[Federal Register: September 9, 2010 (Volume 75, Number 174)]
[Rules and Regulations]
[Page 54773-54778]
[DOCID:fr09se10-7]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2010-0556; FRL-9197-9]

Approval and Promulgation of Air Quality Implementation Plans;
Minnesota; Carbon Monoxide (CO) Limited Maintenance Plan for the Twin
Cities Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a request submitted by the Minnesota
Pollution Control Agency (MPCA) on June 16, 2010, to revise the
Minnesota State Implementation Plan (SIP) for carbon monoxide (CO)
under the Clean Air Act (CAA). The State has submitted a limited
maintenance plan for CO showing continued attainment of the CO National
Ambient Air Quality Standard (NAAQS) in the Minneapolis-St. Paul (Twin
Cities) area. The one hour CO NAAQS and eight hour CO NAAQS are 35
parts per million (ppm), and 9 ppm, respectively. This limited
maintenance plan satisfies section 175A of the CAA, and is in
accordance with EPA's October 29, 1999, approval of the State's
redesignation request and maintenance plan for the Twin Cities area.
Additionally, this limited maintenance plan for CO satisfies the
requirements contained in the October 6, 1995, EPA memorandum entitled
``Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment
Areas.''

DATES: This direct final rule will be effective November 8, 2010,
unless EPA receives adverse comments by October 12, 2010. If adverse
comments are received, EPA will publish a timely withdrawal of the
direct final rule in the Federal Register informing the public that the
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2010-0556, by one of the following methods:

    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: Jay Bortzer, Chief, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
    5. Hand Delivery: Jay Bortzer, Chief, Air Programs Branch (AR-18J),
U.S. Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois 60604. Such deliveries are only accepted during the
Regional Office normal hours of operation, and special arrangements
should be made for deliveries of boxed information. The Regional Office
official hours of business are Monday through Friday, 8:30 a.m. to 4:30
p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2010-0556. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit 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.
    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 Environmental
Protection Agency, Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays. We recommend that you telephone Andy Chang, Environmental
Engineer, at<PHONE_NUMBER> before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer,
Air Planning and Maintenance Section, Air Programs Branch (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:

I. Background
    A. Why did the State make this submittal?
    B. Limited Maintenance Plan
    1. What is a limited maintenance plan, and what are the general
requirements that must be met by a State in order to submit a
limited maintenance plan?
    2. What additional elements does a State need to include as part
of a limited maintenance plan?
    C. Did the State hold public hearings for the limited
maintenance plan?
II. What criteria is EPA using to evaluate this submittal?
III. What is EPA's analysis of this submittal?
    A. Requirements of Section 175A of the CAA
    B. Consistency With the October 6, 1995, Memorandum
    1. Attainment Inventory
    2. Maintenance Demonstration
    3. Monitoring Network and Verification of Continued Attainment
    4. Contingency Plan
    5. Conformity Determination Under Limited Maintenance Plan
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. Background

A. Why did the State make this submittal?

    On November 6, 1991, EPA designated most of the Twin Cities seven
county metropolitan area (Anoka, Carver, Dakota, Hennepin, Ramsey,
Scott, and Washington counties), along with parts of Wright County, as
being a moderate nonattainment area for the CO NAAQS under section 107
of the CAA (56 FR 56694).
    On March 23, 1998, MPCA submitted a redesignation request and
maintenance plan for the Twin Cities nonattainment area. EPA found that
the redesignation request met all applicable requirements under section
107(d)(3)(E) of the CAA, and also found that the maintenance plan met
the requirements of section 175A of the CAA. MPCA's redesignation
request and maintenance plan for the Twin Cities area was approved on
October 29, 1999 (64 FR 58347); comprehensive details about the
maintenance plan can be found in EPA's proposed approval on May 13,
1999 (64 FR 25855).
    Section 175A(b) of the CAA mandates that the State shall submit an
additional revision to the maintenance plan eight years after
redesignation of any area as an attainment area. Minnesota's limited
maintenance plan satisfies this requirement, and is also consistent
with the requirements for limited maintenance plan elements outlined in
an October 6, 1995, memorandum from the Group Leader of the Integrated
Policy and Strategies Group, entitled, ``Limited Maintenance Plan
Option for Nonclassifiable CO Nonattainment Areas.'' EPA observes that
although the Twin Cities area was designated as a moderate
nonattainment area for the CO NAAQS, redesignation to attainment status
in conjunction with meeting all requirements of the October 6, 1995,
memorandum, allows the State to be eligible to submit a limited
maintenance plan as the update to its original maintenance plan per
section 175A(b) of the CAA. The State submitted the limited maintenance
plan to EPA on June 16, 2010.

B. Limited Maintenance Plan

    The definition, general requirements, and additional elements of a
limited maintenance plan will be explained below.
1. What is a limited maintenance plan, and what are the general
requirements that must be met by a State in order to submit a limited
maintenance plan?
    A maintenance plan, as defined in section 175A of the CAA, is a
revision to the SIP to provide for the maintenance of the NAAQS for the
air pollutant in question in the area concerned for at least 10 years
after the redesignation. Eight years after the redesignation, States
should submit an update to the maintenance plan to provide for the
maintenance of the NAAQS for another 10 years after the initial 10 year
period has expired. As previously mentioned, Minnesota's

original maintenance plan was approved on October 29, 1999 (64 FR
58347).
    A limited maintenance plan for CO is a maintenance plan that is
available to States who have demonstrated that the design values for CO
in the nonclassifiable nonattainment area are at, or below, 7.65 ppm
(85 percent of the eight hour CO NAAQS). The area's design value must
not exceed the 7.65 ppm threshold throughout the entire rulemaking
process. The design value for CO is defined as the second highest
reading in the area in a two year period. Should an area have more than
one monitor, the monitor with the second highest value in a two year
period serves as the design monitor. As previously mentioned, EPA has
determined that the limited maintenance plan for CO is available to all
States as part of their update to maintenance plans per section
175A(b), regardless of the original nonattainment classification, or
lack thereof.
2. What additional elements does a State need to include as part of a
limited maintenance plan?
    In addition to meeting all applicable requirements of section 175A
of the CAA, States should also include the following elements in a
limited maintenance plan for CO: Attainment Inventory, Maintenance
Demonstration, Monitoring Network/Verification of Continued Attainment,
Contingency Plan, and Conformity Determinations Under Limited
Maintenance Plans. These elements were outlined in the October 6, 1995,
EPA memorandum, and will be comprehensively discussed below.

C. Did the State hold public hearings for the limited maintenance plan?

    Public notice was given on May 10, 2010, in the Minnesota State
Register.

II. What criteria is EPA using to evaluate this submittal?

    In addition to the general requirements in section 175A of the CAA,
guidance for CO limited maintenance plans is provided in the October 6,
1995, memorandum, which states that the following five components need
to be addressed: Attainment Inventory, Maintenance Demonstration,
Monitoring Network/Verification of Continued Attainment, Contingency
Plan, and Conformity Determination Under Limited Maintenance Plan.

III. What is EPA's analysis of this submittal?

A. Requirements of Section 175A of the CAA

    Section 175A contains four subsections pertaining to maintenance
plans. Section 175A(a) establishes requirements for initial SIP
redesignation request maintenance plans, as addressed in EPA's October
29, 1999, approval of the Minnesota plan. Section 175A(b) requires
States to submit an update to the maintenance plan eight years
following the original redesignation to attainment, and MPCA has
satisfied the requirements of this element with its current submittal.
It also requires that within this update, the State must outline
methods for maintaining the pertinent NAAQS for ten years after the
expiration of the ten-year period referred to in subsection (a), i.e.,
Minnesota's maintenance plan update must outline methods for
maintaining the CO NAAQS through 2019. However, EPA stated in the
October 6, 1995, memorandum that it is not necessary for States to
project emissions over this maintenance period. Instead, EPA believes
that if the area begins the maintenance period at, or below, 7.65 ppm
(85 percent of the eight hour CO NAAQS), the applicability of
prevention of significant deterioration (PSD) requirements,\1\ control
measures already in the SIP, and other Federal measures should provide
adequate assurance of maintenance throughout the maintenance period.
Section 175A(c) does not apply to this rulemaking, given that EPA has
previously redesignated the Twin Cities area to attainment for CO. The
contingency provisions requirements outlined in section 175A(d) will be
addressed in detail in section B4, below.
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    \1\ EPA has delegated the authority to implement the Federal PSD
program pursuant to 40 CFR 52.21 to Minnesota.
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B. Consistency With the October 6, 1995, Memorandum

    As discussed above, EPA's interpretation of section 175A of the
CAA, as it pertains to limited maintenance plans for CO, is contained
in the October 6, 1995, memorandum. Minnesota has addressed the five
major elements of that policy, as follows:
1. Attainment Inventory
    The State is required to develop an attainment emissions inventory
to identify a level of emissions in the area which is sufficient to
attain the CO NAAQS. In its June 16, 2010, submittal, MPCA provided a
comprehensive CO emissions inventory for nonroad mobile, stationary,
and onroad mobile sources. This set of estimated emissions was
identical to that which EPA approved for the Twin Cities area on
December 9, 2004 (69 FR 71375). The December 9, 2004, approval was not
a full update to the CO maintenance plan for the Twin Cities area, but
applied only to the 1996 and 2009 CO emissions inventory and the 2009
Motor Vehicle Emissions Budgets; both of these emissions were estimated
using the MOBILE6 model. EPA observed in the December 9, 2004, approval
that the updated emissions using the MOBILE6 model were much better
predictors of CO emissions in the Twin Cities area because there had
been substantial changes made to the model between MOBILE6 and its
MOBILE5 predecessor, released in 1993. In its June 16, 2010, submittal,
MPCA highlighted that the total estimated CO emissions in the Twin
Cities area has decreased from 2,506 tons per winter day in 1996, to
1,856 tons per winter day in 2009.\2\ This represents a 26 percent
decrease in total CO emissions in tons per winter day. The onroad
mobile emissions for the Twin Cities area, thought to be the major
source of the original nonattainment designation, decreased from 1,872
tons per winter day in 1996 to 1,311 tons per winter day in 2009. This
represents a 30 percent decrease in onroad mobile CO emissions in tons
per winter day. MPCA also estimated that between 1996 and 2030, there
would be a 36 percent decrease in onroad mobile CO emissions in tons
per winter day in the Twin Cities area. Monitoring data from 1998 to
2009 shows consistent compliance with the eight hour CO NAAQS at levels
well below the 85 percent threshold of 7.65 ppm; therefore the State
has satisfied the attainment inventory requirement for limited
maintenance plans.
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    \2\ CO emissions are generally highest during the winter, and
thus the modeling was performed in such a way that yielded tons per
winter day.
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2. Maintenance Demonstration
    In the October 6, 1995, memorandum, EPA stated that the maintenance
demonstration requirement is considered to be satisfied for
nonclassifiable areas if the monitoring data show that the area is
meeting the air quality criteria for limited maintenance areas, i.e.,
85 percent of the eight hour CO NAAQS, or 7.65 ppm. As previously
mentioned, EPA determined in this same memo that there is no
requirement to project emissions over the maintenance period. Instead,
EPA believes that if the area begins the maintenance period at, or

below, 7.65 ppm (85 percent of the eight hour CO NAAQS), the
applicability of PSD requirements, control measures already in the SIP,
and other Federal measures should provide adequate assurance of
maintenance throughout the maintenance period.
    In its submittal, MPCA showed, using validated ambient monitoring
data collected between 1998 and July of 2009, that the Twin Cities area
is meeting both the one hour and eight hour CO NAAQS. The design values
for the eight hour CO NAAQS in this area are below the 7.65 ppm
threshold; therefore, the State has satisfied the maintenance
demonstration requirement for limited maintenance plans. In addition,
the design values for the one hour CO NAAQS in the Twin Cities area are
very low when compared to the NAAQS; the highest design value for the
one hour CO NAAQS between 1998 and 2009 was 11.1 ppm, or 31 percent of
the NAAQS. The design values for the Twin Cities area for 2007 to 2009
(in its entirety) are shown below in Table 1. Subsequent Air Quality
Systems (AQS) queries for validated monitoring data for available 2010
data indicates that the one hour and eight hour CO NAAQS are being met
in the Twin Cities area at values well below either NAAQS.

                   Table 1--CO Design Values and Percentage of NAAQS for the Twin Cities Area
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                                                     1 Hour CO                       8 Hour CO
                      Year                         NAAQS design    Percent of 1    NAAQS design    Percent of 8
                                                    value (ppm)    Hour CO NAAQS    value (ppm)    Hour CO NAAQS
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2007............................................             2.5             7.1             1.8            20.0
2008............................................             3.1             8.9             2.4            26.7
2009............................................             2.5             7.1             2.0            22.2
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3. Monitoring Network and Verification of Continued Attainment
    Once an area has been redesignated, the State should continue to
operate an appropriate air quality monitoring network, in accordance
with 40 CFR Part 58, to verify the attainment status of the area. This
is particularly important for areas using a limited maintenance plan
because there will be no cap on emissions. In its submittal, MPCA
specifically identifies two monitoring sites located in the Twin Cities
area, which are AQS I.D. 27-053-0954 (528 Hennepin Ave. in Minneapolis)
and AQS I.D. 27-123-0050 (1088 W. University Ave. in St. Paul). MPCA
commits to continue monitoring CO at these two sites to ensure that CO
concentrations remain well below the 7.65 ppm threshold for limited
maintenance plans. Furthermore, MPCA commits to consult with EPA should
changes to the existing monitoring network be needed, and the State's
monitoring plan for 2011 can be found at the following site: http://
www.pca.state.mn.us/index.php/air/air-monitoring-and-reporting/air-
emissions-and-monitoring/air-monitoring-network-plan.html. The State
has satisfied the monitoring network and verification of continued
attainment requirements for the limited maintenance plan.
4. Contingency Plan
    Section 175A(d) of the CAA requires that a maintenance plan include
contingency provisions, as necessary, to promptly correct any violation
of the NAAQS that occurs after redesignation of an area. The October 6,
1995, memorandum further requires that the contingency provisions
identify the measures to be adopted, a schedule and procedure for
adoption and implementation, and a specific time limit for action by
the State.
    In its June 16, 2010, submittal, MPCA committed to the same
contingency measures that EPA previously approved on October 29, 1999.
MPCA stated that if CO levels in the Twin Cities area reach 85 percent
of the eight hour CO NAAQS, it would work closely with EPA to determine
which of the originally listed contingency measures would be the most
appropriate to implement in the case of a NAAQS violation.
    MPCA also committed to use a monitored air quality violation as the
trigger event for the contingency measure. The triggering date will be
the date that the State certifies to EPA that the air quality data are
quality assured and not found to be due to an exceptional event,
malfunction, or noncompliance with a permit condition or rule
requirement. The triggering date will be no more than 30 days after an
ambient air quality violation is monitored. MPCA attested that it would
implement one or more appropriate contingency measures if a violation
occurs and the triggering event is confirmed. The applicable measure(s)
would be selected by the MPCA commissioner within six months of a
triggering event; the measure(s) would be implemented per the
respective schedules that EPA approved on October 29, 1999. Specific
details about these measures and implementation schedules can be found
in EPA's May 13, 1999 (64 FR 25855) proposed approval. The State has
satisfied the contingency plan requirements pursuant to section 175A(d)
of the CAA as well as those of the October 6, 1995, memorandum.
5. Conformity Determination Under Limited Maintenance Plan
    The transportation conformity rule of November 24, 1993, (58 FR
62188) and the general conformity rule of November 30, 1993 (58 FR
63214) apply to nonattainment areas and maintenance areas operating
under maintenance plans. Under either rule, one means of demonstrating
conformity of Federal actions is to indicate that expected emissions
from planned actions are consistent with the emissions budget for the
area.
    Minnesota currently uses the ``Transportation Conformity Procedures
for Minnesota: A Handbook for Transportation and Air Quality
Professionals,'' developed by an interagency workgroup, to determine
transportation conformity. This handbook addresses the consultation and
other required portions of the Federal transportation conformity
program. Minnesota is in the process of developing a memorandum of
understanding (MOU) to formally implement the processes in the
handbook, which are already being used. Additionally, Minnesota intends
to submit the MOU and handbook to EPA for approval as Minnesota's
transportation conformity SIP.
    The October 6, 1995, memorandum also states that emissions budgets
in limited maintenance plan areas may be treated as essentially not
constraining for the length of the maintenance period because it is
unreasonable to expect that such an area will experience so much growth
in that period that a violation of

the CO NAAQS would result. In other words, EPA concluded that, for
these areas, emissions need not be capped for the maintenance period.
    For transportation conformity, Federal actions requiring conformity
determinations under the transportation conformity rule could be
considered to satisfy the ``budget test'' required in sections 93.118,
93.119, and 93.120 of the rule once the limited maintenance plan is
approved by EPA. In its June 16, 2010, submittal, MPCA observed that
for the Twin Cities area, transportation plans, transportation
improvement, and regionally significant projects still require
conformity determinations in order to proceed. Additionally, Federally
funded projects are still subject to ``hot spot'' analysis
requirements. However, no regional modeling analysis would be required.
The State has satisfied the conformity determination under limited
maintenance plan requirements for the limited maintenance plan.

IV. What action is EPA taking?

    We are approving this CO limited maintenance plan for the Twin
Cities area. The State of Minnesota has complied with requirements of
section 175A of the CAA, as interpreted by the guidance provided in the
October 6, 1995, memorandum. Minnesota has shown through its submittal
that CO emissions in the Twin Cities area have decreased steadily
between 1996 and 2009. Minnesota has also shown that the monitored
levels of CO in the Twin Cities area have been consistently well below
the requisite level of 7.65 ppm for the eight hour CO NAAQS in order to
qualify for the limited maintenance plan option. Lastly, Minnesota has
shown that all monitored values for the one hour and eight hour CO
NAAQS have been consistently well below the respective NAAQS levels.
These low monitored values of CO are expected through the end of the
maintenance period.
    We are publishing this action without prior proposal because we
view this as a noncontroversial amendment and anticipate no adverse
comments. However, in the Proposed Rules section of this Federal
Register publication, we are publishing a separate document that will
serve as the proposal to approve the State plan if relevant adverse
written comments are filed. This rule will be effective November 8,
2010 without further notice unless we receive relevant adverse written
comments by October 12, 2010. If we receive such comments, we will
withdraw this action before the effective date by publishing a
subsequent document that will withdraw the final action. All public
comments received will then be addressed in a subsequent final rule
based on the proposed action. EPA will not institute a second comment
period; therefore, any parties interested in commenting on this action
should do so at this time. If we do not receive any comments, this
action will be effective November 8, 2010.

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

    In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because approval of a CO limited maintenance plan does not impose any
new regulatory requirements on Tribes, impact any existing sources of
air pollution Tribal lands, nor impair the maintenance of CO NAAQS in
Tribal lands. However, because there are Tribal lands located in Scott
County, we provided the affected Tribe with the opportunity to consult
with EPA on the CO limited maintenance plan. The affected Tribe raised
no concerns with the final rule.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 8, 2010. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the Proposed Rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference.

    Dated: August 26, 2010.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart Y--Minnesota

0
2. Section 52.1237 is amended by adding paragraph (e) to read as
follows:

Sec.  52.1237  Control strategy: Carbon monoxide.

* * * * *
    (e) Approval--On June 16, 2010, Minnesota submitted a carbon
monoxide (CO) limited maintenance plan for the Minneapolis-St. Paul
area under section 175A of the CAA for the continued attainment of the
one hour and eight hour CO NAAQS.

[FR Doc. 2010-22338 Filed 9-8-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 238 (Thursday, December 10, 2020)]
[Notices]
[Pages 79539-79541]
[FR Doc No: 2020-27086]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90567; File No. SR-CboeBYX-2020-033]

Self-Regulatory Organizations; Cboe BYX Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend its
Fee Schedule To Remove Unused Routing-related Fee Codes

December 4, 2020.
    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 December 1, 2020, Cboe BYX Exchange, Inc. (the ``Exchange'' or
``BYX'') filed with the Securities and Exchange Commission (the
``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

    Cboe BYX Exchange, Inc. (the ``Exchange'' or ``BZX'') is filing
with the Securities and Exchange Commission (``Commission'') a proposed
rule change to amend the fee schedule. The text of the proposed rule
change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/byx/), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its fee schedule to remove unused
routing-related fee codes, effective December 1, 2020.
    The Exchange first notes that it operates in a highly-competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. More specifically, the
Exchange is only one of 16 registered equities exchanges, as well as a
number of alternative trading systems and other off-exchange venues
that do not have similar self-regulatory responsibilities under the
Exchange Act, to which market participants may direct their order flow.
Based on publicly available information,\3\ no single registered
equities exchange has more than 16% of the market share. Thus, in such
a low-concentrated and highly competitive market, no single equities
exchange possesses significant pricing power in the execution of order
flow. The Exchange in particular operates a ``Taker-Maker'' model
whereby it pays credits to members that remove liquidity and assesses
fees to those that add liquidity. The Exchange's Fees Schedule sets
forth the standard rebates and rates applied per share for orders that
provide and remove liquidity, respectively. Particularly, for
securities at or above $1.00, the Exchange provides a standard rebate
of $0.00050 per share for orders that remove liquidity, assesses a fee
of $0.00200 per share for orders that add liquidity and assesses a
standard fee of $0.00300 for orders that are routed. For orders priced
below $1.00, the Exchange does not assess a fee or provide a rebate for
orders that add liquidity, assesses a fee of 0.10% of total dollar
value for orders that remove liquidity, and assesses a fee of 0.29% of
total dollar value for orders that are routed. The Exchange believes
that the ever-shifting market share among the exchanges from month to
month demonstrates that market participants can shift order flow or
discontinue to reduce use of certain categories of products, in
response to fee changes. Accordingly, competitive forces constrain the
Exchange's transaction fees, and market participants can readily trade
on competing venues if they deem pricing levels at those other venues
to be more favorable.
---------------------------------------------------------------------------

    \3\ See Cboe Global Markets, U.S. Equities Market Volume
Summary, Month-to-Date (November 27, 2020), available at https://markets.cboe.com/us/equities/market_statistics/.
---------------------------------------------------------------------------

    The Exchange assesses fees in connection with orders routed away to
various exchanges. The Exchange proposes to eliminate several routing-
related fee codes that have been unused for several years.
Particularly, the Exchange proposes to eliminate the following fee
codes:
     Fee Code 9, which is appended to orders routed to NYSE
Arca and adds liquidity (Tapes A or C) and provides a rebate of
$0.00210 per share for securities priced at or above $1.00 and are free
for securities priced below $1.00;
     Fee Code NB, which is appended to orders routed to any
exchange not covered by Fee Code NA and adds non-displayed liquidity
and assesses a fee of $0.00300 per share for securities priced at or
above $1.00 and a fee of 0.30% of dollar value for securities priced
below $1.00;
     Fee Code R, which is appended to orders re-routed by NYSE
using RDOT, RDOX or Post to Away routing strategy and assesses a fee of
0.00300 per share;
     Fee Code RA, which is appended to orders re-routed to EDGA
and adds liquidity and assess a fee of 0.00300 per share for securities
priced at or above $1.00 and are free for securities priced below
$1.00; and
     Fee Code RB, which is appended to orders routed to Nasdaq
BX and adds liquidity and assess a fee of 0.00200 per share for
securities priced at or above $1.00 and are free for securities priced
below $1.00.
    As noted, above the Exchange has observed no volume in recent years
in orders yielding fee codes 9, NB, R, RA and RB. The Exchange believes
that, because no Members elect to route their orders that yield these
fee codes, the current demand (or lack thereof) does not warrant the
infrastructure and ongoing Systems maintenance required to support
separate fee codes specifically applicable to these types of
transactions. Therefore, the Exchange now proposes to delete fee codes
9, NB, R, RA and RB in the Fee Schedule. The Exchange notes that
Members will continue to be able to choose to route their orders to any
exchange covered by these fee codes and such orders will be
automatically and uniformly assessed the current fees (or rebates) in
place for routed orders, as applicable (e.g., the

standard fees applied to routed orders, which yields fee code X).
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act,\4\ in general, and
furthers the objectives of Section 6(b)(4),\5\ in particular, as it is
designed to provide for the equitable allocation of reasonable dues,
fees and other charges among its Members and issuers and other persons
using its facilities. The Exchange also believes that the proposed rule
change is consistent with the objectives of Section 6(b)(5) \6\
requirements 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, 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, and, particularly, is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers. The Exchange operates in a highly-competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78f.
    \5\ 15 U.S.C. 78f(b)(4).
    \6\ 15 U.S.C. 78f.(b)(5).
---------------------------------------------------------------------------

    The Exchange also believes the proposed rule change to remove fee
codes 9, NB, R, RA and RB is reasonable as the Exchange has observed no
volume in orders yielding these fee codes and, therefore, the Exchange
believes the proposed change will have a de minimis impact.
Additionally, the Exchange believes that infrastructure and ongoing
Systems maintenance required to support separate fee codes specifically
applicable to these types of routed orders is not warranted or
necessary in light of the fact that it has not received any recent
volume yielding these fee codes. As noted above, to the extent volume
for transactions currently covered by these fee codes ever increases,
such orders will be automatically and uniformly assessed the current
fees (or rebates) in place for routed orders, as applicable (e.g., the
standard fees applied to routed orders, which yield fee code X).
Finally, the Exchange believes that the proposed elimination of the fee
codes is equitable and not unfairly discriminatory as it applies
equally to all members that use the Exchange to route orders. If
members do not favor the Exchange's pricing for routed orders, they can
send their routable orders directly to away markets instead of using
routing functionality provided by the Exchange. Routing through the
Exchange is voluntary, and the Exchange operates in a competitive
environment where market participants can readily direct order flow to
competing venues or providers of routing services if they deem fee
levels to be excessive.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on intramarket or intermarket competition that is not
necessary or appropriate in furtherance of the purposes of the Act.
Rather, as discussed above, the Exchange believes that the proposed
change would encourage the submission of additional order flow to a
public exchange, thereby promoting market depth, execution incentives
and enhanced execution opportunities, as well as price discovery and
transparency for all Members. As a result, the Exchange believes that
the proposed change furthers the Commission's goal in adopting
Regulation NMS of fostering competition among orders, which promotes
``more efficient pricing of individual stocks for all types of orders,
large and small.'' \7\
---------------------------------------------------------------------------

    \7\ Securities Exchange Act Release No. 51808, 70 FR 37495,
37498-99 (June 29, 2005) (S7-10-04) (Final Rule).
---------------------------------------------------------------------------

    The Exchange believes the proposed rule change does not impose any
burden on intramarket competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Particularly, the proposed
change applies to all Members equally.
    Next, the Exchange believes the proposed rule change does not
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. As previously
discussed, the Exchange operates in a highly competitive market.
Members have numerous alternative venues that they may participate on
and direct their order flow, including 15 other equities exchanges and
off-exchange venues and alternative trading systems. Additionally, the
Exchange represents a small percentage of the overall market. Based on
publicly available information, no single equities exchange has more
than 16% of the market share. Therefore, no exchange possesses
significant pricing power in the execution of order flow. Indeed,
participants can readily choose to send their orders to other exchange
and off-exchange venues if they deem fee levels at those other venues
to be more favorable. Moreover, the Commission has repeatedly expressed
its preference for competition over regulatory intervention in
determining prices, products, and services in the securities markets.
Specifically, in Regulation NMS, the Commission highlighted the
importance of market forces in determining prices and SRO revenues and,
also, recognized that current regulation of the market system ``has
been remarkably successful in promoting market competition in its
broader forms that are most important to investors and listed
companies.'' \8\ The fact that this market is competitive has also long
been recognized by the courts. In NetCoalition v. Securities and
Exchange Commission, the D.C. Circuit stated as follows: ``[n]o one
disputes that competition for order flow is `fierce.' . . . As the SEC
explained, `[i]n the U.S. national market system, buyers and sellers of
securities, and the broker-dealers that act as their order-routing
agents, have a wide range of choices of where to route orders for
execution'; [and] `no exchange can afford to take its market share
percentages for granted' because `no exchange possesses a monopoly,
regulatory or otherwise, in the execution of order flow from broker
dealers'. . ..''.\9\ Accordingly, the Exchange does not believe its
proposed fee change imposes any burden on competition that is not
necessary or appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \8\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \9\ NetCoalition v. SEC, 615 F.3d 525, 539 (DC Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

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)(A)

of the Act \10\ and paragraph (f) of Rule 19b-4 thereunder.\11\ 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. If the Commission takes such
action, the Commission will institute proceedings to determine whether
the proposed rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

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-CboeBYX-2020-033 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-CboeBYX-2020-033. 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 website (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 website 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 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. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CboeBYX-2020-033 and should be submitted
on or before December 31, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\

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

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

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-27086 Filed 12-9-20; 8:45 am]
BILLING CODE 8011-01-P


  SEQ CHAPTER \h \r 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.  20460

									OFFICE OF

PREVENTION, PESTICIDES AND

TOXIC SUBSTANCES

MEMORANDUM

SUBJECT:	Assessment of the Benefits of Chloropicrin, Methyl Bromide,
Metam-sodium and Dazomet Use In Strawberry Nursery Runner Production

FROM: 	Leonard Yourman, Plant Pathologist

		Biological Analysis Branch

		Stephen Smearman, Economist

		Economic Analysis Branch

THRU:	Arnet Jones, Chief

		Biological Analysis Branch

		Biological and Economic Analysis Division (7503P)

Timothy Kiely, Chief

		Economic Analysis Branch

		Biological and Economic Analysis Division (7503P)

TO:		John Leahy, Senior Policy Advisor

		Special Review and Reregistration Division (7508P)

Summary

This document presents the assessment of the benefits provided by soil
fumigants in the production of strawberry plants.  Methyl bromide is the
fumigant of choice in strawberry nursery plant production in California
and the southeastern U.S. (primarily North Carolina).  Pest-free
requirements by state regulations for nursery stock must be considered
by nursery managers.  The alternative to methyl bromide is
1,3-dichloropropene (1,3-D) plus chloropicrin used for pathogen (crown
rot and black root rot) and nematode control, and a follow-up treatment
of metam-sodium or dazomet for weed management.  However, certification
for pest-free designation of nursery stock requires a soil treatment
that will result in certification of nursery stock (CDFA, 2003).  The
benefits of using methyl bromide can result in yields that are 10%
greater than yields using treatments of 1,3-D plus chloropicrin on per
acre basis under certain soil conditions where there exists soil with a
high moisture content.

Fumigation of soils for nursery stock is necessary to attain pest-free
certification, without which, nursery stock plants are unmarketable.
All California strawberry growers rely on fumigation to provide
pest-free nursery stock (approximately 1 billion plants per year are
produced in California).

The total national net revenue benefits associated with methyl bromide
are estimated to be $13.2 million for nursery stock if growers were to
switch from 1,3-D plus chloropicrin to methyl bromide.

Introduction

As part of the reregistration process, EPA is assessing the benefits of
the use of several soil fumigants: dazomet, chloropicrin, metam
potassium, metam sodium, and methyl bromide (MeBr).  This document
presents the assessment of the benefits provided by soil fumigants in
the production of strawberry plants.  Some of the benefits of soil
fumigants are the improvements in production by reducing pest pressure
(Table 1) and/or reductions in costs resulting from the use of the
fumigant.  The social benefits of a pesticide are divided between the
users of the pesticide, such as strawberry nursery managers, and
consumers of the commodity.  Consumers benefit because higher production
and/or lower costs translate into a cheaper and more abundant supply of
goods.

STRAWBERRY PLANT NURSERIES

California.  California is the world’s major producer of strawberry
plants with an annual production of nearly a billion plants on
approximately 4,000 acres (Norton, 2000).  Plants for field production
are grown in nurseries by asexually propagating rooting runners from
source plants.  The California strawberry nursery industry provides
genetically clean planting material to strawberry fruit growers and
other nursery systems.  Strawberry nurseries annually plant source
stocks in fumigated fields, root the runners that form, and harvest
these runner plants as a final product.  Key pests associated with soils
for strawberry nurseries are identified in Table 1.

California nurseries produce their transplants over a five-year cycle,
transferring plants between low and high elevation nurseries (CUN, 2007;
CUN, 2006).  Screenhouses are used during the first two years and open
field plantings are used during the last three years.  Methyl bromide is
used to treat field soils.  Individual sites are planted to strawberries
once every three years.  The fourth and fifth production years account
for 22% and 77%, respectively, of the current methyl bromide nursery
usage in California.  Transplants produced are distributed widely
throughout the U.S. and other countries.

Strawberry runners are grown in a complex production system (Table 2).
A typical nursery system includes both high- and low-elevation nursery
locations, chosen to provide a cold site for October harvest, which
provides fresh plants for fruit production systems, and a warmer site
for December-January harvest, which provides frigo (dormant, cold-stored
) plants for nursery stock and fruit production systems.

The high elevation nurseries are located in Northern California and
Southern Oregon at elevations of 3,200 to 4,200 feet.  They produce
plants used in October and November plantings for fruit production in
California.

Low elevation nurseries (below 600 feet) are located in the Sacramento
and northern San Joaquin valleys of California.  These low elevation
nurseries produce plants for both propagation and fruit plantings.  The
propagation stock is used by nurseries in California, throughout the
United States, and internationally.  The balance of the low elevation
production is stored for distribution through the spring and summer
months as frigo plants.

Southeastern U.S.  Southeastern U.S. nurseries (primarily in North
Carolina) produce transplants in open fields.  An individual field is
planted to strawberries once every three years (Table 2).  Approximately
85% of transplants produced are sent to Florida (CUN, 2007).  Nurseries
in this region range in area from 3 to 80 acres with three of the
largest nurseries averaging 50 acres and representing 71% of nursery
land area (CUN, 2007).  The typical yield for this region is 200,000
plants per acre.  For the critical use exemption use of methyl bromide,
the Southeastern Strawberry Nursery Consortium requested methyl bromide
to be used on 209 acres for the 2009 use season to manage key soil pests
(Table 1).

Table 1.  Target pests for fumigants for strawberry runner production.

State	Key Pests

California	Diseases: Phytophthora Crown and Root Rots (Phytophthora
spp.);

Red Stele (Phytophthora fragariae); Verticillium Wilt (Verticillium
dahliae); Anthracnose (Colletotrichum acutatum)

Nematodes: Root-knot (Meloidogyne spp.);

sting (Belonolaimus spp.);

dagger (Xiphinema spp.);

lesion (Pratylenchus spp.);

foliar (Aphelenchoides spp.);

needle (Longidorus spp.);

stem (Ditylenchus spp.)

Weeds: numerous weeds listed (e.g., annual bluegrass, bur clover,
carpetweed, chickweed, field bindweed, goat grass, hairy nightshade,
lambsquarter, malva, nutsedge, pig weed, portulaca, prostate spurge,
puncture vine, purslane, vetch)

Southeastern U.S.	Diseases: Black root rot (Rhizoctonia and Pythium
spp.) (100%); Crown rot (Phytophthora cactorum) (<5%)

Nematodes: root-knot nematodes (Meloidogyne spp.) (100%)

Weeds: Yellow nutsedge (Cyperus esculentus) and Purple nutsedge (Cyperus
rotundus) (50%)

*Source: CUN, 2007; CUN, 2006.

Certification issues for nurseries.  Nurseries providing strawberry
plants for propagation or for fruit production are required to receive
certification of pest-free status.  Certification requirements are
strict and regulations include fumigation standards, as well as
standards for viruses, pathogens, nematodes, and insect control.  For
example, “When nursery stock in the nursery is found by the inspector
to be infested with any plant pest, the certificate may not be issued
until the infested stock has been treated or destroyed to the extent
that the salable stock to be covered by the certificate shall be
apparently free of plant pests” (NCDA, undated).

Strawberry nurseries are required to produce pest-free plants to meet
certification (e.g., CDFA, 2003; NCDA, undated) and quality standards.
There are no markets for runners that do not meet the certification
standards.  The failure to adequately manage pests in transplants will
jeopardize overall fruit production.  As the use of methyl bromide is
phased-out in accordance with the Montreal Protocols, alternatives are
being studied as replacements.  Currently, all strawberry nursery soils
are treated with methyl bromide + chloropicrin to manage key pests for
certification requirements.

According to California nursery regulations (CDFA, 2003) for field-grown
nursery stock, the acceptable chemical fumigants for nematode control
are methyl bromide and 1,3-D.  Container-grown stock may also be treated
with steam or solarization if appropriate conditions for killing
nematodes are met.  The first two years of the five year production of
nursery plants occurs in screenhouses (in California).  However, soil
treatments are required for the final three years of field growth (see
Appendix 1).

Table 2.  Characteristics of nursery cropping systems.

CHARACTERISTICS 	Region

	Southeastern U.S.	California*

Crop type	Strawberry transplants	Strawberry transplants

Annual Crop 	Annual crop, replanted in same site once every three years
Annual crop, only planted in the same location once every three years

Typica Typical crop rotation 	Various crops planted	The principal
rotational crops are grains, or fallow, for two years.  Usually,
incorporated for increased organic matter.  May also include, endive,
garlic, onions, horseradish, and mint.

Soil texture	93% loam and 7% sandy soils, containing up to 2% organic
matter	80% sandy soils, 10% loam soils and 10% clay soils; 70% with 2%
or less organic matter

Typical dates of planting and harvest 	Plant: April/May

Harvest: Sept/Oct	Low elevation: Planting: May/June

Harvest: January

High elevation:

Planting: April

Harvest: Sept-Nov

Typical dates of fumigation	Sept/Oct	April (low elevation); Aug/Sept
(high elevation)

Frequency of fumigation	Once in three years 	Prior to planting on
different fields (high and low elevation nurseries)

USDA Plant Hardiness Zones	6a, 6b, 7a, 7b, 8a, 8b	6a, 6b, 7a, 9a, 9b

Source: CUN, 2007; CUN, 2006

Fumigants for Strawberry Nurseries

Methyl Bromide

California.  Currently all nurseries use methyl bromide for plant
production (including those plants destined for organic fruit
production).  Fumigation is necessary for nematode-free certification.
In addition, methyl bromide also manages other pests such as soil-borne
pathogens and weeds.  Methyl bromide is shank injected 25-30 cm below
the soil surface, mostly broadcast; always mixed with chloropicrin.
Research is being conducted to find acceptable alternatives that will
allow certification of nursery stock (e.g., Kabir et al., 2003, 2005).
California considers 99% of nursery runners produced in the state as
eligible for quarantine and pre-shipment use of methyl bromide (for 2009
use season, 1.1 million lb of methyl bromide were requested to treat
4,600 acres (CUN, 2007).

Southeastern U.S.  Currently, all nurseries in this region use methyl
bromide + chloropicrin, which is shank injected 30-45 cm below the soil
surface.  It is broadcast (50%) or strip fumigated (on 55% of a total
acre).

Chloropicrin.

California.  Certification guidelines do not list chloropicrin as a
“stand-alone” treatment for certification.  Chloropicrin is always
used with methyl bromide for nursery soils, currently at a ratio of
methyl bromide to chloropicrin ranging from 67:33 to 50:50, depending on
the pest situation and soil conditions.  Chloropicrin is an effective
fungicide, but generally does not adequately control nematodes or weeds.
 Verticillium wilt is a major problem for strawberry growers and
disease-free plants are required so the pathogen is not further
distributed.  Chloropicrin is the more active fumigant against
Verticillium wilt when methyl bromide + chloropicrin or 1,3-D +
choropicrin are applied.  In addition, high rates of chloropicrin are
restricted in some counties in California.  Research (e.g., Kabir et
al., 2005) is ongoing to study alternatives to methyl bromide.
Currently, California lists only methyl bromide and 1,3-D as acceptable
chemical fumigants.

Southeastern U.S.  Certification guidelines do not list chloropicrin as
a treatment for certification.  Currently nurseries always use methyl
bromide + chloropicrin.  The currently used ratio of methyl bromide to
chloropicrin for this region’s nurseries is 67:33.  While chloropicrin
is an effective fungicide, weed problems in this region usually require
additional chemical treatments.

1,3-Dichloropropene (1,3-D).

California.  Methyl bromide and 1,3-D are the only chemical fumigants
eligible for treating open field nursery soils for certification (CDPR,
2003).  Township caps may restrict the use of 1,3-D (Trout, 2005).
Results of research trials (e.g., Kabir et al., 2003, 2005) showed that
1,3-D + 35% chloropicrin (Telone C-35) that is shank injected may be an
effective alternative to methyl bromide.  The 1,3-D + chloropicrin
treatment may be followed by an application of dazomet to reduce weed
populations.  The use of 1,3-D without chloropicrin is generally not
considered a broad spectrum treatment for strawberry nursery
requirements.

Southeastern U.S.  Information is being requested to determine if 1,3-D
is allowed for nursery stock certification and, if so, under what
conditions.  Weed problems in this region will likely require additional
treatments with herbicides for less than optimal fumigation products.

Metam-sodium, dazomet (and other methyl
isothiocyanate—MITC—producers).

California.  These compounds are generally not effective as “stand
alone” products for nursery plant production.  Field trials in
California suggest using dazomet following 1,3-D, iodomethane, or
chloropicrin (e.g., Kabir et al., 2005) to maximize weed control.

Southeastern U.S.  These products are not alternatives to methyl
bromide.  Follow-up applications after 1,3-D + chloropicrin in research
studies (as have been done in California) are being conducted.
Restrictions on the use of 1,3-D would limit the usefulness of MITC
products.

Estimated Benefits of Methyl Bromide

To determine the economic benefits of methyl bromide, BEAD used a
partial budget analysis to estimate the changes in production costs on a
typical acre for strawberry nursery crop grown.  This approach allows
the Agency to compare changes to net operating revenue.  Net revenue is
calculated as gross revenue minus operating costs.  This is a good
measure of the direct changes in the income that may be realized by
growers currently using methyl bromide for pest control.  Net revenue
does not represent net income to the users.  Net income, which indicates
profitability of an operation of an enterprise, is gross revenue minus
the sum of operating and fixed costs.  Net income should be smaller than
the net revenue measured in this study.  Fixed costs were not included
because they are often difficult to measure and verify.

While this is a discussion of the benefits of all fumigants for
strawberry nursery producers, the primary fumigant used by producers in
California and Florida is MeBr.  Therefore the baseline established to
determine the benefits of all potential fumigants is based on using MeBr
and comparing the costs and revenues of growers who use MeBr to the
estimated changes in costs and revenues that may be realized using
another fumigant such as 1,3-D plus chloropicrin which is presented
here.

Per Acre Regional Benefits - California

In California, MeBr is the primary fumigant used by strawberry growers
with 1,3-D plus chloropicrin as a second choice for many. If growers us
an alternative other than MeBr, a yield losses of approximately 10% are
expected (California Strawberry Commission CUE request).  If growers
choose 1,3-D plus chloropicrin to control pathogens and nematodes,
control costs are expected to increase from $731 to $1,932 per acre, an
increase of $1,201 per acre or 164 %.  Net operating revenue is expected
to drop from the methyl bromide baseline of $4,807 to $1,626 per acre, a
decrease of $3,181 per acre or a 66% decrease.  This is due to both
yield losses and the increase in control costs and harvesting costs.

The benefits associated with methyl bromide for California strawberry
nursery stock production are illustrated below in Table 3.  Total
California production losses are based on California Department of
Pesticide Regulation data for the 4,000 acres treated with methyl
bromide.  The estimated regional loss is estimated to be $12.7 million
for 1,3-D plus chloropicrin.

Table 3.  Estimated Per Acre Gross Revenue, Operating Costs, and Net
Operating Revenue Impacts for California Strawberry Nursery Production

	Baseline

Methyl Bromide	Alternative

1,3-D + Pic	% Change

Yield (boxes/acre)	332	299	-10

Price  ($/lb)	50	50

	Gross Revenue  ($/box)	16,600	14,940	-10

Methyl bromide

1,3-D + Pic ($/acre)	731

1,932

164

Other Operating Costs  ($/acre)	4,187	4,187

	Harvest Costs  ($/acre)	6,875	7,195	5

Total Operating Costs  ($/acre)	11,793	13,314	12

Net Operating Revenue  ($/acre)	4,807	1,626	-66

Source:  USDA NASS (2006), 2006 Methyl Bromide Critical Use Nomination
for Preplant Soil Use on Strawberry, BEAD calculations.  Assumptions: 1:
fumigation costs include tarp and hand weeding costs; Figures may not
sum due to rounding.

Per Acre Regional Benefits - Southeastern

Without the use of methyl bromide, Southeastern strawberry nursery stock
producers are likely to experience yield losses of 10%.  If growers
choose 1,3-D plus chloropicrin to control pathogens and nematodes,
control costs are expected to increase from $1,418 per acre to $1,932
per acre, an increase of $514 per acre or 36%.  Net operating revenue is
expected to drop from the methyl bromide baseline of $4,760 to $2,546
per acre, a 47% decrease due to yield losses and increases in control
costs.

Total Florida production losses are based on USDA NASS 2004 data
estimates for the estimated 209 acres treated with methyl bromide.  The
regional loss is estimated to be $462,726 if 1,3-D plus chloropicrin is
used to replace methyl bromide.

The impacts associated with the loss of methyl bromide as the baseline
for Southeastern nursery stock production are illustrated below in Table
4.

Table 4.  Estimated Per Acre Gross Revenue, Operating Costs, and Net
Operating Revenue Impacts for Southeastern (North Carolina) Strawberry
Nursery Production

	Baseline

metam sodium	Alternative

1,3-D + Pic	% Change

Yield (plants/acre)	188,888	169,999	-10

Price  ($/plant)	0.09	0.09

	Gross Revenue  ($/acre)	17,000	15,299	-10

Methyl bromide ($/acre)

1,3-D + pic ($/acre)	1,418

1,932

36

Other Operating Costs  ($/acre)	6,222	6,221	<1

Harvest Costs  ($/acre)	4,600	4,600

	Total Operating Costs  ($/acre)	12,240	12,753	4

Net Operating Revenue  ($/acre)	4,760	2,546	-47

Source: USDA NASS (2006), 2006 Methyl Bromide Critical Use Nomination
for Preplant Soil Use on Strawberry, BEAD calculations.  Assumptions: 1:
fumigation costs include tarp and hand weeding costs; Figures may not
sum due to rounding.

National Benefits

Total national net revenue impacts associated with the loss of methyl
bromide are estimated to be $13.2 million for acres treated with 1,3-D
plus chloropicrin as an alternative to methyl bromide.

Conclusion

Fumigants for strawberry nurseries are necessary to provide pest-free
stock plants to strawberry fruit producers.  Transporting diseased
plants to growers would have a devastating effect on the strawberry
industry.  Currently, methyl bromide + chloropicrin is used by all
strawberry nurseries located in California and the southeastern U.S.
Without methyl bromide, nurseries would likely use 1,3-D + chloropicrin,
with a possible follow-up treatment of metam-sodium (or similar
fumigant).  Nurseries must be able to have their stock plants certified
as pest-free by state regulators in order to have marketable plants for
use by farmers.

References

CDFA (California Department of Food and Agriculture). 2003. Summary of
California Laws and Regulations Pertaining to Nursery Stock.
HYPERLINK "http://www.cdfa.ca.gov/phpps/pe/nipm.htm"
http://www.cdfa.ca.gov/phpps/pe/nipm.htm ;   HYPERLINK
"http://www.cdfa.ca.gov/phpps/pe/nipm_pdfs/nipm_7.pdf"
http://www.cdfa.ca.gov/phpps/pe/nipm_pdfs/nipm_7.pdf

CUN (Critical Use Nomination) for Methyl Bromide Use for Strawberry
Nursery Stock Grown In Open Fields. 2006.
onhttp://www.epa.gov/spdpublc/mbr/CUN2008/CUN2008_StrawberryNursery.pdf

CUN (Critical Use Nomination) for Methyl Bromide Use for Strawberry
Nursery Stock Grown In Open Fields. 2007.
http://www.epa.gov/spdpublc/mbr/cun2009/cun2009_StrawberryNursery.pdf

Kabir, Z., Fennimore, S., Martin, F., Ajwa, H., Duniway, J., Browne, G.,
Winterbottom, C., Westerdahl, B., Goodhue, R., Guerrero, L., and Haar,
M. 2003. Alternative[s] Fumigants for the Control of Soil Pests:
Strawberry as a Model System. Annual International Research Conference
on Methyl Bromide Alternatives and Emissions Reductions. www.mbao.org.

Kabir, Z., Fennimore, S. A., Duniway, J. M., Martin, F. N., Browne, G.
T., Winterbottom, C. Q., Ajwa, H. A., Westerdahl, B. B., Goodhue, R. E.,
and Haar, M. J. 2005. Alternatives to methyl bromide for strawberry
runner plant production. HortScience 40(6):1709-1715.

Messenger, B. and Braun, A. 2000. Alternatives to methyl bromide for the
control of soil-borne diseases and pests in California.  Pest Management
and Analysis Planning Program.
http://www.cdpr.ca.gov/docs/dprdocs/methbrom/alt-anal/sept2000.pdf

NCDA (North Carolina Department of Agriculture and Consumer Services),
undated.  Nursery Regulations, Nursery Certification.   HYPERLINK
"http://www.ncagr.com/plantind/Regs/48a1200.htm"
http://www.ncagr.com/plantind/Regs/48a1200.htm ,

  HYPERLINK
"http://reports.oah.state.nc.us/ncac/title%2002%20-%20agriculture%20and%
20consumer%20services/chapter%2048%20-%20plant%20industry/subchapter%20a
/02%20ncac%2048a%20.1210.html"
http://reports.oah.state.nc.us/ncac/title%2002%20-%20agriculture%20and%2
0consumer%20services/chapter%2048%20-%20plant%20industry/subchapter%20a/
02%20ncac%2048a%20.1210.html

Norton, J. 2000. Pest management evaluation for California strawberry
nurseries. Prepared for California Department of Pesticide Regulation,
contract: 99-0192.
http://www.cdpr.ca.gov/docs/empm/alliance/99-00/evals/99-0192.pdf

Trout, T. 2005. Impact of township caps on telone use in California.
Annual International Research Conference on Methyl Bromide Alternatives
and Emissions Reductions, 2005.   HYPERLINK
"http://www.mbao.org/2005/05Proceedings/127TroutT%20mb-pest-use-telone-r
pt05-mbao.pdf"
http://www.mbao.org/2005/05Proceedings/127TroutT%20mb-pest-use-telone-rp
t05-mbao.pdf

 PAGE

 PAGE   3


[Federal Register Volume 75, Number 40 (Tuesday, March 2, 2010)]
[Notices]
[Pages 9472-9474]
[FR Doc No: 2010-4228]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61557; File No. SR-NYSE-2010-10]

 Self-Regulatory Organizations; Notice of Filing and Order
Granting Accelerated Approval of Proposed Rule Change by New York Stock
Exchange LLC Changing Certain NYSE Rules and Rule Interpretations To
Correspond With Rule Changes Filed by the Financial Industry Regulatory
Authority, Inc.

February 22, 2010.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on February 16, 2010, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``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 and to approve the
proposal on an accelerated basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes changes to certain NYSE Rules and Rule
Interpretations to correspond with rule changes filed by the Financial
Industry Regulatory Authority, Inc. (``FINRA'') and approved by the
Commission.\4\ The Exchange proposes to apply these changes
retroactively to February 8, 2010. The text of the proposed rule change
is available at the Exchange, the Commission's Public Reference Room,
and http://www.nyse.com.
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    \4\ See Securities Exchange Act Release No. 60933 (November 4,
2009), 74 FR 58334 (November 12, 2009) (order approving SR-FINRA-
2008-067). FINRA also recently filed for immediate effectiveness to
(i) adopt non-substantive technical changes to consolidated FINRA
Rule 4521(d), and (ii) amend FINRA Incorporated NYSE Rule 312(g).
See Securities Exchange Act Release No. 61408 (January 22, 2010), 75
FR 4596 (January 28, 2010) (SR-FINRA-2010-004). See also SR-FINRA-
2010-008, filed on February 4, 2010. These changes are incorporated
in this rule filing.
---------------------------------------------------------------------------

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 those statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant parts of such
statements.

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

1. Purpose
    The purpose of the proposed rule changes is to adopt changes to
certain NYSE Rules and Rule Interpretations to correspond with rule
changes filed by FINRA and approved by the Commission. The Exchange
proposes to apply these changes retroactively to February 8, 2010, the
same effective date for FINRA's rule changes.\5\ The Exchange states
that making the proposed rule change retroactive to February 8, 2010
would ensure that the proposed rule changes are operative and effective
at the same time as FINRA's rule changes, that there are no regulatory
gaps between the FINRA and NYSE Rules and that, as applicable, the NYSE
Rules maintain their status as Common Rules under the 17d-2
Agreement.\6\
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    \5\ See FINRA Regulatory Notice 09-71 (December 7, 2009).
    \6\ As provided in paragraph 2(b) of the 17d-2 Agreement, FINRA
and NYSE will amend the list of Common Rules to conform to the rule
changes proposed herein.
---------------------------------------------------------------------------

Background
    On July 30, 2007, FINRA's predecessor, the National Association of
Securities Dealers, Inc. (``NASD''), and NYSE Regulation, Inc.
(``NYSER'') consolidated their member firm regulation operations into a
combined organization, FINRA. Pursuant to Rule 17d-2 under the Act,\7\
NYSE, NYSER and FINRA entered into an agreement (the ``17d-2
Agreement'') to reduce regulatory duplication for their members by
allocating to FINRA certain regulatory responsibilities for certain
NYSE rules and rule interpretations (``FINRA Incorporated NYSE
Rules''). NYSE Amex LLC (``NYSE Amex'') became a party to the 17d-2
Agreement effective December 15, 2008.\8\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78a, et seq.
    \8\ See Securities Exchange Act Release Nos. 56148 (July 26,
2007), 72 FR 42146 (August 1, 2007) (order approving the 17d-2
Agreement); 56147 (July 26, 2007), 72 FR 42166 (August 1, 2007) (SR-
NASD-2007-054) (order approving the incorporation of certain NYSE
Rules as ``Common Rules''); and 60409 (July 30, 2009), 74 FR 39353
(August 6, 2009) (order approving the amended and restated 17d-2
Agreement, adding NYSE Amex LLC as a party). Paragraph 2(b) of the
17d-2 Agreement sets forth procedures regarding proposed changes by
FINRA, NYSE or NYSE Amex to the substance of any of the Common
Rules.
---------------------------------------------------------------------------

    As part of its effort to reduce regulatory duplication and relieve
firms that are members of FINRA, NYSE and NYSE Amex of conflicting or
unnecessary regulatory burdens, FINRA is now engaged in the process of
reviewing and amending the NASD and FINRA Incorporated NYSE Rules in
order to create a consolidated FINRA rulebook.\9\
---------------------------------------------------------------------------

    \9\ FINRA's rulebook currently has three sets of rules: (1) NASD
Rules, (2) FINRA Incorporated NYSE Rules, and (3) consolidated FINRA
Rules. The FINRA Incorporated NYSE Rules apply only to those members
of FINRA that are also members of the NYSE (``Common Members''),
while the consolidated FINRA Rules apply to all FINRA members. For
more information about the FINRA rulebook consolidation process, see
FINRA Information Notice, March 12, 2008.

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

Proposed Conforming Amendments to NYSE Rules
    FINRA recently adopted consolidated FINRA Rules 4110 (Capital
Compliance), 4120 (Regulatory Notification and Business Curtailment),
4130 (Regulation of Activities of Section 15C Member Organizations
Experiencing Financial and/or Operational Difficulties), 4140 (Audit)
and 4521 (Notifications, Questionnaires and Reports) as part of its
rule set governing financial responsibility of member firms. FINRA also
amended consolidated FINRA Rules 9557 (Procedures for Regulating
Activities Under Rules 4110, 4120 and 4130 Regarding a Member
Experiencing Financial or Operational Difficulties) and 9559 (Hearing
Procedures for Expedited Proceedings Under the Rule 9550 Series), as
well as Section 4(g) of Schedule A of the FINRA By-Laws to reflect the
adoption of the new Rules.\10\
---------------------------------------------------------------------------

    \10\ See Securities Exchange Act Release No. 61408 (January 22,
2010), 75 FR 4596 (January 28, 2010). See also SR-FINRA-2010-008,
filed on February 4, 2010.
---------------------------------------------------------------------------

    Because they are incorporated with or replaced by these new
consolidated FINRA Rules, FINRA also deleted and/or amended certain
FINRA Incorporated NYSE Rules and Rule Interpretations, including
312(g)--(h) (Changes Within Member Organizations), 313(d) (Submission
of Partnership Articles--Submission of Corporate Documents), 313(d)/01
-/02 (Opinion of Counsel), 325 (Capital Requirements Member
Organizations), 325(c)(1)/01 (Long Put or Call Options), 326(a) (Growth
Capital Requirement), 326(b) (Business Reduction Capital Requirement),
326(c) (Unsecured Loans and Advances), 326(d) (Reduction of Elimination
of Loans and Advances), 328 (Sale-And-Leasebacks, Factoring, Financing
and Similar Arrangements), 416.20 (Questionnaires and Reports), 416/01
(Gold and Silver Offerings), 418 (Audit), 420 (Reports of Borrowings
and Subordinate Loans For Capital Purposes) and 421 (Periodic
Reports).\11\
---------------------------------------------------------------------------

    \11\ FINRA also deleted references to FINRA Incorporated NYSE
Rules 313.14 (A-B-C agreements) and 313.18 (Sole board member
provision) as part of its clean-up of Rule 313. See Securities
Exchange Act Release No. 60933 (November 4, 2009), 74 FR 58334
(November 12, 2009). The Exchange also proposes to delete those
references in NYSE Rule 313.
---------------------------------------------------------------------------

    To harmonize the NYSE Rules with the approved consolidated FINRA
Rules, the Exchange correspondingly proposes to delete and/or amend
NYSE Rules and Rule Interpretations 312(g)--(h), 313(d), 313(d)/01 -/
02, 325, 325(c)(1)/01, 326(a)--(d), 328, 416.20, 416/01, 418, 420 and
421, and replace them with proposed NYSE Rules 4110, 4120, 4130, 4140
and 4521, which are substantially similar to the new FINRA Rules.\12\
---------------------------------------------------------------------------

    \12\ NYSE Amex has submitted a companion rule filing amending
its rules in accordance with FINRA's rule changes. See SR-NYSEAmex-
2010-13.
---------------------------------------------------------------------------

    As proposed, NYSE Rules 4110, 4120, 4130, 4140 and 4521 adopt the
same language as the corresponding consolidated FINRA Rules, except for
substituting for or adding to, as needed, the term ``Exchange'' for
``FINRA'' and the term ``member organization'' for the term ``member'',
and making corresponding technical changes that reflect the difference
between NYSE's and FINRA's membership structures.
    In addition, the Exchange proposes other changes to the NYSE
version of the Rules in order to apply them to the Exchange. First, in
proposed NYSE Rules 4110(a) and 4140(a), the Exchange proposes to amend
FINRA's version of the Rules referring to ``FINRA's Executive Vice
President charged with oversight for financial responsibility, or his
or her written officer delegate,'' to remove this language as it is
inapplicable to the Exchange. As amended, the Exchange would retain the
flexibility to arrange to have FINRA conduct the actual oversight and
application of the proposed Rules pursuant to the 17d-2 Agreement or a
Regulatory Services Agreement as warranted.
    Second, in proposed NYSE Rules 4110, 4120 and 4130, the Exchange
proposes to add cross-references to NYSE Rule 475. Similar to FINRA
Rule 9557, NYSE Rule 475 provides the Exchange with the ability to take
summary action against a member or member organization that is facing
financial or operational difficulties subject to certain due process
considerations, including notice and an opportunity to be heard. The
Exchange believes it should retain its current disciplinary procedures
for addressing non-FINRA members and member organizations that face
financial or operational difficulties.
    Finally, in proposed NYSE Rules 4140(b) and 4521(e), the Exchange
proposes to amend the language from FINRA's version of the Rules
referring to Schedule A, Section 4(g) of the FINRA By-Laws to simply
incorporate the language of Section 4(g) into the NYSE version of the
Rules. Accordingly, proposed NYSE Rules 4140(b) and 4521(e) specify
that member organizations that fail to timely file any report,
notification or information pursuant to those Rules will be subject to
a late fee of $100 per day, for a period not to exceed 10 business
days. Under the proposed Rules, requests for an extension of time must
be submitted at least three business days prior to the due date of the
report, notification or information required to be provided.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\13\ in general, and further the
objectives of Section 6(b)(5) of the Act,\14\ in particular, in that it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and, in general, to protect investors and the
public interest. The Exchange believes that the proposed rule changes
support the objectives of the Act by providing greater harmonization
between NYSE Rules and FINRA Rules (including Common Rules) of similar
purpose, resulting in less burdensome and more efficient regulatory
compliance for Common Members. To the extent the Exchange has proposed
changes that differ from the FINRA version of the Rules, such changes
are technical in nature and do not change the substance of the proposed
NYSE Rules. The Exchange states that making the proposed rule change
retroactive to February 8, 2010 would ensure that the proposed rule
changes are operative and effective at the same time as FINRA's rule
changes, that there are no regulatory gaps between the FINRA and NYSE
Rules and that, as applicable, the NYSE Rules maintain their status as
Common Rules under the 17d-2 Agreement.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

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

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

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

III. Solicitation of Comments

    Interested persons are invited to submit written data, views, and

arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2010-10 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-NYSE-2010-10. 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 Web site viewing and
printing in the Commission's Public Reference Section, 100 F Street,
NE., Washington, DC 20549-1090. Copies of the filing will also be
available for inspection and copying at the NYSE's principal office and
on its Internet Web site at www.nyse.com. 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-NYSE-2010-10 and should be submitted on
or before March 23, 2010.

IV. Commission's Findings and Order Granting Accelerated Approval of
Proposed Rule Change

    After careful consideration, the Commission finds that the
Exchange's proposal to retroactively apply the proposed rule change to
February 8, 2010 is consistent with the requirements of the Section 6
of the Act\15\ and the rules and regulations thereunder applicable to a
national securities exchange.\16\ In particular, the Commission
believes that the proposed rule change is consistent with Section
6(b)(5) in particular, in that it is designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest.\17\ Approving
the proposed rule change, and making such approval retroactive to
February 8, 2010, would ensure that the proposed rule changes are
operative and effective at the same time as FINRA's rule changes, that
there are no regulatory gaps between the FINRA and NYSE Rules and that,
as applicable, the NYSE Rules maintain their status as Common Rules
under the 17d-2 Agreement
---------------------------------------------------------------------------

    \15\ 15 U.S.C. 78f.
    \16\ In approving this proposed rule change, the Commission has
considered its impact on efficiency, competition, and capital
formation. See 78c(f).
    \17\ See 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange has requested that the Commission find good cause for
approving the proposed rule change prior to the thirtieth day after
publication of the notice thereof in the Federal Register. The
Commission believes that good cause exists for accelerated approval of
the proposed rule change because it raises no novel issues and is
consistent with the FINRA rule filings previously approved by or filed
with the Commission on which it is based.\18\ Except as has been
specifically noted and subject to a number of technical changes
necessary to apply the Rules to the Exchange, the proposed rule changes
will conform certain NYSE Rules and Rule Interpretations to FINRA's
amendments to corresponding FINRA Incorporated NYSE Rules and Rule
Interpretations and FINRA's adoption of consolidated FINRA Rules 4110,
4120, 4130, 4140 and 4521 in furtherance of the consolidation of the
member firm regulation functions of NYSER and FINRA. Accordingly, the
Commission finds good cause, pursuant to Section 19(b)(2) of the
Act,\19\ for approving the proposed rule change prior to the thirtieth
day after publication of the notice thereof in the Federal Register.
---------------------------------------------------------------------------

    \18\ See Securities Exchange Act Release No. 61408 (January 22,
2010), 75 FR 4596 (January 28, 2010). See also SR-FINRA-2010-008,
filed on February 4, 2010.
    \19\ See 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\20\ that the proposed rule change, (SR-NYSE-2010-10), is hereby
approved on an accelerated basis.
---------------------------------------------------------------------------

    \20\ See id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
---------------------------------------------------------------------------

    \21\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-4228 Filed 3-1-10; 8:45 am]
BILLING CODE 8011-01-P


OPP Docket 2002 0165 Page 1 of 1 RESPONSE TO COMMENTS Draft Guidance on Submitting Requests for Threshold of Regulation (TOR) Decisions; Draft Standard Operating Procedures (SOP) for Making TOR Decisions Comment: The American Chemistry Council Biocides Panel commented on the TOR policy as it applies to the use of antimicrobial pesticides. [Item 004, OPP Docket 00795]

Response: The policy issues raised in this comment were not relevant to the procedural issues discussed in the draft PR Notice or Draft Standard Operating Procedures for implementing the TOR policy.

The comment was sent to the Antimicrobials Division for its consideration. The Antimicrobial Division will respond directly to the commenter.