 SO2 NAAQS for West
Virginia’s PSD program as required by part C of Title I of the CAA.
On May 9, 2013, EPA finalized a narrow disapproval of a previous West
Virginia SIP submittal for PSD requirements because the West Virginia
PSD regulations did not properly address condensable emissions of
particulate matter within the definition of “regulated NSR
pollutant.”  See 78 FR 27062.  There are no sanctions associated with
this disapproval; however, EPA is required to promulgate a FIP within
two years of final disapproval if the definition of “regulated NSR
pollutant” is not corrected.  EPA had previously approved West
Virginia’s PSD program with the narrow exception of the definition of
regulated new source review pollutant for its failure to include
condensables.  See 77 FR 63736 (October 17, 2012).

Prong 4 of section 110(a)(2)(D)(i)(II) requires that SIPs include
provisions prohibiting any source or other type of emissions activity in
one state from interfering with measures to protect visibility required
to be included in another state’s SIP.  In describing how its
submission meets this requirement, West Virginia referred to its June
18, 2008 regional haze SIP submittal which included reliance on the
Clean Air Interstate Rule (CAIR) for electrical generating units (EGUs).
Subsequently, EPA granted limited approval and limited disapproval of
West Virginia’s regional haze SIP based on West Virginia’s reliance
upon CAIR which had been remanded by the time of EPA’s action on the
West Virginia regional haze SIP.  See 77 FR 16932 (March 23, 2012).  At
this time EPA is not proposing action on Section 110(a)(2)(D)(i)(II) for
visibility protection for the 2010 SO2 NAAQS.  Although West
Virginia’s infrastructure SIP submittal for the 2010 SO2 NAAQS
referred to West Virginia’s regional haze SIP for section
110(a)(2)(D)(i)(II) for visibility protection, EPA intends to take
separate action on West Virginia’s submittal for this specific element
of 110(a)(2)(D)(i)(II) at a later date.  (Section 110(a)(2)(D)(ii)

EPA finds the West Virginia SIP meets obligations for CAA section 126,
“Interstate Pollution Abatement,” through the 45CSR§14-7, Public
Review Procedures, which requires a new or modified source to notify
other states of potential impacts from a source in accordance with 40
CFR 51.166(q)(2)(iv).  EPA concurs with West Virginia that West Virginia
has no currently pending obligations pursuant to CAA Section 126(b)
related to the 2010 SO2 NAAQS.  Additionally, there are no findings
under CAA section 115, “International Air Pollution”, against West
Virginia with respect to the 2010 SO2 NAAQs.  According to the
infrastructure SIP submittal, the State has adequate provisions insuring
future compliance with the requirements of sections 126 and 115 of the
CAA as may be necessary.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(D)(II).

5.  Section 110(a)(2)(E)

EPA finds WVDEP has demonstrated it has adequate personnel to carry out
its implementation plan with respect to the 2010 SO2NAAQS.  At present,
a staff of approximately 90 full time employees is employed at WVDEP’s
DAQ.  West Virginia’s Air Director supervises the air monitoring,
compliance and enforcement, hazardous waste, permitting and planning
sections, as well as three regional DAQ offices, and answers to the
Secretary.  DAQ states in its SIP submittal that its funding sources are
sufficient to provide adequate personnel for those purposes and does not
anticipate any changes in resources considered necessary during 5 years
following SIP submittal.  There are no other organizations in West
Virginia that participate in developing, implementing and enforcing the
SIP.

The Air Pollution Control Act of West Virginia (APCA) provides adequate
funding under W.Va. Code sections 22-1-10(a) and 22-5-4(a)(17) to carry
out West Virginia’s SIP.  W.Va. Code section 22-5-12 sets forth the
statutory operating permit requirements for stationary sources under
Title V of the CAA.  EPA-approved rule 45CSR30 establishes fees
sufficient to cover the direct and indirect costs of administering the
air pollution control planning process and Title V operating permit
program and to support the air pollution control program authorized by
statute. The APCA also authorizes the establishment of fees to cover
non-Title V permitting costs under 45CSR22 “Air Quality Management Fee
Program.”  Additionally, the air quality program receives revenue from
fines and penalties (Air Pollution Control Fund) and federal funds under
sections 105 and 103 of the CAA, and state general appropriations.

The APCA, under W.Va. Code section 22-5-1, declares the state's policy
"to fulfill its primary responsibility for assuring air quality"
pursuant to the CAA.  The WVDEP Secretary is authorized under W.Va. Code
sections 22-1-6(c)(1) and 22-5-4(a)(12) to carry out and represent the
state in any and all matters pertaining to the implementation plan.  The
Secretary has the authority under W.Va. Code section 22-5-4(a)(16) “to
do all things necessary and convenient to prepare and submit a plan or
plans for the implementation, maintenance and enforcement of the Federal
Clean Air Act.”  The Secretary is not prohibited by any provision of
federal or state law from carrying out the implementation plan or
portion thereof.

The Secretary has the authority under W.Va. Code sections 22-1-3(a),
22-5-4(a)(4) and 22-5-4(a)(17) to promulgate rules in accordance with
the West Virginia Administrative Procedures Act (W.Va. Code section
29A3-1 et seq.).  Approximately forty rules are currently in effect and
codified at Title 45 of the Code of State Rules, including the ambient
air quality standards for SO2 and other criteria pollutants contained in
45CSR8.  West Virginia has an EPA-approved air permitting program for
both major and minor facilities, under state rules 45CSR13, 45CSR14,
45CSR19 and 45CSR30 (as applicable).

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(E)(i) and (iii).

As to CAA section 110(a)(2)(E)(ii) requirements, EPA will take later
separate action on this portion of section 110(a)(2)(E) as it relates to
CAA section 128, “State Boards” for the 2010 SO2 NAAQS.

6.  Section 110(a)(2)(F)

EPA finds W.Va. Code section 22-5-4(a)(15) authorizes the Secretary to
require the installation, maintenance and replacement of equipment, and
the implementation of other necessary steps by owners or operators of
stationary sources to monitor and report emissions of SO2 from such
sources as the Secretary may prescribe, through permits issued under
45CSR13, 45CSR14, 45CSR19, 45CSR30, 45CSR41, under WV regulation
45CSR10A and via compliance orders.   Pursuant to the 40 CFR Part 51,
subpart A, “Air Emission Reporting Rule” (AERR), DAQ’s emissions
inventory program provides source-specific emissions data to EPA.

For the emission reports and recordkeeping requirements set forth in 40
CFR Part 51, subpart K, W.Va. Code section 22-5-4(a)(15) authorizes the
WVDEP Secretary to require periodic reports on the nature and amounts of
emissions and emissions-related data from owners or operators of
stationary sources (monitoring data) of SO2 emissions through permits
issued under 45CSR10, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30,
45CSR33, and 45CSR41, through 45CSR10A, and via compliance orders.
Pursuant to W.Va. Code section 22-5-4(a)(14), the Secretary is
authorized to require such information as the Secretary may require in a
form or manner prescribed by the Secretary (emissions inventory
program).  DAQ periodically reports emission inventory information to
EPA as required by 40 CFR Part 51, subparts A and K.

EPA finds W.Va. Code section 22-1-6(d)(3) authorizes the WVDEP Secretary
to “investigate for violations of statutes or rules which the
department is charged with enforcing.”  W.Va. Code section
22-5-4(a)(3) authorizes the Secretary to correlate periodic emissions
reports with any SO2 emission limitations or standards established
pursuant to 45CSR10, 45CSR13, 45CSR14, 45CSR18, 45CSR19, 45CSR30,
45CSR33, 45CSR41, 45CSR10A, compliance orders, or the CAA.  As set forth
in W.Va. Code section 22-5-10, the Secretary makes available at
reasonable times for public inspection the periodic emissions reported
under W.Va. Code sections 22-5-4(a)(14) & (15).  The Secretary has the
responsibility of making all records, reports or information obtained by
the WVDEP or referred to at public hearings under the provisions of the
APCA, available to the public, except to the extent the records, reports
or information are protected by confidentiality.  The types of records
WVDEP routinely provides access to include notifications, inspection
reports, notices of violation, enforcement orders, applications, permit
review letters, sample results, monitoring reports, permits, approvals
and denials that would relate to section 110(a)(2)(F) of the CAA.  WVDEP
generally makes information available for public access through its
website, but also makes hard copy reports available upon written
request.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(F).

7.  Section 110(a)(2)(G)

EPA finds West Virginia has authority comparable to that in section 303
of the CAA and adequate contingency plans to implement such authority.
Section 303 of the CAA provides authority to the EPA’s Administrator
to restrain any source from causing or contributing to emissions which
present an “imminent and substantial endangerment to public health or
welfare, or the environment.”  W.Va. Code section 22-5-5 authorizes
the WVDEP Secretary to issue an order to cease and desist any activity
that violates the APCA.  The Secretary may also suspend, modify or
revoke a source’s permit.  Under W.Va. Code section 22-5-6, the
Secretary may also institute lawsuits for civil penalties.  W.Va. Code
section 22-5-7 authorizes the Secretary to seek applications for
injunctive relief.  W.Va. Code section 22-5-8 authorizes the Secretary,
with the written authorization of the Governor, to shut down a source of
SO2 emissions, thereby preventing the emission of air pollutants which
substantially contributes to an emergency that requires immediate action
to protect public health.  As provided in W.Va. Code sections
22-5-4(a)(2) and 22-5-10, the Secretary may consult with EPA to affirm
accuracy of any information considered while executing authority under
W.Va. Code sections 22-5-5, 22-5-6, 22-5-7 or 22-5-8.

In addition, West Virginia’s SIP-approved rule 45CSR11 (Prevention of
Air Pollution Emergency Episodes) provides a mechanism to prevent the
buildup of SO2 concentrations during periods of adverse meteorological
conditions in which air pollutants may accumulate, thereby preventing
the occurrence of an emergency due to the effects of these pollutants on
health.  West Virginia initiates the use of specific emission reduction
plans for three stages of pollutant concentration levels to prevent
further deterioration of the air quality in the State.  Therefore, EPA
finds West Virginia has in its approved SIP an adequate contingency plan
to implement the air agency’s emergency episode authority.  45CSR11
meets the applicable requirements of 40 CFR Part 51, subpart H (40 CFR
51.150 through 51.153) (“Prevention of Air Pollution Emergency
Episodes”) for the 2010 SO2 NAAQS.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(G) of the CAA.

8.  Section 110(a)(2)(H)

EPA finds that West Virginia has demonstrated that it has adequate
authority to satisfy CAA Section 110(a)(2)(H).  West Virginia has
adequate authority to address revisions to SIPs, as set forth in 40 CFR
51.104.  Specifically, W.Va. Code section 22-5-4(a)(16) authorizes the
Secretary to do all things necessary and convenient to prepare and
submit a plan for the implementation, maintenance and enforcement of the
CAA.  WVDEP has historically revised, and will continue to revise, its
NAAQS rules as necessary to take account of revisions of the national
primary or secondary ambient air quality standards or improved or more
expeditious methods of attaining the standards.  West Virginia’s
45CSR8 “Ambient Air Quality Standards” incorporates by reference all
relevant primary and secondary NAAQS and is included in the West
Virginia SIP.  See 77 FR 65493 (updating 45CSR8 in West Virginia SIP).

EPA finds W.Va. Code §22-5-4(a)(16) authorizes the Secretary to do all
things necessary and convenient to prepare and submit a plan for
implementation, maintenance, and enforcement of the CAA.  Therefore, if
EPA finds the West Virginia SIP substantially inadequate to attain the
NAAQS, West Virginia has authority to revise the plan as necessary for
adequacy.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(H).

9.  Section 110(a)(2)(J)

As mentioned previously, EPA will take separate action on the portion of
section 110(a)(2)(J) of the CAA for the 2010 SO2 NAAQS as it relates to
West Virginia’s PSD program as required by part C of Title I of the
CAA.  On May 9, 2013, EPA finalized a narrow disapproval of a previous
West Virginia SIP submittal for PSD requirements because the West
Virginia PSD regulations did not properly address condensable emissions
of particulate matter within the definition of “regulated NSR
pollutant.”  See 78 FR 27062.  There are no sanctions associated with
this disapproval; however, EPA is required to promulgate a FIP within
two years of final disapproval if the definition of “regulated NSR
pollutant” is not corrected.  EPA had previously approved West
Virginia’s PSD program with the narrow exception of the definition of
regulated new source review pollutant for its failure to include
condensables.  See 77 FR 63736.

EPA finds West Virginia satisfies the applicable requirements of section
121 of the CAA relating to consultation.  The APCA provides adequate
authority under W.Va. Code section 22-5-4(a)(2) for West Virginia’s
practices of consultation with local governments, organizations and Land
Managers for purposes of air pollution control.  WVDEP also consults
with such entities regarding implementation plans for air quality
maintenance requirements, preconstruction review of direct sources,
nonattainment requirements, and prevention of significant deterioration.
 To address consultation for the 2010 SO2 NAAQS, West Virginia’s
permitting program includes three SIP-approved rules: minor NSR rule
45CSR13, PSD rule 45CSR14, and major NSR rule 45CSR19.  West Virginia
also has an approved Title V operating permit program (66 FR 50325).

West Virginia stated in its infrastructure SIP submittal that it has
demonstrated its commitment to consultation through encouragement and
support for an Early Action Compact and through Federal Land Manager
consultation for its West Virginia regional haze SIP.  EPA finds West
Virginia has a process for consultation with general-purpose local
governments, designated organizations of elected officials of local
governments, and any federal land manager having authority over federal
land to which the plan applies, consistent with CAA section 121.

EPA finds W.Va. Code section 22-4-(a)(10) addresses requirements in
Section 127 of the CAA for public notification because the Code
authorizes WVDEP’s DAQ to notify the public of imminent and serious
hazards to public health.  W.Va. Code section 22-1-12 provides authority
for the public notification of NAAQS violations and education efforts as
required by CAA section 127.  Each year, WVDEP issues a comprehensive
Air Quality Annual Report, which compares monitored air quality data
with the NAAQS and tracks the Air Quality Index.  The Air Quality Annual
Report contains emissions information and air quality highlights from
the previous year, provides public awareness of criteria pollutants and
their effects on health, and provides educational website links to tips
that improve air quality, links to technical websites and outreach
efforts.

With regard to the visibility protection aspect of 110(a)(2)(J), EPA
recognizes that states are subject to visibility and regional haze
program requirements under part C of the CAA (which includes sections
169A and 169B).  In the event of the establishment of a new NAAQS,
however, the visibility and regional haze program requirements under
part C do not change.  Thus, EPA finds that there are no applicable
visibility obligations under part C “triggered” under section
110(a)(2)(J) when a new NAAQS becomes effective.  West Virginia has
submitted SIP revisions to satisfy the requirements of the CAA Section
169A and 169B, and the regional haze and BART rules contained in 40 CFR
51.308.  On March 23, 2012, EPA published a final rulemaking regarding
West Virginia’s regional haze program, consisting of a limited
approval and a limited disapproval.  See 77 FR 16932.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(J) (except for the portion of this
element related to PSD upon which EPA will take separate action).

10.  Section 110(a)(2)(K)

EPA finds that West Virginia has the authority and technical capability
to conduct air quality modeling in order to assess the effect on ambient
air quality relevant pollutant emissions. W.Va. Code sections
2-5-4(a)(1) & (3) authorize the WVDEP Secretary to “develop ways and
means for the regulation and control of pollution of the air of the
state” and “conduct such studies and research relating to air
pollution and its control and abatement.”  Inherent in West Virginia's
authority to meet the NAAQS and to conduct studies and research is the
obligation for WVDEP to perform modeling as required under the CAA to
demonstrate attainment of the NAAQS, as prescribed by the EPA’s
Administrator.  West Virginia states in its infrastructure SIP submittal
that a source-oriented dispersion model such as AERMOD will be the air
quality model that WVDEP will use to demonstrate the adequacy of a
control strategy to provide for the timely attainment and maintenance of
the NAAQS, pursuant to 40 CFR §§51.112 and 51.115(b).  WVDEP’s DAQ
employs one full time technical employee who is responsible for air
quality modeling.  West Virginia’s 2010 SO2 infrastructure SIP
submittal demonstrates WVDEP has the authority and will perform
modeling, as required under the CAA, to demonstrate attainment of the
2010 1-hour SO2 NAAQS.

EPA also finds that inherent in the authority of WVDEP’s Secretary is
the capability to conduct new source review modeling required under the
CAA and included in West Virginia’s PSD and NSR permit programs
(45CSR14 and 45 CSR19) included in West Virginia’s SIP.  West
Virginia’s SIP includes PSD source impact and modeling requirements
(45CSR14-§§9 and 10, in accordance with 40 CFR §§51.166(k) and (l)).
 In addition, all applications of air quality modeling, where
appropriate, for PSD purposes are based on the applicable air quality
models, databases, and other requirements specified in the Appendix W of
40 CFR Part 51 (Guideline on Air Quality Models).  Pursuant to
45CSR14-§10.2, where an air quality impact model specified in Appendix
W of 40 CFR Part 51 is inappropriate, the model may be modified or
another model substituted, provided that the modification or
substitution is approved in writing by the EPA Administrator.

Finally, EPA finds West Virginia can provide relevant ambient air
quality data as part of the permitting and NAAQS implementation process.
 W.Va. Code sections 22-5-10, 22-5-4(a)(2) and 22-5-4(a)(16) authorize
the Secretary to submit, upon request by EPA , modeling data predicting
the effect on ambient air quality of any emissions of any air pollutant
for which EPA has established a NAAQS.  The infrastructure SIP submittal
states West Virginia will submit to EPA current and future air quality
modeling data as part of its relevant SIP submissions and through
Federal grant commitments or in other ways that EPA may request.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(K).

11.  Section 110(a)(2)(L)

West Virginia’s June 25, 2013 infrastructure SIP submittal for the
2010 SO2 NAAQS provides that West Virginia’s approved Title V
operating permits program under 45CSR30 (see 66FR50325 (Nov. 19, 2001))
provides for sufficient fees to cover the reasonable costs of reviewing
and acting upon any application for permits and the reasonable costs of
implementing and enforcing the terms and conditions of any such permit.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(L).

12.  Section 110(a)(2)(M)

EPA finds the WVDEP Secretary has the authority under W.Va. Code section
22-5-4(a)(16) “to do all things necessary and convenient to prepare
and submit a plan or plans for the implementation, maintenance and
enforcement of the Federal Clean Air Act.”  Under this statute, and
pursuant to the General Plan Requirements set forth in 40 CFR 51.240,
the WVDEP’s DAQ is the organization authorized to develop, implement
and enforce the West Virginia SIP.  W.Va. Code section 22-5-4(a)(2)
authorizes the Secretary to advise, consult, and cooperate with local
political subdivisions affected by the implementation plan.  West
Virginia consults with local governments, organizations and Federal Land
Managers with respect to SIP development.  DAQ also consults with such
entities regarding implementation plans for air quality maintenance
requirements, preconstruction review of direct sources, nonattainment
requirements, and PSD.

In accordance with the Federal procedural requirements at 40 CFR 51.102,
any plan or plan revision, or individual compliance schedule, prepared
by DAQ is subject to a 30 day public notice period with public hearing,
or in cases where there is little anticipated public interest, the
opportunity for a public hearing.  State rules which contain such public
notice procedures include permitting rules 45CSR13, 45CSR14, 45CSR19 and
45CSR30.  The West Virginia SIP includes 45CSR13, 45CSR14 and 45CSR19.
The public notice and hearing processes fulfill the requirements for
consultation with local political subdivisions affected by the SIP.

Based upon EPA’s review of the submittal, EPA finds West Virginia’s
infrastructure SIP submittal for the 2010 SO2 NAAQS meets the
requirements of CAA section 110(a)(2)(M).

F.  CONCLUSIONS AND RECOMMENDED AGENCY ACTION

EPA has analyzed West Virginia’s June 25, 2013 infrastructure
submittal for the 2010 SO2 NAAQS and the Agency finds West Virginia’s
submittal meets the requirements of section 110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, of the
CAA.  EPA will take separate action on the portions of CAA section
110(a)(2) infrastructure elements for the 2010 SO2 NAAQS as they relate
to the West Virginia’s PSD program, as required by part C of Title I
of the CAA, including portions of CAA section 110(a)(2)(C), (D) and (J).
 Additionally, EPA will take separate action on requirements of
110(a)(2)(D)(i)(I)(transport), (D)(i)(II)(visibility protection), and
(E)(ii). It is recommended that a notice of proposed rulemaking be
prepared approving West Virginia’s June 25, 2013 infrastructure
submittal for the elements identified herein for the 2010 1-hour SO2
NAAQS.

 On May 12, 2005, EPA published CAIR, which requires significant
reductions in emissions of SO2 and nitrogen oxides (NOx) from EGUs to
limit the interstate transport of these pollutants and the ozone and
fine particulate matter they form in the atmosphere.  70 FR 25162.  At
the time the West Virginia regional haze SIP was being developed, the
State’s reliance on CAIR was fully consistent with EPA’s
regulations.

 EPA has discussed previously in this document the limited disapproval
of West Virginia’s PSD program due to failure to include condensables
within the definition of regulated NSR pollutant.

 PAGE

 PAGE  14


[Federal Register Volume 84, Number 182 (Thursday, September 19, 2019)]
[Notices]
[Pages 49308-49309]
[FR Doc No: 2019-20312]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2009-D-0008]

Citizen Petitions and Petitions for Stay of Action Subject to the
Federal Food, Drug, and Cosmetic Act; Guidance for Industry;
Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of availability.

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

SUMMARY: The Food and Drug Administration (FDA or Agency) is announcing
the availability of a final guidance for industry entitled ``Citizen
Petitions and Petitions for Stay of Action Subject to Section 505(q) of
the Federal Food, Drug, and Cosmetic Act.'' Among other things, this
guidance provides FDA's current thinking on what constitutes a 505(q)
petition and describes some of the considerations that FDA will take
into account in determining whether a petition is submitted with the
primary purpose of delaying the approval of an application. This
guidance finalizes the draft guidance for industry entitled ``Citizen
Petitions and Petitions for Stay of Action Subject to Section 505(q) of
the Federal Food, Drug, and Cosmetic Act'' issued in October 2018.

DATES: The announcement of the guidance is published in the Federal
Register on September 19, 2019.

ADDRESSES: You may submit either electronic or written comments on
Agency guidances at any time as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2009-D-0008 for ``Citizen Petitions and Petitions for Stay of
Action Subject to Section 505(q) of the Federal Food, Drug, and
Cosmetic Act.'' Received comments will be placed in the docket and,
except for those submitted as ``Confidential Submissions,'' publicly
viewable at https://www.regulations.gov or at the Dockets Management
Staff between 9 a.m. and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with
confidential

information that you do not wish to be made publicly available, submit
your comments only as a written/paper submission. You should submit two
copies total. One copy will include the information you claim to be
confidential with a heading or cover note that states ``THIS DOCUMENT
CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will review this copy,
including the claimed confidential information, in its consideration of
comments. The second copy, which will have the claimed confidential
information redacted/blacked out, will be available for public viewing
and posted on https://www.regulations.gov. Submit both copies to the
Dockets Management Staff. If you do not wish your name and contact
information to be made publicly available, you can provide this
information on the cover sheet and not in the body of your comments and
you must identify this information as ``confidential.'' Any information
marked as ``confidential'' will not be disclosed except in accordance
with 21 CFR 10.20 and other applicable disclosure law. For more
information about FDA's posting of comments to public dockets, see 80
FR 56469, September 18, 2015, or access the information at: https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852.
    You may submit comments on any guidance at any time (see 21 CFR
10.115(g)(5)).
    Submit written requests for single copies of this guidance to the
Division of Drug Information, Center for Drug Evaluation and Research,
Food and Drug Administration, 10001 New Hampshire Ave., Hillandale
Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-
addressed adhesive label to assist that office in processing your
requests. See the SUPPLEMENTARY INFORMATION section for electronic
access to the guidance document.

FOR FURTHER INFORMATION CONTACT: Kim Thomas, Center for Drug Evaluation
and Research, Food and Drug Administration, 10903 New Hampshire Ave.,
Bldg. 51, Rm. 6282, Silver Spring, MD 20993-0002,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    FDA is announcing the availability of a guidance for industry
entitled ``Citizen Petitions and Petitions for Stay of Action Subject
to Section 505(q) of the Federal Food, Drug, and Cosmetic Act.'' This
guidance provides information regarding FDA's current thinking on
interpreting section 505(q) of the Federal Food, Drug, and Cosmetic Act
(FD&C Act) (21 U.S.C. 355(q)). Section 505(q) of the FD&C Act governs
certain citizen petitions and petitions for stay of Agency action that
request that FDA take any form of action related to a pending
application submitted under (1) section 505(b)(2) of the FD&C Act
(referred to in this document as a 505(b)(2) application), (2) section
505(j) of the FD&C Act (referred to in this document as an abbreviated
new drug application (ANDA)), or (3) section 351(k) of the Public
Health Service Act (PHS Act) (42 U.S.C. 262(k)) (referred to in this
document as a 351(k) application).
    This guidance describes FDA's interpretation of section 505(q) of
the FD&C Act regarding how the Agency determines (1) if the provisions
of section 505(q) addressing the treatment of citizen petitions and
petitions for stay of Agency action (collectively, petitions) apply to
a particular petition and (2) if a petition would delay approval of a
pending ANDA, 505(b)(2) application, or 351(k) application. This
guidance also describes how FDA interprets the provisions of section
505(q) requiring that (1) a petition include a certification and (2)
supplemental information or comments on a petition include a
verification. It also addresses the relationship between the review of
petitions and pending ANDAs, 505(b)(2) applications, and 351(k)
applications for which the Agency has not yet made a decision on
approvability. In addition, this guidance describes some of the
considerations that FDA will take into account in determining whether a
petition is submitted with the primary purpose of delaying the approval
of an application under section 505(q)(1)(E) of the FD&C Act.
    This guidance supersedes the guidance for industry entitled
``Citizen Petitions and Petitions for Stay of Action Subject to Section
505(q) of the Federal Food, Drug, and Cosmetic Act,'' issued in
November 2014, and finalizes the draft guidance announced in the
Federal Register of October 3, 2018 (83 FR 49935). In that Federal
Register notice, FDA gave interested parties an opportunity to submit
comments by December 3, 2018, to ensure that FDA considers the comments
before beginning work on the final version of the guidance. FDA
received a number of comments on the draft guidance. FDA has considered
the comments and made clarifying revisions to the draft guidance.
    This guidance is being issued consistent with FDA's good guidance
practices regulation (21 CFR 10.115). The guidance represents the
current thinking of FDA on ``Citizen Petitions and Petitions for Stay
of Action Subject to Section 505(q) of the Federal Food, Drug, and
Cosmetic Act.'' It does not establish any rights for any person and is
not binding on FDA or the public. You can use an alternative approach
if it satisfies the requirements of the applicable statutes and
regulations. This guidance is not subject to Executive Order 12866.

II. Paperwork Reduction Act of 1995

    This guidance refers to previously approved collections of
information found in FDA regulations. These collections of information
are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The
collections of information in 21 CFR 10.20, 10.30, and 10.35 have been
approved under OMB control number 0910-0191; the collections of
information in 21 CFR 10.31 have been approved under OMB control number
0910-0679; and the collections of information in 21 CFR 314.54, 314.94,
and 314.102 have been approved under OMB control number 0910-0001.

III. Electronic Access

    Persons with access to the internet may obtain the guidance at
either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or
https://www.regulations.gov.

    Dated: September 13, 2019.
Lowell J. Schiller,
Principal Associate Commissioner for Policy.
[FR Doc. 2019-20312 Filed 9-18-19; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register: September 15, 2008 (Volume 73, Number 179)]
[Notices]
[Page 53306-53312]
[DOCID:fr15se08-126]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58469; File No. SR-NYSEArca-2008-92]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Proposed Rule Change Relating to Listing of MacroShares Major Metro
Housing Trusts

September 5, 2008.
    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 25, 2008, 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

    Pursuant to the provisions of section 19(b)(1) of the Act,\4\ the
Exchange, through its wholly-owned subsidiary NYSE Arca Equities, Inc.
(``NYSE Arca Equities'' or the ``Corporation'') proposes to list and
trade under NYSE Arca Equities Rule 8.400 (``Paired Trust Shares'') the
shares of the MacroShares Major Metro Housing Up Trust (``Up Trust'')
and the MacroShares Major Metro Housing Down Trust (``Down Trust'')
(collectively, the ``Trusts''). The shares of the Up Trust are referred
to as the Up MacroShares, and the shares of the Down Trust are referred
to as the Down MacroShares (collectively, the ``Shares''). The text of
the proposed rule change is available on the Exchange's Web site at
http://www.nyse.com, at the Exchange's principal office and at the

Public Reference Room of the Commission.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

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
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to list and trade the Up MacroShares and the
Down MacroShares under Rule 8.400.\5\ The Up MacroShares and the Down
MacroShares will be offered by the Up Trust and the Down Trust,
respectively, established by MACRO Inflation Depositor, LLC, as
depositor, under the laws of the State of New York. The Trusts are not
registered with the Commission as investment companies.\6\
---------------------------------------------------------------------------

    \5\ The Commission approved trading a similar product on the
Exchange pursuant to unlisted trading privileges (``UTP'') when it
approved NYSE Arca Equities Rule 8.400. See Securities Exchange Act
Release No. 55033 (December 29, 2006), 72 FR 1253 (January 10, 2007)
(SR-NYSEArca-2006-75) (approving UTP trading of Claymore MACROshares
Oil Up Tradeable Shares and Claymore MACROshares Oil Down Tradeable
Shares). The Commission also approved for listing and trading the
same product on the American Stock Exchange. See Securities Exchange
Act Release No. 54839 (November 29, 2006), 71 FR 70804 (December 6,
2006) (SR-Amex-2006-82) (approving listing and trading Claymore
MACROshares Oil Up Tradeable Shares and Claymore MACROshares Oil
Down Tradeable Shares). In addition, the Commission has approved a
proposed rule change to amend NYSE Arca Equities Rule 8.400 to
permit listing and trading of MacroShares Medical Inflation Up Trust
and the MacroShares Medical Inflation Down Trust, which are similar
in structure to the Trusts. See Securities Exchange Act Release No.
58312 (August 5, 2008), 73 FR 46689 (August 11, 2008) (SR-NYSEArca-
2008-63). The Trusts will be listed and traded pursuant to NYSE Arca
Equities Rule 8.400 as amended in SR-NYSEArca-2008-63.
    \6\ The Shares are being offered by the Trusts under the
Securities Act of 1933, as amended, 15 U.S.C. 77a. On August 6,
2008, the depositor filed with the Commission Registration
Statements on Form S-1 (Amendment No. 1) for the Up MacroShares
(File No. 333-151522) (``Up Trust Registration Statement'') and for
the Down MacroShares (File No. 333-151523)(``Down Trust Registration
Statement'', and, together with the Up Trust Registration Statement,
``Registration Statements''). Descriptions herein relating to the
operation of the Trusts and the S&P/Case-Shiller Home Price Indices
are based on the Registration Statements.
---------------------------------------------------------------------------

Description of the Shares and the Trusts
    The Up Trust and the Down Trust intend to issue Up MacroShares and
Down MacroShares, respectively, on a continuous basis at the direction
of authorized participants, as described in more detail below. The Up
MacroShares and the Down MacroShares represent undivided beneficial
interests in the Up Trust and the Down Trust, respectively. The Shares
are ``Trading Shares'' as defined in NYSE Arca Equities Rule
8.400(b)(1)(B).
    The assets of the Down Trust will consist of an income distribution
agreement and settlement contracts entered into with the Up Trust.
Similarly, the assets of the Up Trust will consist of an income
distribution agreement and settlement contracts entered into with the
Down Trust.\7\ Each Trust will also hold U.S. Treasuries and repurchase
agreements on U.S. Treasuries to secure its obligations under the
income distribution agreement and the settlement contracts. The trustee
for the Trusts is State Street Bank and Trust Company (``Trustee'').
---------------------------------------------------------------------------

    \7\ The income distribution agreement and applicable settlement
contracts are attached as exhibits to the Registration Statements.
---------------------------------------------------------------------------

    The Trusts will make quarterly distributions of net income, if any,
on the treasuries and a final distribution of all assets it holds on
deposit on the final scheduled termination date, an early termination
date or a redemption date. Quarterly distributions of net income, if
any, will be made on distribution dates that are scheduled to occur in
April, July, October and January of each year. Each quarterly and final
distribution will be based on the value of the S&P/Case-Shiller
Composite-10 Home Price Index (``Index''), as well as on prevailing
interest rates on U.S. Treasury obligations. The last published value
of the S&P/Case-Shiller Composite-10 Home Price Index is referred to as
the ``Reference Value of the Index'' or ``Reference Value'', as
discussed below.\8\
---------------------------------------------------------------------------

    \8\ The Reference Value of the Index is the Reference Price for
purposes of NYSE Arca Equities Rule 8.400.
---------------------------------------------------------------------------

    The starting level for the Reference Value of the Index for
purposes of the transactions described in the Registration Statements
is 181.48.\9\ If the Reference Value rises above its starting level,
the Up Trust's Underlying Value (as described below) will increase to
include all of its assets plus a portion of the assets of the paired
Down Trust. This portion of assets due from the Down Trust will be
multiplied by a ``leverage factor'' of 2. Conversely, if the level of
the Reference Value of the Index falls below its starting level on and
after the closing date, the Up Trust's Underlying Value will decrease,
because a portion of its assets will be included in the Underlying
Value of its paired Down Trust, such portion being multiplied by the
leverage factor.
---------------------------------------------------------------------------

    \9\ This figure is as of July 29, 2008 and is subject to
updating to be included in the Registration Statements upon
effectiveness.
---------------------------------------------------------------------------

    Under the income distribution agreement, as of any distribution
date, each Trust will either (a) be required to pay a portion of its
available income to the other Trust or (b) be entitled to receive all
or a portion of the other Trust's available income, based, in each
case, on the Reference Value for each day during the preceding
calculation period. Under each settlement contract, in connection with
the final scheduled termination date, an early termination date or any
redemption date, each Trust will either (a) be required to make a final
payment out of its assets to the other Trust, or (b) be entitled to
receive a final payment from the other Trust out of the assets of the
other Trust, based, in each case, on the Reference Value of the Index
on the last calendar day preceding the final scheduled termination day,
an early termination day or the relevant redemption date.\10\
---------------------------------------------------------------------------

    \10\ The final distribution made on the Up MacroShares or Down
MacroShares on the final scheduled termination date, an early
termination date or a redemption date will be based upon the
Underlying Value of the Up Trust or Down Trust, respectively, on the
last calendar day, whether or not such day is a business day, that
precedes such final scheduled termination date, early termination
date, or redemption date. Underlying Value will be calculated for
each day based upon the Reference Value of the Index for that day.
The Underlying Value of the Up Trust or Down Trust on each day of
measurement represents the aggregate amount of the assets in the
paired trusts to which the Up Trust or Down Trust would be entitled
if the settlement contracts were settled on that day. The Underlying
Value of the Up Trust or Down Trust on each day of measurement also
represents the aggregate final distribution to which holders of the
Up MacroShares would be entitled if those shares were redeemed on
that day.
    The Underlying Value of a Trust will be equal, on any calendar
day occurring during any Calculation Period, for so long as the
proportion of assets on deposit in the Up and Down Trust is one-to-
one. The methodology for calculating the Underlying Value for the
Trusts is described in the Registration Statements.
---------------------------------------------------------------------------

The Reference Value of the Index
    The amount of each payment required to be made by the paired trusts
under the income distribution agreement will be based on the daily
level of the Reference Value of the Index during the preceding
calculation period and the amount of the settlement payment to be made
under the settlement contracts will be based on the Reference Value of
the Index on the day preceding the business day on which those payments
are made on a redemption date, an early

termination date or the final scheduled termination date. The term
``Reference Value of the Index'' refers to the value of the Index, as
calculated and published by Standard & Poor's (``S&P'') on the most
recent Index Publication Day.\11\ If the relevant date of measurement
is an Index Publication Day, then the Reference Value of the Index will
be the value calculated and published on that day. The Index is
maintained and governed by the S&P/Case-Shiller Index Committee, whose
members are drawn from S&P, Fiserv Fulfillment Services, Inc. and
leading industry experts; S&P designates the Index Committee Chairman
and its representatives retain the controlling majority of such
committee.
---------------------------------------------------------------------------

    \11\ ``Index Publication Day'' means the business day in each
month on which S&P publishes the value for the S&P/Case-Schiller
Composite-10 Home Price Index for the second preceding month.
---------------------------------------------------------------------------

    The S&P/Case-Shiller Home Price Indices (``Indices'') measure the
change in home prices in one or several geographic regions of the
United States. They are calculated monthly and are publicly available
for 20 major metropolitan areas (Metropolitan Statistical Areas or
MSAs), which are also aggregated to form two composites--one comprised
of 10 of the metro areas, the other comprised of all 20. The S&P/Case-
Shiller Composite-10 Home Price Index is a weighted average of the
following 10 S&P/Case-Shiller Metro Area Home Price Indices: the S&P/
Case-Shiller Boston Home Price Index, the S&P/Case-Shiller Chicago Home
Price Index, the S&P/Case-Shiller Denver Home Price Index, the S&P/
Case-Shiller Las Vegas Home Price Index, the S&P/Case-Shiller Los
Angeles Home Price Index, the S&P/Case-Shiller Miami Home Price Index,
the S&P/Case-Shiller New York City Area Home Price Index, the S&P/Case-
Shiller San Diego Home Price Index, the S&P/Case-Shiller San Francisco
Home Price Index, and the S&P/Case-Shiller Washington, DC Home Price
Index. The value of the Index on any Index Publication Day reflects
home prices for the second calendar month preceding the month in which
such Index Publication Day occurs.
    The Index is the result of a combination, based on a market
weighted average, of ten of the Indices for separate MSAs. The current
Index component weights and the factors considered in calculating the
separate Indices on which the Index is based are described below.\12\
---------------------------------------------------------------------------

    \12\ The current normalized composite weights for the Index are
as follows: Year 2000 on--Boston: 0.07412188, Chicago: 0.08886762,
Denver: 0.03682453, Las Vegas: 0.01480245, Los Angeles: 0.21161961,
Miami: 0.04986164, New York: 0.27239040, San Diego: 0.05513356, San
Francisco: 0.11787881, Washington, DC: 0.07849949. Source: Standard
& Poor's (S&P/Case-Shiller Home Price Indices Methodology) and
Fiserv.
---------------------------------------------------------------------------

Overview of the S&P/Case-Shiller Home Price Indices and the Index
    The Indices measure changes in housing market prices given a
constant level of quality. Changes in the types and sizes of houses or
changes in the physical characteristics of houses are specifically
excluded from the calculations to avoid incorrectly affecting the
applicable index value.
    The Indices use the ``repeat sales method'' of index calculation--
an approach that is widely recognized as the premier methodology for
indexing housing prices--which uses data on properties that have sold
at least twice, in order to capture the true appreciated value of each
specific sales unit.
    The Indices originated in the 1980s by Case Shiller Weiss's
research principals, Karl E. Case and Robert J. Shiller. At the time,
Case and Shiller developed the repeat sales pricing technique.
According to the Registration Statements, this methodology is
recognized as the most reliable means to measure housing price
movements and is used by other home price index publishers, including
the Office of Federal Housing Enterprise Oversight (OFHEO).
Eligibility Criteria
    The Indices are designed to measure, as accurately as possible,
changes in the total value of all existing single-family housing stock.
The methodology samples all available and relevant transaction data to
create matched sale pairs for pre-existing homes.
    The Indices do not sample sale prices associated with new
construction, condominiums, co-ops/apartments, multi-family dwellings,
or other properties that cannot be identified as single-family.
    The factors that determine the demand, supply, and value of housing
are not the same across different property types. Consequently, the
price dynamics of different property types within the same market often
vary, especially during periods of increased market volatility. In
addition, the relative sales volumes of different property types
fluctuate, so Indices that are segmented by property type will more
accurately track housing values.
MSA Index Construction
    The Indices are based on observed changes in home prices. They are
designed to measure increases or decreases in the market value of
residential real estate in 20 defined MSAs and three price tiers--low,
middle and high. In contrast, the Indices are, specifically, not
intended to measure recovery costs after disasters, construction or
repair costs, or other such related items.
    The Indices are calculated monthly by FISERV, using a three-month
moving average algorithm. Home sales pairs are accumulated in rolling
three-month periods, on which the repeat sales methodology is applied.
The index point for each reporting month is based on sales pairs found
for that month and the preceding two months. For example, the December
2005 index point is based on repeat sales data for October, November
and December of 2005. This averaging methodology is used to offset
delays that can occur in the flow of sales price data from county deed
recorders and to keep sample sizes large enough to create meaningful
price change averages.
    To calculate the Indices, data are collected on transactions of all
residential properties during the months in question. The main variable
used for index calculation is the price change between two arms-length
sales of the same single-family home. Home price data are gathered
after that information becomes publicly available at local recording
offices across the country. Available data usually consist of the
address for a particular property, the sale date, the sale price, the
type of property, and in some cases, the name of the seller, the name
of the purchaser, and the mortgage amount.
    For each home sale transaction, a search is conducted to find
information regarding any previous sale for the same home. If an
earlier transaction is found, the two transactions are paired and are
considered a ``repeat sale.'' Sales pairs are designed to yield the
price change for the same house, while holding the quality and size of
each house constant.
    All available arms-length transactions for single-family homes are
candidates for sale pairs. When they can be identified, transactions
with prices that do not reflect market value are excluded from sale
pairs. This includes: (1) Non-arms-length transactions (e.g., property
transfers between family members); (2) transactions where the property
type designation is changed (e.g., properties originally recorded as
single-family homes are subsequently recorded as condominiums); and (3)
suspected data errors where the order of magnitude in values appears
unrealistic.
    Each sales pair is aggregated with all other sales pairs found in a
particular MSA to create the MSA-level index. 10

of the 20 Indices are then combined by S&P, using a market-weighted
average, to create the Index (as noted above).\13\
---------------------------------------------------------------------------

    \13\ See note 11, supra.
---------------------------------------------------------------------------

The Weighting of Sales Pairs
    The Indices are designed to reflect the average change in all home
prices in a particular geographic market. However, individual home
prices are used in these calculations and can fluctuate for a number of
reasons. In many of these cases, the change in value of the individual
home does not reflect a change in the housing market of that area; it
only reflects a change in that individual home. The index methodology
addresses these concerns by weighting sales pairs.
    Different weights are assigned to different changes in home prices
based on their statistical distribution in that geographic region. The
goal of this weighting process is to measure changes in the value of
the residential real estate market, as opposed to atypical changes in
the value of individual homes. These weighting schemes include:
    If there is a large change in the prices of a sales pair relative
to the statistical distribution of all price changes in the area, then
it is possible that the home was remodeled, rebuilt or neglected in
some manner during the period from the first sale to the second sale.
Or, if there were no physical changes to the property, there may have
been a recording error in one of the sale prices, or an excessive price
change caused by idiosyncratic, non-market factors. Since the Indices
seek to measure homes of constant quality, the methodology will apply
smaller weights to homes that appear to have changed in quality or
sales that are otherwise not representative of market price trends.
    Data related to homes that sell more than once within six months
are excluded from the calculation of any Indices. Historical and
statistical data indicate that sales made within a short interval often
indicate that one of the transactions: (1) Is not arms-length, (2)
precedes or follows the redevelopment of a property, or (3) is a
fraudulent transaction.
    Sales pairs are also weighted based on the time interval between
the first and second sales. If a sales pair interval is longer, then it
is more likely that a house may have experienced physical changes.
Sales pairs with longer intervals are, therefore, given less weight
than sales pairs with shorter intervals.
    Each sales pair is assigned a weight equal to the first sale price
to ensure that the Indices track the aggregate/average value of all
homes in a market.
Index Governance
    The S&P/Case-Shiller Home Price Indices and the Index are
maintained and governed by the S&P/Case-Shiller Index Committee. The
Index Committee members are drawn from S&P, Fiserv Fulfillment
Services, Inc. and leading industry experts; S&P designates the Index
Committee Chairman. The Index Committee has complete discretion to
determine how the Indices and the Index are calculated. In addition,
the Index Committee may revise index policy covering rules for
selecting houses to be considered for the index and extraordinary
events, such as natural disasters, that may result in special
consideration in the index in any given month. S&P considers
information about changes to the Indices and related matters to be
potentially market moving and material. Therefore, all Index Committee
discussions are confidential. The Index Committee has no broker-dealer
members.\14\
---------------------------------------------------------------------------

    \14\ S&P employee Index Committee members and any other S&P
employees with access to S&P/Case-Shiller index data are subject to
The McGraw-Hill Companies, Inc. Code of Business Ethics and to
additional policies that prohibit insider trading and that cover
securities trading, information security and information
dissemination.
---------------------------------------------------------------------------

    For more information on the index construction process, pairing
sales, controlling data quality, index maintenance, and the repeat
sales methodology, see the ``S&P/Case-Shiller Home Price Indices: Index
Methodology'' document, available at http://www.macromarkets.com.
Termination Triggers
    Following the occurrence of specified events, referred to in the
Registration Statements as ``Termination Triggers,'' the income
distribution agreement and the settlement contracts will automatically
terminate and the Trustee will redeem all of the Paired Shares on the
next scheduled Distribution Date. Among the events that will constitute
Termination Triggers are the following:

--S&P fails to publish the Index or S&P fails to make the Reference
Value of the Index available to the Paired Trusts for purposes of
calculating Underlying Value, in either case, for 3 consecutive Index
Publication Days;
--On any Index Publication Day, the Index rises to or above 258.61,\15\
at which point the Down Trust would be entitled to approximately 85% of
the Up Trust's assets under the settlement contracts, or the Index
falls to or below 104.35,\16\ at which point the Up Trust would be
entitled to approximately 85% of the Down Trust's assets under the
settlement contracts, and remains at or above this value or at or below
this value, as applicable, for the next two (2) consecutive Index
Publication Days;
---------------------------------------------------------------------------

    \15\ See note 9, supra.
    \16\ See note 9, supra.
---------------------------------------------------------------------------

--The Down MacroShares and/or the Up MacroShares are delisted by NYSE
Arca. Additional Termination Triggers are described in the Registration
Statements.
Calculation of Underlying Value
    The Final Distribution made on the Down MacroShares on the Final
Scheduled Termination Date, an Early Termination Date or a Redemption
Date will be based upon the Underlying Value of the Down Trust on the
last calendar day that precedes the Final Scheduled Termination Date,
an Early Termination Date or the relevant Redemption Date. Underlying
Value will be calculated for each calendar day based upon the Reference
Value of the Index. The Underlying Value of the Down Trust on any date
of measurement represents the aggregate amount of the assets in the
Paired Trusts to which the Down Trust would be entitled if the
settlement contracts were settled on that day. The Underlying Value of
the Down Trust on each day also represents the aggregate Final
Distribution to which holders of the Down MacroShares would be entitled
if those Shares were redeemed on that day. The Underlying Value of the
Up Trust on any day represents the aggregate amount of the assets in
the Paired Trusts to which the Up Trust would be entitled if the
settlement contracts were settled on that day. The Underlying Value of
the Up Trust on each day also represents the aggregate Final
Distribution to which holders of the Up MacroShares would be entitled
if those shares were redeemed on that day.
    An increase in the Reference Value of the Index results in a
proportionate decrease in the Underlying Value of the Down Trust,
multiplied by the leverage factor. A decrease in the Reference Value of
the Index results in a proportionate increase in the Underlying Value
of the Down Trust, multiplied by the leverage factor. After the closing
date, the Reference Value of the Index may fluctuate above or below a
``starting level'' of 181.48.\17\ The proportion of the funds in the
Down Trust and the Up Trust will initially be 1:1 and this proportion
will be sought to be maintained throughout the entire

transaction by virtue of the requirement that redemptions and issuances
must be done in MacroShares Units composed of 50,000 Down MacroShares
and 50,000 Up MacroShares. The Underlying Value formula as described in
the Registration Statements, and the requirement that Down MacroShares
can only be issued and redeemed in paired optional redemptions and
paired issuances and only in the form of MacroShares Units, is intended
to ensure that a change of 3.63 \18\ in the Reference Value of the
Index will always result in a $1 change in the per share Underlying
Value of each Down MacroShare.
---------------------------------------------------------------------------

    \17\ See note 9, supra.
    \18\ See note 9, supra.
---------------------------------------------------------------------------

    The impact of changes in the Reference Value of the Index is
multiplied by the leverage factor. The ratio of the ending level of the
Reference Value of the Index to the starting level of the Reference
Value of the Index on the closing date, will yield a settlement factor
by which the assets held on deposit by the Down Trust must be
multiplied in order to determine the trust's Underlying Value. Before
being so applied, this settlement factor is first adjusted by a
leverage factor, which is equal to 2. The effect of this is to double
any increase in the Underlying Value of the Down Trust as well as to
double any decline in that Underlying Value, making the per share
Underlying Value and the market price of Down MacroShares potentially
more volatile than the housing prices which those shares reference.
    The Up MacroShares may be issued only in MacroShares Units
consisting of a minimum of 50,000 Up MacroShares issued by the Up Trust
and 50,000 Down MacroShares issued by the Down Trust. The Up Trust and
Down Trust will issue their Shares in the minimum amounts that
constitute a MacroShares Unit on an ongoing basis only to persons who
qualify as authorized participants at the per-share Underlying Value of
those Shares on the business day on which a creation order for the
Shares is delivered to and accepted by MacroMarkets LLC, the
administrative agent.\19\ The Shares may then be sold by authorized
participants to the public at the market price prevailing at the time
of any such sale.
---------------------------------------------------------------------------

    \19\ Authorized participants must also pay a transaction fee of
$2,000 for any paired redemption or issuance.
---------------------------------------------------------------------------

    The Up MacroShares must be redeemed together with Down MacroShares
by any holder who is an authorized participant on any business day in
MacroShares Units consisting of a minimum of 50,000 Up MacroShares and
50,000 Down MacroShares, at the respective Underlying Value of those
shares, as measured on the applicable redemption date. Unless earlier
redeemed on a redemption date or an early termination date, a final
distribution will be made on the Up MacroShares on the distribution
date occurring in 2018.
    The Registration Statements include a number of hypothetical
scenarios of circumstances that will impact the Underlying Value of an
Up MacroShare and a Down MacroShare.
    For more information regarding the Shares, the Trusts, the
Reference Value, Income Distribution, Redemption Final Distribution,
risks, fees and expenses, Termination Triggers, and creation and
redemption procedures, see the Registration Statements.
Availability of Information
    At the beginning of each business day, not later than one hour
prior to the commencement of trading in the Core Trading Session on the
Exchange, the Trustee will calculate the Underlying Value of the Up
Trust and the Down Trust and the per share Underlying Value of one Up
MacroShare and one Down MacroShare. The Trustee will then provide such
values to the administrative agent, who will post them on its Web site
located at http://www.macromarkets.com. The Trustee will base its
calculation of the Underlying Values for any business day on the
administrative agent's calculation of the Reference Values for the
preceding day (regardless of whether that preceding day is a business
day or non-business day), which it will provide to the Trustee. The
Underlying Values will be disseminated to all market participants at
the same time.
    An intraday indicative value will not be disseminated for the
Trusts. The Exchange believes that an intraday indicative value for the
Trusts would not provide an accurate approximation of the value of
Shares of the Trusts. As noted above, the Reference Price, (in the case
of the Up MacroShares and Down MacroShares, the Reference Value), is
based on the monthly value of the Index. The Exchange believes that the
Reference Price applicable to the Trusts, considered together with the
current market price of Shares, will provide investors with sufficient
information to approximate the amount to be received upon redemption of
Shares.
    Information regarding market price and volume of the Shares is and
will be continually available on a real-time basis throughout the day
via electronic services. The previous day's closing price and trading
volume information for the Shares will be published daily in the
financial section of major newspapers and will be available from major
market data vendors. Quotation and last sale information for the Shares
will be available via the Consolidated Tape Association high speed
line.
    Announcements regarding the levels for the Index and the Indices
are made at 9:00 a.m. Eastern Time on the last Tuesday of each month,
and are made available to all market participants at the same time.
Such levels are available through major market data vendors (e.g.,
Bloomberg, and Reuters). Press releases are posted at Standard and
Poor's Web site at http://www.indices.standardandpoors.com and are
released to major news services. Historical data regarding the Index
and the Indices are published at http://
www.indices.standardandpoors.com.
    The Index and the Indices are disseminated to all market
participants at the same time.
Initial and Continued Listing Criteria
    Rule 8.400(d) sets forth initial and continued listing criteria
applicable to Paired Trust Shares. A minimum of 100,000 Up MacroShares
and 100,000 Down MacroShares will be required to be outstanding at the
commencement of trading. In addition, the Corporation will obtain a
representation on behalf of the Up Trust and the Down Trust that the
Underlying Value per share of each Up Share and Down Share,
respectively, will be calculated daily and will be made available to
all market participants at the same time. The Corporation will remove
from listing the Up MacroShares or the Down MacroShares under the
circumstances outlined in Rule 8.400(d) for Trading Shares, which
include:
     If, after the initial twelve-month period following the
commencement of trading of the Shares, (A) the Up Trust or the Down
Trust has more than 60 days remaining until termination and there are
fewer than 50 record and/or beneficial holders of Up MacroShares or
Down MacroShares, respectively, for 30 or more consecutive trading
days; (B) if the Up Trust or the Down Trust has fewer than 50,000 Up
MacroShares or Down MacroShares, respectively, issued and outstanding;
or (C) if the combined market value of all Shares issued and
outstanding for the Up Trust and the Down Trust combined is less than
$1,000,000;
     If a replacement benchmark is selected for the
determination of the Reference Value, unless the Corporation files with
the Commission a related proposed rule change pursuant to Rule

19b-4 under the Exchange Act \20\ seeking approval to continue trading
the Up MacroShares or Down MacroShares and such rule change is approved
by the Commission; or
---------------------------------------------------------------------------

    \20\ 20 17 CFR 240.19b-4.
---------------------------------------------------------------------------

     If such other event shall occur or condition exists which
in the opinion of the Corporation makes further dealings on the
Corporation inadvisable.

Rule 8.400(d)(2) also provides that the Corporation will halt trading
in the Up MacroShares or the Down MacroShares, as the case may be, if
the circuit breaker parameters of NYSE Arca Equities Rule 7.12 have
been reached. In exercising its discretion to halt or suspend trading
in the Up MacroShares or the Down MacroShares, the Corporation may
consider other factors that may be relevant.
Trading Halts
    With respect to trading halts, the Exchange may consider all
relevant factors in exercising its discretion to halt or suspend
trading in the Shares. Trading may be halted because of market
conditions or for reasons that, in the view of the Exchange, make
trading in the Shares inadvisable. These may include: (1) The extent to
which trading is not occurring in the underlying securities; or (2)
whether other unusual conditions or circumstances detrimental to the
maintenance of a fair and orderly market are present. Rule 8.400(d)(2)
described above sets forth circumstances under which Shares may be
halted.
    If the Exchange becomes aware that the Underlying Value per Share
of each Up Share and Down Share is not disseminated to all market
participants at the same time, it will halt trading in the Up
MacroShares or the Down MacroShares, as the case may be, until such
time as the Underlying Values per Share are available to all market
participants.
Trading Rules
    The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities. Shares will trade on
the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern Time in
accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late
Trading Sessions). The Exchange has appropriate rules to facilitate
transactions in the Shares during all trading sessions.
Surveillance
    The Exchange intends to utilize its existing surveillance
procedures applicable to derivative securities products, including
Paired Trust Shares, to monitor trading in the Shares. The Exchange
represents that these procedures are adequate to properly monitor
Exchange trading of the Shares in all trading sessions and to deter and
detect violations of Exchange rules and applicable federal securities
laws.
    The Exchange's current trading surveillance focuses on detecting
securities trading outside their normal patterns. When such situations
are detected, surveillance analysis follows and investigations are
opened, where appropriate, to review the behavior of all relevant
parties for all relevant trading violations.
    The Exchange may obtain information via the Intermarket
Surveillance Group (``ISG'') from other exchanges who are members of
the ISG.\21\
---------------------------------------------------------------------------

    \21\ For a list of the current members of ISG, see http://
www.isgportal.org.
---------------------------------------------------------------------------

    In addition, the Exchange also has a general policy prohibiting the
distribution of material, non-public information by its employees.
Information Bulletin
    Prior to the commencement of trading, the Exchange will inform its
ETP Holders in an Information Bulletin (``Bulletin'') of the special
characteristics and risks associated with trading the Shares.
Specifically, the Bulletin will discuss the following: (1) what the
Shares are; (2) the procedures for purchases and redemptions of Shares
in MacroShares Units (and that Shares are not individually redeemable);
(3) NYSE Arca Equities Rule 9.2(a),\22\ which imposes a duty of due
diligence on its ETP Holders to learn the essential facts relating to
every customer prior to trading the Shares; (4) the requirement that
ETP Holders deliver a prospectus to investors purchasing newly issued
Shares prior to or concurrently with the confirmation of a transaction;
and (5) trading information.
---------------------------------------------------------------------------

    \22\ NYSE Arca Equities Rule 9.2(a) provides that an ETP Holder,
before recommending a transaction, must have reasonable grounds to
believe that the recommendation is suitable for the customer based
on any facts disclosed by the customer as to his other security
holdings and as to his financial situation and needs. Further, the
rule provides, with a limited exception, that prior to the execution
of a transaction recommended to a non-institutional customer, the
ETP Holder shall make reasonable efforts to obtain information
concerning the customer's financial status, tax status, investment
objectives, and any other information that the ETP Holder believes
would be useful to make a recommendation. See Securities Exchange
Act Release No. 54026 (June 21, 2006), 71 FR 36850 (June 28, 2006)
(SR-PCX-2005-115).
---------------------------------------------------------------------------

    In addition, the Bulletin will reference that the Shares are
subject to various fees and expenses described in the Registration
Statements. The Bulletin will discuss any exemptive, no-action, and
interpretive relief granted by the Commission from any rules under the
Exchange Act.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is
the requirement under section 6(b)(5) \23\ that an exchange have rules
that are designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market
and, in general, to protect investors and the public interest. The
Exchange believes that the proposed rule change will facilitate the
listing and trading of additional types of exchange-traded products
that will enhance competition among market participants, to the benefit
of investors and the marketplace. In addition, the listing and trading
criteria set forth in NYSE Arca Equities Rule 8.400 are intended to
protect investors and the public interest.
---------------------------------------------------------------------------

    \23\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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.

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

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

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change, or

    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
    The Exchange has requested accelerated approval of this proposed
rule change prior to the 30th day after the date of publication of the
notice of the filing thereof. The Commission is considering granting
accelerated approval of the proposed rule change at the end of a 15-day
comment period.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2008-92 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-2008-92. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2008-92 and should
be submitted on or before September 30, 2008.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\24\
---------------------------------------------------------------------------

    \24\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-21329 Filed 9-12-08; 8:45 am]

BILLING CODE 8010-01-P