[Federal Register Volume 85, Number 37 (Tuesday, February 25, 2020)]
[Rules and Regulations]
[Pages 10611-10613]
[FR Doc No: 2020-03403]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2019-0556; FRL-10004-14-Region 9]

Air Plan Approval; California; San Diego County Air Pollution
Control District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve a revision to the San Diego County Air Pollution
Control District (SDCAPCD) portion of the California State
Implementation Plan (SIP). This revision concerns emissions of volatile
organic compounds (VOCs) from adhesive material application operations.
We are approving a local rule that regulates these emission sources
under the Clean Air Act (CAA or the ``Act'').

DATES: This rule is effective on March 26, 2020.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2019-0556. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information (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 through https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Christine Vineyard, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone:<PHONE_NUMBER> or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.

Table of Contents

I. Proposed Action
II. Public Comments and EPA Responses
III. EPA Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Proposed Action

    On October 21, 2019 (84 FR 56156), the EPA proposed to approve the
following rule into the California SIP.

----------------------------------------------------------------------------------------------------------------
            Local agency                  Rule No.            Rule title            Amended         Submitted
----------------------------------------------------------------------------------------------------------------
SDCAPCD.............................           67.21   Adhesive Material              05/14/08         08/09/17
                                                        Application Operations.
----------------------------------------------------------------------------------------------------------------

    We proposed to approve this rule because we determined that it
complies with the relevant CAA requirements. Our proposed action
contains more information on the rule and our evaluation.

II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period.
During this period, we received 2 comments supporting EPA's approval of
Rule 67.21 for the protection of human health and the environment.

III. EPA Action

    No comments were submitted that change our assessment of the rules
as described in our proposed action. Therefore, as authorized in
section 110(k)(3) of the Act, the EPA is fully approving this rule into
the California SIP.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, the EPA is finalizing the incorporation by reference of the
SDCAPCD rule described in the amendments to 40 CFR part 52 set forth
below. The EPA has made, and will continue to make, these documents
available through www.regulations.gov and at the EPA Region IX Office
(please contact the person identified in the FOR FURTHER INFORMATION
CONTACT section of this preamble for more information).

V. 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, the 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 action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     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 Clean Air Act; and
     Does not provide the 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
    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. The 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 April 27, 2020. 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. 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, Volatile organic compounds.

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

    Dated: December 11, 2019.
Deborah Jordan,
Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart F--California

0
2. Section 52.220 is amended by adding paragraph (c)(503)(i)(B) to read
as follows:

Sec.  52.220  Identification of plan-in part.

* * * * *
    (c) * * *
    (503) * * *
    (i) * * *
    (B) San Diego County Air Pollution Control District.
    (1) Rule 67.21, ``Adhesive Material Application Operations,''
amended on May 14, 2008.
    (2) [Reserved]
* * * * *
[FR Doc. 2020-03403 Filed 2-24-20; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Proposed Rules]
[Pages 19042-19046]
[FR Doc No: 2022-06907]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[EPA-HQ-OAR-2016-0186; FRL-8961-01-OAR]
RIN 2060-AV39

Removal of Title V Emergency Affirmative Defense Provisions From
State Operating Permit Programs and the Federal Operating Permit
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is re-proposing a
document, first proposed in 2016, which would remove the emergency
affirmative defense provisions found in the regulations for state and
federal operating permit programs under the Clean Air Act (CAA). The
purpose of these provisions has been to establish an affirmative
defense that sources can assert in civil enforcement cases when
noncompliance with certain emission limitations in operating permits
occurs because of qualifying ``emergency'' circumstances. These
provisions, which have never been required elements of state operating
permit programs, are being removed because they are inconsistent with
the enforcement structure of the CAA and court decisions from the U.S.
Court of Appeals for the D.C. Circuit. The removal of these provisions
is consistent with other EPA actions involving affirmative defenses and
would harmonize the enforcement and implementation of emission
limitations across different CAA programs.

DATES: Comments must be received on or before May 16, 2022.
    Public hearing: If anyone contacts EPA requesting a public hearing
by April 6, 2022, the EPA will hold a virtual public hearing. See
SUPPLEMENTARY INFORMATION for information on requesting and registering
for a public hearing.

ADDRESSES: Comments: You may send comments, identified by Docket ID No.
EPA-HQ-OAR-2016-0186, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2016-0186 in the subject line of the message.
     Fax:<PHONE_NUMBER>. Attention Docket ID No. EPA-HQ-OAR-
2016-0186.
    Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OAR-2016-0186 for this rulemaking. Comments received may be
posted without change to https://www.regulations.gov/, including any
personal information provided. For detailed instructions on sending
comments and additional information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document. Out of an abundance
of caution for members of the public and our staff, the EPA Docket
Center and Reading Room are open to the public by appointment only to
reduce the risk of transmitting COVID-19. Our Docket Center staff also
continues to provide remote customer service via email, phone, and
webform. Hand deliveries and couriers may be received by scheduled
appointment only. For further information on EPA Docket Center services
and the current status, please visit us online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For information about this proposed
rule, contact Corey Sugerik, Air Quality Policy Division, Office of Air
Quality Planning and Standards (C504-05), Environmental Protection
Agency, Research Triangle Park, NC; telephone number:<PHONE_NUMBER>;
email address:[email protected].

SUPPLEMENTARY INFORMATION: The information presented in this document
is organized as follows:

I. General Information
II. Background
III. Proposed Action
IV. Implementation
V. Environmental Justice Considerations
VI. Statutory and Executive Order Reviews
VII. Statutory Authority

I. General Information

A. Entities Potentially Affected by This Action

    Entities potentially affected by this proposed rulemaking include
federal, state, local and tribal air pollution control agencies that
administer title V operating permit programs, and owners and operators
of emissions sources in all industry groups who hold or apply for title
V operating permits.

B. Obtaining a Copy of This Document and Other Related Information

    The EPA has established a docket for this rulemaking under Docket
ID No. EPA-HQ-OAR-2016-0186. All documents in the dockets are listed in
https://www.regulations.gov/. Although listed, some information is not
publicly available, e.g., Confidential Business Information (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. Publicly
available docket materials are available either in the docket for this
action, Docket ID No. EPA-HQ-OAR-2016-0186, or electronically at
https://www.regulations.gov/.
    In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.

C. Preparing Comments for the EPA

    Instructions. Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2016-0186, at https://www.regulations.gov (our preferred
method), or the other methods identified in the ADDRESSES section. Once
submitted, comments cannot be edited or removed from the docket. The
EPA may publish any comment received to its public docket. Do not
submit to EPA's docket at https://www.regulations.gov any information
you consider to be CBI or other information whose disclosure is
restricted by statute. This type of information should be submitted by
mail as discussed below.

    Multimedia submissions (audio, video, etc.) must be accompanied by
a written comment. The written comment is considered the official
comment and should include discussion of all points you wish to make.
The EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the web, cloud, or
other file sharing system). For additional submission methods, the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Due to public health concerns related to COVID-19, the EPA Docket
Center and Reading Room are open to the public by appointment only. Our
Docket Center staff also continues to provide remote customer service
via email, phone, and webform. Hand deliveries or couriers will be
received by scheduled appointment only. For further information and
updates on EPA Docket Center services, please visit us online at
https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information
from the Centers for Disease Control and Prevention (CDC), local area
health departments, and our Federal partners so that the Agency can
respond rapidly as conditions change regarding COVID-19.
    Submitting CBI. Do not submit information containing CBI to the EPA
through https://www.regulations.gov/. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, mark the outside of the
digital storage media as CBI and then identify electronically within
the digital storage media the specific information that is claimed as
CBI. In addition to one complete version of the comments that includes
information claimed as CBI, you must submit a copy of the comments that
does not contain the information claimed as CBI directly to the public
docket through the procedures outlined in Instructions. If you submit
any digital storage media that does not contain CBI, mark the outside
of the digital storage media clearly that it does not contain CBI.
Information not marked as CBI will be included in the public docket and
the EPA's electronic public docket without prior notice. Information
marked as CBI will not be disclosed except in accordance with
procedures set forth in 40 Code of Federal Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office using the email address, [email protected], and should
include clear CBI markings as described later. If assistance is needed
with submitting large electronic files that exceed the file size limit
for email attachments, and if you do not have your own file sharing
service, please email [email protected] to request a file transfer link.
If sending CBI information through the postal service, please send it
to the following address: OAQPS Document Control Officer (C404-02),
OAQPS, U.S. Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2016-0186. The
mailed CBI material should be double wrapped and clearly marked. Any
CBI markings should not show through the outer envelope.

D. Participation in Virtual Public Hearing

    Please note that because of the current CDC recommendations, as
well as state and local orders for social distancing to limit the
spread of COVID-19, the EPA cannot hold in-person public meetings at
this time.
    To request a virtual public hearing, contact Ms. Pamela Long at
(919) 541-0641 or by email at [email protected]. If requested, the
virtual hearing will be held on April 18, 2022. The hearing will
convene at 9:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m.
ET. The EPA may close a session 15 minutes after the last pre-
registered speaker has testified if there are no additional speakers.
The EPA will announce further details at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.
    Upon publication of this document in the Federal Register, the EPA
will begin pre-registering speakers for the hearing, if a hearing is
requested. To register to speak at the virtual hearing, please use the
online registration form available at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions or contact
Ms. Pamela Long at<PHONE_NUMBER> or by email at [email protected]. The
last day to pre-register to speak at the hearing will be April 13,
2022. Prior to the hearing, the EPA will post a general agenda that
will list pre-registered speakers in approximate order at: https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions.
    The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have five minutes to provide oral testimony.
The EPA encourages commenters to provide the EPA with a copy of their
oral testimony electronically (via email) by emailing it to
[email protected]. The EPA also recommends submitting the text of your
oral testimony as written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/title-v-operating-permits/current-regulations-and-regulatory-actions. While the EPA expects the
hearing to go forward as set forth above, please monitor our website or
contact Ms. Pamela Long at<PHONE_NUMBER> or by email at
[email protected] to determine if there are any updates. The EPA does
not intend to publish a document in the Federal Register announcing
updates.
    If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing with Ms. Pamela Long and describe your needs by April 8, 2022.
The EPA may not be able to arrange accommodations without advanced
notice.

II. Background

    The EPA has promulgated permitting regulations for the operation of
major and certain other sources of air pollutants under title V of the
CAA. These regulations, codified in 40 CFR parts 70 and 71, contain the
requirements for state operating permit programs and the federal
operating permit program, respectively. These regulations currently
contain identical provisions describing an affirmative defense that
sources may be able to assert in enforcement actions brought for
noncompliance with technology-based emission limitations caused by
specific emergency circumstances. These ``emergency'' affirmative
defense provisions are located at 40 CFR 70.6(g) and 71.6(g).
    In 2016, the EPA proposed a rule to remove these affirmative
defense provisions from the title V regulations.

81 FR 38645 (June 14, 2016), also available online at: https://www.govinfo.gov/content/pkg/FR-2016-06-14/pdf/2016-14104.pdf (the 2016
Proposal). The 2016 Proposal contains a detailed discussion of the
background for this proposal, as well as the purpose, basis, rationale,
and legal justification for this proposal. The EPA directs readers to
the 2016 Proposal for further information. In summary, the EPA based
the 2016 Proposal on the interpretation that the enforcement structure
of the CAA, embodied in sections 113 and 304, precludes affirmative
defense provisions that would operate to limit a court's authority or
discretion to determine the appropriate remedy in an enforcement
action. 81 FR 38650. This interpretation is informed by the 2014 NRDC
v. EPA decision from the U.S. Court of Appeals for the D.C. Circuit.\1\
The EPA believes that the reasoning and logic of that decision extend
to regulations concerning operating permit programs under title V. This
view aligns the EPA's position on affirmative defenses in title V with
positions taken in other CAA program areas, including EPA policy
relating to the treatment of startup, shutdown, and malfunction (SSM)
periods in state implementation plans (SIPs). (The EPA's policy with
respect to SIPs is discussed in an action taken in 2015, see 80 FR
33839 (June 12, 2015) (the 2015 SSM SIP Policy), and in the Agency's
September 30, 2021, memorandum reinstating the 2015 SSM SIP Policy.\2\)
This title V interpretation also aligns with EPA's position on
affirmative defenses in New Source Performance Standards (NSPS) under
CAA section 111 and National Emission Standards for Hazardous Air
Pollutants (NESHAP) under CAA section 112.\3\
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    \1\ 749 F.3d 1055 (D.C. Cir. 2014).
    \2\ See Memorandum, Withdrawal of the October 9, 2020,
Memorandum Addressing Startup, Shutdown, and Malfunctions in State
Implementation Plans and Implementation of the Prior Policy, 3-4
(September 30, 2021), available at https://www.epa.gov/system/files/documents/2021-09/oar-21-000-6324.pdf (September 2021 SSM SIP Memo).
    \3\ E.g., 85 FR 71490 (November 9, 2020) (proposed rule removing
affirmative defense from the NESHAP for polyvinyl chloride and
copolymers production); 81 FR 40955 (June 23, 2016) (final rule
removing affirmative defense from the NSPS and emission guidelines
for commercial and institutional solid waste incineration units);
see also 81 FR 38649 n.21 (June 14, 2016) (discussion of other NSPS
and NESHAP rules in 2016 Proposal).
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    The EPA did not finalize the 2016 Proposal. Instead, in a notation
accompanying the Spring 2018 Unified Agenda of Federal Regulatory and
Deregulatory Actions, the EPA stated: ``The EPA is withdrawing this
action via the reg agenda because the agency does not plan to move
forward with this rulemaking due to other pending priorities.'' \4\
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    \4\ A copy of the entry on the Regulatory Agenda is available at
https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&RIN=2060-AS96. See also https://www.regulations.gov/docket/EPA-HQ-OAR-2016-0186/unified-agenda
(indicating that the proposed rule was withdrawn on February 23,
2018).
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    Although the EPA did not move forward at that time with the
proposal to remove the emergency affirmative defense provisions from
the Title V regulations, the EPA continued to evaluate SSM provisions,
including affirmative defenses, in SIPs. In October 2020, the EPA
issued a guidance memorandum that, among other things, expressly
superseded a portion of the EPA's interpretation of affirmative
defenses presented in the 2015 SSM SIP Policy.\5\ However, on September
30, 2021, the EPA issued a guidance memorandum that withdrew the
October 2020 memorandum in its entirety and reinstated the legal and
policy positions expressed in the 2015 SSM SIP Policy in their
entirety.\6\ Thus, the EPA's current interpretation of affirmative
defenses in the context of SIPs is the interpretation set out in the
2015 SSM SIP Policy. As noted in a preceding paragraph, this
interpretation in the context of SIPs is similar to the interpretation
expressed in the 2016 Proposal for the title V rules.
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    \5\ Memorandum, Inclusion of Provisions Governing Periods of
Startup, Shutdown, and Malfunctions in State Implementation Plans, 6
(October 9, 2020), available at https://www.epa.gov/system/files/documents/2021-09/2020-ssm-in-sips-guidance-memo.pdf. In 2020, EPA
also took action relating to an SSM-related affirmative defense in a
SIP for Texas, withdrawing a SSM ``SIP call'' in part because the
SIP-based affirmative defense was deemed to not be inconsistent with
the CAA. See 85 FR 7232 (February 7, 2020); see also 85 FR 23,700
(April 28, 2020) (SIP call withdrawal relating to North Carolina)
and 85 FR 73,218 (November 17, 2020) (SIP call withdrawal relating
to Iowa). Petitions for review of these withdrawal actions were
filed in the United States Court of Appeals for the D.C. Circuit.
See Sierra Club v. EPA, No. 20-1115.
    \6\ September 2021 SSM SIP Memo, supra note 2. This memorandum
also announced an intent to revisit, among other things, the 2020
action withdrawing the SSM affirmative defense-related SIP call for
Texas. Id. at 5. On December 17, 2021, the United States Court of
Appeals for the D.C. Circuit granted the EPA's request for a
voluntary remand of that 2020 Texas SIP call withdrawal action, as
well as the similar SIP call withdrawal actions relating to North
Carolina and Iowa, in light of EPA's stated intent to reconsider
those actions. Sierra Club v. EPA, No. 20-1115.
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III. Proposed Action

    In this action, the EPA is again proposing to remove the title V
emergency affirmative defense provisions, 40 CFR 70.6(g) and 71.6(g).
These provisions are inconsistent with the EPA's interpretation of the
CAA's enforcement structure and court decisions from the U.S. Court of
Appeals for the D.C. Circuit--primarily the 2014 NRDC v. EPA decision.
In summary, the EPA interprets the enforcement structure of the CAA,
embodied in sections 113 and 304, to preclude affirmative defense
provisions that would operate to limit a court's authority or
discretion to determine the appropriate remedy in an enforcement
action. The title V affirmative defense provisions the EPA proposes to
remove, 40 CFR 70.6(g) and 71.6(g), set forth just such limitations
and, consequently, are inconsistent with the rationale of NRDC and the
enforcement structure of the CAA. The Agency's view that these title V
affirmative defense provisions are inconsistent with the CAA and D.C.
Circuit precedent is consistent with the EPA's current interpretation
of affirmative defenses in the context of other CAA programs, including
SIPs and regulations under CAA sections 111 and 112.\7\
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    \7\ See September 2021 SSM SIP Memo. The EPA's interpretation
with respect to affirmative defenses in regulations under CAA
sections 111 or 112 has not changed since the 2016 Proposal. See
supra note 3 and accompanying text.
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    Except as modified or updated herein, the EPA is re-proposing the
2016 Proposal. The EPA previously received comments on the 2016
Proposal, including the legal interpretation upon which that former
proposal--and the current proposal--are based. The EPA will consider
all comments received on the 2016 Proposal as the Agency moves forward
with the current rulemaking. Accordingly, commenters need not submit
duplicate comments on the current proposal.\8\ However, the EPA
welcomes comments providing additional information not previously
submitted to the Agency.
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    \8\ Comments received on the 2016 Proposal are contained in the
same docket as the current proposal: Docket ID No. EPA-HQ-OAR-2016-
0186.
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IV. Implementation

    The nature and focus of the proposed action are to remove the
affirmative defense provisions from the EPA's regulations at 40 CFR
70.6(g) and 71.6(g). The EPA is not proposing any specific finding with
respect to individual state programs or state-issued title V permits
that may contain similar provisions. However, if the EPA finalizes this
rule as proposed and removes the affirmative defense provisions at 40
CFR 70.6 and 71.6, the Agency expects that some state, local, and
tribal permitting authorities will need to remove similar provisions
from their EPA-approved part 70 program regulations and submit program

revisions to the EPA. The EPA also expects that these permitting
authorities will need to remove such provisions from individual title V
permits. This process will proceed consistent with the existing
regulations concerning program and permit revisions. See, e.g., 40 CFR
70.4(a), 70.4(i), 70.7. The EPA's expectations regarding this process
are discussed in the 2016 Proposal.

V. Environmental Justice Considerations

    The Agency proposes to remove affirmative defense provisions from
the EPA's operating permit program regulations. If the rule is
finalized, it may also be necessary for state, local and tribal
permitting authorities to remove similar affirmative defense provisions
from program regulations and from individual title V operating permits.
None of these changes would alter the obligations of sources to comply
with the underlying emission limits and other standards contained
within title V operating permits.
    Based on these considerations, the EPA expects that, if this action
becomes final as proposed, the effects on minority populations, low-
income populations and/or indigenous peoples would not be
disproportionately high and adverse.

VI. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0243 (for part 70 state operating permit programs)
and 2060-0336 (for part 71 federal operating permit program). In this
action, the EPA is proposing to remove certain provisions from the
EPA's regulations, which, if finalized, could result in the removal of
similar provisions from state, local, and tribal operating permit
programs and individual permits. Consequently, states could eventually
be required to submit program revisions to the EPA outlining any
necessary changes to their regulations and their plans to remove
provisions from individual permits. However, this action does not
involve any requests for information, recordkeeping or reporting
requirements, or other requirements that would constitute an
information collection under the PRA.

C. Regulatory Flexibility Act (RFA)

    I certify that this action would not have a significant economic
impact on a substantial number of small entities under the RFA. This
action would not impose any requirements on small entities. Entities
potentially affected directly by this proposal include state, local,
and tribal governments, and none of these governments would qualify as
a small entity. Other types of small entities, including stationary
sources of air pollution, would not be directly subjected to the
requirements of this action.

D. Unfunded Mandates Reform Act (UMRA)

    This action would not contain an unfunded mandate of $100 million
or more as described in UMRA, 2 U.S.C. 1531-1538, and would not
significantly or uniquely affect small governments. The action would
impose no enforceable duty on any state, local or tribal governments or
the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It would not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.

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

    This action has tribal implications. However, it would neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. One tribal government (the
Southern Ute Indian Tribe) currently administers an approved part 70
operating permit program, and one tribal government (the Navajo Nation)
currently administers a part 71 operating permit program pursuant to a
delegation agreement with the EPA. These tribal governments may be
required to take actions if this rule is finalized, including program
revisions (for part 70 programs) and eventual permit revisions (for
both part 70 and delegated part 71 programs), but these actions will
not require substantial compliance costs. The EPA previously consulted
with tribal officials when developing the 2016 Proposal and is planning
to offer a similar consultation for the current proposal. The EPA also
solicits comment from affected tribal governments on the implications
of this rulemaking.

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

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.

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

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

I. National Technology Transfer and Advancement Act (NTTA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action would not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in section V of this
action preamble titled, ``Environmental Justice Considerations''.

VII. Statutory Authority

    The statutory authority for this action is provided in CAA sections
502(b) and 502(d)(3), 42 U.S.C. 7661a(b) & (d)(3), which direct the
Administrator of the EPA to promulgate regulations establishing state
operating permit programs and give the Administrator the authority to
establish a federal operating permit program. Additionally, the
Administrator determines that this proposed action is subject to the
provisions of CAA section 307(d), which establish procedural
requirements specific to rulemaking under the CAA. CAA section

307(d)(1)(V) provides that the provisions of CAA section 307(d) apply
to ``such other actions as the Administrator may determine.'' 42 U.S.C.
7607(d)(1)(V).

List of Subjects

40 CFR Part 70

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

40 CFR Part 71

    Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

Michael Regan,
Administrator.

    For the reasons stated in the preamble, the EPA proposes to amend
title 40 CFR parts 70 and 71 as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

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

Sec.  70.6  [Amended]

0
2. In Sec.  70.6, remove and reserve paragraph (g).

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 71 continues to read as follows:

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

Sec.  71.6  [Amended]

0
4. In Sec.  71.6, remove and reserve paragraph (g).

[FR Doc. 2022-06907 Filed 3-31-22; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 85 (Wednesday, May 2, 2012)]
[Notices]
[Pages 26059-26061]
[FR Doc No: 2012-10540]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66863; File No. SR-EDGA-2012-15]

Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Relating to
Fees Associated With Receipt of the EDGA Book Feed

April 26, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on April 19, 2012, EDGA Exchange, Inc. (the ``Exchange'' or
``EDGA'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange proposes to amend its fee schedule applicable to
Members \3\ and non-Members of the Exchange to assess market data fees
for internal and external distribution of the EDGA book feed (``EDGA
Book Feed''). The text of the proposed rule change is available on the
Exchange's Web site at www.directedge.com, at the Exchange's principal
office, and at the Public Reference Room of the Commission.
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    \3\ A Member is any registered broker or dealer that has been
admitted to membership in the Exchange.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

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

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

1. Purpose
    In SR-EDGA-2011-19,\4\ the Exchange made available the EDGA Book
Feed, a data feed that contains all orders for securities trading on
the Exchange, including all displayed orders for listed securities
trading on EDGA, order executions, order cancellations, order
modifications, order identification numbers and administrative
messages. The EDGA Book Feed offers real-time data, thereby allowing
Member firms to more accurately price their orders based on EDGA's view
of the depth of book information. It also provides Members an ability
to track their own orders from order entry to execution. It is
available in both unicast and multicast format. Upon the Exchange's
initial offering of the EDGA Book Feed, such service was provided at no
cost. In SR-EDGA-2011-19, the Exchange stated that ``[s]hould EDGA
determine to charge fees associated with the EDGA Book Feed, EDGA will
submit a proposed rule change to the Commission in order to implement
those fees.'' \5\ This proposal is designed to implement fees for the
receipt of the EDGA Book Feed.
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    \4\ Securities Exchange Act Release No. 64792 (July 1, 2011), 76
FR 39959 (July 7, 2011) (SR-EDGA-2011-19).
    \5\ Id.
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    The proposed rule change to the EDGA fee schedule codifies such a
fee associated with the receipt of the EDGA Book Feed. The Exchange,
like other market centers and other data providers, intends to assess
fees for entities that receive real-time market data directly or
indirectly and act as either internal or external distributors, as
discussed below. A ``Distributor'' of Exchange data is any entity that
receives an EDGA Book Feed directly from the Exchange or indirectly
through another entity and then distributes such data either internally
(within that entity) (``Internal Distributor'') or externally (outside
that entity) (``External Distributor''). All Distributors shall execute
a Market Data Vendor Agreement with Direct Edge, Inc., acting on behalf
of the EDGA Exchange. The amount of the monthly fees would depend on
whether the distributor is an ``Internal Distributor'' or ``External
Distributor.'' Internal Distributors are proposed to be charged $500
per month and External Distributors are proposed to be charged $2,500
per month. The fee paid by an External Distributor includes the
Internal Distributor Fee and thus allows an External Distributor to
provide data both internally (i.e., to users within their own
organization) and externally (to users outside their own organization).
    Additionally, Distributors will only pay one distributor fee,
regardless of the number of locations or users to which the feed is
received or distributed. In addition, neither Distributors nor their
end-users will be charged per-user device fees when used to receive the
EDGA Book Feed nor will they be charged per-user display fees when used
to present the EDGA Book Feed.
    The Exchange proposes to implement this rule change on May 1, 2012.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act \6\ in general and furthers
the objectives of Section 6(b)(4) \7\ in particular, as it is designed
to provide for the equitable allocation of reasonable dues, fees and
other charges among its Members and other persons using its facilities.
The Exchange makes all services and products subject to these fees
available on a non-discriminatory basis to similarly situated
recipients because the service is optional and fees charged for the
EDGA Book Feed will be the same for both Members and non-Members. The
fees are not unreasonably discriminatory and are equitably allocated.
The fees for Members and non-Members are uniform except with respect to
reasonable distinctions with respect to internal and external
distribution.\8\ The Exchange proposes charging External Distributors
more than Internal Distributors because of higher administrative costs
associated with monitoring External Distributors ongoing reporting, as
provided in the Direct Edge Data Vendor Agreement and

market data requirements referenced therein. The Exchange believes that
the fees established for the EDGA Book Feed are reasonable and fair in
light of alternatives offered by other market centers.\9\ For example,
PSX charges its data recipients of its book feed, PSX TotalView, a
$1,000 monthly fee to receive its data feed directly from the Exchange.
If the data recipient then distributes the data, it pays an
``internal'' or ``external'' distributor fee depending on the method of
distribution. These fees are on top of the $1,000 monthly fee and
amount to an additional $500/month for internal distributors and $1250/
month for external distributors. This would amount to total costs of
$1,500 monthly for internal distributors and $2,250 monthly for
external distributors that receive their feed directly from PSX. BX
charges its data recipients and internal/external distributors the same
fees for its book feed, BX TotalView. Finally, NASDAQ charges $1,000/
month for internal distributors of NASDAQ listed-security depth
entitlements and $500/month for internal distributors of non NASDAQ-
listed security depth entitlements; for external distributors, NASDAQ
charges $2,500/month for NASDAQ-listed security depth entitlements and
$1,250/month for external distributors of non NASDAQ-listed security
depth entitlements. These are on top of NASDAQ's direct access fees of
$2,000/month for NASDAQ listed-security depth entitlements and $1,000/
month for non NASDAQ-listed security depth entitlements.\10\
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    \6\ 15 U.S.C. 78f.
    \7\ 15 U.S.C. 78f(b)(4).
    \8\ The Exchange notes that distinctions based on external
versus internal distribution have been previously filed with the
Commission by NASDAQ Exchange (``NASDAQ''), NASDAQ OMX BX (``BX''),
and NASDAQ OMX PSX (``PSX''). See Nasdaq Rule 7019(b). See also
Securities Exchange Act Release No. 62876 (September 9, 2010), 75 FR
56624 (September 16, 2010) (SR-PHLX-2010-120). See also Securities
Exchange Act Release No. 62907 (September 14, 2010), 75 FR 57314
(September 20, 2010) (SR-NASDAQ-2010-110). See also Securities
Exchange Act Release No. 63442 (December 6, 2010), 75 FR 77029
(December 10, 2010) (SR-BX-2010-081).
    \9\ Id.
    \10\ See Nasdaq Rule 7019(b).
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    Revenue generated from such fees will help offset the costs that
the Exchange incurs in operating and regulating a highly efficient and
reliable platform for the trading of U.S. equities. This increased
revenue stream will allow the Exchange to offer an innovative service
at a reasonable rate, structured in a manner comparable to and
consistent with other market centers who provide similar market data
products.\11\
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    \11\ Id.
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    The Exchange also believes that the proposed fees are consistent
with Section 6(b)(5) of the Act,\12\ as it is designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in regulating, clearing, settling, processing
information with respect to and facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest. EDGA believes that this
proposal is in keeping with those principles by promoting increased
transparency through the codification of uniform fees for the EDGA Book
Feed for all users and by clarifying the availability of the EDGA Book
Feed to various market participants. In addition, EDGA has made a
voluntary decision to make this Book Feed available. EDGA is not
required by the Act in the first instance to make the data available.
EDGA has chosen to make the Book Feed available to improve market
quality, attract order flow, and increase transparency. It will
continue to make such data available until such time as it changes its
rule.
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    \12\ 15 U.S.C. 78f(b)(5).
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    The Exchange also believes that the proposal is consistent with the
goals of Regulation NMS,\13\ namely facilitating efficiency and
competition. Efficiency is promoted when Members who do not need the
EDGA Book Feed data are not required to receive (and pay for) such
data. The Exchange also believes that efficiency is promoted when
Members may choose to receive (and pay for) additional market data
based on their own internal analysis of the need for such data.
Competition is promoted as the Exchange cannot set unreasonable fees
without losing business to its competitors.\14\
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    \13\ See Securities Exchange Act Release No. 51808 (June 9,
2006), 70 FR 37496 (June 29, 2005).
    \14\ See infra discussion in section II.B. ``Self-Regulatory
Organization's Statement on Burden on Competition.''
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.
    There is significant competition for the provision of market data
to market participants, as well as competition for the orders that
generate that data. In introducing the proposed fees for this service,
the Exchange would be providing one similar to alternatives offered by
other market centers.\15\ The existence of such alternatives ensures
that the Exchange cannot set unreasonable fees, or fees that are
unreasonably discriminatory, without losing business to these
alternatives. Thus, the EDGA Book Feed will promote competition if it
succeeds in providing market participants with viable and cost-
effective alternatives which drive the market to continually improve
products and services to cater to customers' data needs.
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    \15\ See Nasdaq Rule 7019(b). See also Securities Exchange Act
Release No. 62876 (September 9, 2010), 75 FR 56624 (September 16,
2010) (SR-PHLX-2010-120). See also Securities Exchange Act Release
No. 62907 (September 14, 2010), 75 FR 57314 (September 20, 2010)
(SR-NASDAQ-2010-110). See also Securities Exchange Act Release No.
63442 (December 6, 2010), 75 FR 77029 (December 10, 2010) (SR-BX-
2010-081).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

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

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3) of the Act \16\ and Rule 19b-4(f)(2) \17\ thereunder. At any
time within 60 days of the filing of such proposed rule change, the
Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.
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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 19b-4(f)(2).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-EDGA-2012-15 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-EDGA-2012-15. This file

number should be included on the subject line if email is used.
    To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street NE., Washington, DC 20549, on official business days between the
hours of 10:00 a.m. and 3:00 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
publicly available. All submissions should refer to File Number SR-
EDGA-2012-15, and should be submitted on or before May 23, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
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    \18\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-10540 Filed 5-1-12; 8:45 am]
BILLING CODE 8011-01-P