[Federal Register Volume 77, Number 198 (Friday, October 12, 2012)]
[Rules and Regulations]
[Pages 62159-62166]
[FR Doc No: 2012-25181]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0019(a); FRL-9741-2]

Approval and Promulgation of Implementation Plans; North Carolina
Portion of the Charlotte-Gastonia-Rock Hill, North Carolina-North
Carolina 1997 8-Hour Ozone Nonattainment Area; Reasonable Further
Progress Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve state
implementation plan (SIP) revision, submitted by the North Carolina
Department of Environment and Natural Resources (NC DENR), on June 15,
2007, as updated on November 30, 2009, to address the reasonable
further progress (RFP) plan requirements for the 1997 8-hour ozone
national ambient air quality standards (NAAQS) for the North Carolina
portion of the bi-state Charlotte-Gastonia-Rock Hill 1997 8-hour ozone
nonattainment area. The Charlotte-Gastonia-Rock Hill, North Carolina-
South Carolina 1997 8-hour ozone nonattainment area (hereafter referred
to as the ``bi-state Charlotte Area'') is comprised of Cabarrus,
Gaston, Lincoln, Mecklenburg, Rowan, Union and a portion of Iredell
(Davidson and Coddle Creek Townships) Counties in North Carolina
(hereafter referred to as the ``North Carolina portion of the bi-state
Charlotte Area''); and a portion of York County in South Carolina. EPA
is also providing the status of its adequacy determination for the
motor vehicle emissions budgets (MVEB) for volatile organic compounds
(VOC) and nitrogen oxide (NOx) that were included in North Carolina's
RFP plan. Further, EPA is approving these MVEB. These actions are being
taken pursuant to section 110 of the Clean Air Act (CAA or Act). EPA
will take action on South Carolina's RFP plan for its portion of the
bi-state Charlotte Area, in a separate action.

DATES: This direct final rule is effective December 11, 2012 without
further notice, unless EPA receives adverse comment by November 13,
2012. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number, ``EPA-
R04-OAR-2010-0019,'' by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2010-0019,'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief,
Regulatory Development Section, Air Planning Branch, Air, Pesticides
and Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal
holidays.
    Instructions: Direct your comments to Docket ID Number, ``EPA-R04-
OAR-2010-0019.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Sara Waterson of the Regulatory
Development Section, in the Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The
telephone number is<PHONE_NUMBER>. Ms. Sara Waterson can be reached
via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. What action is EPA taking?
II. What is the background for EPA's action?
III. What is EPA's analysis of the RFP plan for the North Carolina
portion of the bi-state Charlotte area?
IV. What is the 2008 NOx emissions inventory for the
North Carolina portion of the bi-state Charlotte area?
V. What is EPA's analysis of the 2008 VOC MVEB for the North
Carolina portion of the bi-state Charlotte area?
VI. What is the status of EPA's adequacy determination for the 2008
VOC MVEB for the North Carolina portion of the bi-state Charlotte
area?
VII. Final Action
VIII. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is approving revisions to the North Carolina SIP, submitted by
the State of North Carolina through NC DENR, on June 15, 2007, as
updated on November 30, 2009, to meet RFP requirements of the CAA for
the North

Carolina portion of the bi-state Charlotte Area for the 1997 8-hour
ozone NAAQS. The RFP plan demonstrates that VOC emissions will be
reduced by at least 15 percent for the period of 2002 through 2008.
Additionally, EPA is approving the required 2008 VOC MVEB and optional
2008 NOx MVEB which were included in the RFP plan for the North
Carolina portion of the bi-state Charlotte Area. EPA is taking these
actions because they are consistent with CAA requirements for the
requirements for RFP. The MVEB for the North Carolina portion of the
bi-state Charlotte Area, expressed in kilograms per day (kgd), are
provided in Table 1 below.

Table 1--MVEB for the North Carolina Portion of the 1997 8-Hour Bi-State
                             Charlotte Area
------------------------------------------------------------------------
                                                          VOC      NOX
------------------------------------------------------------------------
                  2008 County-level Subarea MVEB (kg/d)
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Carbarrus.............................................    6,941    7,324
Gaston................................................    5,132    7,647
Iredell*..............................................    3,601    5,637
Lincoln...............................................    2,726    2,948
Mecklenburg...........................................   26,368   34,526
Rowan.................................................    6,149    7,193
Union.................................................    6,299    5,660
------------------------------------------------------------------------
* Represents only the portion of Iredell County that is in the
  nonattainment area for the bi-state Charlotte Area.

    EPA is also describing the status of its transportation conformity
adequacy determination for the 2008 MVEB.

II. What is the background for EPA's action?

A. General Background

    On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS of
0.08 parts per million (ppm). Under EPA's regulations at 40 CFR part
50, the 1997 8-hour ozone NAAQS is attained when the 3-year average of
the annual fourth highest daily maximum 8-hour average ambient air
quality ozone concentrations is less than or equal to 0.08 ppm (i.e.,
0.084 ppm when rounding is considered) (69 FR 23857, April 30, 2004).
Ambient air quality monitoring data for the 3-year period must meet the
data completeness requirement as determined in 40 CFR part 50, appendix
I. The ambient air quality monitoring data completeness requirement is
met when the average percent of days with valid ambient monitoring data
is greater than 90 percent, and no single year has less than 75 percent
data completeness.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that is violating the NAAQS,
based on the three most recent years of ambient air quality data at the
conclusion of the designation process. The bi-state Charlotte Area was
designated nonattainment for the 1997 8-hour ozone NAAQS on April 30,
2004 (effective June 15, 2004) using 2001-2003 ambient air quality data
(69 FR 23857, April 30, 2004). At the time of designation the bi-state
Charlotte Area was classified as a moderate nonattainment area for the
1997 8-hour ozone NAAQS. In the April 30, 2004, Phase I Ozone
Implementation Rule, EPA established ozone nonattainment area
attainment dates based on Table 1 of section 181(a) of the CAA. This
established an attainment date six years after the June 15, 2004,
effective date for areas classified as moderate areas for the 1997 8-
hour ozone nonattainment designations. Section 181 of the CAA explains
that the attainment date for moderate nonattainment areas shall be as
expeditiously as practicable, but no later than six years after
designation, or June 15, 2010. Therefore, the bi-state Charlotte Area's
original attainment date was June 15, 2010. See 69 FR 23951, April 30,
2004.
    The bi-state Charlotte Area did not attain the 1997 8-hour ozone
NAAQS by June 15, 2010 (the applicable attainment date for moderate
nonattainment areas); however, the Area qualified for an extension of
the attainment date. Under certain circumstances, the CAA allows for
extensions of the attainment dates prescribed at the time of the
original nonattainment designation. In accordance with CAA section
181(a)(5), EPA may grant up to 2 one-year extensions of the attainment
date under specified conditions. On May 31, 2011, EPA determined that
North Carolina and South Carolina met the CAA requirements to obtain a
one-year extension of the attainment date for the 1997 8-hour ozone
NAAQS for the bi-state Charlotte Area. See 76 FR 31245. As a result,
EPA extended the bi-state Charlotte Area's attainment date from June
15, 2010, to June 15, 2011, for the 1997 8-hour ozone NAAQS.
    On November 15, 2011 (76 FR 70656), EPA determined the bi-state
Charlotte Area attained the 1997 8-hour ozone NAAQS; and subsequently,
on March 7, 2012 (77 FR 13493), EPA determined that the bi-state
Charlotte Area attained the 1997 8-hour ozone NAAQS by the applicable
attainment date. The determination of attaining data was based upon
complete, quality-assured and certified ambient air monitoring data for
the 2008-2010 period, showing that the bi-state Charlotte Area had
monitored attainment of the 1997 8-hour ozone NAAQS. The requirements
for the bi-state Charlotte Area to submit an attainment demonstration
and associated reasonably available control measures (RACM), RFP plan,
contingency measures, and other planning SIP revisions related to
attainment of the standard were suspended as a result of the
determination of attainment, so long as the bi-state Charlotte Area
continues to attain the 1997 8-hour ozone NAAQS.\1\ See 40 CFR
52.1779(a).
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    \1\ Originally, North Carolina submitted SIP revisions,
including an attainment demonstration, on June 15, 2007, to address
nonattainment requirements related to the 1997 8-hour ozone NAAQS.
Specifically, North Carolina submitted an attainment demonstration
and associated RACM, a RFP plan, contingency measures, emissions
statement, a 2002 base year emissions inventory and other planning
SIP revisions related to attainment of the 1997 8-hour ozone NAAQS
for the North Carolina portion of the bi-state Charlotte Area. North
Carolina withdrew the June 15, 2007, attainment demonstration SIP
for the North Carolina portion of the bi-state Charlotte Area on
December 19, 2008. On November 12, 2009, North Carolina resubmitted
the attainment demonstration SIP, and on November 30, 2009, North
Carolina provided an update for the June 15, 2007, RFP plan for the
North Carolina portion of the bi-state Charlotte Area.
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    On December 21, 2011, North Carolina withdrew the attainment
demonstration submissions (except RFP, emissions statements, and the
emissions inventory) as allowed by 40 CFR 51.918 for the North Carolina
portion of the bi-state Charlotte Area.\2\ Subsequently, EPA approved
North Carolina's SIP revisions related to the emissions statements and
emissions inventory requirements for the North Carolina portion of the
bi-state Charlotte Area for the 1997 8-hour ozone NAAQS. For the EPA
action related to the emissions statements requirements for the 1997 8-
hour ozone NAAQS, see 77 FR 24382 (April 24, 2012) and 64 FR 41277
(August 1, 1997). For the EPA action related to the emissions inventory
requirements for the 1997 8-hour ozone NAAQS, see 77 FR 26441 (May 4,
2012). Despite the determination of attainment, North Carolina opted to
leave the SIP submissions related to the RFP requirements for the 1997
8-hour ozone NAAQS before EPA for action. As such, EPA is taking action
to approve revisions to North Carolina's SIP submitted on June 15,
2007, as updated on November 30, 2009, as it relates to the RFP
requirements for the 1997 8-hour ozone NAAQS.
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    \2\ North Carolina did not withdraw any elements related to
reasonably available control technology (RACT) requirements, to the
extent that these requirements were addressed in the attainment
demonstration submissions.
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B. Background for RFP

    On November 29, 2005 (70 FR 71612), as revised on June 8, 2007 (72
FR

31727), EPA published a rule entitled ``Final Rule To Implement the 8-
Hour Ozone National Ambient Air Quality Standard--Phase 2; Final Rule
To Implement Certain Aspects of the 1990 Amendments Relating to New
Source Review and Prevention of Significant Deterioration as They Apply
in Carbon Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for
Reformulated Gasoline'' (hereafter referred to as the Phase 2 Rule).
Section 182(b)(1) of the CAA and EPA's Phase 2 Rule \3\ require a
state, for each 1997 8-hour ozone nonattainment area that is classified
as moderate, to submit an emissions inventory and a RFP plan to show
how the state will reduce emissions of VOC.
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    \3\ RFP regulations are at 40 CFR 51.910.
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    The bi-state Charlotte Area had an attainment date of June 15, 2010
(i.e., that is beyond five years after designation), that was later
extended to June 15, 2011. See 76 FR 31245 (May 31, 2011). For a
moderate area with an attainment date of more than five years after
designation, the RFP plan must obtain a 15 percent reduction in ozone
precursor emissions for the first six years after the baseline year
(2002 through 2008). Since the North Carolina portion of the bi-state
Charlotte Area did not have a previous plan to address RFP
requirements,\4\ the initial RFP requirement for the Area must be met
through VOC reductions as required by the 1990 CAA Amendments.
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    \4\ Some areas that were designated as moderate or above for the
1-hour ozone NAAQS may have implemented Rate of Progress plans
(i.e., plans similar to the RFP requirements) by which the area
would have achieved at least a 15 percent reduction in VOC from an
initial baseline. Such areas have the flexibility to meet RFP
requirements through a reduction in VOC or nitrogen oxides, after
the initial achievement in a reduction of at least 15 percent for
VOC emissions for the area.
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    Pursuant to CAA section 172(c)(9), RFP plans must include
contingency measures that will take effect without further action by
the state or EPA, which includes additional controls that would be
implemented if the area fails to reach the RFP milestones. While the
CAA does not specify the type of measures or quantity of emissions
reductions required, EPA provided guidance interpreting the CAA that
implementation of these contingency measures would provide additional
emissions reductions of up to 3 percent of the adjusted base year
inventory in the year following the RFP milestone year (i.e., in this
case 2008). For more information on contingency measures please see the
April 16, 1992 General Preamble (57 FR 13498, 13510) and the November
29, 2005 Phase 2 8-hour ozone standard implementation rule (70 FR
71612, 71650). Finally, RFP plans must also include a MVEB for the
precursors for which the plan is developed. The State also had the
option of developing MVEB for other precursors. See Section V of this
rulemaking for more information on MVEB requirements.
    On June 15, 2007, and later updated on November 30, 2009, North
Carolina submitted the RFP plan for the North Carolina portion of the
bi-state Charlotte Area to address the CAA's requirements for the 1997
8-hour ozone NAAQS. The June 15, 2007, SIP revision (as updated on
November 30, 2009) included an attainment demonstration plan, RFP plan
for 2008, contingency measures, RACT, RACM requirements, on-road VOC
and NOx MVEB, and the 2002 base year emissions inventory. These
revisions to the SIP were subject to notice and comment by the public
and the State addressed the comments received on the proposed SIP
revisions. Today's rulemaking is approving only the RFP plan, including
the associated MVEB. The remainder of North Carolina's June 15, 2007,
submittal was addressed by previous EPA actions, or by the State's
withdrawal of submissions that were no longer necessary.\5\
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    \5\ North Carolina's November 30, 2009, SIP revision only
addressed RFP and is being acted on in its entirety in this action.
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III. What is EPA's analysis of the RFP plan for the North Carolina
portion of the bi-state Charlotte area?

    On June 15, 2007, and later updated on November 30, 2009, North
Carolina submitted the RFP plan for the North Carolina portion of the
bi-state Charlotte Area to address the CAA's requirements for the 1997
8-hour ozone NAAQS. Below provides EPA's analysis of North Carolina's
RFP submission.

A. Base Year Emissions Inventory

    An emissions inventory is a comprehensive, accurate, current
inventory of actual emissions from all sources and is required by
section 182(a)(1) of the CAA. Because the North Carolina portion of the
bi-state Charlotte Area as part of the bi-state Charlotte Area did not
implement the 15 percent VOC reductions for the 1-hour ozone NAAQS, the
requirement for North Carolina to meet RFP is a 15 percent VOC
reduction between 2002 and 2008 with continued progress toward
attainment through attainment.\6\ EPA recommended 2002 as the base year
emissions inventory, and is therefore the starting point for
calculating RFP. North Carolina submitted its 2002 base year emissions
inventory on June 15, 2007. In an action on May 4, 2012, EPA approved
North Carolina's 2002 base year emissions inventory for the North
Carolina portion of the bi-state Charlotte Area for the 1997 8-hour
ozone NAAQS. See 77 FR 26441. A summary of the North Carolina portion
of the bi-state Charlotte Area 2002 base year emissions inventories is
included in Table 2 below.
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    \6\ The bi-state Charlotte Area attained the 1997 8-hour ozone
NAAQS by June 15, 2011, based on 2008- 2010 data.

                   Table 2--2002 Point and Area Sources Annual Emissions for the North Carolina Portion of the Bi-State Charlotte Area
                                                                  [Tons per summer day]
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                                                            Point                     Area                    Non-Road                   Mobile
                     County                      -------------------------------------------------------------------------------------------------------
                                                      NOX          VOC          NOX          VOC          NOX          VOC          NOX          VOC
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cabarrus........................................          2.6          2.2          0.8          6.0          5.4          2.7         17.2         21.5
Gaston..........................................         34.8          2.5          1.3          8.9          4.9          2.9         20.0         13.5
Iredell*........................................         10.8          2.1          0.9          5.8          4.4          2.7         29.9         17.6
Lincoln.........................................          0.3          2.1          0.5          3.1          1.9          1.3          6.1          7.1
Mecklenburg.....................................          2.1          5.7          7.0         29.4         32.1         24.1         78.7         68.0
Rowan...........................................         11.0          6.3          0.8          5.6          4.1          2.3         19.7         14.8
Union...........................................          0.2          1.0          1.0          6.4          7.7          4.7         11.3         13.0
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* Represents only the portion of Iredell County that is in the nonattainment area for the bi-state Charlotte Area.

    As mentioned above, EPA has already approved this emissions
inventory in a prior action.

B. Adjusted Base Year Inventory and 2008 RFP Target Levels

    The process for determining the emissions baseline from which the
RFP reductions are calculated is described in section 182(b)(1) of the
CAA and 40 CFR 51.910. This baseline value is the 2002 adjusted base
year inventory. Sections 182(b)(1)(B) and (D) require the exclusion
from the base year inventory of emissions benefits resulting from the
Federal Motor Vehicle Control Program (FMVCP) regulations promulgated
by January 1, 1990, and the Reid Vapor Pressure (RVP) regulations
promulgated June 11, 1990 (55 FR 23666). The FMVCP and RVP emissions
reductions are determined by the State using EPA's on-road mobile
source emissions modeling software, MOBILE6. The FMVCP and RVP emission
reductions are then removed from the base year inventory by the State,
resulting in an adjusted base year inventory. The emission reductions
needed to satisfy the RFP requirement are then calculated from the
adjusted base year inventory. These reductions are then subtracted from
the adjusted base year inventory to establish the emissions target for
the RFP milestone year (2008).
    For moderate areas like the North Carolina portion of the bi-state
Charlotte Area (as part of the bi-state Charlotte Area), the CAA
specifies a 15 percent reduction in ozone precursor emissions over an
initial six year period following the baseline inventory year. In the
Phase 2 Rule, EPA interpreted this requirement for areas that were also
designated nonattainment and classified as moderate or higher for the
1-hour ozone NAAQS. In the Phase 2 Rule, EPA provided that an area
classified as moderate or higher that has the same boundaries as an
area, or is entirely composed of several areas or portions of areas,
for which EPA fully approved a 15 percent plan for the 1-hour NAAQS, is
considered to have met the requirements of section 182(b)(1) of the CAA
for the 8-hour NAAQS. In this situation, a moderate nonattainment area
is subject to RFP under section 172(c)(2) of the CAA and shall submit,
no later than 3 years after designation for the 8-hour NAAQS, a SIP
revision that meets the requirements of 40 CFR 51.910(b)(2). The RFP
SIP revision must provide for a 15 percent emission reduction (either
nitrogen oxides (NOX) and/or VOC) accounting for any growth
that occurs during the six year period following the baseline emissions
inventory year, that is, 2002-2008.
    The portion of the bi-state Charlotte Area that was classified as
moderate under the 1-hour ozone NAAQS contained the counties of Gaston
and Mecklenburg in North Carolina. Gaston and Mecklenburg counties were
also designated nonattainment as a part of the 1997 8-hour ozone
moderate bi-state Charlotte Area. Although a portion of this bi-state
Charlotte Area was classified as moderate for the 1-hour ozone NAAQS, a
15 percent rate of progress (ROP) \7\ plan was not submitted due to its
change in attainment status. Specifically, North Carolina submitted a
redesignation and maintenance plan request instead before the due date
of the 1-hour ozone NAAQS ROP plan. Therefore, because the bi-state
Charlotte Area did not implement a 15 percent ROP plan under the 1-hour
ozone NAAQS, the Area must have VOC reductions totaling at least 15
percent for the first six years following the baseline inventory year
of 2002 in order for the RFP plan to be approved.
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    \7\ For the 1-hour ozone NAAQS, the plan to demonstrate progress
towards attainment was known as the ROP plan. For the 8-hour ozone
NAAQS, this same plan is known as the RFP plan.
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    As mentioned earlier and according to section 182(b)(1)(D) of the
CAA, emission reductions that resulted from the FMVCP and RVP rules
promulgated prior to 1990 are not creditable for achieving RFP emission
reductions. Therefore, the 2002 base year inventory is adjusted by
subtracting the VOC and NOx emission reductions that are expected to
occur between 2002 and the future milestone years due to the FMVCP and
RVP rules.
    In the Phase 2 Rule, promulgated on November 29, 2005 (70 FR
71612), EPA outlines Method 1 as the process that states should use to
show compliance with RFP for areas like the North Carolina portion of
the bi-state Charlotte Area. A summary of the steps for Method 1 is
provided below.
     Step A is the actual anthropogenic base year VOC emissions
inventory in 2002.
     Step B is to account for creditable emissions for RFP.
     Step C is to calculate non-creditable emissions for RFP.
Non-creditable emissions include emissions from: (1) Motor vehicle
exhaust or evaporative emissions regulations promulgated by January 1,
1990; (2) regulations concern RVP promulgated by November 15, 1990; (3)
RACT corrections required prior to November 1990; and (4) corrective
inspection and maintenance (I/M) plan required prior to November 1990.
     Step D is the 2002 base year emissions (Step A) minus the
non-creditable emissions (Step C).
     Step E is to calculate the 2008 target level VOC
emissions. This is calculated by reducing the emissions from Step D by
15 percent.
     The estimated 2008 VOC emissions are then compared to the
2008 target level VOC emissions (Step E).
    As provided in North Carolina's RFP SIP revision, the State
utilized the steps from Method 1 of the Phase 2 Rule. Specifically,
North Carolina's November 30, 2009, SIP revision sets out the State's
calculations.
1. Step A: Estimate the actual anthropogenic base year VOC inventory in
2002 with all 2002 control programs in place for all sources.
    North Carolina provided this emission inventory in Table 3-1 of the
November 30, 2009, RFP plan for the North Carolina portion of the bi-
state Charlotte Area, and as shown in Table 3, below. As mentioned
above, EPA has already approved this inventory. See 77 FR 26441 (May 4,
2012).

       Table 3--2002 VOC Emissions Inventory for the North Carolina Portion of the Bi-State Charlotte Area
                                              [Tons per summer day]
----------------------------------------------------------------------------------------------------------------
                                                                     Non-road         On-road
             County                    Point           Area           mobile          mobile           Total
----------------------------------------------------------------------------------------------------------------
Cabarrus........................             2.2             6.0             2.7            20.5            31.4
Gaston..........................             2.5             8.9             2.9            13.3            27.6
Iredell*........................             0.9             1.9             0.9             6.6            10.3
Lincoln.........................             2.1             3.1             1.3             6.7            13.2
Mecklenburg.....................             5.7            29.4            24.1            66.1           125.3

Rowan...........................             6.3             5.6             2.3            14.2            28.4
Union...........................             1.0             6.4             4.7            12.3            24.4
                                 -------------------------------------------------------------------------------
    Total.......................            20.7            61.3            38.9           139.7           260.6
----------------------------------------------------------------------------------------------------------------
* Represents only the portion of Iredell County that is in the nonattainment area for the bi-state Charlotte
  Area

2. Step B: Using the same highway vehicle activity inputs used to
calculate the actual 2002 inventory, run the appropriate motor vehicle
emissions model for 2002 and for 2008 with all post-1990 CAA measures
turned off. Any other local inputs for vehicle I/M programs should be
set according to the program that was required to be in place in 1990.
Fuel RVP should be set at 9.0 or 7.8 pounds per square inch (psi)
depending on the RVP required in the local area as a result of fuel RVP
regulations promulgated in June, 1990.
    For the North Carolina portion of the bi-state Charlotte Area, the
RACT and I/M program corrections and the 1992 RVP requirements were
completely in place by 1996 and therefore are already accounted for in
the 2002 baseline. As a result, these measures would produce no
additional reductions between 2002 and 2008 or later milestone years.
3. Step C: Calculate the difference between the 2002 and 2008 VOC
emission factors calculated in Step B and multiply by the 2002 vehicle
miles traveled. The result is the VOC emission calculation that will
occur between 2002 and 2008 without the benefits of any post-1990-CAA
measures. These are the non-creditable reductions that occur over this
period.
    North Carolina calculated the non-creditable emission reductions
between 2002 and 2008 by modeling its 2002 and 2008 motor vehicle
emissions with all post-1990 CAA measures turned off, and calculating
the difference. The table below (as present in Table 4-8 of North
Carolina's November 30, 2009, SIP revision) shows that there is
approximately a 10.0 tons per day (tpd) difference.

   Table 4--Total Bi-State Charlotte Area Non-Creditable VOC Emission
                             Estimates (tpd)
------------------------------------------------------------------------
                                                         Non-creditable
                        County                            VOC emissions
------------------------------------------------------------------------
Cabarrus..............................................             1.688
Gaston................................................             0.912
Iredell*..............................................             0.822
Lincoln...............................................             0.633
Mecklenburg...........................................             3.384
Rowan.................................................             1.315
Union.................................................             1.230
                                                       -----------------
    Total.............................................     9.984 or 10.0
------------------------------------------------------------------------
* Represents only the portion of Iredell County that is in the
  nonattainment area for the bi-state Charlotte Area

4. Step D: Subtract the non-creditable reductions calculated in Step C
from the actual anthropogenic 2002 inventory estimated in Step A. This
adjusted VOC inventory is the basis for calculating the target level of
emissions in 2008.
    The adjusted VOC inventory for calculating the target level of VOC
emissions reductions for 2008 is 250.6 tpd (i.e., 260.6 tpd (i.e.,
result of Step A) and 10.0 tpd (i.e., the result of Step C)).
5. Step E: Reduce the adjusted VOC inventory calculated in Step D by 15
percent. The result is the target level of VOC emissions in 2008 in
order to meet the 2008 RFP requirement. The actual projected 2008
inventory for all sources with all control measures in place, including
projected 2008 growth in activity, must be at or lower than this target
level of emissions.
    The targeted level of emissions reductions for the North Carolina
portion of the bi-state Charlotte Area to meet RFP requirements is 37.6
tpd of VOC (i.e, 250.6 tpd multiplied by 15 percent). Thus the required
targeted level of VOC emissions is 213.0 tpd for the North Carolina
portion of the bi-state Charlotte Area.

C. Final Analysis of North Carolina's RFP Analysis for the North
Carolina Portion of the Bi-State Charlotte Area

    As mentioned above, the required target level for the North
Carolina portion of the bi-state Charlotte Area to meet the initial RFP
plan requirement is a 15 percent reduction in VOC emissions for 2008
from the VOC emissions in 2002 (as adjusted per CAA requirements).
Specifically, to meet this requirement, North Carolina needed to
demonstrate a reduction of at least 37.6 tpd. Table 5 below summarizes
the results of North Carolina's calculations for this RFP analysis.

 Table 5--15 Percent RFP Analysis for North Carolina Portion of Bi-State
                             Charlotte Area
------------------------------------------------------------------------
                                                                   VOC
        Step from method 1                    Matrix              (tpd)
------------------------------------------------------------------------
Step A...........................  Total 2002 Base Year            260.6
                                    Anthropogenic VOC Emissions.
Step C...........................  Non-Creditable VOC               10.0
                                    reductions.
Step D...........................  2002 Base Year minus the Non-   250.6
                                    Creditable Emissions.
Step E...........................  2008 Target Level of VOC        213.0
                                    Emissions.
------------------------------------------------------------------------

    In its November 30, 2009, SIP revision, North Carolina calculated
the 2008 VOC emissions inventory for the North Carolina portion of the
bi-state Charlotte Area. This emissions inventory is provided in Table
6 below.

        Table 6--2008 Baseline VOC Emissions (tpd) for North Carolina Portion of Bi-State Charlotte Area
----------------------------------------------------------------------------------------------------------------
                                                                     Non-road         On-road
             County                    Point           Area           mobile          mobile           Total
----------------------------------------------------------------------------------------------------------------
Cabarrus........................             2.3             5.9             1.5            10.4            20.1
Gaston..........................             2.7             9.4             2.0             7.5            21.6
Iredell*........................             0.7             1.8             0.5             5.4             8.4
Lincoln.........................             2.1             2.9             0.8             4.2            10.0
Mecklenburg.....................             5.9            30.1            13.0            38.0            87.0
Rowan...........................             6.0             5.6             1.5            14.2            22.3
Union...........................             1.2             5.7             1.7             9.9            18.5
                                 -------------------------------------------------------------------------------
    Total.......................            20.9            61.4            21.0            84.6           187.9
----------------------------------------------------------------------------------------------------------------
* Represents only the portion of Iredell County that is in the nonattainment area for the bi-state Charlotte
  Area

    As discussed above, the required target for VOC emissions for the
year 2008 for North Carolina to meet the RFP requirements for the North
Carolina portion of the bi-state Charlotte Area is 213.0 tpd (i.e., 15
percent reduction from the adjusted 2002 baseline). As revealed in
Table 6, North Carolina calculated an emissions inventory of 187.9 tpd
of VOC for the North Carolina portion of the bi-state Charlotte Area in
2008, which is well below the 213.0 tpd required target. Thus, EPA is
making the determination that North Carolina's SIP revision
demonstrates the required progress towards attainment for the North
Carolina portion of the bi-state Charlotte Area. In today's action, EPA
is approving North Carolina's RFP SIP revision submitted on June 15,
2007 (as updated on November 30, 2009) as meeting the CAA and EPA's
regulations regarding RFP.

IV. What is the 2008 NOX emissions inventory for the North
Carolina portion of the bi-state Charlotte area?

    In support of its development of a NOx MVEB for the 2008, North
Carolina, in its November 30, 2009, SIP revision, developed the NOx
emissions inventory for the North Carolina portion of the bi-state
Charlotte Area. This inventory is not required for the RFP plan but is
necessary for the development of the MVEB. This emissions inventory is
provided in Table 7 below.

      Table 7--2008 Baseline NOx Emissions (tpd) for the North Carolina Portion of Bi-State Charlotte Area
----------------------------------------------------------------------------------------------------------------
                                                                     Non-road         On-road
             County                    Point           Area           mobile          mobile           Total
----------------------------------------------------------------------------------------------------------------
Cabarrus........................             2.6             1.5             4.1             9.6            17.8
Gaston..........................            32.8             2.2             4.8            10.0            49.8
Iredell*........................             0.5             0.4             0.9             6.9             8.7
Lincoln.........................             9.3             0.7             1.4             3.7            15.1
Mecklenburg.....................             2.0            11.3            20.9            45.6            79.8
Rowan...........................            22.4             1.3             4.6             9.5            37.8
Union...........................             0.2             1.5             3.3             7.4            12.4
                                 -------------------------------------------------------------------------------
    Total.......................            69.8            18.9            40.0            92.7           221.4
----------------------------------------------------------------------------------------------------------------
* Represents only the portion of Iredell County that is in the nonattainment area for the bi-state Charlotte
  Area

V. What is EPA's analysis of the 2008 MVEB for the North Carolina
portion of the bi-state Charlotte area?

    Under section 176(c) of the CAA, new transportation plans,
programs, and projects, such as the construction of new highways, must
``conform'' to (i.e., be consistent with) the part of the state's air
quality plan that addresses pollution from cars and trucks. Conformity
to the SIP means that transportation activities will not cause new air
quality violations, worsen existing violations, or delay timely
attainment of the NAAQS or any interim milestones. If a transportation
plan does not conform, most new projects that would expand the capacity
of roadways cannot go forward. Regulations at 40 CFR part 93 set forth
EPA policy, criteria, and procedures for demonstrating and assuring
conformity of such transportation activities to a SIP. The regional
emissions analysis is one, but not the only, requirement for
implementing transportation conformity. Transportation conformity is a
requirement for nonattainment and maintenance areas. Maintenance areas
are areas that were previously nonattainment for a particular NAAQS but
have since been redesignated to attainment with an approved maintenance
plan for that NAAQS.
    Under the CAA, states are required to submit, at various times,
control strategy SIPs and maintenance plans for nonattainment areas.
These control strategy SIPs (including RFP and attainment
demonstrations) and maintenance plans create MVEB for criteria
pollutants and/or their precursors to address pollution from cars and
trucks. Per 40 CFR part 93, an MVEB must be established for the target
year and precursor pollutant of the RFP (i.e., in this case, for the
target year of 2008 and for VOC). A state may adopt MVEB for other
precursors as well. North Carolina also opted to establish a MVEB for
NOX for the year 2008. The MVEB is the portion of the total
allowable emissions in the maintenance demonstration that is allocated
to highway and transit vehicle use and emissions. See 40 CFR 93.101.
The MVEB serves as a ceiling on emissions from an area's planned
transportation system. The MVEB concept is further explained in the
preamble to the November 24, 1993, Transportation Conformity Rule (58
FR 62188). The preamble also describes how to

establish the MVEB in the SIP and how to revise the MVEB.
    After interagency consultation with the transportation partners for
the North Carolina portion of the bi-state Charlotte Area, North
Carolina developed VOC and NOX MVEB for the year 2008.
Specifically, North Carolina developed these MVEB, as required, for the
target year and precursor--2008 and VOC--for the RFP plan, and chose to
establish an additional MVEB for NOX for the year 2008. The
MVEB for the North Carolina portion of the bi-state Charlotte Area for
North Carolina's 2008 RFP plan are based on the projected 2008 mobile
source emissions accounting for all mobile control measures. The 2008
MVEB are defined in Table 8 below.

  Table 8--MVEB for North Carolina Portion of the 1997 8-Hour Bi-State
                             Charlotte Area
------------------------------------------------------------------------
                                                          VOC      NOx
------------------------------------------------------------------------
                  2008 County-level Subarea MVEB (kg/d)
------------------------------------------------------------------------
Carbarrus.............................................    6,941    7,324
Gaston................................................    5,132    7,647
Iredell*..............................................    3,601    5,637
Lincoln...............................................    2,726    2,948
Mecklenburg...........................................   26,368   34,526
Rowan.................................................    6,149    7,193
Union.................................................    6,299    5,660
------------------------------------------------------------------------
* Represents only the portion of Iredell County that is in the
  nonattainment area for the bi-state Charlotte Area.

    Through this rulemaking, EPA is approving the 2008 VOC and
NOX MVEB for the North Carolina portion of the bi-state
Charlotte Area because EPA has made the determination that the Area
maintains the 1997 8-hour ozone NAAQS with the emissions at the levels
of the budgets. Once the MVEB for the North Carolina portion of the bi-
state Charlotte Area are approved or found adequate (whichever is
completed first), they must be used for future conformity
determinations for the 1997 8-hour ozone NAAQS for Metropolitan
Planning Organizations' long-range transportation plans and
transportation improvement programs. After thorough review, EPA has
previously determined that the budgets meet the adequacy criteria, as
outlined in 40 CFR 93.118(e)(4) (see 75 FR 7474, February 19, 2010),
and is now approving the budgets because they are consistent with RFP
for the 1997 8-hour ozone NAAQS for the year 2008.

VI. What is the status of EPA's adequacy determination for the 2008
MVEB for the North Carolina portion of the bi-state Charlotte area?

    When reviewing a submitted ``control strategy'' SIP, RFP or
maintenance plan containing a MVEB, EPA may affirmatively find the MVEB
contained therein adequate for use in determining transportation
conformity. Once EPA affirmatively finds the submitted MVEB is adequate
for transportation conformity purposes, that MVEB must be used by state
and federal agencies in determining whether proposed transportation
projects conform to the SIP as required by section 176(c) of the CAA.
    EPA's substantive criteria for determining adequacy of a MVEB are
set out in 40 CFR 93.118(e)(4). The process for determining adequacy
consists of three basic steps: public notification of a SIP submission,
a public comment period, and EPA's adequacy determination. This process
for determining the adequacy of submitted MVEB for transportation
conformity purposes was initially outlined in EPA's May 14, 1999,
guidance, ``Conformity Guidance on Implementation of March 2, 1999,
Conformity Court Decision.'' EPA adopted regulations to codify the
adequacy process in the Transportation Conformity Rule Amendments for
the ``New 8-Hour Ozone and PM2.5 National Ambient Air
Quality Standards and Miscellaneous Revisions for Existing Areas;
Transportation Conformity Rule Amendments--Response to Court Decision
and Additional Rule Change,'' on July 1, 2004 (69 FR 40004). Additional
information on the adequacy process for transportation conformity
purposes is available in the proposed rule entitled, ``Transportation
Conformity Rule Amendments: Response to Court Decision and Additional
Rule Changes,'' 68 FR 38974, 38984 (June 30, 2003).
    As discussed earlier, North Carolina's RFP plan submission includes
VOC and NOx MVEB for the North Carolina portion of the bi-state
Charlotte Area for the year 2008. EPA reviewed the MVEB through the
adequacy process. The North Carolina SIP submission, including the 2008
MVEB for the North Carolina portion of the bi-state Charlotte Area, was
open for public comment on EPA's adequacy Web site on December 3, 2009,
found at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public comment period on adequacy of the 2008
MVEB for the North Carolina portion of the bi-state Charlotte Area,
closed on January 3, 2010. EPA did not receive any comments, adverse or
otherwise, during the adequacy process. In a letter sent on January 12,
2010, EPA notified NC DENR that the MOBILE6.2-based 2008 VOC MVEB for
the North Carolina portion of the bi-state Charlotte Area were
determined to be adequate for transportation conformity purposes. On
February 19, 2010, EPA published its adequacy notice in the Federal
Register (75 FR 7474). When EPA found the 2008 MVEB adequate, this
triggered a requirement that the new MVEB are used for future
transportation conformity determinations. For required regional
emissions analysis years beyond 2008, the applicable budgets are the
2008 MVEB. The 2008 MVEB are defined in sections I and V of this
rulemaking.

VII. Final Action

    EPA is taking direct final action to approve portions of a SIP
revision, submitted on June 15, 2007 (as later updated on November 30,
2009), by the State of North Carolina, through the NC DENR to meet the
RFP requirements for the North Carolina portion of the bi-state
Charlotte Area for the 1997 8-hour ozone NAAQS. Additionally, EPA is
approving the VOC MVEB for the North Carolina portion of the bi-state
Charlotte Area that were included in North Carolina's RFP plan. These
actions are being taken pursuant to section 110 of the CAA.
    EPA is publishing this rule without prior proposal because the
Agency views this as a non-controversial amendment and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comment be filed. This rule will be effective on December 11,
2012 without further notice unless the Agency receives adverse comment
by November 13, 2012. If EPA receives such comments, then EPA will
publish a document withdrawing the final rule and informing the public
that the rule will not take effect. All public comments received will
then be addressed in a subsequent final rule based on the proposed
rule. EPA will not institute a second comment period on this action.
Any parties interested in commenting must do so at this time. If no
such comments are received, the public is advised this rule will be
effective on December 11, 2012 and no further action will be taken on
the proposed rule.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this final action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 11, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone, Reporting and
recordkeeping requirements, and Volatile organic compounds.

    Dated: October 2, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart II--North Carolina

0
2. Section 52.1770(e), is amended by adding a new entry for ``1997 8-
hour ozone reasonable further progress plan for North Carolina portion
of the bi-state Charlotte Area'' to the end of the table to read as
follows:

Sec.  52. 1770   Identification of plan.

* * * * *
    (e) * * *

                              EPA Approved North Carolina Non-regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                                  State       EPA Approval
                 Provision                   effective date       date            Federal Register citation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
1997 8-hour ozone reasonable further               11/30/09        10/12/12  [Insert citation of publication].
 progress plan for North Carolina portion
 of the bi-state Charlotte Area.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-25181 Filed 10-11-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 164 (Friday, August 23, 2013)]
[Notices]
[Pages 52523-52524]
[FR Doc No: 2013-20602]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. EL13-85-000]

Big Rivers Electric Corporation; Notice of Filing

    Take notice that on August 16, 2013, Big Rivers Electric
Corporation filed its proposed revenue requirements for reactive supply
service under Midcontinent Independent Systems Operator, Inc. Tariff
Schedule 2.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to

serve motions to intervene or protests on persons other than the
Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 5 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern Time on September 6, 2013.

    Dated: August 19, 2013.
Kimberly D. Bose,
Secretary.
[FR Doc. 2013-20602 Filed 8-22-13; 8:45 am]
BILLING CODE 6717-01-P


Panel Members for the Meeting of the Federal Insecticide, Fungicide and
Rodenticide Act Scientific Advisory Panel (FIFRA SAP)

Presentation of the Approach to Reevaluate Atrazine

November 3, 2009

EPA-HQ-OPP-2009-0759				OPP Docket Tel:<PHONE_NUMBER>

FIFRA SAP Chair

Steven Heeringa, Ph.D.

Research Scientist & Director for Statistical Design

University of Michigan Institute for Social Research

Ann Arbor, MI

Designated Federal Official

Joseph  Bailey

US Environmental Protection Agency

Office of Science Coordination & Policy

FIFRA Scientific Advisory Panel

EPA East Building, MC 7201M

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Tel:<PHONE_NUMBER>, Fax:<PHONE_NUMBER>,   HYPERLINK
<EMAIL_ADDRESS><EMAIL_ADDRESS>
FIFRA Scientific Advisory Panel Members

John Bucher, Ph.D., DABT

Associate Director

Environmental Toxicology Program

National Institute of Environmental Health Sciences

Research Triangle Park, NC

Janice Chambers, Ph.D., DABT, ATS

William L. Giles Distinguished Professor

Director, Center for Environmental Health Sciences

College of Veterinary Medicine

Mississippi State University

Mississippi State, MS

Carey Pope, Ph.D.

Professor, Head & Sitlington Chair of Toxicology

Department of Physiological Sciences

Oklahoma State University College of Veterinary Medicine

Stillwater, OK

Kenneth Portier, Ph.D.

Program Director, Statistics

American Cancer Society

National Home Office

Atlanta, GA

Daniel Schlenk, Ph.D.

Professor of Aquatic Ecotoxicology & Environmental Toxicology

Department of Environmental Sciences

University of California, Riverside

Riverside, CA


     Consultation Questions Regarding an Information Collection Activity:
     Notice of Supplemental Distribution of a Registered Pesticide Product

                     U.S. Environmental Protection Agency

Distributor Company Representative(s) Consulted

      Name						:
      Company Represented			:
      Contact Information (email and mailing)	:

Questionnaire

(1)	Publicly Available Data

       Is the data that the Agency seeks available from any public source, or already collected by another office at EPA or by another agency?

       If yes, where can you find the data?  (Does your answer indicate a true duplication, or does the input indicate that certain data elements are available, but that they dont meet our data needs very well?)

(2)	 Frequency of Collection

       Can the Agency collect the information less frequently and still produce the same outcome?

(3)	Clarity of Instructions

    The ICR is intended to require that respondents provide certain data so that the Agency can utilize them.

       Based on the instructions (regulations, PR Notices, etc.), is it clear what you are required to do and how to submit such data? If not, what suggestions do you have to clarify the instructions?

       Do you understand that you are required to maintain records?

       Are there forms associated with this process?  Do you use them?  Are they clear, logical, and easy to complete?

(4)	Electronic Reporting and Record keeping

   The Government Paperwork Elimination Act requires agencies make available to the public electronic reporting alternatives to paper-based submissions by 2003, unless there is a strong reason for not doing so.  One such reason is that, at the present time, the Agency is unable to ensure the security of CBI that might be transmitted over the Internet.

       What do you think about electronic alternatives to paper-based records and data submissions?  Current electronic reporting alternatives include the use of web forms/XML based submissions via the Agency's Internet site and magnetic media-based submissions, e.g., diskette, CD-ROM, etc.  Would you be interested in pursuing electronic reporting?

       Are you keeping your records electronically?   If yes, in what format?

       Although the Agency does not offer an electronic reporting option because of CBI-related security concerns at this time, would you be more inclined to submit CBI on diskette (CD or DVD) than on paper?

       What benefits would electronic submission bring you in terms of burden reduction or greater efficiency in compiling the information?

(5)	Burden and Costs

       Are the labor rates accurate?

       The Agency assumes there is no capital cost associated with this activity.  Is that correct?

       Bearing in mind that the burden and cost estimates include only burden hours and costs associated with the paperwork involved with this ICR (e.g., the ICR does not include estimated burden hours and costs for conducting studies), are the estimated burden hours and labor rates accurate? If you provide burden and cost estimates that are substantially different from EPA's, please provide an explanation of how you arrived at your estimates.

       Are there other costs that should be accounted for that may have been missed?


[Federal Register: June 1, 2010 (Volume 75, Number 104)]
[Notices]
[Page 30453-30457]
[DOCID:fr01jn10-123]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-62156; File No. SR-FINRA-2010-007]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Order Approving Proposed Rule Change To Amend the By-
Laws of NASD Dispute Resolution

May 24, 2010.
    On January 22, 2010, Financial Industry Regulatory Authority, Inc.
(``FINRA'') (f/k/a National Association of Securities Dealers, Inc.
(``NASD'')) filed with the Securities and Exchange Commission (``SEC''
or ``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend the by-laws of NASD Dispute Resolution.
The proposed rule change was published for comment in the Federal
Register on March 2, 2010.\3\ The Commission received one comment on
the proposed rule change.\4\ This order approves the proposed rule
change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Exchange Act Release No. 34-61575 (Feb. 23, 2010); 75 FR
9459 (Mar. 2, 2010).
    \4\ See letter from Barry D. Estell, Esq., dated March 24, 2010
(``Estell Letter'').
---------------------------------------------------------------------------

I. Description of Proposed Rule Change

    FINRA proposed to amend the NASD Dispute Resolution By-Laws to: (1)
Modify the composition of the FINRA Dispute Resolution Board; (2) adopt
changes to conform the NASD Dispute

Resolution By-Laws to the FINRA By-Laws; and (3) implement other
conforming changes to reflect the corporate name change and other
similar matters. The proposed amendments to the NASD Dispute Resolution
By-Laws are modeled on those of the FINRA and FINRA Regulation By-Laws
(which were both previously approved by the Commission), with
modifications as appropriate to the particular functions of FINRA
Dispute Resolution.
    The following discussion addresses the proposed amendments to NASD
Dispute Resolution's By-Laws under the article of the By-Laws of NASD
Dispute Resolution in which the amendments would first appear.

Amendments to Article I--Definitions

    Article I contains definitions of terms used in the By-Laws. FINRA
proposed to add to or amend some of these definitions.
Broker and Dealer
    FINRA proposed to amend the definitions of ``broker'' and
``dealer'' in Article I to conform them to the definitions of
``broker'' and ``dealer'' in the Act, as amended by the Gramm-Leach-
Bliley Act of 1999.\5\ As proposed, FINRA would incorporate by
reference the definitions of the terms ``broker'' and ``dealer'' as set
forth in Sections 3(a)(4) and 3(a)(5), respectively, of the Act.\6\ The
Commission approved the same change to definitions of the terms
``broker'' and ``dealer'' in the then-NASD Regulation's By-Laws in
March 2001.\7\
---------------------------------------------------------------------------

    \5\ Pub. L. 106-102, 113 Stat. 1338 (1999).
    \6\ 15 U.S.C. 78c(a)(4) and (a)(5).
    \7\ See Securities Exchange Act Rel. No. 44052 (March 8, 2001),
66 FR 15157 (March 15, 2001) (File No. SR-NASD-01-13).
---------------------------------------------------------------------------

Corporation
    FINRA proposed to add the term ``Corporation'' to Article I to
reflect the change of the Corporation's name from ``NASD'' to
``FINRA.'' Proposed Article I(e) would define Corporation to mean the
National Association of Securities Dealers, Inc., the Financial
Industry Regulatory Authority, Inc., or any future name of the entity.
Electronic Transmission
    FINRA proposed to add the term ``electronic transmission'' to
Article I to reflect the common usage of electronic transmission as a
means of communication.\8\ The term ``electronic transmission'' would
be defined to mean communicating or disseminating information or
documents to individuals or entities by telegraph, telefax, cable,
radio, wireless or other device or method. FINRA intends ``other device
or method'' to include email, text messages, and related technologies,
for example.
---------------------------------------------------------------------------

    \8\ The new term ``electronic transmission'' would be added as
proposed Article I(k) of the By-Laws of NASD Dispute Resolution.
---------------------------------------------------------------------------

FINRA Member
    FINRA proposed to add the term ``FINRA member'' to Article I.\9\ As
proposed, the term ``FINRA member'' would mean ``any broker or dealer
admitted to membership in FINRA, whether or not the membership has been
terminated or cancelled; and any broker or dealer admitted to
membership in a self-regulatory organization that, with FINRA consent,
has required its members to arbitrate pursuant to the Code of
Arbitration Procedure for Customer Disputes (``Customer Code'') or the
Code of Arbitration Procedure for Industry Disputes (``Industry Code'',
and together with the Customer Code, ``Codes'') and/or to be treated as
members of FINRA for purposes of the Codes, whether or not the
membership has been terminated or cancelled.''
---------------------------------------------------------------------------

    \9\ The new term ``FINRA member'' would be added as proposed
Article I(o) of the By-Laws of NASD Dispute Resolution.
---------------------------------------------------------------------------

Industry Director or Industry Member and Public Director or Public
Member
    FINRA proposed to modify the terms ``Industry Director'' or
``Industry member'' and ``Public Director'' or ``Public member'' in
Articles I(k) and I(t), respectively. With regard to the term
``Industry Director'' or ``Industry member'', the proposed rule change
would amend the NASD Dispute Resolution's By-Laws by separating these
definitions into two definitions for ease of reference.\10\
---------------------------------------------------------------------------

    \10\ The term ``Industry Director'' will be defined in proposed
Article I(r); ``Industry Member'' in proposed Article I(s).
---------------------------------------------------------------------------

    FINRA also proposed to amend the revised terms ``Industry
Director'' and ``Industry Member'' to limit the look-back test that
characterizes committee members as industry if they have served as an
officer, director, or employee of a broker or dealer, among other
reasons, to the past twelve months. The current provision uses a three-
year look-back test. The proposed change would make the definitions of
``Industry Director'' and ``Industry Member'' under the NASD Dispute
Resolution By-Laws consistent with the definitions of ``Industry
Director'', ``Industry Governor'', and ``Industry committee member'' in
the FINRA By-Laws.\11\
---------------------------------------------------------------------------

    \11\ See FINRA By-Laws, Article I(s) and I(t).
---------------------------------------------------------------------------

    The proposal would also add the term ``independent director'' to
the portion of the definitions of ``Industry Director'' and ``Industry
Member'' that excludes outside directors of a broker or dealer. The
term ``independent director'' is synonymous with outside director, but
FINRA proposed to add it to the exclusionary clause to harmonize the
NASD Dispute Resolution By-Laws with the definition of ``Industry
Governor'' in the FINRA By-Laws.\12\
---------------------------------------------------------------------------

    \12\ See FINRA By-Laws, Article I(t).
---------------------------------------------------------------------------

    Similarly, FINRA proposed to modify the term ``Public Director'' or
``Public member'' by separating it into two definitions for ease of
reference.\13\ FINRA would also amend the proposed terms ``Public
Director'' or ``Public Member'' to clarify that an individual's service
as a public director of a self regulatory organization does not
disqualify that person from serving as a Pubic Director or Public
Member under NASD Dispute Resolution's By-Laws.
---------------------------------------------------------------------------

    \13\ The term ``Public Director'' will be defined in proposed
Article I(w); ``Public Member'' in proposed Article I(x).
---------------------------------------------------------------------------

Person Associated With a Member or Associated Person of a Member
    On June 5, 2009, FINRA filed a proposed rule change to amend Rules
12100(r), 12506(a), and 12902(a) of the Customer Code and Rule 13100(r)
of the Industry Code to amend the definition of ``associated person,''
streamline a case administration procedure, and clarify that customers
could be assessed hearing session fees based on their own claims for
relief in connection with an industry claim.\14\ The Commission
approved the proposal on October 26, 2009.\15\
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    \14\ See Securities Exchange Act Rel. No. 60159 (June 22, 2009),
74 FR 31779 (July 2, 2009) (File No. SR-FINRA-2009-041).
    \15\ See Securities Exchange Act Rel. No. 60878, 74 FR 56679
(Nov. 2, 2009) (Notice of Filing of Amendment No. 1 and Order
Granting Accelerated Approval of SR-2009-041, as Modified by
Amendment No. 1).
---------------------------------------------------------------------------

    Under that proposal, FINRA amended the definition of associated
person under the Codes \16\ to match the

definition in FINRA's By-Laws.\17\ The proposal amended the definition
of ``person associated with a member'' in the Codes in two ways: (1) by
inserting the word ``other'' before the second reference to ``natural
person'' to clarify that the definition does not include corporate
entities; and (2) by inserting the criterion that a natural person
includes someone who has applied for registration.
---------------------------------------------------------------------------

    \16\ Rule 12100(r) of the Customer Code and Rule 13100(r) of the
Industry Code define ``person associated with a member'' to mean:
(1) A natural person registered under the Rules of FINRA; or (2) A
sole proprietor, partner, officer, director, or branch manager of a
member, or a natural person occupying a similar status or performing
similar functions, or a natural person engaged in the investment
banking or securities business who is directly or indirectly
controlling or controlled by a member, whether or not any such
person is registered or exempt from registration with FINRA under
the By-Laws or the Rules of FINRA.
    For purposes of the Code, a person formerly associated with a
member is a person associated with a member.
    \17\ FINRA's By-Laws define ``person associated with a member or
associated person of a member'' as (1) a natural person who is
registered or has applied for registration under the Rules of the
Corporation; (2) a sole proprietor, partner, officer, director, or
branch manager of a member, or other natural person occupying a
similar status or performing similar functions, or a natural person
engaged in the investment banking or securities business who is
directly or indirectly controlling or controlled by a member,
whether or not any such person is registered or exempt from
registration with the Corporation under these By-Laws or the Rules
of the Corporation; and (3) for purposes of Rule 8210, any other
person listed in Schedule A of Form BD of a member. See By-Laws of
the Corporation, Article I, Definitions (rr).
---------------------------------------------------------------------------

    FINRA proposed to implement the same changes to the definition of
associated person of a member in the NASD Dispute Resolution By-Laws,
as have been approved recently by the Commission to same definitions
under the Codes.

Amendments to Article IV--Board of Directors

    FINRA proposed to make limited conforming changes to Article IV to
parallel more closely the governance structure of the FINRA Board.
Section 4.3--Qualifications
    The proposed rule change would amend Article IV, section 4.3(a) to
reflect FINRA's current governance structure by establishing that NASD
Dispute Resolution Board members would be drawn exclusively from the
FINRA Board. The proposed rule change would also amend section 4.3(a)
to streamline the composition of NASD Dispute Resolution's Board and
implement a requirement that it contain more Public Directors than
Industry Directors. Thus, section 4.3(a) would be amended to state that
``the number of Public Directors shall exceed the number of Industry
Directors.'' FINRA's By-Laws contain a similar requirement.\18\
---------------------------------------------------------------------------

    \18\ See By-Laws of the Corporation, Article VII (Board of
Governors), section 4(a).
---------------------------------------------------------------------------

    The proposal would make other changes to Article IV, section 4.3 as
follows:
     Re-structure the Board to remove the President of NASD
Dispute Resolution. The President would not be deemed a Director, and
therefore, the proposed rule change would delete several references to
the President of NASD Dispute Resolution; \19\
---------------------------------------------------------------------------

    \19\ See NASD Dispute Resolution By-Laws, Article IV, Sections
4.3(a) (Qualifications), 4.5 (Resignation), 4.11(c) (Meetings),
4.13(f) (Executive Committee), and 4.13(g) (Finance Committee).
Section 141(c)(2) of the General Corporation Law of the State of
Delaware provides that ``[t]he board of directors may designate 1 or
more committees, each committee to consist of 1 or more directors of
the corporation.'' (Emphasis added). Committees of the board,
therefore, may be comprised exclusively of board members. In
addition, any committee of the board that is delegated any power and
authority of the board, such as the Executive Committee, must be
comprised exclusively of board members. See Delaware General
Corporation Law, section 141(c)(2).
---------------------------------------------------------------------------

     Clarify that the Chair of the FINRA Board and the Chief
Executive Officer of FINRA shall be ex-officio non-voting members of
the Board;
     Transfer the task of selecting the Chair of the NASD
Dispute Resolution Board from the Board members to NASD Dispute
Resolution's stockholder;\20\
---------------------------------------------------------------------------

    \20\ See Delaware General Corporation Law section 142, which
allows the sole stockholder to make this selection if expressly
provided for in the By-Laws.
---------------------------------------------------------------------------

     Eliminate the requirement that the Board select a Vice
Chair; and
     State that the stockholder will designate the Chair at the
same time that the Directors are elected.
Section 4.4--Election
    The proposed rule change would eliminate as unnecessary the
reference to the first meeting of NASD Regulation at which Directors
initially were elected.
Section 4.5--Resignation
    The proposal would remove the requirement that Directors submit
written notice of resignation to the President. Under the proposal,
such notice would be submitted to the Chair of the Board, instead of
the President.
Section 4.6--Removal
    The proposed rule change would transfer the authority to remove
Directors from a majority vote of the FINRA Board to the stockholder of
FINRA Regulation.\21\ The proposed amendment would reflect Delaware
law, which requires that a stock corporation vest the power to remove
directors with the stockholder.\22\
---------------------------------------------------------------------------

    \21\ The sole stockholder of the capital stock of FINRA Dispute
Resolution, Inc. is FINRA, Inc. See Article VIII, section 8.1 (Sole
Stockholder).
    \22\ See Delaware General Corporation Law, section 141(k). As a
practical matter, the FINRA Board generally would be asked to pass a
resolution authorizing an officer of FINRA to execute a sole
stockholder consent on behalf of FINRA (who is the sole stockholder
of FINRA Dispute Resolution) before such a consent is executed. As
such, the FINRA Board would have a voice in the matter, but as a
matter of Delaware law, the consent authorizing the removal must be
executed by a duly authorized officer of FINRA in FINRA's capacity
as sole stockholder.
---------------------------------------------------------------------------

Section 4.7--Disqualification
    In connection with the proposed change to section 4.3(a), which
would require the number of Public Directors to exceed the number of
Industry Directors, the proposal would also amend section 4.7 to
clarify that when a Director is disqualified from Board service and the
Director's remaining term is not more than six months, the Board may
continue to operate and will not violate any compositional requirements
if it does not replace the disqualified Director.
Section 4.8--Filling of Vacancies
    Currently, Directors of FINRA Dispute Resolution are elected
annually at the meeting of FINRA Dispute Resolution's stockholder
meeting or at a special meeting dedicated to Board elections.\23\ When
the annual election of Directors is not held on the designated date,
the NASD Dispute Resolution By-Laws charge the Directors to ``cause
such election'' to be held.\24\ The proposed rule change would confirm
that the same process should be used by the FINRA Dispute Resolution
Board when filling vacancies among its ranks. Thus, the proposal would
amend section 4.8 to provide that the FINRA Board shall ``cause the
election'' of a qualified Director to fill the vacant position.\25\
---------------------------------------------------------------------------

    \23\ See current NASD Dispute Resolution By-Laws, Article IV,
section 4.4 (Election).
    \24\ Id.
    \25\ Pursuant to Delaware law, FINRA, as the sole stockholder of
FINRA Dispute Resolution, has the authority to execute a stockholder
consent electing an individual to the fill the vacancy pursuant to
directions of the FINRA Board. Alternatively, the FINRA Board may
pass a resolution making it known who they would like appointed to
fill the vacancy. Under this scenario, it is likely that the
remaining members of the FINRA Dispute Resolution Board will follow
the advice of its controlling stockholder and elect the recommended
individual. See Delaware General Corporation Law, section 223.
---------------------------------------------------------------------------

Section 4.9--Quorum and Voting
    The proposed rule change would remove a cross-reference to section
4.14(b) in the quorum provision, and also amend the provision to
clarify that, when there is a quorum, a majority vote of the Directors
present at a meeting constitutes action of the Board.
Section 4.12--Notice of Meetings; Waiver of Notice
    The proposal would clarify the conditions under which the NASD
Dispute Resolution Board may meet. The current NASD Dispute Resolution
By-Laws provide that a Director may waive notice of a Board meeting by
being present at the meeting, so long as

the Director did not attend the meeting solely to object to the meeting
taking place.\26\ FINRA proposed to amend section 4.12(c) to clarify
that a Board meeting is a legal meeting if all Directors are present
and no Director is present solely for the purpose of objecting to the
meeting taking place.
---------------------------------------------------------------------------

    \26\ See current NASD Dispute Resolution By-Laws, Article IV,
section 4.12(b) (Notice of Meeting; Waiver of Notice) and Article
IX, section 9.3(b) (Waiver of Notice).
---------------------------------------------------------------------------

    The proposed rule change also would amend section 4.12(a) and (b)
to replace the phrase ``telegraph, telefax, cable, radio, or wireless''
with the new term ``electronic transmission.'' \27\ For an explanation
of the term ``electronic transmission,'' see the discussion under
``Amendments to Article I--Definitions'' above.
---------------------------------------------------------------------------

    \27\ FINRA proposed similar changes to Article IV, Section 4.12
(Notice of Meeting; Waiver of Notice) and Article XII, Section 12.3
(Waiver of Notice) of the FINRA Regulation By-Laws. See Securities
Exchange Act Rel. No. 59696 (April 2, 2009), 74 FR 16020 (April 8,
2009) (File No. SR-FINRA-2009-020).
---------------------------------------------------------------------------

Section 4.13--Committees
    As explained under the discussion of section 4.3(a), the proposal
would implement a requirement that the FINRA Dispute Resolution Board
contain more Public Directors than Industry Directors.\28\ In
furtherance of this change, references throughout Article IV to
balancing ``Industry'' and ``Non-Industry'' Board members would be
replaced with references to balancing ``Industry'' and ``Public'' Board
members. Similarly, the proposal would remove the requirement that the
Executive Committee include at least one Non-Industry Member and
institute the requirement that Public Directors shall exceed Industry
Directors on FINRA Dispute Resolution's Executive Committee of the
Board.\29\
---------------------------------------------------------------------------

    \28\ See also proposed Article I(r) (Industry Director);
proposed Article I(s) (Industry Member); proposed Article I(w)
(Public Director); and proposed Article I(x) (Public Member).
    \29\ See Article IV, section 4.12(f) (Executive Committee).
---------------------------------------------------------------------------

Section 4.15--Action Without Meeting
    The proposal would make a related change to section 4.15 to
eliminate the requirement that unanimous consent for taking action
without a meeting specifically be in writing and filed with the minutes
of the meeting. Instead, the proposal would require the consent to be
``in accordance with applicable law,'' which in the instance of FINRA
Dispute Resolution, would be Delaware law.

Amendment to Article V--Officers, Agents, and Employees

Section 5.1--Officers
    As explained under the discussion of Article IV, section 4.3, the
proposed rule change would re-structure the Board to remove the
President of FINRA Dispute Resolution as a Director of the Board.\30\
In connection with this change, the proposal would remove a reference
to the President from section 5.1, so that the amended language would
state, in relevant part, that none of the officers need to be Directors
of FINRA Dispute Resolution.
---------------------------------------------------------------------------

    \30\ Supra note 18.
---------------------------------------------------------------------------

Amendments to Article VIII--Capital Stock

Section 8.3--Signatures
    The proposed rule change would amend several provisions regarding
FINRA Dispute Resolution's capital stock. Currently, under section
8.3(a), FINRA's approach to the corporate law issue of signing
certificates representing shares of FINRA Dispute Resolution capital
stock is to have these shares signed by FINRA Dispute Resolution
officers. Under the proposed re-structuring of the Board, FINRA Dispute
Resolution would not have an officer as Chair of the Board. Thus, FINRA
proposed to remove the provision that permits the Chair of the Board to
sign stock certificates, and limit the authority to sign such
certificates to the President, Vice President, Secretary or Treasurer
of FINRA Dispute Resolution.
    FINRA proposed to amend section 8.3(b) to remove the limitations on
the type of signatures required on certificates of capital stock. The
current provision states, in relevant part, that ``if any such
certificates are countersigned by a transfer agent other than NASD
Dispute Resolution or its employee, or by a registrar other than NASD
Dispute Resolution or its employee, any other signature on the
certificate may be a facsimile.'' The proposed amendment would
eliminate limitations on when signatures on certificates representing
shares of FINRA Dispute Resolution's capital stock may be facsimiles
and permit any signature to be a facsimile. Thus, under the proposal,
the provision would be amended to state that ``any signature on the
stock certificate may be a facsimile.''
Section 8.4--Stock Ledger
    Currently, section 8.4(a) of the NASD Dispute Resolution By-Laws
requires that the FINRA Dispute Resolution Secretary, or another
officer, employee, or agent, keep a record of FINRA Dispute
Resolution's capital stock ownership and ``the number of shares
represented by each such certificate.'' FINRA proposed to change
several references to ``capital stock'' to ``certificates representing
shares of capital stock'' or similar constructions, instead of
``certificates for shares of capital stock.'' \31\
---------------------------------------------------------------------------

    \31\ The proposal would delete as imprecise the words
``certificates for'' in the discussion of potential registration of
shares of capital stock. See proposed NASD Dispute Resolution By-
Laws, Article VIII, section 8.4(b) (Stock Ledger), 8.5 (Transfers of
Stock), 8.6 (Cancellation), and 8.7 (Lost, Stolen, Destroyed, and
Mutilated Certificates).
---------------------------------------------------------------------------

Amendments to Article IX--Miscellaneous Provisions

Section 9.3--Waiver of Notice
    FINRA proposed to amend section 9.3(a) of the NASD Dispute
Resolution By-Laws to replace the phrase ``telegraph, telefax, cable,
radio, or wireless'' with the new term ``electronic transmission.''
\32\
---------------------------------------------------------------------------

    \32\ See supra note 26, and the explanation of the term
``electronic transmission'' under ``Amendments to Article I--
Definitions.''
---------------------------------------------------------------------------

Conforming Changes Relating to the New FINRA Name and Other Technical
Changes

    FINRA proposed to implement certain other non-substantive changes
to all articles of the NASD Dispute Resolution By-Laws, as follows:
     ``The NASD'' or ``NASD'' would be replaced with ``FINRA''
or ``the Corporation;''
     ``NASD Dispute Resolution'' would be changed to ``FINRA
Dispute Resolution;''
     ``The Rules of the Association'' would be replaced with
``the Rules of the Corporation;''
     ``National Nominating Committee'' would be replaced with
``Nominating Committee;''
     A reference to ``FINRA Regulation'' would be added; and
     ``Association'' would be replaced with ``Corporation.''
    FINRA also proposed to amend Article II, section 2.1 to change the
name and address of the registered agent from The Corporation Trust
Company, 1209 Orange Street, Wilmington, DE 19801 to Corporation
Creations Network Inc., 1308 Delaware Avenue, Wilmington, DE 19806.

II. Comments

    The Commission received one comment on the proposed rule
change,\33\ as well as FINRA's response

to the comment.\34\ The commenter opposed the rule filing arguing that
the proposed rule change would not ``redound to the benefit of
investors'' because: (1) The Chair of the FINRA Dispute Resolution
Board would be selected by FINRA; (2) FINRA, by selecting the Chair of
the FINRA Dispute Resolution Board, may prevent a director of FINRA
Dispute Resolution from ``suggesting a measure that might bring some
element of fairness to the dispute resolution process''; and (3) FINRA
would have the power to remove directors of FINRA Dispute
Resolution.\35\
---------------------------------------------------------------------------

    \33\ See supra, note 4.
    \34\ See letter from Mignon McLemore, Assistant Chief Counsel,
FINRA Dispute Resolution, dated May 5, 2010 (``FINRA Letter'').
    \35\ See Estell Letter.
---------------------------------------------------------------------------

    FINRA responded to the commenter's concern regarding the selection
of the Chair of the FINRA Dispute Resolution Board by stating that
since the FINRA Board is comprised of a majority of public governors,
``the majority will be able to represent the interests of the investing
public regarding the selection of the [Chair of the FINRA Dispute
Resolution Board]''.\36\ FINRA also noted that, ``as the proposed FINRA
Dispute Resolution By-Laws require that the number of Public Directors
exceeds the number of Industry Directors, matters affecting the dispute
resolution process also would be controlled by a majority of Public
Directors''.\37\
---------------------------------------------------------------------------

    \36\ See FINRA Letter at page 1.
    \37\ Id.
---------------------------------------------------------------------------

    With respect to the commenter's concern that the proposed rule
change would provide the Chair with the authority to prevent matters
from being raised at a meeting, FINRA stated that the Chair cannot
prevent an item from being raised at a meeting. FINRA also noted that
any member of the Board may raise a matter for consideration and that
the Chair may influence when the matter is heard, but cannot prevent it
from being heard.\38\
---------------------------------------------------------------------------

    \38\ See FINRA Letter at page 2.
---------------------------------------------------------------------------

    In response to the commenter's concern regarding FINRA's power to
remove directors of FINRA Dispute Resolution with or without cause,
FINRA reiterated that Delaware law requires that the stockholder have
the power to remove directors. Since FINRA is the stockholder of FINRA
Dispute Resolution, the removal of a Director from FINRA Dispute
Resolution's Board is also a function that is controlled by FINRA's
Board. FINRA also stated that since the FINRA Board is comprised of a
majority of public governors, that majority would consider the public
interests and market implications in determining whether to remove a
Director from FINRA Dispute Resolution's Board.\39\
---------------------------------------------------------------------------

    \39\ Id.
---------------------------------------------------------------------------

III. Discussion and Findings

    After careful review of the proposed rule change, the comment
received, and FINRA's response to the comment, the Commission finds the
proposed rule change to be consistent with the requirements of the Act
and the rules and regulations thereunder applicable to a national
securities association.\40\ In particular, the Commission finds that
the proposed rule change is consistent with the provisions of Section
15A(b)(6) of the Act.\41\, which requires, among other things, that
FINRA rules must be 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 a national market system; and, in general, to protect
investors and the public interest.
---------------------------------------------------------------------------

    \40\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition and
capital formation. See 15 U.S.C. 78c(f).
    \41\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    The Commission believes that the proposed rule change is consistent
with FINRA's obligations under the Act. In particular, the proposed
rule change will conform definitions in the By-Laws with definitions in
the Act, as well as to the By-Laws of FINRA and FINRA Regulation. The
proposed rule change will also conform other provisions of the By-Laws
with the FINRA and FINRA Regulation By-Laws and be consistent with
Delaware law, under which all the entities are organized. In addition,
the proposed rule change would clarify that FINRA members remain
subject to the requirements of the Codes after their membership has
been terminated or cancelled.

IV. Conclusion

    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with the Act and the rules and regulations
thereunder applicable to a national securities association.
    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\42\ that the proposed rule change (SR-FINRA-2010-007) be and
hereby is approved.
---------------------------------------------------------------------------

    \42\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\43\
---------------------------------------------------------------------------

    \43\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-13005 Filed 5-28-10; 8:45 am]
BILLING CODE 8011-01-P