[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Notices]
[Pages 74093-74095]
[FR Doc No: 2011-30818]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65823; File No. SR-EDGX-2011-36]

Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
EDGX Rule 11.14 to Exclude from the Pilot Rule All Rights and Warrants

November 23, 2011.
    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 November 22, 2011, the EDGX Exchange, Inc. (the ``Exchange'' or
the ``EDGX'') 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 self-regulatory
organization. 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 Substance
of the Proposed Rule Change

    The Exchange proposes to amend EDGX Rule 11.14 to exclude from the
pilot rule all rights and warrants. The text of the proposed rule
change is attached as Exhibit 5 \3\ and is available on the Exchange's
Web site at http://www.directedge.com, at the Exchange's principal
office, at the Public Reference Room of the Commission, and at http://www.sec.gov.
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    \3\ The Commission notes that Exhibit 5 is attached to the rule
filing, but not to this Notice.
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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
    The Exchange proposes to amend EDGX Rule 11.14(d) to exclude all
rights and warrants from the single stock circuit breaker under the
rule. The Commission approved EDGX Rule 11.14 on a pilot basis on June
10, 2010 to provide for trading pauses in individual securities due to
extraordinary market volatility (``Trading Pause'') in all securities
included within the S&P 500[supreg] Index (``S&P 500'') (``Pause
Pilot'').\4\ The Exchange noted in its filing to adopt EDGX Rule 11.14
that during the Pause Pilot period it would continue to assess whether
additional securities need to be added and whether the parameters of
EDGX Rule 11.14 would need to be modified to accommodate trading
characteristics of different securities. The Exchange subsequently
received approval to add to the Pause Pilot the securities included in
the Russell 1000[supreg] Index (``Russell 1000'') and a specified

list of Exchange Traded Products (``ETPs'').\5\
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    \4\ The Commission approved the Pause Pilot for all equities
exchanges and FINRA. See Securities Exchange Act Release No. 62252
(June 10, 2010), 75 FR 34186 (June 16, 2010) (File Nos. SR-BATS-
2010-014; SR-EDGA-2010-01; SR-EDGX-2010-01; SR-BX-2010-037; SR-ISE-
2010-48; SR-NYSE-2010-39; SR-NYSEAmex-2010-46; SR-NYSEArca-2010-41;
SR-NASDAQ-2010-061; SR-CHX-2010-10; SR-NSX-2010-05; and SR-CBOE-
2010-047) and Securities Exchange Act Release No. 62251 (June 10,
2010), 75 FR 34183 (June 16, 2010) (SR-FINRA-2010-025).
    \5\ The Commission approved the addition to the Pause Pilot of
the securities included in the Russell 1000 and ETPs, where
applicable, for all equities exchanges and FINRA. See Securities
Exchange Act Release No. 62884 (September 10, 2010), 75 FR 56618
(September 16, 2010) (File Nos. SR-BATS-2010-018; SR-BX-2010-044;
SR-CBOE-2010-065; SR-CHX-2010-14; SR-EDGA-2010-05; SR-EDGX-2010-05;
SR-ISE-2010-66; SR-NASDAQ-2010-079; SR-NYSE-2010-49; SR-NYSEAmex-
2010-63; SR-NYSEArca-2010-61; and SR-NSX-2010-08 and Securities
Exchange Act Release No. 62883 (September 10, 2010), 75 FR 56608
(September 16, 2010) (SR-FINRA-2010-033). The Exchange submitted a
proposed rule change shortly after the addition of the Russell 1000
securities and ETPs to extend the operation of the Pause Pilot,
which was set to expire on December 10, 2010, until April 11, 2011.
See Securities Exchange Act Release No. 63514 (December 9, 2010), 75
FR 78783 (December 16, 2010) (SR-EDGX-2010-23). On April 5, 2011,
the Exchange submitted a proposed rule change to further extend the
Pause Pilot until the earlier of August 11, 2011 or the date on
which a limit up/limit down mechanism to address extraordinary
market volatility, if adopted, applies. See Securities Exchange Act
Release No. 64204 (April 6, 2011), 76 FR 20394 (April 12, 2011) (SR-
EDGX-2011-11).
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    On June 23, 2011, the Commission approved proposed rule changes of
the Exchanges to amend certain of their respective rules to expand the
Pause Pilot to include all remaining NMS stocks (``Phase III
Securities''), which included rights and warrants.\6\ Unlike the
original Pause Pilot securities, the rules of primary listing markets
apply wider percentage price moves to the Phase III Securities before a
trading pause is triggered.\7\ These changes to the rules of primary
listing markets became effective on August 8, 2011.
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    \6\ See Securities Exchange Act Release No. 64735 (June 23,
2011), 76 FR 38243 (June 29, 2011) (SR-EDGX-2011-14 and Amendment
No. 1 thereto, et al.).
    \7\ Under the rules of primary listing markets, (i.e. Nasdaq
Rule 4120(a)(11)), a pause is triggered by a 30% or more price move
in a Phase III Security priced at $1 or higher, and by a 50% or more
price move to such a security priced less than $1. The price of a
security is based on the closing price on the previous trading day,
or, if no closing price exists, the last sale reported to the
Consolidated Tape on the previous trading day.
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    Various exchanges and national securities associations, including
the Exchange, have analyzed the nature of the trading pauses triggered
since adoption of the Pause Pilot and noted that over 25% of such
pauses have occurred in rights and warrants. Further, several primary
listing markets have experienced a significant increase in trading
pauses involving rights and warrants since the implementation of the
Phase III Securities, with such pauses representing approximately 52%
[sic] all trading pauses occurring through the end of August 2011.
Rights and warrants trade on equity exchanges, but are closely related
to call options. Rights and warrants entitle owners to purchase shares
of stock at predetermined prices subject to various timing and other
conditions. Like options, the price of rights and warrants are affected
by the price of the underlying stock as well as other factors,
particularly the volatility of the stock. As a consequence, the prices
of rights and warrants may move more dramatically than the prices of
the underlying stocks even when the rights and warrants (and the
underlying stock) are trading in an orderly manner. This difference in
trading behavior may result in a scenario whereby the rights and
warrants trigger the circuit breaker under the rules of various primary
listing markets and are subject to a trading pause, even while the
underlying stock continues to trade. This can be particularly true of
rights and warrants that have low prices. Accordingly, EDGX is
proposing to exclude rights and warrants from the trading pauses issued
by primary listing markets, as referenced in EDGX Rule 11.14(d).
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Act,\8\ in general, and furthers the objectives of Section 6(b)(5),\9\
in particular, in that 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 facilitating transactions in securities, and to
remove impediments to and perfect the mechanism of a free and open
market and a national market system. The proposed rule change also is
designed to support the principles of Section 11A(a)(1) \10\ of the Act
in that it seeks to ensure fair competition among brokers and dealers
and among exchange markets. The Exchange believes that the proposed
rule meets these requirements because it excludes certain securities
from the rule's coverage that are prone to triggering pauses because of
their unique characteristics. These securities are unique in that they
may move more dramatically than the prices of the underlying stocks to
which they are related even when both securities are trading in an
orderly manner. As such, the securities that are subject to this
proposal may trigger the circuit breaker under the rules of various
primary listing markets and be subject to a trading pause, even while
the underlying security continues to trade. Although there is little
benefit in pausing trading in these securities, such pauses sequester
regulatory resources that are better applied to the review of trading
pauses in other securities that have a greater impact on the national
market system.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ 15 U.S.C. 78k-1(a)(1).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The proposed rule change does not impose any burden on competition
that is not necessary or appropriate in furtherance of the purposes of
the Act.

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

    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 Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \11\ and Rule 19b-4(f)(6) thereunder.\12\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \13\ and Rule 19b-
4(f)(6)(iii) thereunder.\14\
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    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's intent to file the proposed rule change along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \15\ normally
does not become operative for 30 days after the date of filing.
However, pursuant to Rule 19b-4(f)(6)(iii) \16\ the Commission may
designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that

the proposal may become operative immediately upon filing.
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    \15\ 17 CFR 240.19b-4(f)(6).
    \16\ 17 CFR 240.19b-4(f)(6)(iii).
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    The Commission believes that waiving the 30-day operative delay is
consistent with the protection of investors and the public interest.
Including rights and warrants in the pilot program which may trigger a
circuit breaker and be subject to a trading pause, even while the
underlying security continues to trade, provides little benefit and has
the potential to create confusion among investors. Excluding rights and
warrants from the pilot program should minimize investor confusion that
could result from temporary trading pauses in these securities. For
this reason, the Commission designates the proposed rule change as
operative upon the date of this Notice.\17\
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    \17\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the 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.

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 No. SR-EDGX-2011-36 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 No. SR-EDGX-2011-36. 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
a.m. and 3 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 available publicly. All
submissions should refer to File No. SR-EDGX-2011-36 and should be
submitted on or before December 21, 2011.

    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. 2011-30818 Filed 11-29-11; 8:45 am]
BILLING CODE 8011-01-P


MEMORANDUM

TO:		Public Record for the NPDES Electronic Reporting Rule
		EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)

FROM:		Carey A. Johnston, P.E.
            USEPA/OECA/OC
            ph:<PHONE_NUMBER>
<EMAIL_ADDRESS>
DATE:		9 May 2014

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SUBJECT:	Notes from State Technical Workgroup Meeting (1 May 2014) [DCN 0135]
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Overview

      This was the eighth meeting for the EPA-state technical workgroup, which is discussing key issues related to the proposed NPDES Electronic Reporting Rule (eRule). These discussions are informing the forthcoming supplemental Federal Register notice and they will continue beyond the publication of the supplemental notice to help EPA address state comments. EPA participants will include the OECA eRule Team as well as representatives from EPA's Office of Water and Office of Environmental Information. Technical workgroup members are listed below in Tables 1 and 2. The agenda for this meeting is also provided below. EPA is summarizing the notes from these discussions for the docket in order to provide transparency on EPA's outreach during the rulemaking process. The OECA eRule team will also be available for any other stakeholder group that would like to discuss the eRule.

Meeting Notes

     EPA (Mr. Carey Johnston) started the meeting with a roll call and then asked for comments on the draft notes from the April 17th meeting. There were no edits but a few states did ask that EPA include the questions that Arkansas sent EPA after the meeting. EPA updated the meeting notes with these questions along with its answers. Mr. Johnston reminded state participants that in addition to raising questions during the technical workgroup meetings, states can email their questions on the proposed rule (including the data elements) to EPA. Questions on all aspects of the proposed rule can be sent to Mr. Johnston. A state asked for an update on the supplemental Federal Register notice schedule. Mr. Johnston noted that OMB started its review on 12 April 2014. He noted that EPA hopes to finish the review and publish the Federal Register notice by the end of July or early August 2014.

     Mr. Johnston then asked teleconference participants to focus on the `Basic Violation and Enforcement Action Data' in Appendix A (see 30 July 2013; 78 FR 46113).  Mr. Johnston started the technical discussion by reading off the name of each data elements along with the corresponding data description and regulatory or policy citation. After reading about five to ten elements at a time, Mr. Johnston asked for input from the technical workgroup. Below are some questions and comments from the technical workgroup.

* A state commenter asked if the ICIS-NPDES data element that relates to Single Event Violations (SEVs) that occur on one day, Single Event Violation Date (Table Name: ICIS_NPDES_VIOLATION, Column Name: SINGLE_EVENT_VIOLATION_DATE) was the same as Single Event Start Date. Mr. Johnston stated that he would put the answer in the meeting notes.
   [Answer: Single Event Start Date is for SEVs that span multiple days and requires the Single Event End Date field to be entered to close out the SEV (otherwise ICIS-NPDES shows this SEV as on-going). Single Event Violation Date is for SEVs that occur on one date. EPA will likely solicit comment on whether to include Single Event Violation Date in Appendix A.]

* A state commenter noted that multiple entries may be necessary for the Violation Code data element and that the data element description should be modified to reflect this fact.

* A state commenter asked for more information on the Enforcement Action Identifier. Mr. Johnston stated that he would put the answer in the meeting notes.
   [Answer: The following comes from the ICIS  -  NPDES Detailed Design Final Document (page 10-8). For federal enforcement actions, this field will be have three components, each separated by a hyphen (e.g., HQ-2003-1234). These components are: (1) the region responsible for the enforcement action as identified by a region code; (2) the four-digit fiscal year during which the enforcement action is initiated; and (3) a four-digit, user-assigned sequence number between 0001 and 9999. States will be able to use this same structure, or they will be able to use a different structure of their choosing provided that the first two characters of the identifier constitute the state code. This flexibility should give states the option of automatically generating an Enforcement Action Identifier]

* A state commenter asked for clarification on the Law Sections Violated data element. Mr. Johnston replied that this is the unique identifier(s) for the section(s) of law violated and cited in the enforcement action.

* A state commenter asked for clarification on the difference between the Enforcement Action Type and the Final Order Type data elements. Mr. Johnston stated that he would put the answer in the meeting notes.
   [Answer: The following comes from the ICIS  -  NPDES Detailed Design Final Document (page 10-5 and 10-74). ICIS-NPDES separates the enforcement initiation data (e.g., Enforcement Action Type) from the final order data, which allows users to track multiple final orders for a single enforcement action, and track components (e.g., penalty, SEP) from each final order...In ICIS-NPDES a final order is generally an agreed-upon resolution to an enforcement action. In an administrative action, final orders are often in the form of Consent Agreements/Final Orders (CA/FO). In a judicial context, final orders are embodied in Consent Decrees signed by all parties to the action and filed in the appropriate court. Once the enforcement action has been litigated successfully in court, or an agreement has been reached for a consent decree, or an administrative order has been issued, a conclusion has been reached for the enforcement action. This conclusion is known in ICIS  -  NPDES as a Final Order.]

* Several states asked for clarification on the Milestones/ Sub-activities and Sub Activity Type data elements and whether these data elements are necessary. Mr. Johnston stated that he would put the answer in the meeting notes.
   [Answer: The following comes from the ICIS  -  NPDES Detailed Design Final Document (page 10-42). As the life cycle of an enforcement action progresses from issuance through conclusion to closure, events occur that will impact the status of that enforcement action and potentially the RNC resolution status of Violations that are linked to it through its final order(s). These events will be recorded in ICIS  -  NPDES either as web-entered, predefined tracking events known as milestones or as batch-entered, standard sub-activities.
   Milestones are predefined tracking events that can occur over the life of an enforcement action. The composition of a milestone set varies depending on whether the enforcement action is an administrative formal or a judicial action, and whether it is a federal or a web-entered state enforcement action. Sub-activities are additional steps that can be taken, or events that can be achieved, to complete an enforcement action (e.g., amended complaint, start negotiations).]

      Mr. Johnston then asked teleconference participants to focus on the `Compliance Monitoring Activity' data in Appendix A (see 30 July 2013; 78 FR 46100).  Mr. Johnston started the technical discussion by reading off the name of each data elements along with the corresponding data description and regulatory or policy citation. After reading about five to ten elements at a time, Mr. Johnston asked for input from the technical workgroup. Below are some questions and comments from the technical workgroup.

* A state commenter asked if EPA could add a few columns to the Appendix A Excel spreadsheet to show the ICIS-NPDES table name and column name. Mr. Johnston relied that he would update the spreadsheet and share it with the states.

* A state commenter asked how the Permitted Feature Identifier data element would be used for inspections on regulated entities without a permitted feature (e.g., MS4 regulated entity) or if an inspection did not involve a permitted feature. Mr. Johnston noted that some MS4 have monitoring requirements at permitted features; however, if facility does not have a permitted feature or if an inspection does not involve a particular permitted feature, then this field could be left blank. EPA will add a note to Appendix A.

* A state commenter asked about the business rules for the Compliance Monitoring Activity Planned End Date data element. Mr. Johnston stated that he would put the answer in the meeting notes.
   [Answer: Currently, ICIS-NPDES users must enter an Inspection against either a specific Permit or an unpermitted Facility. An Inspection record is regarded as enforcement sensitive data (i.e., not shared with the public) until a Compliance Monitoring Activity Actual End Date is entered. This data element has the following edit checks against this data element [ICIS-NPDES Detailed Design Final document (page 8-61)].
      o Batch: Must be a valid date in yyyy-mm-dd format
      o Must be greater than or equal to Compliance Monitoring Activity Planned Start Date
      o Required if Compliance Monitoring Activity Actual End Date is not entered]

Mr. Johnston then ask teleconference participants to focus on the biosolids data elements in Appendix A (permit application, inspection, annual program report).  Mr. Johnston started the technical discussion by reading off the name of each data elements along with the corresponding data description and regulatory or policy citation. After reading about five to ten elements at a time, Mr. Johnston asked for input from the technical workgroup. Below are some questions and comments from the technical workgroup.

* One state commenter noted that the biosolids data elements should only be required for permit renewals as new facilities will not have data available to report for these data elements. EPA will provide a note in Appendix A that NPDES regulated entities that have no historical record (e.g., "greenfield" facilities) do not need to provide data elements that rely on historical data elements.

* New Jersey noted that the Disposition of Incinerator Ash data element does not have a CWA or NPDES regulatory citation and should be removed from Appendix A.

* One state commenter noted that some of the data elements only apply under certain limited scenarios (e.g., when 90 percent of more of any of a Cumulative Pollutant Loading Rate parameter is reached at a biosolids or sewage sludge receiving site). EPA noted that it will provide additional notes in Appendix A to make clear to provide clarity.

* New Jersey noted that many of the biosolids data elements point to EPA's biosolids regulations (40 CFR 503) but that they are unclear as to how EPA derived the specific data elements. Mr. Johnston replied that EPA's biosolids regulations include general statements that require the regulated entity to provide a description of their biosolids management and disposal. For example, the Treatment Processes biosolids data element is in Appendix A to assist in identifying whether the regulated entity has the necessary treatment and management practices to meet EPA's regulatory requirements (e.g., a facility could not claim to meet aerobic process requirements when the facility has an operating anaerobic digester).

* Mr. Sean Rolland (ACWA) asked the question, "How do we streamline Appendix A between the `nice to know' data elements and the actual required data elements." Texas noted that they do not want to be accountable for data not currently required by EPA's regulations. Mr. Johnston replied that EPA used its regulations to develop the data elements in the proposed rule's Appendix A and that these discussion and future discussions will help refine Appendix A.

* Minnesota asked if they can send their data to EPA in phases. They noted that they have some of these data readily available but that other data may exist on paper or in an electronic form that will take time to map to ICIS-NPDES. Mr. Johnston noted that EPA is soliciting comments in the forthcoming supplemental notice on different ideas for implementing electronic reporting. He noted that phasing in state data may be one such approach among other ideas.

* A state participant suggested that EPA conduct user testing of its electronic reporting forms. Mr. Johnston noted that it has and will continue to do such testing. He gave the example of the forthcoming roll-out of EPA's MSGP, which uses the NPDES Electronic Reporting Tool (NeT). EPA's developers have tested the forms on a number of users and from a number of different perspectives.

      Subsequent to this call, New Jersey Department of Environmental Protection and Arkansas Department of Environmental Quality submitted questions to EPA on the data elements reviewed on May 1st. These questions and EPA's responses are presented in Attachments 1 and 2.

Next Steps

      The next technical workgroup meeting is May 15th.
     State Technical Workgroup Meeting  -  NPDES Electronic Reporting Rule
                                  1 May 2014

      1pm		Introduction/Roll Call

      1:10		Discussion of Basic Violation and Enforcement Action Data

      2:00		Discussion of Biosolids Data

      2:30		End of Call

Quick Reminder
   *    The technical workgroup is not a formal decision-making body. The workgroup is expected to develop, research, and evaluate options for consideration by EPA and state senior management.

   *    There are no formal quorum rules for the workgroup. Scheduled teleconferences will proceed with whichever workgroup members call in to participate.

   *    There will be no formal voting or consensus of the workgroup. Instead, the workgroup is expected to try to develop recommendations reflecting their various perspectives, not achieve consensus.

   *    Summaries of the workgroup's discussions will be prepared for and reviewed by the workgroup, for presentation to EPA senior management and other states and the rulemaking record. The discussions summaries will outline the major elements of the discussions, areas of agreement and any dissenting views.

Table 1: State Technical Workgroup Members

                                 Main Contact
                             State or Organization
                              Main Contact Email
                         State/Org. Present? (Yes/No)
                                 Sean  Rolland
                                     ACWA
<EMAIL_ADDRESS>                                      Yes
                                 Karen Lechner
                                      AK
<EMAIL_ADDRESS>                                      Yes
                                 Christy Monk
                                      AL
<EMAIL_ADDRESS>                                      Yes
                                  Glenda Dean

<EMAIL_ADDRESS>
                                 Teresa Marks
                                      AR
<EMAIL_ADDRESS>                                      Yes
                                   Pat Goff

<EMAIL_ADDRESS>
                                   Mo Shafii

<EMAIL_ADDRESS>
                                 Karen Bassett

<EMAIL_ADDRESS>
                                 David Ramsey

<EMAIL_ADDRESS>
                                Ellen Carpenter

<EMAIL_ADDRESS>
                                Wendy LeStarge
                                      AZ
<EMAIL_ADDRESS>                                      Yes
                                 Robin Belley

<EMAIL_ADDRESS>
                                  David Lelsz

<EMAIL_ADDRESS>
                                  Andy Putnam
                                      CO
<EMAIL_ADDRESS><EMAIL_ADDRESS>                                      No
                                 Elisa Willard

<EMAIL_ADDRESS>
                                 Bob Zimmerman
                                      DE
<EMAIL_ADDRESS><EMAIL_ADDRESS>                                      No
                                  Beth Graves
                                     ECOS
<EMAIL_ADDRESS>                                      Yes
                                  Chris Klena
                                      FL
<EMAIL_ADDRESS>                                      Yes
                              Jessica Kleinfelter

<EMAIL_ADDRESS>
                                 Edward Smith

<EMAIL_ADDRESS>
                               Frances Carpenter

<EMAIL_ADDRESS>
                                 Tom Easterly
                                      IN
<EMAIL_ADDRESS><EMAIL_ADDRESS>                                      Yes
                               Jeremy Chenevert

<EMAIL_ADDRESS>
                                 Ed Dillingham
                                      KS
<EMAIL_ADDRESS>                                      No
                             Shelly Shores-Miller

<EMAIL_ADDRESS>
                                Shawn Hokanson
                                      KY
<EMAIL_ADDRESS>                                      No
                                  Tamara Dahl
                                      MN
<EMAIL_ADDRESS>                                      Yes
                                 Greg Jackson
                                      MS
<EMAIL_ADDRESS>                                      No
                                  John Murphy
                                    NEIWPCC
<EMAIL_ADDRESS>                                      No
                                 Jason Lonardo
                                      NJ
<EMAIL_ADDRESS>                                      Yes
                                 Julio Collazo

<EMAIL_ADDRESS>
                                 Robert Wither
                                      NY
<EMAIL_ADDRESS>                                      Yes
                                 Joseph DiMura

<EMAIL_ADDRESS>
                             Shellie Chard-McClary
                                      OK
<EMAIL_ADDRESS>                                      Yes
                                  Roy Walker

<EMAIL_ADDRESS>
                                 David Pruitt

<EMAIL_ADDRESS>
                                 Jim Billings
                                      OR
<EMAIL_ADDRESS>                                      Yes
                                 Sean Furjanic
                                      PA
<EMAIL_ADDRESS>                                      No
                                Kent Woodmansey
                                      SD
<EMAIL_ADDRESS>                                      Yes
                                   Tim Flor

<EMAIL_ADDRESS>
                                Albert Spangler

<EMAIL_ADDRESS>
                                  Kim Wilson
                                      TX
<EMAIL_ADDRESS>                                      Yes
                                 Lynley Doyen

<EMAIL_ADDRESS>
                               Kimberly Shepard

<EMAIL_ADDRESS>
                                 Jeff Studenka
                                      UT
<EMAIL_ADDRESS>                                      No
                                 Jerome Brooks
                                      VA
<EMAIL_ADDRESS>                                      Yes
                                  Phani Eturu

<EMAIL_ADDRESS>
                                Stephen Bernath
                                      WA
<EMAIL_ADDRESS>                                      Yes
                                  Nancy Kmet

<EMAIL_ADDRESS>

Table 2: EPA Technical Workgroup Members

                                     Name
                                  EPA Office
                                     Email
                               Present? (Yes/No)
                                   Lisa Lund
                                  OECA/OC/IO
<EMAIL_ADDRESS>                                      No
                                John Dombrowski
                                 OECA/OC/ETDD
<EMAIL_ADDRESS>                                      Yes
                                  Andy Hudock
                                 OECA/OC/ETDD
<EMAIL_ADDRESS>                                      Yes
                                Rochele Kadish
                                 OECA/OC/ETDD
<EMAIL_ADDRESS>                                      Yes
                                Carey Johnston
                                 OECA/OC/ETDD
<EMAIL_ADDRESS>                                      Yes
                                 Jackie Clark
                                  OW/OWM/WPD
<EMAIL_ADDRESS>                                      Yes
                                  Roy Chaudet
                                 OEI/OIC/IESD
<EMAIL_ADDRESS>                                      No
                                 Chuck Freeman
                                 OEI/OIC/IESD
<EMAIL_ADDRESS>                                      No
                                 Aditi Prabhu
                                    OGC/WLO
<EMAIL_ADDRESS>                                      Yes
                                 Tony Petruska
                                   Region 7
<EMAIL_ADDRESS>                                      Yes
                                  Glynis Hill
                                 OP/ORPM/PRAD
<EMAIL_ADDRESS>                                      Yes

              Attachment 1: New Jersey Comments on Biosolids Data
      The State of New Jersey runs a comprehensive State Biosolids Program.  The State of New Jersey is not a delegated state program for biosolids.  The State of New Jersey has moved away from an annual report based program to a DMR based reporting program.  DMR, and other monitoring report forms, are required to be submitted at a frequency dependent on the size of the facility.  Data parameters that are submitted, often electronically, are those necessary to determine compliance with the State rules (which, at a minimum, mirror the Federal 40 CFR Part 503 regulations).  Please accept our following comments specific to the Biosolids Annual Program Reports.
Data Element: Treatment Processes  -  This information is a necessary component of a permit application in order to demonstrate how a facility will comply with federal and state regulations for land application.   This information is also important as part of a permit application to establish appropriate sludge monitored location(s).  This is not a direct 40 CFR Part 503 rule requirement.  It is not believed that this should be a data element, however, if it is kept, it should not be an annual requirement.
EPA Response: Under authority of Sections 405(d) and (e) of the Clean Water Act (CWA), EPA promulgated biosolids regulations to protect public health and the environment from any reasonably anticipated adverse effects of certain pollutants that may be present in sewage sludge. These regulations establish requirements for the final use and disposal of sewage sludge in three circumstances: beneficial purpose (including sewage sludge or sewage sludge products that are sold or given away for use in home gardens); land application (including sewage sludge-only landfills); and incineration. The standards for each end use and disposal practice consist of general requirements, numerical limits on the pollutant concentrations in sewage sludge, management practices and, in some cases, operational requirements. For example one could not claim to meet aerobic process requirements when the facility has an operating anaerobic digester. Consequently, EPA believes that this data element should be included in the minimum set of electronically reporting data (Appendix A).

It is also noteworthy that EPA's biosolids regulations "are self-implementing and must be followed even without the issuance of a permit." In instances where the NPDES program does not use a permit to implement Part 503, the Biosolids Annual Report is one of the main mechanisms for how the NPDES program will assess compliance and oversight of a biosolids generator or handler.

Data Element: Biosolids Class  -  It needs to be understood that this data element will not be applicable to most facilities.
EPA Response: As previously noted, EPA's regulations provide biosolids generators and handlers with a set of options for managing biosolids. For example, bulk sewage sludge applied to a lawn or a home garden must meet the Class A pathogen requirements. The reason for this requirement is that it is not feasible to impose site restrictions on a lawn or a home garden on which bulk sewage sludge is applied. Consequently, it is important for the NPDES program's oversight to understand how each biosolids generator and handler manages their sewage sludge. Key to understanding how each biosolids generator and handler manage their sewage sludge is to identify the different classes of biosolids generated at each facility along with related information such as the amount and treatment and practices. Consequently, EPA believes that this data element should be included in the minimum set of electronically reporting data (Appendix A).

Data Element:  Management Practices  -  It needs to be understood that this data element will not be applicable to most facilities.
EPA Response: As previously noted, EPA's regulations provide biosolids generators and handlers with a set of options for managing biosolids. These regulations include specific requirements on management practices for Land Application (Part 503.14), Surface Disposal (503.14), and Incineration (503.45). This data element will apply to some biosolids generators and handlers and will identify the types of biosolids management practices employed to meet EPA's Biosolids regulation (Part 503). Consequently, EPA believes that this data element should be included in the minimum set of electronically reporting data (Appendix A). EPA also seeks comment on how to make the data element description clear on who is required to report this information in compliance with Part 503.
Data Element:  Sampling and Analytical Methods  -  This information is important to verify the validity of data, however, that does not mean it should be a data element. The State of New Jersey asks for this information as part of the permit application.  In addition, if the validity of data is questioned, the Department can ask for this information at any time.  Furthermore, the use of appropriate methods is validated when site inspections are performed.  It should also be noted that there is no parallel data element requirement for other programs (for example, surface water discharges).  It is requested that this data element be removed.
EPA Response: EPA's regulations include a set of conditions application to all NPDES permits (4 CFR 122.41). These regulations require that "Monitoring must be conducted according to test procedures approved under 40 CFR Part 136 unless other method is required under 40 CFR subchapters N or O," [see 40 CFR 122.41(j)(4)]. Likewise, EPA's biosolids regulations require specific analytic procedures for biosolids sampling (see 40 CFR 503.8). This data element will apply to all biosolids generators and handlers and will help ensure that regulated entities are using the appropriate analytic methods. Consequently, EPA believes that this data element should be included in the minimum set of electronically reporting data (Appendix A).
Data Element: Biosolids Receiving Site information (multiple fields)  -  While not a direct requirement of 40 CFR Part 503, it is a requirement of the NPDES permit application rules (40 CFR Part 122.21(q) for receiving sites that "the applicant does not own or operate".  It needs to be understood that receiving sites could change often, and that multiple receiving sites could be used.  The State of New Jersey receives this information via monthly monitoring report forms by linking a reported Program Interest number to a site in our database.  It also needs to be understood that receiving site latitude and longitude are only supported by rule under 40 CFR Part 122.21(q) to identify certain sites that are owned and operated by the applicant.  Therefore, latitude and longitude should not be mandatory data elements.
EPA Response: New Jersey correctly notes that the list of sites receiving biosolids may change from year to year or month to month. EPA's notes that these lists are extremely helpful in investigating issues related to public health. For example, cantaloupes contaminated with the bacteria Listeria monocytogenes in 2011 caused the deadliest foodborne disease outbreak in the United States in nearly 90 years. The Colorado biosolids coordinator was able to confirm that the source of the Listeria, a cantaloupe grower, did not use biosolids, which helped focus the investigation. EPA agrees with New Jersey that additional clarification is needed for the Biosolids Receiving Site annual report data elements as site location information is only required when 90 percent of more of any of the Cumulative Pollutant Loading Rate parameters is reached at a site. EPA also solicits comment on adding Biosolids Receiving Site data elements to the `Biosolids Information on NPDES Permit Application or Notice of Intent' section in Appendix A to ensure that each state has an updated list of site receiving biosolids.
Data Element: Biosolids Monitored Parameter Units  -  Please replace (e.g., mg/l) with (e.g. mg/kg) to avoid confusion of proper units to be utilized for most parameters.
EPA Response: EPA will make this clarification in Appendix A.
Data Element: Actual Measured Cumulative Pollutant Loading Rate  -  It needs to be understood that this data element will not be applicable to most facilities.
EPA Response: EPA agrees that this field will not be applicable in most cases as many pretreatment programs help reduce the potential for toxic pollutants to accumulate in sewage sludge. However, not all POTWs are adequately protected and this data element is necessary to assure these biosolids generators are taking adequate measures to protect public health. Consequently, EPA believes that this data element should be included in the minimum set of electronically reporting data (Appendix A).
Data Element: Actual Measured Annual Application Rate  -  It needs to be understood that this data element will not be applicable to most facilities.
EPA Response: This data elements helps monitoring the application rate of pollutants to ensure that POTWs are taking adequate measures to protect public health. Consequently, EPA believes that this data element should be included in the minimum set of electronically reporting data (Appendix A).
Data Element: Disposition of Incinerator Ash  -  This data element is not supported anywhere in rule and should be removed.
EPA Response: EPA thanks New Jersey for this comment.
Please accept the following comments to Biosolids Information on NPDES Permit Application or Notice of Intent:
Data Element: Average Annual Amount(s)  -  There are multiple data fields requesting the amount of biosolids produced.  The rules at both 40 CFR Part 503 and 40 CFR Part 122.21(q) do not ask for "Average Annual Amount".  The rules require "total dry metric tons per 365 day period".  Clarification is requested on what is expected to be reported here?
EPA Response: EPA will change these data element descriptions to make clear that that the time period is 365 days.

               Attachment 2: Arkansas Comments on Biosolids Data

1. Enforcement Action: Does the NPDES Electronic Reporting Rule require informal enforcement actions on NPDES permits to be entered into ICIS-NPDES?  The description leads me to believe that only formal enforcement actions are required.

Table 2: Required NPDES Data
Data Name
Data Description
                      CWA, Regulatory, or Policy Citation
                                   (40 CFR)
                            NPDES Data Group Number
                                 (see Table 1)
Enforcement Action
Enforcement Action Identifier
The number of the Enforcement Action; for a judicial action, the number as referred to by the Court where the action was filed.
                                CWA Section 309
                                       1
Enforcement Action Name
The name associated with this enforcement action.
                                CWA Section 309
                                       1
Enforcement Action Type
A code/description that uniquely identifies the type of formal or informal enforcement action.  This code identifies, for example, whether the enforcement action is a civil judicial referral, a notice of violation, an administrative penalty order, administrative order, etc.
                                CWA Section 309
                                       1

EPA Response: This data element applies to formal and informal enforcement actions. For additional context, the following passage comes from the proposed rule, "[S]everal states have voiced concerns that EPA did not fully recognize and credit the extent to which states rely on compliance achieved through the issuance of informal enforcement actions, including a variety of enforcement actions which do not impose a compliance schedule. These states expressed concern that without such information regarding informal enforcement actions, EPA and the public did not have a complete picture of the state efforts to obtain compliance by the NPDES-regulated facilities. EPA has made efforts to ensure that information from the states regarding such informal enforcement actions is considered and made available. Similarly, this proposed rule would require states, tribes, and territories to provide EPA with facility-specific information regarding formal and informal enforcement actions for all NPDES-regulated permittees."

2. Violation:  Will the Single Event Violation (SEV) Single Event Start Date and Single Event End Date be required if the event occurred only on one day?  Some SEVs involve something that was missing, not developed, or insufficient at the time an inspection took place.  This sets up a situation where a Single Event Start Date might be entered when the SEV is initially entered, and a Single Event End Date is expected in the future.  It is difficult to keep track of when the violation was resolved.

Will states be required to link all Single Event Violations (SEVs) to each Compliance Monitoring Activity (Inspection)?  Currently we only enter SEVs when they are addressed by a formal enforcement action (in accordance with our MOA).  Inspectors do not use Single Event Violation codes with their inspection documentation.

Will states be required to manually enter the RNC data for all Single Event Violations or just those that are determined to meet RNC criteria?

Data Name
Data Description
                      CWA, Regulatory, or Policy Citation
                                   (40 CFR)
                            NPDES Data Group Number
                                 (see Table 1)
Violation
Single Event Start Date
If the single event violation (SEV) occurred over multiple days, the date the occurrence began. The date data must be provided in CCYY-MM-DD format where CC is the century, YY is the year, MM is the month and DD is the day.
                                    123.45
                                       1
Single Event End Date
If the single event violation (SEV) occurred over multiple days, the date the occurrence ended. The date data must be provided in CCYY-MM-DD format where CC is the century, YY is the year, MM is the month and DD is the day.
                                    123.45
                                       1
RNC Detection Code
The type of RNC detected.  It can be entered automatically by the system or it can be entered manually.
                                    123.45
                                       1
RNC Detection Date
The date that RNC was detected. It can be entered manually or automatically.  In cases in which RNC is detected by ICIS-NPDES, the detection date entered will vary according to the type of violation detected. The date data must be provided in CCYY-MM-DD format where CC is the century, YY is the year, MM is the month and DD is the day.
                                    123.45
                                       1
RNC Resolution Code
The RNC status (i.e., noncompliant, resolved pending, waiting resolution, resolved) of the violation.  It can be entered manually or automatically by the system.
                                    123.45
                                       1
RNC Resolution Date
The date RNC was marked to its current resolution status.  It can be entered manually or automatically. The date data must be provided in CCYY-MM-DD format where CC is the century, YY is the year, MM is the month and DD is the day.
                                    123.45
                                       1

EPA Response: As noted in the meeting notes, the Single Event Start Date data element is for SEVs that span multiple days and requires the Single Event End Date field to be entered to close out the SEV (otherwise ICIS-NPDES shows this SEV as on-going). Single Event Violation Date is for SEVs that occur on one date. EPA will likely solicit comment on whether to include Single Event Violation Date in Appendix A.

Also  -  states will be required to manually enter (if necessary) and share with EPA the RNC data for all SEV that meet the Category 1 Noncompliance and Category II Noncompliance criteria. See these proposed criteria in the proposed revisions to 40 CFR 123.45.

3. Compliance Schedule: Milestones and Sub-activities are part of the Enforcement Action, not the Compliance Schedule.  Milestone Activity Types are a subset of the Sub-Activity Types.  There are currently 12 mandatory Sub-activity Types that are available for formal enforcement actions (Milestones).  Only a limited number of Sub-Activity Types are available for informal enforcement actions, and none of them are mandatory.  Why are Sub-activities required for Enforcement Actions (Milestones are currently required and are system generated for formal enforcement actions)?  Are Milestones and Sub-activities required for informal enforcement actions or are they conditional?

Data Name
Data Description
                      CWA, Regulatory, or Policy Citation
                                   (40 CFR)
                            NPDES Data Group Number
                                 (see Table 1)
Compliance Schedule
Milestones/ Sub-activities
The unique code/description that identifies the milestones/sub-activities.
                                CWA Section 309
                                       1
Sub Activity Type
A code/description that uniquely identifies a type of sub activities and/or Enforcement Action milestones.
                                CWA Section 309
                                       1

EPA Response: EPA will make it clear in the revised Appendix A that these two data elements related to enforcement actions. We welcome any language you would like to suggest for these data element descriptions so that the necessary conditions are included along with any flexibility you think would be helpful for states as they implement electronic reporting of these data elements. This includes making any necessary conditions between formal and informal actions for these two data elements.

9. For those Data Elements that are conditionally required, please include under what conditions they are required. The descriptions I have seen do not describe when a data element is required and when it is not.  I hope to see a designation for system generated and system required data in the descriptions.

EPA Response: As noted above, we are using the data descriptions to identify any conditions or exemptions. We welcome any language you would like to suggest for these data element descriptions so that the necessary conditions are included along with any flexibility you think would be helpful for states as they implement electronic reporting of these data elements. We will also provide a spreadsheet identifying those data elements that are system generated and system required.


[Federal Register: May 7, 2009 (Volume 74, Number 87)]
[Notices]
[Page 21362-21363]
[DOCID:fr07my09-54]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8897-7; Docket ID No. EPA-HQ-ORD-2009-0178]

Draft Toxicological Review of Pentachlorophenol: In Support of
the Summary Information in the Integrated Risk Information System
(IRIS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of public comment period.

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

SUMMARY: EPA is announcing a public comment period for the external
review draft document titled ``Toxicological Review of
Pentachlorophenol: In Support of Summary Information on the Integrated
Risk Information System (IRIS)'' (EPA/635/R-09/004). The EPA intends to
consider comments and recommendations from the public and the expert
panel meeting, which will be scheduled at a later date and announced in
the Federal Register, when EPA finalizes the draft document. The public
comment period will provide opportunities for all interested parties to
comment on the document. EPA intends to forward public comments,
submitted in accordance with this notice, to the external peer-review
panel prior to the meeting for their consideration. When finalizing the
draft document, EPA intends to consider any public comments that EPA
receives in accordance with this notice.
    EPA is releasing this draft document solely for the purpose of pre-
dissemination public review under applicable information quality
guidelines. This document has not been formally disseminated by EPA. It
does not represent and should not be construed to represent any Agency
policy or determination.
    The draft document and EPA's peer-review charge are available via
the Internet on National Center for Environmental Assessment's (NCEA)
home page under the Recent Additions and the Data and Publications
menus at http://www.epa.gov/ncea.

DATES: The public comment period begins May 7, 2009 and ends July 6,
2009. Technical comments should be in writing and must be received by
EPA by July 6, 2009. EPA intends to submit comments from the public
received by this date for consideration by the external peer review
panel.

ADDRESSES: The draft ``Toxicological Review of Pentachlorophenol: In
Support of Summary Information on the Integrated Risk Information
System (IRIS)'' is available via the Internet on the NCEA's home page
under the Recent Additions and the Data and Publications menus at
http://www.epa.gov/ncea. A limited number of paper copies are available
from NCEA's Technical Information Staff, telephone:<PHONE_NUMBER>;
facsimile:<PHONE_NUMBER>. If you are requesting a paper copy, please
provide your name, mailing address, and the document title.
    Comments may be submitted electronically via http://
www.regulations.gov, by mail, by facsimile, or by hand delivery/
courier. Please follow the detailed instructions as provided in the
SUPPLEMENTARY INFORMATION section of this notice.

FOR FURTHER INFORMATION CONTACT: For information on the public comment
period, contact the Office of Environmental Information Docket;
telephone:<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>; or e-mail:
<EMAIL_ADDRESS>    If you have questions about the document, contact Catherine
Gibbons, IRIS Staff, National Center for Environmental Assessment,
(8601P), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460;
telephone:<PHONE_NUMBER>; facsimile:<PHONE_NUMBER>; or e-mail:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Summary of Information About the Integrated Risk Information System
(IRIS)

    IRIS is a database that contains potential adverse human health
effects information that may result from chronic (or lifetime) exposure
to specific chemical substances found in the environment. The database
(available on the Internet at http://www.epa.gov/iris) contains
qualitative and quantitative health effects information for more than
540 chemical substances that may be used to support the first two steps
(hazard identification and dose-response evaluation) of a risk
assessment process. When supported by available data, the database
provides oral reference doses (RfDs) and inhalation reference
concentrations (RfCs) for chronic health effects, and oral slope
factors and inhalation unit risks for carcinogenic effects. Combined
with specific exposure information, government and private entities can
use IRIS data to help characterize public health risks of chemical
substances in a site-specific situation and thereby support risk
management decisions designed to protect public health.

II. How To Submit Technical Comments to the Docket at http://
www.regulations.gov

    Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2009-
0178 by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Office of Environmental Information (OEI) Docket
(Mail Code: 2822T), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460. The phone number is 202-
566-1752.
     Hand Delivery: The OEI Docket is located in the EPA
Headquarters Docket

Center, EPA West Building, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The EPA Docket Center's Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is 202-566-
1744. Such deliveries are only accepted during the docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
    If you provide comments by mail or hand delivery, please submit one
unbound original with pages numbered consecutively, and three copies of
the comments. For attachments, provide an index, number pages
consecutively with the comments, and submit an unbound original and
three copies.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-ORD-
2009-0178. Please ensure that your comments are submitted within the
specified comment period. Comments received after the closing date will
be marked ``late,'' and may only be considered if time permits. It is
EPA's policy to include all comments it receives in the public docket
without change and to make the comments available online at http://
www.regulations.gov, including any personal information provided,
unless a comment includes information claimed to be confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://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 e-mail comment directly to EPA without going through http://
www.regulations.gov, your e-mail 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 docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the OEI Docket in the
EPA Headquarters Docket Center.

    Dated: April 21, 2009.
Peter W. Preuss,
Director, National Center for Environmental Assessment.
[FR Doc. E9-10657 Filed 5-6-09; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: April 28, 2006 (Volume 71, Number 82)]
[Notices]
[Page 25257-25260]
[DOCID:fr28ap06-118]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53700; File No. SR-BSE-2005-46]

Self-Regulatory Organizations; Boston Stock Exchange, Inc.; Order
Granting Accelerated Approval of Proposed Rule Change and Amendment
Nos. 1 and 2 Thereto and Notice of Filing and Order Granting
Accelerated Approval to Amendment No. 3 to the Proposed Rule Change To
Amend Exchange Delisting Rules To Conform to Recent Amendments to
Commission Rules Regarding Removal From Listing and Withdrawal From
Registration

April 21, 2006.

I. Introduction

    On October 24, 2005, the Boston Stock Exchange, Inc. (``BSE'' or
``Exchange'') 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 Exchange delisting rules
to conform to recent amendments to Commission rules regarding removal
from listing and withdrawal from registration. On March 16, 2006, BSE
filed Amendment No. 1 to the proposed rule change.\3\ On March 21,
2006, BSE filed Amendment No. 2 to the proposed rule change.\4\ The
proposed rule change, as amended, was published for comment in the
Federal Register on March 28, 2006.\5\ On April 17, 2006, BSE filed
Amendment No. 3 to the proposed rule change.\6\ No comments were
received regarding the proposal. This order approves the proposed rule
change, as amended by Amendment Nos. 1 and 2, on an accelerated basis,
publishes notice of Amendment No. 3 to the proposed rule change, and
grants accelerated approval to Amendment No. 3.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, BSE amended its rule text to clarify
that an issuer that is below the continued listing policies and
standards of the Exchange and seeks to voluntarily apply to withdraw
a class of securities from listing must disclose that it is no
longer eligible for continued listing in its statement of material
facts relating to the reason for withdrawal from listing, its public
press release, and its Web site notice. In addition, BSE revised its
rule text to clarify which provisions in its appeal procedures were
based on calendar or business days and to cross-reference its rules
regarding the Exchange's basis for involuntary delisting of a class
of securities by the Exchange.
    \4\ Amendment No. 2 replaced and superseded the Exchange's
original proposed rule change and Amendment No. 1.
    \5\ See Securities Exchange Act Release No. 53544 (March 23,
2006), 71 FR 15499.
    \6\ Amendment No. 3 replaced and superseded the proposed rule
change and Amendment Nos. 1 and 2. While Amendment No. 3 replaced
and superseded the proposed rule change in its entirety, only
certain changes were made to the proposal as published. The changes
made in Amendment No. 3 are as follows: (1) Charging issuers a
$3,000 fee (instead of the previously proposed $5,000 fee) when
issuers appeal the Exchange's delisting determinations; (2)
modifying the appeal procedures so that the issuer is entitled to a
hearing before the Stock List Committee and deleting proposed
language that issuers must first request a hearing and the hearing
is at the option of the Exchange; (3) providing that the decision of
the Stock List Committee shall be issued within 15 business days of
the hearing or final request for documentation or information; (4)
referencing amended SEC Rule 12d2-2 in the commentary; and (5)
specifying the time period the Exchange must publicize its final
determination to remove a security from listing by issuing a press
release and posting on Web site as no fewer than ten days before the
delisting becomes effective.
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change, As Amended

    Section 12 of the Act \7\ and Rule 12d2-2 thereunder \8\ (``SEC
Rule 12d2-2'') govern the process for the delisting and deregistration
of securities listed on national securities exchanges. Recent
amendments to SEC Rule 12d2-2 (``amended SEC Rule 12d2-2'') and other
Commission rules require the electronic filing of revised Form 25 \9\
on the Commission's Electronic Data Gathering, Analysis, and Retrieval
(``EDGAR'') system by exchanges and issuers for all delistings, other
than delistings of standardized options and securities futures, which
are exempted.\10\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78l.
    \8\ 17 CFR 240.12d2-2.
    \9\ 17 CFR 249.25.
    \10\ See Securities Exchange Act Release No. 52029 (July 14,
2005), 70 FR 42456 (July 22, 2005) (``SEC Rule 12d2-2 Approval
Order'').
---------------------------------------------------------------------------

    In the case of exchange-initiated delistings, amended SEC Rule
12d2-2(b) states that a national securities exchange may file an
application on Form 25 to strike a class of securities from listing
and/or withdraw the registration of such securities, in accordance with
its rules, if the rules of such exchange, at a minimum, provide for:
    (i) Notice to the issuer of the exchange's decision to delist its
securities;
    (ii) An opportunity for appeal to the exchange's board of
directors, or to a committee designated by the board; and
    (iii) Public notice of the national securities exchange's final
determination to remove the security from listing and/or registration,
by issuing a press release and posting notice on its Web site. Public
notice must be disseminated no fewer than 10 days before the delisting
becomes

effective pursuant to amended SEC Rule 12d2-2(d)(1), and must remain
posted on its Web site until the delisting is effective.
    The Exchange proposes to adopt new Section 2 of BSE Rule Chapter
XXVII to set forth its rules and procedures with respect to issuer-
initiated and Exchange-initiated delistings. The proposal incorporates
the Exchange's current delisting practices and the requirements of
amended SEC Rule 12d2-2.
    Proposed Section 2(b) provides the procedures for Exchange-
initiated action to strike a security from listing on the Exchange.
Proposed Section 2(b)(1) codifies the Exchange's current practice to
provide notice to the issuer of the Exchange's decision to strike a
security from listing on the Exchange when the issuer has fallen below
the Exchange's continued listing policies and standards. BSE rules do
not currently set forth appeal procedures for issuers to appeal the
Exchange's delisting decision. Accordingly, BSE proposed new Section
2(b)(2) to provide issuers with an opportunity to appeal the Exchange's
delisting decision to the Exchange's Stock List Committee. Proposed new
Sections 2(b)(2)(A)-(C) outline the procedures for such appeals.
    Specifically, proposed Section 2(b)(2)(A) provides that an issuer
shall file a request to appeal the Exchange's delisting decision no
later than five business days following the issuer's receipt of the
Exchange's delisting decision. Further, the issuer's request to appeal
must include a $3,000 appeal fee. During the appeal process, the
Exchange may suspend dealings in the security. If the issuer does not
request an appeal within the relevant time period, BSE would file a
Form 25 to strike the security from listing on the Exchange in
accordance with the requirements of amended SEC Rule 12d2-2(b).
    Proposed Section 2(b)(2)(B) provides that once the Exchange
received an appeal, the issuer would be entitled to present an appeal
before the Exchange's Stock List Committee. The issuer must submit any
written materials, if any, within 15 calendar days of the filing of the
notice to appeal. The Exchange would not hold a hearing without
providing five business days notice to the issuer of the time and place
of the hearing. Proposed Section 2(b)(2)(C) provides that the decision
of the Exchange's Stock List Committee is final and would be issued
within 15 business days of the hearing or the final request for
information. The Exchange would issue a written decision to the issuer.
    BSE also proposed new Section 2(b)(3) to incorporate the new
requirements set forth in amended SEC Rule 12d2-2(b)(1)(iii). The
Exchange would provide public notice of its final determination to
strike a security from listing by issuing a press release and posting a
notice on the Exchange's Web site, no fewer than ten days before the
delisting becomes effective. The public notice would remain on the
Exchange's Web site until the delisting becomes effective. Finally, in
accordance with amended SEC Rule 12d2-2(b)(2), the Exchange would
provide a copy of the filed Form 25 to the issuer.
    With respect to issuer-initiated delisting procedures, the Exchange
proposes to codify its current practices and adopt new procedures to
comply with the requirements of amended SEC Rule 12d2-2. Proposed
Section 2(a) would require an issuer to provide the Exchange a
certified copy of resolutions adopted by the issuer's Board of
Directors authorizing the withdrawal from listing. After notice to the
Exchange, the proposed rules state that the issuer must comply with
amended SEC Rule 12d2-2(c). Proposed Section 2(a) provides that the
issuer must:
    (i) Comply with all applicable laws in effect in the state in which
the issuer is incorporated;
    (ii) Provide written notice, which describes the security involved
and all material facts relating to the reasons for withdrawal, to the
Exchange no fewer than 10 days before the issuer files an application
on Form 25 with the Commission; and
    (iii) Publish notice, contemporaneous with providing written notice
to the Exchange, through a press release, and if it has a publicly
accessible Web site, post such notice on that Web site, which shall
remain available until the delisting become effective.
    Proposed Section 2(a) further provides that the Exchange, after
notice from the issuer with respect to voluntary withdrawal from
listing, shall post the notice of the issuer's intent on the Exchange's
Web site the next business day, and such notice shall remain until the
delisting is effective. In addition, the issuer must provide a copy of
the Form 25 to the Exchange contemporaneously with the filing of the
Form 25.
    The Exchange has also proposed, as commentary to Section 2, that an
issuer seeking to voluntarily apply to withdraw a class of security
from listing when the issuer has received notice from the Exchange that
the issuer is below the Exchange's continued listing policies and
standards, or that the issuer is aware that it is below such continued
listing policies and standards notwithstanding that the issuer has not
received a notice from the Exchange, must disclose that it is no longer
eligible for continued listing (including the specific continued
listing policies and standards that the issue is below) in: (i) The
statement of all material facts relating to the reasons for withdrawal
from listing provided to the Exchange along with written notice of its
determination to withdraw from listing as required by amended SEC Rule
12d2-2(c)(2)(ii); and (ii) the public press release and Web site notice
as required by amended SEC Rule 12d2-2(c)(2)(iii).

III. Commission's Findings and Order Granting Accelerated Approval of
Proposed Rule Change and Amendment Nos. 1, 2, and 3

    The Commission finds that the proposed rule change, as amended, is
consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange
\11\ and, in particular, the requirements of Section 6 of the Act.\12\
Specifically, as discussed below, the Commission finds that the
proposal, as amended, is consistent with Sections 6(b)(4),\13\
6(b)(5),\14\ and 6(b)(7) of the Act.\15\ Section 6(b)(4) of the Act
requires that the rules of an exchange provide for the equitable
allocation of reasonable dues, fees, and other charges among its
members and issuers and other persons using its facilities. Section
6(b)(5) of the Act requires, in part, that the rules of an exchange be
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, and 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. Section
6(b)(7) of the Act requires, among other things, that the rules of an
exchange provide a fair procedure for the prohibition or limitation by
the exchange of any person with respect to access to services offered
by the exchange or a member thereof. Further, as noted in more detail
below, the changes being adopted by BSE meet the

requirements of amended SEC Rule 12d2-2.
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    \11\ In approving this proposal, the Commission has considered
the proposed rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
    \12\ 15 U.S.C. 78f.
    \13\ 15 U.S.C. 78f(b)(4).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ 15 U.S.C. 78f(b)(7).
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A. Exchange Delisting

    Amended SEC Rule 12d2-2(b) states that a national securities
exchange may file an application on Form 25 to strike a class of
securities from listing and/or withdraw the registration of such
securities, in accordance with its rules, if the rules of such
exchange, at a minimum, provide for notice to the issuer of the
exchange's decision to delist, opportunity for appeal, and public
notice of the exchange's final determination to delist. The Commission
believes that BSE's proposal complies with the dictates of amended SEC
Rule 12d2-2(b).
    The proposed rule change requires the Exchange to provide notice to
issuers of the Exchange's decision to remove a security from listing
and/or registration. In addition, the proposal provide issuers an
opportunity to appeal the Exchange's delisting decision to a committee
designated by the Board. As discussed above, the proposal sets forth
the specific procedures for issuers appealing the Exchange's delisting
decision to the Stock List Committee, which is a committee designated
by the Board. Finally, the proposed rule change would provide for
public notice of BSE's final determination to remove the security from
listing and/or registration.
    The Commission believes that the proposed rule requiring notice to
the issuer of the Exchange's decision to remove a security from listing
and/or registration and establishing appeal procedures provides issuers
with adequate notice and opportunity to appeal the delisting as
required by amended SEC Rule 12d2-2(b). The Commission notes that the
appeal procedures being adopted by the Exchange set forth an adequate
structure to meet the requirements of Section 6(b)(7) of the Act \16\
and for BSE to review mandatory delistings upon appeal. In addition,
public notice of the Exchange's final determination should ensure that
investors have adequate notice of an exchange delisting and is
consistent with the protection of investors under Section 6(b)(5) of
the Act.\17\
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    \16\ 15 U.S.C. 78f(b)(7).
    \17\ 15 U.S.C. 78f(b)(5).
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    Finally, the Exchange proposes to charge issuers a $3,000 appeal
fee in connection with a request to appeal the Exchange's delisting
decision. The Commission believes that the proposed fee is consistent
with Section 6(b)(4) of the Act.\18\ The Commission also believes that
the fee likely is not overly burdensome or excessive to the extent that
an issuer would be deterred from employing its due process right to
present an appeal before the Stock List Committee, and therefore, is
consistent with Section 6(b)(7) of the Act.\19\ Further, the Commission
notes that the appeal fee is comparable to fees of other exchanges.\20\
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    \18\ 15 U.S.C. 78f(b)(4).
    \19\ 15 U.S.C. 78f(b)(7).
    \20\ See, e.g., NASD Rule 4805 and Amex Company Guide Section
1203(a) (charging issuers a $4,000 fee where the consideration is on
the basis of written submission and $5,000 fee where the
consideration is on the basis of an oral hearing).
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B. Issuer Voluntary Delisting

    The Exchange proposes to adopt rules concerning the general
requirements of amended SEC Rule 12d2-2(c) regarding issuer voluntary
delisting. Proposed BSE Chapter XXVII Section 2(a) states that an
issuer proposing to withdraw its security from listing shall first
provide to the Exchange a certified copy of its Board of Directors
resolutions authorizing such action. The Commission believes that this
requirement may help ensure that the decision to delist a security
voluntarily has been well-considered by the issuer's board of
directors. Thereafter, the issuer must comply with the requirements of
amended SEC Rule 12d2-2(c), which are specifically set out in BSE's
rules. The Commission believes that the proposed changes will inform
issuers of the requirements for voluntary delisting of their securities
under BSE rules and Federal securities laws.
    The proposal also sets forth a new requirement not in amended SEC
Rule 12d2-2 that would require an issuer seeking to voluntarily delist
its security to provide a copy of the Form 25 that was filed with the
Commission, contemporaneous with such filing. The Commission believes
that this requirement will allow the Exchange to be fully informed of
the filing of a Form 25 and be prepared to take timely action to delist
the security in accordance with the filing of the Form.
    In addition, BSE proposes to adopt a new commentary to require that
not less than ten days before the issuer submits a Form 25, the issuer
seeking to voluntarily apply to withdraw a security from listing on the
Exchange when the issuer has received notice from the Exchange that the
issuer is below the Exchange's continued listing policies and
standards, or that the issuer is aware that it is below such continued
listing policies and standards notwithstanding that it has not received
such notice from the Exchange, must disclose in:
    (i) Its statement of all material facts relating to the reasons for
withdrawal from listing provided to the Exchange along with written
notice of its determination to withdraw from listing required by
amended SEC Rule 12d2-2(c)(2)(ii); and
    (ii) its public press release and Web site notice required by
amended SEC Rule 12d2-2(c)(2)(iii).
    The Commission believes that this requirement will allow
shareholders to be informed and aware that the issuer has failed to
meet Exchange listing standards and is voluntarily delisting with the
consent of the Exchange. Issuers will therefore not be permitted to
delist voluntarily without public disclosure of their noncompliance
with Exchange listing standards.

C. Accelerated Approval of Proposed Rule Change and Amendment Nos. 1,
2, and 3

    Pursuant to Section 19(b)(2) of the Act,\21\ the Commission may not
approve any proposed rule change, or amendment thereto, prior to the
30th day after the date of publication of notice of the filing thereof,
unless the Commission finds good cause for so doing and publishes its
reasons for so finding. The Commission hereby finds good cause for
approving the proposed rule change, as amended by Amendment Nos. 1 and
2, prior to the 30th day after publishing the notice in the Federal
Register. In the SEC Rule 12d2-2 Approval Order, the Commission stated
that the compliance date of the amendments is April 24, 2006.\22\ In
addition, no comments were received on the proposal, as originally
published.\23\ Accelerated approval of the proposal, as amended, would
enable the Exchange's amended rules to become operative by the
compliance date set forth by the Commission.
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    \21\ 15 U.S.C. 78s(b)(2).
    \22\ See SEC Rule 12d2-2 Approval Order, supra note 10.
    \23\ See note 5, supra.
---------------------------------------------------------------------------

    The Commission further finds good cause for approving Amendment No.
3 to the proposal, prior to the 30th day after publishing notice of
Amendment No. 3 in the Federal Register. As previously discussed, the
revisions made to the proposal in Amendment No. 3 as compared to the
proposal as published \24\ would provide issuers with specific appeal
procedures, and allow shareholders to be informed and aware that the
issuer has failed to meet Exchange listing standards and is

voluntarily delisting with the consent of the Exchange. The Commission
believes that granting accelerated approval of Amendment No. 3 will
permit the Exchange to implement this new provision as expeditiously as
possible, to the benefit of investors. The Commission also believes
that accelerating approval of Amendment No. 3 is appropriate because
these revisions do not raise new regulatory issues.
---------------------------------------------------------------------------

    \24\ See note 6, supra.
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    Accordingly, pursuant to Section 19(b)(2) of the Act,\25\ the
Commission finds good cause to approve the proposed rule change, as
amended by Amendment Nos. 1, 2, and 3, prior to the 30th day after
notice of the proposed rule change and Amendment Nos. 1, 2, and 3 are
published in the Federal Register.
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    \25\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning Amendment No. 3, including whether Amendment No. 3
is consistent with the Act. Comments may be submitted by any of the
following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-BSE-2005-46 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-BSE-2005-46. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,

all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of the
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-BSE-2005-46 and should be submitted on or before May 19,
2006.

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\26\ that the proposed rule change (File No. SR-BSE-2005-46), as
amended, is approved on an accelerated basis.
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    \26\ 15 U.S.C. 78s(b)(2).
    \27\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\27\
Nancy M. Morris,
Secretary.
 [FR Doc. E6-6373 Filed 4-27-06; 8:45 am]

BILLING CODE 8010-01-P