[Federal Register Volume 78, Number 157 (Wednesday, August 14, 2013)]
[Proposed Rules]
[Pages 49403-49409]
[FR Doc No: 2013-19760]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2012-0753; FRL-9900-07-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Determination of Attainment of the 2006 24-Hour Fine
Particulate Matter Standard for the Pittsburgh-Beaver Valley
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make a determination of attainment for the
Pittsburgh-Beaver Valley, Pennsylvania fine particulate matter
(PM2.5) nonattainment area (hereafter referred to as ``the
Pittsburgh Area'' or ``the Area''). EPA is proposing to determine that
the Pittsburgh Area has attained the 2006 24-hour PM2.5
National Ambient Air Quality Standard (NAAQS), based upon quality-
assured and certified ambient air monitoring data for 2010-2012. If EPA
finalizes this proposed determination of attainment, the requirements
for the Pittsburgh Area to submit an attainment demonstration and
associated reasonably available control measures (RACM), a reasonable
further progress (RFP) plan, contingency measures, and other planning
State Implementation Plan (SIP) revisions related to the attainment of
the standard shall be suspended for so long as the Area continues to
attain the 2006 24-hour PM2.5 NAAQS. EPA is also proposing
to approve a request submitted by the Pennsylvania Department of
Environmental Protection (PADEP) dated January 17, 2013, to establish
motor vehicle emission budgets for the Pittsburgh Area to meet
transportation conformity requirements. This action is being taken
under the Clean Air Act (CAA). This action does not constitute a
redesignation to attainment under section 107(d)(3) of the CAA. The
designation status of the Pittsburgh Area will remain nonattainment for
the 2006 24-hour PM2.5 NAAQS until such time as EPA
determines that the Pittsburgh Area meets the CAA requirements for
redesignation to attainment, including an approved maintenance plan.

DATES: Written comments must be received on or before September 13,
2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0753 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. Email<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2012-0753, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0753. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
I. Summary of Proposed Actions
II. Background
III. EPA's Analysis of the Relevant Air Quality Data
IV. Effect of Determination of Attainment for 2006 PM2.5
Under Subpart 4 of Part D of Title 1 (Subpart 4)

V. Application of the Clean Data Policy to Attainment-Related
Provisions of Subpart 4
VI. Description of 2011 Clean Data MVEBs
VII. Proposed Actions
VIII. Statutory and Executive Order Reviews

I. Summary of Proposed Actions

    In accordance with section 179(c)(1) of the CAA, 42 U.S.C.
7509(c)(1) and 40 CFR 51.1004(c), EPA is proposing to determine that
the Pittsburgh Area has attained the 2006 24-hour PM2.5
NAAQS. The proposal is based upon quality-assured and certified ambient
air monitoring data for the 2010-2012 monitoring period, which show
that the Pittsburgh Area attained the 2006 24-hour PM2.5
NAAQS. EPA is also proposing to approve the MVEBs identified for direct
PM2.5 and nitrogen oxides (NOX) for
transportation conformity purposes. Following EPA's public comment
period, responses to any comments received will be addressed.

II. Background

    On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
(hereby ``the 2006 annual PM2.5 NAAQS'') based on a 3-year
average of annual mean PM2.5 concentrations, and promulgated
a new 24-hour standard of 35 [mu]g/m\3\ based on a 3-year average of
the 98th percentile of 24-hour concentrations. The revised 2006 24-hour
PM2.5 standard (hereafter ``the 2006 24-hour
PM2.5 NAAQS'') became effective on December 18, 2006. See 40
CFR 50.13. The more stringent 2006 24-hour PM2.5 NAAQS is
based on significant evidence and numerous health studies demonstrating
that serious health effects are associated with short-term exposures to
PM2.5 at this level.
    Many petitioners challenged aspects of EPA's 2006 revisions to the
PM2.5 NAAQS. See American Farm Bureau Federation and
National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir.
2009). As a result of this challenge, the U.S. Court of Appeals for the
District of Columbia Circuit (hereafter ``the Court'' or ``the D.C.
Circuit'') remanded the 2006 annual PM2.5 NAAQS to EPA for
further proceedings. The 2006 24-hour primary and secondary
PM2.5 NAAQS were not affected by the remand and remain in
effect.
    The process for designating areas following promulgation of a new
or revised NAAQS is contained in section 107(d)(1) of the CAA. On
November 13, 2009 (74 FR 58688), EPA published designations for the
2006 24-hour PM2.5 NAAQS, which became effective on December
14, 2009. In that action, EPA designated the Pittsburgh Area as
nonattainment for the 2006 24-hour PM2.5 NAAQS. The
Pittsburgh Area consists of Allegheny (not including the townships
which are part of the Liberty-Clairton nonattainment area), Beaver,
Butler, and Westmoreland Counties, and portions of Armstrong, Greene,
and Lawrence Counties. This proposed action only addresses the 2006 24-
hour PM2.5 NAAQS for the Pittsburgh Area.

III. EPA's Analysis of the Relevant Air Quality Data

    Today's rulemaking action proposes to determine that the Pittsburgh
Area has attained the 2006 24-hour PM2.5 NAAQS, based on
quality-assured, quality-controlled, and certified data for the 2010-
2012 monitoring period. Under EPA regulations at 40 CFR 50.13(c), the
2006 24-hour primary and secondary PM2.5 standards are met
when the 98th percentile 24-hour concentration, as determined in
accordance with 40 CFR part 50, appendix N, is less than or equal to
35.0 [micro]g/m\3\. Data handling conventions and computations
necessary for determining whether areas have met the PM2.5
NAAQS, including requirements for data completeness, are listed in
appendix N of 40 CFR part 50.
    For the Pittsburgh Area to be in attainment with respect to the
2006 24-hour PM2.5 NAAQS, the 24-hour design value of the
Pittsburgh Area must be less than the standard. The 24-hour design
value determined for an area is the highest 3-year average of the
annual 98th percentile measured at all the monitors. Only valid and
complete air quality data can be used for comparison to the 2006 24-
hour PM2.5 NAAQS. A year meets data completeness
requirements when at least 75 percent of the scheduled sampling days
for each quarter have valid data. However, years are considered valid,
notwithstanding quarters with less than complete data, if the resulting
annual 98th percentile value or resulting 24-hour standard design value
is greater than the level of the standard.
    Several monitors in the Pittsburgh Area were not meeting the
completeness requirement for one or more quarters during 2010-2012
monitoring period. EPA has addressed missing data from incomplete
monitors by applying either the maximum quarter substitution test
(``maximum quarter test'') or EPA's statistical procedure, described in
EPA's April 1999 guidance document ``Guideline on Data Handling
Conventions for the PM NAAQS,'' which is available online at http://www.epa.gov/ttn/caaa/t1/memoranda/pmfinal.pdf.
    The maximum quarter data substitution test (maximum quarter test)
was applied to four incomplete monitors in the Pittsburgh Area for
2010-2012. In the maximum quarter test, maximum recorded values are
substituted for the missing data, and the resulting 24-hour design
value is compared to the 2006 24-hour PM2.5 NAAQS. A monitor
with incomplete data passes the test if the 24-hour design value with
maximum values substituted meets the 2006 24-hour PM2.5
NAAQS. The ``Complete Data'' column of Table 1 below indicates which
incomplete monitors passed the maximum quarter test, and therefore
attain the 2006 24-hour PM2.5 NAAQS.
    One monitor in the Pittsburgh Area, the Greensburg monitor (at site
42-129-0008), did not meet the completeness requirement for one quarter
of 2011. EPA has addressed missing data from the Greensburg monitor by
performing a statistical analysis of the data, in which a linear
regression relationship is established between the site with incomplete
data and a nearby site which has more complete data in the period in
which the incomplete site is missing data. The linear regression
relationship is based on time periods in which both monitors were
operating. The linear regression equation developed from the
relationship between the monitors is used to fill in missing data for
the incomplete monitor, so that the normal data completeness
requirement of 75 percent of data in each quarter of the three years is
met. After the missing data for the site are filled in, the results are
verified through an additional statistical test. The results of EPA's
statistical analysis indicated that while the Greensburg monitor had
less than complete data, the data are sufficient to demonstrate that
the NAAQS has been met. Additional details on data completeness issues
for the Pittsburgh Area's monitoring sites can be found in the
Technical Support Document (TSD) for this action entitled, ``Technical
Support Document for the Pennsylvania Determination of Attainment of
the 2006 24-Hour Fine Particulate Matter National Ambient Air Quality
Standard for the Pittsburgh-Beaver Valley Nonattainment Area,'' which
is available online at www.regulations.gov, Docket ID No. EPA-R03-OAR-
2012-0753.
    EPA has reviewed the quality-assured, quality-controlled, and
certified ambient air monitoring data recorded in EPA's Air Quality
System (AQS) database for 24-hour PM2.5 for the Pittsburgh
Area during the 2010-2012 monitoring

period, consistent with the requirements contained in 40 CFR part 50.
Table 1 provides valid 24-hour PM2.5 air quality data for
the Pittsburgh Area for comparison to the 2006 24-hour PM2.5
NAAQS for the 2010-2012 monitoring period.

                                           Table 1--Pittsburgh Area's 2010-2012 24-Hour PM2.5 Air Quality Data
                                                                   [In [micro]g/m\3\]
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                                                                                98th percentile value          2010-2012 24-
               County                  AQS site ID           Site name       --------------------------------------- hour  design    Complete data? \1\
                                                                                2010         2011         2012         value
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Allegheny..........................      42-003-0008  Lawrence..............           30           27           20            26  Yes.
Allegheny..........................      42-003-0067  S. Fayette............           29           31           18            26  Yes.
Allegheny..........................      42-003-0093  North Park............           27           26           16            23  Yes (Max Quarter).
Allegheny..........................      42-003-1008  Harrison..............           34           30           21            28  Yes (Max Quarter).
Allegheny..........................      42-003-1301  N. Braddock...........           37           34           27            33  Yes (Max Quarter).
Beaver.............................      42-007-0014  Beaver Falls..........           29           30           27            29  Yes.
Washington.........................      42-125-0005  Charleroi.............           27           29           26            28  Yes (Max Quarter).
Washington.........................      42-125-0200  Washington............           27           27           25            27  Yes.
Washington.........................      42-125-5001  Florence..............           22           12           17            20  Yes.
Westmoreland.......................      42-129-0008  Greensburg............           33           33           29            33  No (Statistical).
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    EPA's review of quality-assured, quality-controlled, and certified
ambient PM2.5 air monitoring data of the Pittsburgh Area
during 2010-2012 indicates that the Area has attained the 2006 24-hour
PM2.5 NAAQS. Currently, all monitors are measuring
concentrations averaging below the 2006 24-hour PM2.5 NAAQS
of 35 [mu]g/m\3\. The 24-hour design value of the Pittsburgh
PM2.5 Area for 2010-2012 is 33 [mu]g/m\3\, based on
monitoring data collected at the North Braddock site (42-003-1301) and
the Greensburg site (42-129-0008). On the basis of this review, EPA
proposes to determine that the Pittsburgh Area attains the 2006 24-hour
PM2.5 based on data for the 2010-2012 monitoring period.
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    \1\ ``Max Quarter'' denotes the maximum quarter data
substitution test, and ``Statistical'' denotes that EPA's
statistical procedure has been applied to address the missing data
and calculate a ``complete'' design value.
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IV. Effect of Determination of Attainment for 2006 PM2.5
Under Subpart 4 of Part D of Title I (Subpart 4)

    This section of EPA's proposal addresses the effects of a final
determination of attainment for the Pittsburgh Area. For the 1997
PM2.5 standard, 40 CFR 51.1004 of EPA's Implementation Rule
embodies EPA's ``Clean Data Policy'' interpretation under subpart 1.
The provisions of section 51.1004 set forth the effects of a
determination of attainment for the 1997 PM2.5 standard. (72
FR 20585, 20665, April 25, 2007). While the regulatory provisions of
51.1004(c) do not explicitly apply to the 2006 PM2.5
standard, the underlying statutory interpretation is the same for both
standards. (77 FR 76427, December 28, 2012; proposed determination of
attainment for the 2006 PM2.5 standard for Milwaukee, WI).
    On January 4, 2013, in Natural Resources Defense Council v. EPA,
the DC Circuit remanded to EPA the ``Final Clean Air Fine Particle
Implementation Rule'' (72 FR 20586, April 25, 2007) and the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR
28321, May 16, 2008) (collectively, ``1997 PM2.5
Implementation Rule'' or ``Implementation Rule''). 706 F.3d 428 (D.C.
Cir. 2013). The Court found that EPA erred in implementing the 1997
PM2.5 NAAQS pursuant solely to the general implementation
provisions of subpart 1 of Part D of Title I of the CAA, rather than
the particulate-matter-specific provisions of subpart 4. The Court
remanded EPA's Implementation Rule for further proceedings consistent
with the Court's decision. In light of the Court's decision and its
remand of the Implementation Rule, EPA in this proposed rulemaking
action addresses the effect of a final determination of attainment for
the Pittsburgh Area, if that area were considered a moderate
nonattainment area under subpart 4.\2\ As set forth in more detail
below, under EPA's Clean Data Policy interpretation, a determination
that the area has attained the standard suspends the state's obligation
to submit attainment-related planning requirements of subpart 4 (and
the applicable provisions of subpart 1) for so long as the area
continues to attain the standard. These include requirements to submit
an attainment demonstration, RFP, RACM, and contingency measures,
because the purpose of these provisions is to help reach attainment, a
goal which has already been achieved.
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    \2\ For the purposes of evaluating the effects of this proposed
determination of attainment under subpart 4, we are considering the
Pittsburgh Area to be a ``moderate'' PM2.5 nonattainment
area. Under section 188 of the CAA, all areas designated
nonattainment areas under subpart 4 would initially be classified by
operation of law as ``moderate'' nonattainment areas, and would
remain moderate nonattainment areas unless and until EPA
reclassifies the area as a ``serious'' nonattainment area.
Accordingly, EPA believes that it is appropriate to limit the
evaluation of the potential impact of subpart 4 requirements to
those that would be applicable to moderate nonattainment areas.
Section 189(a) and (c) of subpart 4 apply to moderate nonattainment
areas and include an attainment demonstration (section
189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and
quantitative milestones demonstrating RFP toward attainment by the
applicable attainment date (section 189(c)). In addition, EPA also
evaluates the applicable requirements of subpart 1.
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A. Background on Clean Data Policy

    Over the past two decades, EPA has consistently applied its ``Clean
Data Policy'' interpretation to attainment-related provisions of
subparts 1, 2 and 4. The Clean Data Policy is the subject of several
EPA memoranda and regulations. In addition, numerous individual
rulemakings actions published in the Federal Register have applied the
interpretation to a spectrum of NAAQS, including the 1-hour and 1997
ozone, PM10, PM2.5, carbon monoxide (CO), and
lead (Pb) standards. The D.C. Circuit has upheld the Clean Data Policy
interpretation as embodied in EPA's 8-hour ozone Implementation Rule,
40 CFR 51.918.\3\ (NRDC v. EPA, 571 F. 3d 1245 (D.C. Cir. 2009)). Other
U.S. Circuit Courts of Appeals that have considered and reviewed EPA's
Clean Data Policy interpretation have upheld it and the rulemakings
actions applying EPA's interpretation. Sierra Club v.

EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F. 3d 537
(7th Cir. 2004); Our Children's Earth Foundation v. EPA, N. 04-73032
(9th Cir. June 28, 2005) (memorandum opinion), Latino Issues Forum, v.
EPA, Nos. 06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March
2, 2009.
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    \3\ ``EPA's Final Rule to implement the 8-hour Ozone National
Ambient Air Quality Standard--Phase 2 (Phase 2 Final Rule).'' (70 FR
71612, 71645-46) (November 29, 2005).
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    As noted previously in the rulemaking action, EPA incorporated its
Clean Data Policy interpretation in both its 1997 8-hour ozone
implementation rule and in its PM2.5 Implementation Rule in
40 CFR 51.1004(c). (72 FR 20585, 20665, April 25, 2007). While the D.C.
Circuit, in its January 4, 2013 decision, remanded the 1997
PM2.5 Implementation Rule, the Court did not address the
merits of that regulation, nor cast doubt on EPA's existing
interpretation of the statutory provisions.
    However, in light of the Court's decision, EPA sets forth here the
Clean Data Policy interpretation under subpart 4, for the purpose of
identifying the effects of a determination of attainment for the 2006
PM2.5 standard for the Pittsburgh Area. EPA has previously
articulated its Clean Data interpretation under subpart 4 in
implementing the PM10 standard. See e.g., (75 FR 27944, May
19, 2010) (determination of attainment of the PM-10 standard in Coso
Junction, California); (75 FR 6571, February 10, 2010), (71 FR 6352,
February 8, 2006) (Ajo, Arizona area); (71 FR 13021, March 14, 2006)
(Yuma, Arizona area); (71 FR 40023, July 14, 2006) (Weirton, West
Virginia area); (71 FR 44920, August 8, 2006) (Rillito, Arizona area);
(71 FR 63642, October 30, 2006) (San Joaquin Valley, California area);
(72 FR 14422, March 28, 2007) (Miami, Arizona area); (75 FR 27944, May
19, 2010) (Coso Junction, California area). Thus EPA has established
that, under subpart 4, an attainment determination suspends the
obligations to submit an attainment demonstration, RACM, RFP,
contingency measures, and other measures related to attainment.

V. Application of the Clean Data Policy to Attainment-Related
Provisions of Subpart 4

    In EPA's proposed and final rulemaking actions determining that the
San Joaquin Valley nonattainment area attained the PM10
standard, EPA set forth at length its rationale for applying the Clean
Data Policy to PM10 under subpart 4. The Ninth Circuit
upheld EPA's final rulemaking, and specifically EPA's Clean Data
Policy, in the context of subpart 4. Latino Issues Forum v. EPA, supra.
Nos. 06-75831 and 08-71238 (9th Cir.), Memorandum Opinion, March 2,
2009. In rejecting petitioner's challenge to the Clean Data Policy
under subpart 4 for PM10, the Ninth Circuit stated, ``As EPA
explained, if an area is in compliance with PM10 standards,
then further progress for the purpose of ensuring attainment is not
necessary.''
    The general requirements of subpart 1 apply in conjunction with the
more specific requirements of subpart 4, to the extent they are not
superseded or subsumed by the subpart 4 requirements. Subpart 1
contains general air quality planning requirements for areas designated
as nonattainment. See Section 172(c). Subpart 4 itself contains
specific planning and scheduling requirements for PM10
nonattainment areas, and under the Court's January 4, 2013 decision in
NRDC v. EPA, these same statutory requirements also apply for
PM2.5 nonattainment areas. EPA has longstanding general
guidance that interprets the 1990 amendments to the CAA, making
recommendations to states for meeting the statutory requirements for
SIPs for nonattainment areas. See ``State Implementation Plans; General
Preamble for the Implementation of Title I of the Clear Air Act
Amendments of 1990'' (57 FR 13498, April 16, 1992) (the ``General
Preamble''). In the General Preamble, EPA discussed the relationship of
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart
1 requirements were to an extent ``subsumed by, or integrally related
to, the more specific PM10 requirements.'' (57 FR 13538,
April 16, 1992). These subpart 1 requirements include, among other
things, provisions for attainment demonstrations, RACM, RFP, emissions
inventories, and contingency measures.
    EPA has long interpreted the provisions of subpart 1 (sections 171
and 172) as not requiring the submission of RFP for an area already
attaining the ozone NAAQS. For an area that is attaining, showing that
the state will make RFP towards attainment ``will, therefore, have no
meaning at that point.'' 57 FR 13564. See 71 FR 40952 and 71 FR 63642
(proposed and final determination of attainment for San Joaquin
Valley); 75 FR 13710 and 75 FR 27944 (proposed and final determination
of attainment for Coso Junction).
    Section 189(c)(1) of subpart 4 states that:

    Plan revisions demonstrating attainment submitted to the
Administrator for approval under this subpart shall contain
quantitative milestones which are to be achieved every 3 years until
the area is redesignated attainment and which demonstrate reasonable
further progress, as defined in section [171(1)] of this title,
toward attainment by the applicable date.

    With respect to RFP, section 171(1) states that, for purposes of
part D, RFP ``means such annual incremental reductions in emissions of
the relevant air pollutant as are required by this part or may
reasonably be required by the Administrator for the purpose of ensuring
attainment of the applicable NAAQS by the applicable date.'' Thus,
whether dealing with the general RFP requirement of section 172(c)(2),
the ozone-specific RFP requirements of sections 182(b) and (c), or the
specific RFP requirements for PM10 areas of subpart 4,
section 189(c)(1), the stated purpose of RFP is to ensure attainment by
the applicable attainment date.
    Although section 189(c) states that revisions shall contain
milestones which are to be achieved until the area is redesignated to
attainment, such milestones are designed to show reasonable further
progress ``toward attainment by the applicable attainment date,'' as
defined by section 171. Thus, it is clear that once the area has
attained the standard, no further milestones are necessary or
meaningful. This interpretation is supported by language in section
189(c)(3), which mandates that a state that fails to achieve a
milestone must submit a plan that assures that the state will achieve
the next milestone or attain the NAAQS if there is no next milestone.
    Section 189(c)(3) assumes that the requirement to submit and
achieve milestones does not continue after attainment of the NAAQS.
    In the General Preamble, EPA noted with respect to section 189(c)
that the purpose of the milestone requirement ``is to provide for
emission reductions adequate to achieve the standards by the applicable
attainment date (H.R. Rep. No. 490 101st Cong., 2d Sess. 267 (1990)).''
(57 FR 13539, April 16, 1992). If an area has in fact attained the
standard, the stated purpose of the RFP requirement will have already
been fulfilled.\4\ Similarly, the requirements of

section 189(c)(2) with respect to milestones no longer apply so long as
an area has attained the standard. Section 189(c)(2) provides in
relevant part that:
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    \4\ Thus, EPA believes that it is a distinction without a
difference that section 189(c)(1) speaks of the RFP requirement as
one to be achieved until an area is ``redesignated attainment,'' as
opposed to section 172(c)(2), which is silent on the period to which
the requirement pertains, or the ozone nonattainment area RFP
requirements in sections 182(b)(1) or 182(c)(2), which refer to the
RFP requirements as applying until the ``attainment date,'' since
section 189(c)(1) defines RFP by reference to section 171(1) of the
Act. Reference to section 171(1) clarifies that, as with the general
RFP requirements in section 172(c)(2) and the ozone-specific
requirements of section 182(b)(1) and 182(c)(2), the PM-specific
requirements may only be required ``for the purpose of ensuring
attainment of the applicable national ambient air quality standard
by the applicable date.'' 42 U.S.C. 7501(1). As discussed in the
text of this rulemaking, EPA interprets the RFP requirements, in
light of the definition of RFP in section 171(1), and incorporated
in section 189(c)(1), to be a requirement that no longer applies
once the standard has been attained.

    Not later than 90 days after the date on which a milestone
applicable to the area occurs, each State in which all or part of
such area is located shall submit to the Administrator a
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demonstration . . . that the milestone has been met.

    Where the area has attained the standard and there are no further
milestones, there is no further requirement to make a submission
showing that such milestones have been met. This is consistent with the
position that EPA took with respect to the general RFP requirement of
section 172(c)(2) in the April 16, 1992 General Preamble and also in
the May 10, 1995 Seitz memorandum with respect to the requirements of
section 182(b) and (c). In the May 10, 1995 Seitz memorandum, EPA also
noted that section 182(g), the milestone requirement of subpart 2,
which is analogous to provisions in section 189(c), is suspended upon a
determination that an area has attained. The memorandum, also citing
additional provisions related to attainment demonstration and RFP
requirements, stated:

    ``Inasmuch as each of these requirements is linked with the
attainment demonstration or RFP requirements of section 182(b)(1) or
182(c)(2), if an area is not subject to the requirement to submit
the underlying attainment demonstration or RFP plan, it need not
submit the related SIP submission either.'' See 1995 Seitz
memorandum at 5.

    With respect to the attainment demonstration requirements of
section 172(c) and section 189(a)(1)(B), an analogous rationale leads
to the same result. Section 189(a)(1)(B) requires that the plan provide
for ``a demonstration (including air quality modeling) that the [SIP]
will provide for attainment by the applicable attainment date . . .''
As with the RFP requirements, if an area is already monitoring
attainment of the standard, EPA believes there is no need for an area
to make a further submission containing additional measures to achieve
attainment. This is also consistent with the interpretation of the
section 172(c) requirements provided by EPA in the General Preamble,
and the section 182(b) and (c) requirements set forth in the Seitz
memo. As EPA stated in the General Preamble, no other measures to
provide for attainment would be needed by areas seeking redesignation
to attainment since ``attainment will have been reached.'' 57 FR 13564.
    Other SIP submission requirements are linked with these attainment
demonstration and RFP requirements, and similar reasoning applies to
them. These requirements include the contingency measure requirements
of section 172(c)(9). EPA has interpreted the contingency measure
requirements of section 172(c)(9) \5\ as no longer applying when an
area has attained the standard because those ``contingency measures are
directed at ensuring RFP and attainment by the applicable date.'' 57 FR
13564; Seitz memo, pp. 5-6. Section 172(c)(9) provides that SIPs in
nonattainment areas:
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    \5\ See section 182(c)(9) for ozone.

    ``shall provide for the implementation of specific measures to
be undertaken if the area fails to make reasonable further progress,
or to attain the [NAAQS] by the attainment date applicable under
this part. Such measures shall be included in the plan revision as
contingency measures to take effect in any such case without further
---------------------------------------------------------------------------
action by the State or [EPA].''

    The contingency measure requirement is inextricably tied to the
reasonable further progress and attainment demonstration requirements.
Contingency measures are implemented if reasonable further progress
targets are not achieved, or if attainment is not realized by the
attainment date. Where an area has already achieved attainment by the
attainment date, it has no need to rely on contingency measures to come
into attainment or to make further progress to attainment. As EPA
stated in the General Preamble: ``The section 172(c)(9) requirements
for contingency measures are directed at ensuring RFP and attainment by
the applicable date.'' See 57 FR 13564. Thus, these requirements no
longer apply when an area has attained the standard.
    Both sections 172(c)(1) and 189(a)(1)(C) require ``provisions to
assure that reasonably available control measures'' (i.e., RACM) are
implemented in a nonattainment area. The General Preamble, (57 FR
13560, April 16, 1992), states that EPA interprets section 172(c)(1) so
that RACM requirements are a ``component'' of an area's attainment
demonstration. Thus, for the same reason the attainment demonstration
no longer applies by its own terms, the requirement for RACM no longer
applies. EPA has consistently interpreted this provision to require
only implementation of potential RACM measures that could contribute to
reasonable further progress or to attainment. General Preamble, 57 FR
13498. Thus, where an area is already attaining the standard, no
additional RACM measures are required.\6\ EPA is interpreting section
189(a)(1)(C) consistent with its interpretation of section 172(c)(1).
---------------------------------------------------------------------------

    \6\ EPA's interpretation that the statute requires
implementation only of RACM measures that would advance attainment
was upheld by the United States Court of Appeals for the Fifth
Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002),
and by the United States Court of Appeals for the D.C. Circuit
(Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)).
---------------------------------------------------------------------------

    The suspension of the obligations to submit SIP revisions
concerning these RFP, attainment demonstration, RACM, contingency
measures and other related requirements exists only for as long as the
area continues to monitor attainment of the standard. If EPA
determines, after notice-and-comment rulemaking, that the area has
monitored a violation of the NAAQS, the basis for the requirements
being suspended would no longer exist. In that case, the area would
again be subject to a requirement to submit the pertinent SIP revision
or revisions and would need to address those requirements. Thus, a
final determination that the area need not submit one of the pertinent
SIP submittals amounts to no more than a suspension of the requirements
for so long as the area continues to attain the standard. Only if and
when EPA redesignates the area to attainment would the area be relieved
of these submission obligations. Attainment determinations under the
Clean Data Policy do not shield an area from obligations unrelated to
attainment in the area, such as provisions to address pollution
transport.
    As set forth previously, based on our proposed determination that
the Pittsburgh Area is currently attaining the 2006 24-hour
PM2.5 NAAQS, EPA proposes to find that the obligations to
submit planning provisions to meet the requirements for an attainment
demonstration, RFP, RACM, and contingency measures are suspended for so
long as the area continues to monitor attainment of the 2006 24-hour
PM2.5 NAAQS. If in the future, EPA determines after notice-
and-comment rulemaking that the area again violates the 2006 24-hour
PM2.5 NAAQS, the basis for suspending the attainment
demonstration, RFP, RACM, and contingency measure obligations would no
longer exist. See 40 CFR 51.1004(c).

VI. Description of 2011 Clean Data MVEBs

    Under section 176(c) of the CAA, new transportation plans,
programs, and

projects, such as the construction of new highways, must ``conform'' to
(i.e., be consistent with) the part of the state's air quality plan
that addresses pollution from cars and trucks. The CAA requires Federal
actions in nonattainment and maintenance areas to ``conform to'' the
goals of the SIP. This means that such actions will not cause or
contribute to violations of NAAQS; worsen the severity of an existing
violation; or delay timely attainment of any NAAQS or any interim
milestone.
    As described in 40 CFR 93.109(c)(5) of the transportation
conformity rule and the preamble of the Transportation Conformity
Restructuring Amendments (77 FR 14982, March 14, 2012), any
nonattainment area that EPA determines has air quality monitoring data
that meet the requirements of 40 CFR parts 50 and 58 and that show
attainment of a NAAQS (clean data) must satisfy one of the following
requirements: (1) The budget test and/or interim emissions tests as
required by section 93.118 and 93.119; (2) the budget test as required
by section 93.118, using the adequate or approved MVEBs in the
submitted or applicable control strategy implementation plan for the
NAAQS for which the area is designated nonattainment; or (3) the budget
test as required by section 93.118, using the motor vehicle emissions
in the most recent year of attainment as MVEBs, if the state or local
air quality agency requests that the motor vehicle emissions in the
most recent year of attainment be used as budgets, and EPA approves the
request in the rulemaking that determines that the area has attained
the NAAQS for which the area is designated nonattainment.
    On January 17, 2013, EPA received a request for the approval and
establishment of MVEBs for PM2.5 and NOX for the
Pittsburgh Area from PADEP for the year 2011. The transportation
conformity rule allows the state air quality agency to request that
motor vehicle emissions in the most recent year of clean data be used
as budgets. EPA must approve that request in the rulemaking that
determines that the area has attained the relevant NAAQS (40 CFR
93.109(c)(5)(iii)). These budgets were calculated using the Motor
Vehicle Emissions Simulator emissions model (MOVES). The MOVES model is
EPA's state-of-the-art tool for estimating highway emissions that
incorporates the latest emissions data. For more information, see EPA's
``Policy Guidance on the Use of MOVES2010 and Subsequent Minor Model
Revisions for State Implementation Plan Development, Transportation
Conformity, and Other Purposes'' (April 2012).
    The Pittsburgh Area may establish clean data MVEBs under 40 CFR
93.109(c)(5)(iii) because the following criteria were met: (1) The
state requested that budgets be established in conjunction with EPA's
determination of attainment (Clean Data) rulemaking for the 2006 24-
hour PM2.5 NAAQS, and EPA approved the request; and (2) the
Pittsburgh Area has not submitted a maintenance plan for the 2006 24-
hour PM2.5 NAAQS and EPA has determined that the Area is not
subject to the CAA RFP and attainment demonstration requirements for
the 2006 24-hour PM2.5 NAAQS.
    In accordance with the transportation conformity regulations at 40
CFR 93.102(b)(1) and (2)(iv) and (v), only MVEBs for PM2.5
and NOX for year 2011 are applicable for meeting conformity
requirements in the Pittsburgh Area. The transportation conformity rule
requires that before a SIP is submitted the area must address direct
PM2.5 emissions and must also address NOX
emissions unless EPA and the state have made a finding that
transportation-related emissions of NOX are not a
significant contributor to the area's PM2.5 problem.
Therefore, the Commonwealth has requested that MVEBs be established for
on-road emissions of direct PM2.5 and NOX. With
regard to the remaining PM2.5 precursors which are volatile
organic compounds (VOCs), sulfur dioxide (SO2), and ammonia
(NH3), the transportation conformity rule indicates that
before a SIP is submitted, these precursors must be addressed only if
either EPA or the Commonwealth makes a finding that on-road emissions
of any of these precursors is a significant contributor to the area's
PM2.5 problem. Neither EPA nor the Commonwealth has made
such a finding with regard to any of these precursors. Therefore,
consistent with the transportation conformity rule, the Commonwealth
did not request that MVEBs be established for VOCs, SO2 or
NH3.
    EPA issued conformity regulations to implement the 2006
PM2.5 NAAQS in March 2010 (75 FR 14260, March 24, 2010).
Those actions were not part of the final rule recently remanded to EPA
by the DC Circuit in NRDC v. EPA, 706 F.3d 428, in which the court
remanded to EPA the implementation rule for the PM2.5 NAAQS
because it concluded that EPA must implement that NAAQS pursuant to the
PM-specific implementation provisions of subpart 4, rather than solely
under the general provisions of subpart 1. That decision does not
affect EPA's proposed approval of the Pittsburgh Area MVEBs.
    First, as noted above, EPA's conformity rules implementing the
PM2.5 NAAQS were separate actions from the overall
PM2.5 implementation rule addressed by the Court and were
not considered or disturbed by the decision. Therefore, the conformity
regulations were not at issue in NRDC v. EPA.\7\ In addition, as
discussed elsewhere in today's proposal, the Pittsburgh Area attained
the 2006 PM2.5 NAAQS of 35 [mu]g/m\3\ based on 2010-2012 air
quality data.
---------------------------------------------------------------------------

    \7\ The 2004 rulemaking action addressed most of the
transportation conformity requirements that apply in
PM2.5 nonattainment and maintenance areas. The 2005
conformity rule included provisions addressing treatment of
PM2.5 precursors in MVEBs. See 40 CFR 93.102(b)(2). The
2010 rulemaking addressed requirements for the 2006 PM2.5
NAAQS. While none of these provisions were challenged in the NRDC
case, EPA also notes that the court declined to address challenges
to EPA's presumptions regarding PM2.5 precursors in the
PM2.5 implementation rule. NRDC v. EPA, 706 F.3d at 437
n.10.
---------------------------------------------------------------------------

    EPA has reviewed the direct PM2.5 and NOX
MVEBs that were submitted by the Commonwealth. EPA reviewed the budgets
by applying the general requirements of the transportation conformity
rule's adequacy criteria (40 CFR 93.118(e)(4)(i)-(v)). These criteria
are not directly applicable because they apply to budgets that are
submitted as part of a SIP submittal and the budgets that are under
review in this action were submitted under the transportation
conformity rule provision that allows a state to request that budgets
be established through the EPA's clean data determination process.
However, these criteria establish a general framework for the review of
any MVEBs before those budgets are made effective for the use in
transportation conformity determinations. A more detailed evaluation of
how the Pittsburgh Area satisfied the requirements for clean data MVEBs
can be found in a separate TSD for this action entitled, ``Technical
Support Document for the Review of the Clean Data Motor Vehicle
Emissions Budgets (MVEBs) for Fine Particulate Matter
(PM2.5) and Nitrogen Oxide (NOX) for the
Determination of Attainment of the 2006 24-Hour Fine Particulate Matter
Standard for the Pittsburgh-Beaver Valley Nonattainment Area,'' which
is available online at www.regulations.gov, Docket ID No. EPA-R03-OAR-
2012-0753.
    EPA is proposing to approve the following MVEBs for the 2006 24-
hour PM2.5 NAAQS in Table 2:

                                    Table 2--Motor Vehicle Emissions Budgets
----------------------------------------------------------------------------------------------------------------
                                                                                PM2.5 (tons/
                       Geographic area                               Year            year)       NOX (tons/year)
----------------------------------------------------------------------------------------------------------------
Pittsburgh Area..............................................            2011           961.71        28,973.05
----------------------------------------------------------------------------------------------------------------

    If EPA approves these MVEBs in the final rulemaking action, the new
MVEBs must be used for future transportation conformity determinations.
The 2011 MVEBs, if approved in the final rulemaking action, will be
effective on the date of publication of EPA's final rulemaking action
in the Federal Register.

 VII. Proposed Actions

    EPA proposes to determine, based on the most recent three years of
complete, quality-assured and certified data meeting the requirements
of 40 CFR part 50, appendix N, that the Pittsburgh Area is currently
attaining the 2006 24-hour PM2.5 NAAQS. Based upon EPA's
proposed determination that Pittsburgh Area is currently attaining the
standard, EPA proposes to determine that the obligation to submit the
following attainment-related planning requirements are not applicable
for so long as the Area continues to attain the PM2.5
standard: Subpart 4 obligations to provide an attainment demonstration
pursuant to section 189(a)(1)(B), the RACM provisions of section
189(a)(1)(C), the RFP provisions of section 189(c), and related
attainment demonstration, RACM, RFP, and contingency measure provisions
requirements of subpart 1, section 172. This proposed rulemaking
action, if finalized, would not constitute a redesignation to
attainment under CAA section 107(d)(3).
    In conjunction with this proposed finding of attainment, pursuant
to 40 CFR 93.109(c)(5)(iii), as described in the transportation
conformity rule and the preamble of the Transportation Conformity
Restructuring Amendments (77 FR 14982, March 14, 2012), EPA is also
proposing to approve the MVEBs for the 2006 24-hour PM2.5
NAAQS. EPA is soliciting public comments on the issues discussed in
this document. These comments will be considered before taking final
action.

VIII. Statutory and Executive Order Reviews

    This rulemaking action proposes to make a determination of
attainment based on air quality, and would, if finalized, result in the
suspension of certain federal requirements. This action does not impose
additional requirements beyond those imposed by state law. For that
reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed determination of attainment of the
Pittsburgh Area with respect to the 2006 24-hour PM2.5 NAAQS
and the MVEBs, does not have tribal implications as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), because the
determination is not approved to apply in Indian country located in the
state, and EPA notes that it will not impose substantial direct costs
on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter, Reporting and recordkeeping
requirements.

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

    Dated: July 31, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-19760 Filed 8-13-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 80, Number 44 (Friday, March 6, 2015)]
[Notices]
[Pages 12168-12169]
[FR Doc No: 2015-05253]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP15-92-000]

Equitrans, L.P.; Notice of Request Under Blanket Authorization

    Take notice that on February 19, 2015, Equitrans, L.P. (Equitrans),
625 Liberty Avenue, Suite 1700, Pittsburgh, Pennsylvania 15222-3111,
filed a prior notice application pursuant to section 7(b) of the
Natural Gas Act (NGA) and sections 157.205, 157.208, 157.210, and
157.216 of the Federal Energy Regulatory Commission's (Commission)
regulations under the NGA, and Equitrans' blanket certificate issued in
Docket No. CP96-352-000. Equitrans seeks authorization to abandon and
replace a segment of its TP-7911 pipeline located in Cambria County,
Pennsylvania, all as more fully set forth in the application, which is
open to the public for inspection. The filing may also be viewed on the
Web at http://www.ferc.gov using the ``eLibrary'' link. Enter the
docket number excluding the last three digits in the docket number
field to access the document. For assistance, contact FERC at
<EMAIL_ADDRESS>or call toll-free,<PHONE_NUMBER> or TTY,
(202) 502-8659.
    Any questions regarding this application should be Paul Diehl,
Senior Counsel--Midstream, EQT Corporation, 625 Liberty Avenue, Suite
1700, Pittsburgh, PA 15222, or phone<PHONE_NUMBER>, or by email
<EMAIL_ADDRESS>    Specifically, Equitrans proposes to replace approximately 3.0 miles
of 12-inch diameter pipe with 20-inch diameter pipeline and install pig
launchers and receivers to maintain system integrity by providing
Equitrans with the ability to perform in-line inspections for assessing
the condition of the pipeline, as well as increase the operational
reliability of the TP-7911 pipeline.
    Any person or the Commission's staff may, within 60 days after
issuance of the instant notice by the Commission, file pursuant to Rule
214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to
intervene or notice of intervention and pursuant to Section 157.205 of
the regulations under the NGA (18 CFR 157.205), a protest to the
request. If no protest is filed within the time allowed therefore, the
proposed activity shall be deemed to be authorized effective the day
after the time allowed for filing a protest. If a protest is filed and
not withdrawn within 30 days after the allowed time

for filing a protest, the instant request shall be treated as an
application for authorization pursuant to section 7 of the NGA.
    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9,
within 90 days of this Notice the Commission staff will either:
Complete its environmental assessment (EA) and place it into the
Commission's public record (eLibrary) for this proceeding; or issue a
Notice of Schedule for Environmental Review. If a Notice of Schedule
for Environmental Review is issued, it will indicate, among other
milestones, the anticipated date for the Commission staff's issuance of
the final environmental impact statement (FEIS) or EA for this
proposal. The filing of the EA in the Commission's public record for
this proceeding or the issuance of a Notice of Schedule for
Environmental Review will serve to notify federal and state agencies of
the timing for the completion of all necessary reviews, and the
subsequent need to complete all federal authorizations within 90 days
of the date of issuance of the Commission staff's FEIS or EA.
    Persons who wish to comment only on the environmental review of
this project should submit an original and two copies of their comments
to the Secretary of the Commission. Environmental commenters will be
placed on the Commission's environmental mailing list, will receive
copies of the environmental documents, and will be notified of meetings
associated with the Commission's environmental review process.
Environmental commenters will not be required to serve copies of filed
documents on all other parties. However, the non-party commenter will
not receive copies of all documents filed by other parties or issued by
the Commission (except for the mailing of environmental documents
issued by the Commission) and will not have the right to seek court
review of the Commission's final order.
    The Commission strongly encourages electronic filings of comments,
protests and interventions in lieu of paper using the ``eFiling'' link
at http://www.ferc.gov. Persons unable to file electronically should
submit an original and 5 copies of the protest or intervention to the
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426.

    Dated: February 27, 2015.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2015-05253 Filed 3-5-15; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register: June 29, 2007 (Volume 72, Number 125)]
[Notices]
[Page 35702]
[DOCID:fr29jn07-46]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. QF07-115-000]

Continental Cogeneration Services; Notice of Self-Certification
of Qualifying Status of a Cogeneration Facility

June 22, 2007.
    Take notice that on March 9, 2007, as completed on May 30, 2007,
Continental Cogeneration Services, 964 Ebbets Ave., Manteca,
California, filed with the Federal Energy Regulatory Commission a
notice of self-certification of a facility as a qualifying cogeneration
facility pursuant to 18 CFR 292.207(a) of the Commission's regulations.
    The facility for which certification is requested is a topping-
cycle cogeneration facility. The primary energy source is natural gas.
The power production equipment includes a Siemens SGT6-5000F gas
turbine in combined cycle, with a maximum net power production of 275
MW. The location of the facility is 12045 South Ingomar Grade, Los
Banos, California.
    The Name of the electric utility with which the facility expects to
interconnect, transmit or sell electric energy to, or purchase
supplementary, standby, back-up and maintenance power is the Pacific
Gas & Electric Company (PG&E).
    The applicant proposes to sell more than 50 percent of its
aggregate, annual energy output to PG&E. Although the facility does not
fall within the 50 percent ``safe harbor'' for fundamental use of
energy output in 18 CFR 292.205(d)(3), the applicant argues that the
facility's beneficial use of biomethane from digested cow manure as 5
percent of the fuel input is sufficient to meet the requirements of 18
CFR 292.205(d)(2).
    A notice of self-certification does not institute a proceeding
regarding qualifying facility status; a notice of self-certification
provides notice that the entity making filing has determined the
Facility meets the applicable criteria to be a qualifying facility. Any
person seeking to challenge such qualifying facility status may do so
by filing a motion pursuant to 18 CFR 292.207(d)(iii).
    This filing is accessible on-line at http://www.ferc.gov., using

the ``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-12614 Filed 6-28-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 75, Number 40 (Tuesday, March 2, 2010)]
[Notices]
[Pages 9468-9470]
[FR Doc No: 2010-4229]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61556; File No. SR-NYSEAmex-2010-13]

Self-Regulatory Organizations; Notice of Filing and Order
Granting Accelerated Approval of Proposed Rule Change by NYSE Amex LLC
Changing Certain NYSE Amex Equities Rules 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, NYSE Amex LLC (the ``Exchange'' or
``NYSE Amex'') 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 self-regulatory
organization. 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 Amex Equities Rules
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.
---------------------------------------------------------------------------

    \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 Amex Equities Rules 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 Exchange Rules and that, as applicable, Exchange 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\
the New York Stock Exchange LLC (``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''). The Exchange 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 Amex Equities 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\
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    \11\ FINRA 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). Rule 313--NYSE Amex Equities does not have these references.
    FINRA also deleted certain FINRA Incorporated NYSE Rule
Interpretations. See Securities Exchange Act Release No. 60933
(November 4, 2009), 74 FR 58334 (November 12, 2009). The Exchange
has not adopted a corresponding version of the NYSE Rule
Interpretations and so those rule changes are not applicable to the
Exchange and are not included in this filing.
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    To harmonize the NYSE Amex Equities Rules with the approved
consolidated FINRA Rules, the Exchange correspondingly proposes to
delete and/or amend Rules 312(g)-(h)-, 313(d)-, 325-, 326(a)-(d)-, 328-
, 416.20-, 418-, 420- and 421- NYSE Amex Equities, and replace them
with proposed Rules 4110-, 4120-, 4130-, 4140- and 4521- NYSE Amex
Equities, which are substantially similar to the new FINRA Rules.\12\
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    \12\ NYSE has submitted a companion rule filing amending its
rules in accordance with FINRA's rule changes. See SR-NYSE-2010-10.
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    As proposed, Rules 4110-, 4120-, 4130-, 4140- and 4521- NYSE Amex
Equities 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 Amex's and FINRA's membership
structures.
    In addition, the Exchange proposes other changes to the NYSE Amex
Equities version of the Rules in order to apply them to the Exchange.
First, in proposed Rules 4110(a)- and 4140(a)- NYSE Amex Equities, 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 Rules 4110-, 4120- and 4130- NYSE Amex
Equities, the Exchange proposes to add cross-references to NYSE Amex
Disciplinary Rule 475. Similar to FINRA Rule 9557, NYSE Amex
Disciplinary 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 Rules 4140(b)- and 4521(e)- NYSE Amex
Equities, 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 Amex Equities version of the Rules. Accordingly, proposed Rules
4140(b)- and 4521(e)- NYSE Amex Equities 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 Exchange Equities 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
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
Amex Equities Rules and that, as applicable, the NYSE Amex Equities
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-Amex 2010-13 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-NYSEAmex-2010-13. 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. Copies of the filing will also be
available for inspection and copying at the NYSE Amex's principal
office and on its Internet Web site at http://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-NYSEAMEX-2010-13 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 proposed
rule change is consistent with Section 6(b) of the Act,\15\ and 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 \16\ because the
proposal will promote harmonization between the Exchange Equities Rules
and FINRA Rules, resulting in less burdensome and more efficient
regulatory compliance for Common Members. The Commission also believes
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 \17\ and the rules and regulations thereunder
applicable to a national securities exchange \18\ because: (1) The
proposed rule changes will become operative and effective at the same
time as FINRA's rule changes; (2) there will be no regulatory gaps
between the FINRA and NYSE Amex Equities Rules; and (3) that, as
applicable, the NYSE Amex Equities Rules will maintain their status as
Common Rules under the 17d-2 Agreement. The Commission believes that
these factors will further promote regulatory compliance and
efficiency.
---------------------------------------------------------------------------

    \15\ See 78f(b).
    \16\ See 78f(b)(5).
    \17\ 15 U.S.C. 78f.
    \18\ In approving this proposed rule change, the Commission has
considered its impact on efficiency, competition, and capital
formation. See 78c(f).
---------------------------------------------------------------------------

    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.\19\ 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 Amex Equities 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,\20\ for approving the proposed rule change
prior to the thirtieth day after publication of the notice thereof in
the Federal Register.
---------------------------------------------------------------------------

    \19\ 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.
    \20\ See 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\21\ that the proposed rule change, (SR-NYSEAmex-2010-13), is
hereby approved on an accelerated basis.
---------------------------------------------------------------------------

    \21\ See id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-4229 Filed 3-1-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: November 19, 2009 (Volume 74, Number 222)]
[Notices]
[Page 60008-60009]
[DOCID:fr19no09-82]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60995; File No. SR-CBOE-2009-084]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Notice of Filing and Immediate Effectiveness of a
Proposal To Codify Certain Provisions of the Options Listing Procedures
Plan Into CBOE's Rules

November 13, 2009.
    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 October 30, 2009, the Chicago Board Options Exchange,
Incorporated (``Exchange'' or ``CBOE'') 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 Exchange filed the proposal as a ``non-
controversial'' proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \3\ and Rule 19b-4(f)(6) thereunder.\4\ The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    For ease of reference, CBOE proposes to codify certain provisions
of the Options Listing Procedures Plan (``OLPP'') into its rules. The
text of the rule proposal is available on the Exchange's Web site
(http://www.cboe.org/legal), 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 self-regulatory organization
included statements concerning the purpose of and basis for the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    The Options Listing Procedures Plan (``OLPP'') was approved by the
Securities and Exchange Commission (the ``Commission'') on July 6, 2001
and has been amended several times.\5\ The OLPP provides procedures
for: (i) Listing and trading new option classes; (ii) selecting new
options series; (iii) petitioning The Options Clearing Corporation
(``OCC'') to review the eligibility, pursuant to the exchanges' listing
standards, of a selected option class without delaying the trading of
that option class; (iv) determining operational details for option
contracts adjusted pursuant to OCC By-Laws; (v) admitting new sponsors;
and (vi) losing eligibility to participate in the OLPP.
---------------------------------------------------------------------------

    \5\ See e.g., Securities Exchange Act Release Nos. 44521 (July
6, 2001), 66 FR 36809 (July 13, 2001) (order approving OLPP); 58205
(July 22, 2008), 73 FR 43798 (July 28, 2008) (order granting
permanent approval to amendment no. 1 to the OLPP); 58630 (September
24, 2008) 73 FR 57166 (October 1, 2008) (order granting permanent
approval to amendment no. 2 to the OLPP); and 60531 (August 19,
2009), 74 FR 43173 (August 26, 2009) (order approving amendment no.
3 to the OLPP).
---------------------------------------------------------------------------

    This current filing is primarily concerned with codifying certain
provisions of the OLPP pertaining to selecting new option series and
certain strike setting parameters that have been adopted under the
OLPP. The Exchange believes that it is helpful to codify select
provisions into CBOE's rules so that all applicable rules governing
series selection and applicable strike setting parameters are located
in a single place. In addition, the Exchange understands that other
Sponsor Exchanges to the OLPP will be submitting similar filings to
codify portions of the OLPP in their respective rulebooks. Below the
Exchange briefly describes the provisions of the OLPP that the Exchange
is proposing to codify into CBOE's rules.

OLPP Amendments Pertaining to LEAPS

    Amendments 1 and 2 to the OLPP adopted provisions governing the
listing of Long-Term Equity Option Series (``LEAPS''). Amendment 1
provided for a uniform time frame for the introduction of new LEAPS on
equity option classes, options on exchange traded funds (``ETFs''), or
options on Trust Issued Receipts (``TIRs''). The Exchange is proposing
to codify the changes made to the OLPP by Amendment 1 as new
subparagraph (c) to Rule 5.8, Long-Term Equity Option Series
(LEAPS[supreg]). Amendment 2

provided for a uniform minimum volume threshold per underlying class to
qualify for the introduction of a new expiration year of LEAPs on
equity, ETF and TIR classes. The Exchange is proposing to codify the
changes made to the OLPP by Amendment 2 as new subparagraph (d) to Rule
5.8.

Strike Setting Parameters

    Amendment 3 to the OLPP adopted uniform objective standards to the
range of options series exercise (or strike) prices available for
trading on Sponsor Exchanges to the OLPP as a quote mitigation
strategy. The Exchange is proposing to codify the changes made to the
OLPP by Amendment 3 as new Rule 5.5A, Select Provisions of Options
Listing Procedures Plan. The Exchange is proposing to create a new rule
that can be easily amended in the future if other amendments to the
OLPP are made which similarly warrant being codified into CBOE's rules.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) \6\ of the Act, in general, and furthers the
objectives of Section 6(b)(5),\7\ in particular, in that it is designed
to prevent fraudulent and manipulative acts and practices, to promote
just and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanisms 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 codifying certain provisions of the OLPP, as amended, serves to
foster investor protection.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

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

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

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

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \8\ and Rule 19b-4(f)(6) thereunder.\9\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act \10\ and Rule 19b-
4(f)(6)(iii) thereunder.\11\
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    \8\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \9\ 17 CFR 240.19b-4(f)(6).
    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires the Exchange to give the Commission written
notice of the Exchange's intent to file the proposed rule change
along with a brief description and the text of the proposed rule
change, at least five business days prior to the date of filing of
the proposed rule change, or such shorter time as designated by the
Commission. The Exchange has satisfied the pre-filing requirement.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2009-084 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-CBOE-2009-084. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the self-regulatory
organization. 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-
CBOE-2009-084 and should be submitted on or before December 10, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-27749 Filed 11-18-09; 8:45 am]

BILLING CODE 8011-01-P