[Federal Register Volume 88, Number 47 (Friday, March 10, 2023)]
[Rules and Regulations]
[Pages 14918-14920]
[FR Doc No: 2023-04959]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2017-0355; FRL-10477-01-OAR]
RIN 2060-AV88

Delay of Submittal Date for State Plans Required Under the
Affordable Clean Energy Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; delay of state plan submittal dates.

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

SUMMARY: This action extends until April 15, 2024, the deadline for
state plans required to be submitted under the Clean Air Act (CAA) in
accordance with the Affordable Clean Energy (ACE) rule.

DATES: This regulation is effective March 10, 2023.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2017-0355. All documents in the docket are
listed on the https://www.regulations.gov/ website. Although listed,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy form. Publicly available docket materials are available
electronically through https://www.regulations.gov/.

FOR FURTHER INFORMATION CONTACT: For questions about this document
contact Mr. Nicholas Swanson, Sector Policies and Programs Division
(D243-02), Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number:<PHONE_NUMBER>; email address:
[email protected].

SUPPLEMENTARY INFORMATION: The EPA is taking this final action without
providing an opportunity for public comment, based on the good cause
exception in section 553(b)(3)(B) of the Administrative Procedure Act
(APA). The Agency has determined that seeking public comment is
impracticable, unnecessary, or contrary to the public interest. The
deadline for state plan submission has already passed, which
necessitates an extension, and it is important that the EPA grant that
extension as soon as possible to avoid confusion and uncertainty among
states and regulated industry as to what their obligations are.

I. Background and Extension of Deadlines

    On July 8, 2019, the EPA promulgated the Affordable Clean Energy
(ACE) rule, under CAA section 111(d) (84 FR 32520, July 8, 2019). The
ACE rule is an emissions guideline that directs states to develop plans
that establish standards of performance for carbon dioxide
(CO2) emissions from existing coal-fired electricity
generating units. The ACE rule repealed and replaced the Clean Power
Plan, which the EPA had promulgated in 2015 (80 FR 64662, October 23,
2015).
    Under CAA section 111(d)(1), the standards of performance in such a
state plan are required to achieve an amount of emission reduction that
the EPA determines can be achieved through application by the sources
of what the EPA determines to be the ``best system of emission
reduction . . . adequately demonstrated'' (BSER) for reducing emissions
of the pollutant in question from the sources in question. CAA section
111(a)(1). The ACE rule required states to submit plans to the EPA that
establish standards of performance within three years of the date that
the rule was published, that is, by July 8, 2022 (40 CFR 60.5745a).
    Numerous state and municipal governments, power utilities,
renewable energy trade associations, public health and environmental
advocacy groups, and other parties filed petitions to review the ACE
rule before the United States Court of Appeals for the District of
Columbia Circuit (D.C. Circuit).
    On January 19, 2021, following briefing and oral argument, the D.C.
Circuit issued a decision vacating the ACE rule. American Lung Ass'n v.
EPA, 985 F.3d 914 (D.C. Cir. 2021). The court based the vacatur on its
holding that the ACE rule's underlying legal interpretation, which was
that CAA

section 111(a)(1) and (d)(1) limited the BSER to control measures that
can be applied at and to the source to reduce emissions at the source,
is incorrect. Id. at 944-51. In light of this holding, the court did
not find it necessary to address, and did not address, other legal and
factual issues that petitioners raised concerning the ACE rule. The
court issued a partial mandate concerning this part of its decision on
March 5, 2021. American Lung Ass'n v. EPA, No. 19-1140, Order, Doc. Id.
No. 1888579 (D.C. Cir. March 5, 2021).
    On October 2021, the U.S. Supreme Court granted petitions for
certiorari filed by several parties to the case, and, on June 30, 2022,
issued a decision reversing the D.C. Circuit on other grounds. West
Virginia v. EPA, 142 S.Ct. 2587 (2022). Specifically, the Court
reversed the D.C. Circuit's vacatur of the ACE rule's repeal of the
Clean Power Plan, holding that the Clean Power Plan was invalid under
the major questions doctrine. Id. at 2615-16.
    On October 27, 2022, the D.C. Circuit responded to the Supreme
Court decision by issuing an order that, in relevant part, withdrew the
above-noted mandate, thereby reinstating the ACE rule. Because the EPA
had informed the court that it is presently undertaking a rulemaking
process to replace the ACE rule with a new rule governing greenhouse
gas emissions from existing fossil-fuel-fired power plants, the court
placed the case in abeyance pending completion of that rulemaking,
rather than proceed to consider the remaining factual and legal issues
raised by petitioners with respect to the ACE rule.
    Thus, the ACE rule was vacated for the last 536 days of the three-
year period for state plan submittal, beginning on January 19, 2021,
and extending through July 8, 2022. The rule remained vacated through
October 26, 2022, and then was reinstated on October 27, 2022. Because
the ACE rule has been reinstated, states are once again under an
obligation to submit the state plans required under the rule. However,
because the rule's July 8, 2022, deadline has passed, and because
states had no reason to continue to work on their plans during the
period when the ACE rule was vacated, it is necessary to extend the
deadline for state plan submittal.
    Accordingly, in this action, the EPA is extending the date of state
plan submittal by 536 days from the October 27, 2022, reinstatement of
the ACE rule. Thus, the ACE rule state plans are now due on April 15,
2024. As just noted, this 536-day period is the length of time that the
ACE rule was vacated from the January 19, 2021, D.C. Circuit decision
in American Lung Ass'n v. EPA to the rule's July 8, 2022, state plan
submittal due date.
    The EPA is taking this final action without providing an
opportunity for public comment, based on the good cause exception in
section 553(b)(3)(B) of the Administrative Procedure Act (APA). The
Agency has determined that seeking public comment is impracticable,
unnecessary, or contrary to the public interest. The deadline for state
plan submission has already passed, which necessitates an extension,
and it is important that the EPA grant that extension as soon as
possible to avoid confusion and uncertainty among states and regulated
industry as to what their obligations are. In addition, granting the
extension as soon as possible is consistent with the public's interest
in timely implementation of public health and environmental
protections. See generally Wisconsin v. EPA, 933 F.3d 303, 312-20 (D.C.
Cir. 2019) (invalidating EPA rule for granting upwind states a period
of time that exceeded statutory limitations to reduce air pollutants
that contribute significantly to air quality problems in downwind
states). Although the ACE rule would achieve little emission reduction
(85 FR 32561 & table 3) the extended deadline provides certainty to the
public as to the timeline for submittal and implementation of state
plans to achieve those reductions and preserves the original, three-
year period for submittal as of the date of reinstatement of the rule.
    Moreover, an extension equal to the number of days from when the
ACE rule was vacated to the rule's submittal date is logical and is
consistent with recent actions in which the D.C. Circuit granted a
compliance date extension for a rule that had been stayed or vacated
for a period of time. Michigan v. EPA, No. 98-1497, Order, Doc. Id. No.
540209 (D.C. Cir. Aug. 30, 2000) (extending the date for sources to
implement state implementation plan (SIP) revisions required under
EPA's NOX SIP call rule by the number of days the D.C.
Circuit had stayed the rule, so that sources will have the same number
of days for developing the SIP revisions as provided in the original
rule); ``Rulemaking To Amend Dates in Federal Implementation Plans
Addressing Interstate Transport of Ozone and Fine Particulate Matter:
Interim final rule with request for comment,'' 79 FR 71663 (December 3,
2014) (amending the Code of Federal Regulations to correctly reflect
the deadlines for sources to comply with the Cross-State Air Pollution
Rule, which deadlines were revised by the D.C. Circuit when it lifted
the previous stay of the rule and, accordingly, delayed the compliance
deadlines by three years).
    For the same reasons, the EPA is also making today's action
effective immediately upon publication in the Federal Register. Section
553(d) of the APA provides that rules generally may not take effect
until 30 days after they are published in the Federal Register. The
purpose of this APA provision is to ``give affected parties a
reasonable time to adjust their behavior before the final rule takes
effect.'' Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099,
1104 (8th Cir. 1977) (quoting legislative history). However, when an
agency grants or recognizes an exemption or relieves a restriction,
affected parties do not need a reasonable time to adjust because the
effect is not adverse. Thus, APA section 553(d) allows an effective
date less than 30 days after publication for any rule that ``grants or
recognizes an exemption or relieves a restriction'' (see 5 U.S.C.
553(d)(1)). An accelerated effective date may also be appropriate for
``good cause'' pursuant to APA section 553(d)(3) where an agency can
``balance the necessity for immediate implementation against principles
of fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of its ruling.'' Gavrilovic, 551 F.2d at 1105. The EPA has determined
that the state plan submittal date extension is effective upon
publication because it relieves a restriction, thereby providing
obligated parties with additional time to comply with the ACE rule's
requirements. There is additionally good cause for immediate
implementation of these requirements to avoid confusion and uncertainty
among states and regulated industry regarding the timing of their
compliance obligations.
    It should be noted that the EPA has initiated a rulemaking process
to repeal the ACE rule and replace it with another emissions guideline
under CAA section 111(d) that would direct states to develop plans that
establish standards of performance for CO2 emissions from
existing coal-fired electricity generating units. The EPA expects to
propose this repeal and replacement rulemaking in the spring of 2023.
If finalized, states would no longer be required to submit state plans
to meet the requirements of ACE rule, and instead would be required to
submit state plans to meet the requirements of the replacement
emissions guideline, on the schedule established by that guideline.

II. Statutory and Executive Order Reviews

    Additional information about these statutes and executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

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

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA. In this action, the EPA is extending the date of state plan
submittal by the time that was lost due to the ACE rule being vacated.
Any burden for information collection requests is consistent with the
original ACE rule.

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA. The RFA applies only to
rules subject to notice and comment rulemaking requirements under the
Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute
a ``rule for which the agency publishes a general notice of proposed
rulemaking pursuant to section 553(b) of this title, or any other law.
. . .'' 5 U.S.C. 601(2). The EPA is not publishing a notice of proposed
rulemaking for this rule because it is invoking the APA ``good cause''
exemption under 5 U.S.C. 553(b).

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

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

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

    This action does not have tribal implications as specified in
Executive Order 13175. In this action, the EPA is extending the date of
state plan submittal by the time that was lost due to the ACE rule
being vacated. Thus, Executive Order 13175 does not apply to this
action.

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

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

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

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

I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51

    This rulemaking does not involve technical standards.

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

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color) and low-income
populations.
    The EPA believes that this type of action does not concern human
health or environmental conditions and therefore cannot be evaluated
with respect to potentially disproportionate and adverse effects on
people of color, low-income populations and/or Indigenous peoples. In
this action, the EPA is extending the date of state plan submittal by
the time that was lost due to the ACE rule being vacated.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

III. Statutory Authority

    The statutory authority for this action is provided by sections
111, 301, and 302 of the CAA as amended (42 U.S.C. 7411, 7601, 7602).
This action is also subject to section 553(b)(3)(B) of the APA (5
U.S.C. 553(b)(3)(B).

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedures,
Air pollution control, Reporting and recordkeeping requirements,
Greenhouse gases.

Michael Regan,
Administrator.

    For the reasons set forth in the preamble, 40 CFR chapter I is
amended as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

0
1. The authority citation for part 60 continues to read as follows:

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

Subpart UUUUa--Emission Guidelines for Greenhouse Gas Emissions
From Existing Electric Utility Generating Units

0
2. Revise Sec.  60.5745a to read as follows:

Sec.  60.5745a  What are the timing requirements for submitting my
plan?

    You must submit a plan with the information required under Sec.
60.5740a by April 15, 2024.

[FR Doc. 2023-04959 Filed 3-9-23; 8:45 am]
BILLING CODE 6560-50-P


July 27, 2000 Donald R. Lynam Vice President, Air Conservation Ethyl Corporation 330 South Fourth Street Richmond, VA 23219 4304 Dear Dr. Lynam,

On May 26, 2000, the Ethyl Corporation ( Ethyl) submitted to the Environmental Protection Agency ( EPA) a draft health study protocol for MMT, as required under the Alternative Tier 2 Health Effects Testing Requirements. These requirements were finalized in the notification received by Ethyl on May 25, 2000. As you know, the notification requires EPA review and approval of these protocols.

We believe that the draft protocol generally fulfills EPA's study requirements. We agree with Ethyl's proposal to use manganese ( Mn) sulfate as the major test species at three exposure levels with 0.5 mg Mn/ m3 being the highest concentration and to use Mn phosphate as the second test compound at a single exposure level of 0.1 mg Mn/ m3. We also agree with Ethyl's proposal to start the exposure of aged rats at about 16 months of age rather than 18 months of age. Finally, we do not object to Ethyl's proposal to amend the protocol to accommodate biochemical measures at Wake Forest University and radio tracer work at the Chemical Industry Institute of Toxicology ( CIIT), both of which will fall outside of the Good Laboratory Practices ( GLP) approach specified in the notification. While allowing this approach for work not required by the notification, we emphasize that this approval does not allow any changes that would confound the GLP conduct of the studies described in EPA's MMT study requirements.

In addition, we have the following technical comments. First, on June 15, 2000, in the meeting between Ethyl, CIIT and EPA, Dr. David Dorman informed us of the potential difficulty in consistently achieving the lowest exposure level of 0.01 mg Mn/ m3 during inhalation exposure. If it is determined that the 0.01 mg Mn/ m3 exposure level cannot be consistently achieved in practice, EPA recommends that the draft protocol clearly provide the investigator the flexibility to increase the lowest exposure concentration to a level readily achievable with their exposure system. Second, the 10 ppm dietary Mn level and use of AIN 93G diet ( pelleted semi purified certified diet), mentioned on page 13 of the draft protocols, are justified based on the results of the 14 day studies. Third, we recommend that the revised protocol include a reference for  2

the National Research Council recommendation of 35 ppm iron in the diet. Finally, the manganese analysis in the ovary may be affected by the stage of folliculogenesis, for example, samples having large antral follicles due to increased fluid volume may skew the Mn concentration data. Therefore, we recommend that the draft protocol be revised to ensure that ovarian samples ( mentioned on page 17 of the draft protocol) be described in sufficient detail so that the Mn analysis data can be interpreted appropriately.

Finally, we have the following comments regarding peer review. First, the Alternative Tier 2 requirements require individual peer review comments to be submitted with the study protocol. Ethyl provided consensus comments from the Technical Advisory Panel ( TAP), rather than individual peer review comments as required by EPA. Unedited comments from individual peer reviewers can be essential for evaluating whether there were any important differences in viewpoints that are not reflected in the consensus comments. We trust that for future submissions of study protocols, requirements of the notification will be satisfied by submitting individual peer review comments along with the appropriate study protocol. Second, we recommend resolution of a potential conflict of interest situation for one member of the TAP who is performing some of the toxicology work not covered by the notification. ( We understand that Ethyl is agreeable to this change.) Finally, we ask that more specific information on individual peer reviewers be included in any future nominations of peer reviewers such as the peer reviewer's affiliation or any potential conflicts of interest.

We look forward to Ethyl's submission of the revised draft protocol as required under the notification. If you have any questions concerning our review, please contact Joe Sopata of my staff at ( 202) 564 9034.

Sincerely,

/ s/

Merrylin Zaw Mon, Director Transportation and Regional Programs Division cc: J. Michael Davis, ORD/ NCEA Stan Durkee, ORD/ OSP Joe Elder, ORD/ NHEERL Hal Zenick, ORD/ NHEERL William Farland, ORD/ NHEERL Tim Backstrom, OGC Kevin Fast, Hunton & Williams


[Federal Register Volume 81, Number 144 (Wednesday, July 27, 2016)]
[Proposed Rules]
[Pages 49205-49207]
[FR Doc No: 2016-17710]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2016-0389; FRL-9949-66-Region 2]

Partial Approval and Partial Disapproval of Air Quality
Implementation Plans; NJ; Infrastructure SIP Requirements for 2008
Lead, 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide, 2011
Carbon Monoxide, 2006 PM10, and 2012 PM2.5 NAAQS:
Interstate Transport Provisions

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is proposing to
partially approve and partially disapprove elements of New Jersey's
State Implementation Plan (SIP) revision submitted regarding the
infrastructure requirements of section 110(a)(1) and (2) of the Clean
Air Act (CAA) for the 2008 Lead, 2008 Ozone, 2010 Nitrogen Dioxide
(NO2), 2010 Sulfur Dioxide (SO2), 2011 Carbon
Monoxide (CO), 2006 Particulate Matter of ten microns or less
(PM10), and 2012 Particulate Matter of 2.5 microns or less
(PM2.5) National Ambient Air Quality Standards (NAAQS). The
infrastructure requirements are designed to ensure that the structural
components of each state's air quality management program are adequate
to meet the state's responsibilities under the CAA. This action
pertains specifically to infrastructure requirements relating to
interstate transport provisions concerning the Prevention of
Significant Deterioration of Air Quality (PSD) regulations, and
visibility protection.

DATES: Comments must be received on or before August 26, 2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R02-OAR-2016-0389 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin, Environmental
Protection Agency, 290 Broadway, 25th Floor, New York, NY 10007-1866,
(212) 637-3702, or by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
I. Background
II. EPA's Review
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

    Pursuant to section 110(a)(1) of the CAA, states are required to
submit SIPs that provide for the implementation, maintenance and
enforcement of a new or revised NAAQS within 3 years following the
promulgation of a new or revised NAAQS. Section 110(a)(2) lists
specific requirements that states must meet in these SIP submissions,
as applicable. The EPA refers to this type of SIP submission as the
``infrastructure'' SIP because the SIP ensures that states can
implement, maintain and enforce the air standards. Within these
requirements, section 110(a)(2)(D)(i) contains requirements to address
interstate transport of NAAQS pollutants. A SIP revision submitted for
this sub-section is referred to as an ``interstate transport SIP.''
Section 110(a)(2)(D)(i) contains two subsections: (D)(i)(I) and
(D)(i)(II). Section 110(a)(2)(D)(i)(I) requires SIPs to contain
adequate provisions to prohibit emissions from the state that will
contribute significantly to nonattainment of the NAAQS in any other
state (commonly referred to as prong 1), or interfere with maintenance
of the NAAQS in any other state (prong 2). Section 110(a)(2)(D)(i)(II)
requires that infrastructure SIPs include provisions prohibiting any
source or other type of emissions activity in one state from
interfering with measures required to prevent significant deterioration
(PSD) of air quality (prong 3) and to protect visibility (prong 4) in
another state.
    On March 12, 2008 (73 FR 16436 (March 27, 2008)), EPA promulgated a
revised NAAQS for ozone. EPA revised the level of the 8-hour ozone
NAAQS from 0.08 parts per million (ppm) to 0.075 ppm.
    On October 15, 2008 (73 FR 66964 (Nov. 12, 2008)), EPA promulgated
a new NAAQS, rolling 3-month average NAAQS for lead. The 2008 lead
NAAQS is 0.15 micrograms per cubic meter of air ([micro]g/m\3\) maximum
(not-to-be-exceeded). On January 22, 2010 (75 FR 6474 (Feb. 9, 2010)),
EPA promulgated a new 1-hour primary NAAQS for NO2 at a
level of 100 parts per billion (ppb), based on a 3-year average of the
98th percentile of the yearly distribution of 1-hour daily maximum
concentrations. On June 2, 2010 (75 FR 35520 (June 22, 2010)), EPA
promulgated a revised primary NAAQS for SO2 at a level of 75
ppb, based on a 3-year average of the annual 99th percentile of 1-hour
daily maximum concentrations. On December 14, 2012 (78 FR 3086 (Jan.
15, 2013)), EPA promulgated a revised primary NAAQS for
PM2.5 for the annual standard. The revised standard was set
at the level of 12[micro]g/m\3\ calculated as an annual average, which
is averaged over a three year period.
    On September 21, 2006 (71 FR 61144 (Oct. 17, 2006)), EPA retained
the primary and secondary 24-hour PM10 standard of 150
[micro]g/m\3\, not to be exceeded more than once per year on average
over a 3-year period. The standard was initially promulgated on June 2,
1987 (52 FR 24634 (July 1, 2006)). The PM10 standard was
also retained on December 14, 2012 (78 FR 3086 (Jan. 15, 2013)). On
August 31, 2011, EPA retained the existing primary and secondary
standards for CO of 9 ppm as an 8-hour average, and 35 ppm as a 1-hour
standard average, neither to be exceeded more than once per year. The
standards were initially established on April 30, 1971 (36 FR 8186).
    On October 17, 2014 the New Jersey Department of Environmental
Protection (NJDEP) submitted a revision to its SIP to address
requirements under section 110(a)(2) of the CAA (the infrastructure
requirements) related to the 2008 Lead, 2008 Ozone, 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS.
Although not specifically required by 110(a)(1) since neither NAAQS was
new or revised\1\, the SIP revision also included infrastructure
requirements for the 2006 PM10 and 2011 CO NAAQS.
---------------------------------------------------------------------------

    \1\ EPA notes that, when promulgated, the 2006 24-hour
PM10 NAAQS and the 2011 primary CO NAAQS were neither
``new'' nor ``revised'' NAAQS--they merely retained, without
revision, prior NAAQS for those pollutants. Accordingly,
promulgation of these NAAQS did not trigger a new obligation for New
Jersey to make infrastructure SIP submissions.
---------------------------------------------------------------------------

    The submittal addressed all four prongs of the interstate transport

requirements. On March 30, 2016, New Jersey withdrew the portion of
their submittal addressing 110(a)(2)(D)(i)(I) (prongs 1 and 2) for the
2008 Ozone NAAQS. EPA subsequently issued a Finding of Failure to
Submit to New Jersey.\2\
---------------------------------------------------------------------------

    \2\ 81 FR 38963 (June 15, 2016).
---------------------------------------------------------------------------

    This proposed action pertains only to the portion of the SIP
submittal addressing section 110(a)(2)(D)(i)(II)(prongs 3 and 4). EPA
will address the other portions of the October 17, 2014 infrastructure
SIP submittal in a separate action.

II. EPA's Review

    Under 110(a)(2)(D)(i)(II) (prong 3) SIPs are required to have
provisions prohibiting emissions that would interfere with measures
required to be in another state's SIP under part C of the CAA to
prevent significant deterioration of air quality.
    New Jersey's SIP is not approved with respect to the PSD permit
program required by Part C of the CAA. As a result, EPA's regulations
at 40 CFR 52.21 have been incorporated into New Jersey's applicable
state plan. New Jersey has been delegated authority by EPA to implement
40 CFR 52.21. Although New Jersey has been successfully implementing
the program, a state's infrastructure SIP submittal cannot be
considered for approvability with respect to prong 3 until EPA has
issued final approval of that state's PSD SIP, or, alternatively, has
issued final approval of a SIP that EPA has otherwise found adequate to
prohibit interference with other state's measures to prevent
significant deterioration of air quality. Therefore, we are proposing
to disapprove New Jersey's 110(a) submissions for the 2008 Lead, 2008
Ozone, 2010 NO2, 2010 SO2, 2011 CO, 2006
PM10, and 2012 PM2.5 NAAQS for prong 3 of
110(a)(2)(D)(i)(II) because New Jersey is currently subject to a
Federal Implementation Plan (FIP) and does not have a PSD SIP. This
disapproval will not trigger any sanctions or additional FIP
obligation, since the FIP is already in place. This action will have no
discernible effect on the current implementation of the PSD program in
New Jersey, as the State is already implementing a well-established PSD
program through EPA delegation.
    In this action, EPA is proposing that, for the 2008 Lead, 2008
Ozone, 2010 NO2, 2010 SO2, 2011 CO, 2006
PM10, and 2012 PM2.5 NAAQS, New Jersey satisfies
the 110(a)(2)(D)(i)(II) requirement for visibility (prong 4). New
Jersey addresses visibility protection requirements for the 2008 Lead,
2008 Ozone, 2010 NO2, 2010 SO2, 2011 CO, 2006
PM10, and 2012 PM2.5 NAAQS through its Regional
Haze SIP. EPA approved New Jersey's Regional Haze SIP submittal (77 FR
19 (Jan. 3, 2012)) as part of New Jersey's SIP. The regional haze rule
requires that a state participating in a regional planning process
include all measures needed to achieve its apportionment of emission
reduction obligations agreed upon through that process.
    In EPA's approval of New Jersey's Regional Haze Plan, EPA has
determined that the plan contains emission reductions needed to achieve
New Jersey's share of emission reductions that were determined to be
reasonable through the regional planning process. Further, New Jersey's
Regional Haze Plan ensures that emissions from the State will not
interfere with the Reasonable Progress Goals for neighboring States'
Class I areas.
    Thus, New Jersey's approved Regional Haze SIP ensures that
emissions from sources within the State are not interfering with
measures to protect visibility in other states.

III. What action is EPA taking?

    EPA is proposing to disapprove the portion of the October 17, 2014
New Jersey SIP submittal for 2008 Lead, 2008 Ozone, 2010
NO2, 2010 SO2, 2011 CO, 2006 PM10, and
2012 PM2.5 NAAQS pertaining to prong 3 CAA section
110(a)(2)(D)(i)(II) regarding interstate transport of air pollution to
prevent significant deterioration (PSD) of air quality in other states
due to the State's lack of a state adopted PSD program. However, the
disapproval will not trigger any sanctions or an additional FIP
obligation since a PSD FIP is already in place.
    EPA is proposing approval of the portion of the October 17, 2014
New Jersey SIP submittal for 2008 Lead, 2008 Ozone, 2010
NO2, 2010 SO2, 2011 CO, 2006 PM10, and
2012 PM2.5 NAAQS pertaining to the CAA section
110(a)(2)(D)(i)(II) requirement for visibility (or prong 4).
    EPA is soliciting public comments on the issues discussed in this
proposal. These comments will be considered before EPA takes final
action. Interested parties may participate in the Federal rulemaking
procedure by following the directions in the ADDRESSES section of this
Federal Register.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
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 (Public Law 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, because the SIP is not approved to apply in
Indian country located in the state, and EPA notes that it will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Incorporation by reference, Carbon monoxide, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Sulfur Dioxide, Reporting and
recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 18, 2016.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2016-17710 Filed 7-26-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Notices]
[Pages 31383-31384]
[FR Doc No: 2011-13530]

=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Public Law 94-409, that the Securities
and Exchange Commission will hold a Closed Meeting on Thursday, June 2,
2011 at 2 p.m.
    Commissioners, Counsel to the Commissioners, the Secretary to the
Commission, and recording secretaries will attend the Closed Meeting.
Certain staff members who have an interest in the matters also may be
present.
    The General Counsel of the Commission, or his designee, has

certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) and 17 CFR
200.402(a)(3), (5), (7), 9(ii) and (10), permit consideration of the
scheduled matters at the Closed Meeting.
    Commissioner Aguilar, as duty officer, voted to consider the items
listed for the Closed Meeting in a closed session.
    The subject matter of the Closed Meeting scheduled for Thursday,
June 2, 2011 will be:

Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings; and
Other matters relating to enforcement proceedings.

    At times, changes in Commission priorities require alterations in
the scheduling of meeting items.
    For further information and to ascertain what, if any, matters have
been added, deleted or postponed, please contact:
    The Office of the Secretary at<PHONE_NUMBER>.

    Dated: May 26, 2011.
Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-13530 Filed 5-26-11; 4:15 pm]
BILLING CODE 8011-01-P


[Federal Register Volume 80, Number 208 (Wednesday, October 28, 2015)]
[Notices]
[Pages 65999-66000]
[FR Doc No: 2015-27468]

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

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-ORD-2015-0528; FRL-9936-32-ORD]

Board of Scientific Counselors Safe and Sustainable Water
Resources Subcommittee; Notification of Public Teleconference Meeting
and Public Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of public teleconference meeting and public
comment.

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

SUMMARY: Pursuant to the Federal Advisory Committee Act, Public Law 92-
463, the U.S. Environmental Protection Agency, Office of Research and
Development (ORD), gives notice of a public teleconference meeting of
the Board of Scientific Counselors (BOSC) Safe and Sustainable Water
Resources Subcommittee.

DATES: The teleconference meeting will be held on Friday, November 13,
2015, from 12:00 p.m. to 2:00 p.m., Eastern Time. The teleconference
may adjourn early if all business is finished or may adjourn late if
additional time is needed. Any member of the public interested in
receiving a draft agenda, attending the teleconference, or making a
presentation during the teleconference may contact Cindy Roberts,
Designated Federal Officer, via any of the contact methods listed in
the FOR FURTHER INFORMATION CONTACT section below. Requests will be
accepted up to one business day before the meeting.

ADDRESSES: Participation in the meeting will be by teleconference only;
meeting rooms will not be used. Members of the public may obtain the
call-in number and access code for the call from Cindy Roberts via any
of the contact methods listed in the FOR FURTHER INFORMATION CONTACT
section below.

FOR FURTHER INFORMATION CONTACT: Questions or correspondence concerning
the teleconference meeting should be directed to Cindy Roberts,
Designated Federal Officer, Environmental Protection Agency, by mail at
1200 Pennsylvania Avenue NW., (MC 8104 R), Washington, DC 20460; by
telephone at<PHONE_NUMBER>; or via email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    General Information: The teleconference is open to the public. Any
member of the public interested in receiving a draft agenda, attending
the teleconference, or making a presentation during the teleconference
may contact Cindy Roberts via any of the contact methods listed in the
FOR FURTHER INFORMATION CONTACT section above. Teleconference
deliberations will focus on draft report findings and recommendations
from an August 2015 meeting. Documents from the August meeting are
available for viewing and downloading at: http://www2.epa.gov/bosc/safe-and-sustainable-water-resources-bosc-subcommittee. Proposed agenda
items for the teleconference include, but are not limited to, the
following: presentation and discussion of the subcommittee's draft
responses to the charge questions and approval of the final draft
letter report prior to its submission to the BOSC Executive Committee.
    Oral Statements: In general, each individual or groups making
remarks during the public comment period will be limited to five (5)
minutes. To accommodate the number of people who want to address the
BOSC Safe and Sustainable Water Resources Subcommittee, only one
representative of a particular community, organization, or group will
be allowed to speak.
    Written Statements: Written comments for the meeting will be
accepted up to one business day before the meeting, and will be
included in the materials distributed to the BOSC Safe and Sustainable
Water Resources Subcommittee prior to the teleconference. Written
comments should be sent to Cindy Roberts, Environmental Protection
Agency, via email at<EMAIL_ADDRESS>or by mail to 1200
Pennsylvania Avenue NW., (MC 8104 R), Washington, DC 20460; or
submitted through regulations.gov, Docket ID No. EPA-HQ-ORD-2015-0467.
    Information about Services for Individuals with Disabilities: For
information about access or services for individuals with disabilities,
please contact Cindy Roberts at<PHONE_NUMBER> or via email at
<EMAIL_ADDRESS>To request special accommodations for a
disability, please contact Cindy Roberts at least ten days prior to the
teleconference to give EPA sufficient time to process your request.

    Dated: October 22, 2015.
Fred S. Hauchman,
Director, Office of Science Policy.
[FR Doc. 2015-27468 Filed 10-27-15; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Proposed Rules]
[Pages 78528-78529]
[FR Doc No: 2016-26922]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 573

[Docket No. FDA-2014-F-0452]

Novus International, Inc.; Filing of Food Additive Petition
(Animal Use)

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice of petition.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing that
Novus International, Inc., has filed a petition proposing that the food
additive regulations be amended to provide for the safe use of poly (2-
vinylpyridine-co-styrene) as a nutrient protectant for methionine
hydroxy analog in animal food for beef cattle, dairy cattle, and
replacement dairy heifers. Additionally, the petition proposes that the
food additive regulations be amended to provide for the safe use of
ethyl cellulose as a binder for methionine hydroxy analog to be
incorporated into animal food.

DATES: Submit either electronic or written comments on the petitioner's
environmental assessment by December 8, 2016.

ADDRESSES: You may submit comments as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to http://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comment, that information will be posted on http://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper
submissions): Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Division of
Dockets Management, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2014-F-0452 for ``Food Additives Permitted in Feed and Drinking
Water of Animals; 2-Vinylpyridine-Co-Styrene.'' Received comments will
be placed in the docket and, except for those submitted as
``Confidential Submissions,'' publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9
a.m. and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comment only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on http://www.regulations.gov.
Submit both copies to the Division of Dockets Management. If you do not
wish your name and contact information to be made publicly available,
you can provide this information on the cover sheet and not in the body
of your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Division of Dockets Management, 5630 Fishers
Lane, Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Carissa Doody, Center for Veterinary
Medicine (HFV-228), Food and Drug Administration, 7519 Standish Pl.,
Rockville, MD 20855,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Under the Federal Food, Drug, and Cosmetic
Act (section 409(b)(5) (21 U.S.C. 348(b)(5)), notice is given that a
food additive petition (FAP 2295) has been filed by Novus
International, Inc., 20 Research Park Dr., Saint Charles, MO 63304. The
petition proposes to amend part 573 (21 CFR part 573) Food Additives
Permitted in Feed and Drinking Water of Animals to provide for the safe
use of poly (2-vinylpyridine-co-styrene) as a nutrient protectant for
methionine hydroxy analog in animal food for beef cattle, dairy cattle,
and replacement dairy heifers, and to provide for the safe use of ethyl
cellulose as a binder for methionine hydroxy analog to be incorporated
into animal food.
    The potential environmental impact of this action is being
reviewed. To encourage public participation consistent with regulations
issued under the National Environmental Policy Act (40 CFR 1501.4(b)),
the Agency is placing the environmental assessment submitted with the
petition that is the subject of this notice on public display at the
Division of Dockets Management (see ADDRESSES) for public review and
comment. Interested persons may submit to the Division of Dockets
Management (see DATES and ADDRESSES) either electronic or written
comments regarding this document. It is only necessary to send one set
of comments. Identify comments with the docket number found in brackets
in the

heading of this document. FDA will also place on public display any
amendments to, or comments on, the petitioner's environmental
assessment without further announcement in the Federal Register. If,
based on its review, the Agency finds that an environmental impact
statement is not required and this petition results in a regulation,
the notice of availability of the Agency's finding of no significant
impact and the evidence supporting that finding will be published with
the regulation in the Federal Register in accordance with 21 CFR
25.51(b).

    Dated: November 2, 2016.
Tracey H. Forfa,
Deputy Director, Center for Veterinary Medicine.
[FR Doc. 2016-26922 Filed 11-7-16; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register: January 15, 2010 (Volume 75, Number 10)]
[Rules and Regulations]
[Page 2440-2444]
[DOCID:fr15ja10-6]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0500-200927; FRL-9102-6]

Approval and Promulgation of Implementation Plans; Kentucky:
Approval of Revisions to the State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is correcting the state implementation plan (SIP) for the
Commonwealth of Kentucky to remove the ``Potentially hazardous matter
or toxic substances'' rule upon request of the Commonwealth of Kentucky
made through the Kentucky Division for Air Quality (KDAQ). EPA has
determined that this rule--401 Kentucky Administrative Regulations
(KAR) 63:020--was erroneously incorporated into the SIP because the
rule is not related to the attainment and maintenance of the national
ambient air

quality standards (NAAQS). For this reason, EPA is correcting this
error and removing this rule from the approved Kentucky SIP pursuant to
section 110(k)(6) of the Clean Air Act (CAA). This final rule also
addresses comments made on the proposed rulemaking EPA previously
published for this action.

DATES: Effective Date: This rule will be effective February 16, 2010.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2007-0500. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information 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 through http://www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.

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

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for the Action?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to remove 401 KAR 63:020 from the
Kentucky SIP. EPA has determined that this rule was erroneously
incorporated into the SIP because the rule is not related to the
attainment and maintenance of the NAAQS. EPA is correcting this error
and removing this rule from the approved Kentucky SIP.

II. What Is the Background for the Action?

    The CAA requires EPA to establish NAAQS for commonly occurring air
pollutants that pose public health and welfare threats. These
pollutants are known as criteria pollutants. Currently, NAAQS exist for
six criteria pollutants--ozone (ground level), particulate matter,
carbon monoxide, sulfur dioxide, lead and nitrogen dioxide. Section 110
of the CAA requires states to adopt, and submit to EPA for approval,
SIPs to implement, maintain and enforce the NAAQS. Accordingly, SIPs
contain the measures used by states to attain and maintain the NAAQS.
Consistent with Section 110 of the CAA, provisions approved by EPA as
part of a SIP should be related to attainment and maintenance of the
NAAQS for the six criteria pollutants. Other pollutants, such as
hazardous air pollutants are covered by other provisions of the CAA,
such as Section 112, which provides for the direct Federal regulation
of hazardous air pollutants.
    The first significant amendments to the CAA occurred in 1970 and
1977. Following these amendments, a large number of SIPs were submitted
to EPA to fulfill new Federal requirements. In many cases, states and
districts submitted their entire programs, including many elements not
required pursuant to the CAA. Due to resource constraints during this
timeframe, EPA's review of these submittals focused primarily on the
required technical, legal, and enforcement elements of the submittals.
At the time, EPA did not perform a detailed review of the numerous
provisions submitted to determine if each provision was related to the
attainment and maintenance of the NAAQS. As a result, some provisions
were approved into SIPs erroneously. To correct such errors, EPA has
removed the erroneously incorporated provisions from SIPs under the
authority of Section 110(k)(6) of the CAA. See e.g., 73 FR 21546
(removing rules from New York SIP imposing general duty not to cause
air pollution or odors); 71 FR 13551 (removing nuisance rule from
Georgia SIP); 66 FR 57391 (removing from the Missoula City-County
portion of the Montana SIP provisions relating to, among other things,
fluoride emission standards); 64 FR 7790 (removing from Michigan SIP a
general air pollution rule which had been used primarily to address
odors and other nuisances, and had not been used for purposes of
attaining or maintaining NAAQS); 61 FR 47058 (removing provisions from
Wyoming SIP relating to, among other things, hydrogen sulfide and
fluoride ambient standards, and odor control).
    After the 1977 CAA Amendments, the Commonwealth of Kentucky
included the ``Potentially hazardous matter or toxic substances'' rule
at 401 KAR 63:020 as part of a voluminous SIP submittal to EPA. EPA
approved 401 KAR 63:020 as part of the Kentucky SIP on July 12, 1982,
with a September 10, 1982, effective date. 47 FR 30059.\1\ This
Kentucky rule applies to facilities ``which emit[] or may emit
potentially hazardous matter or toxic substances as defined in Section
2, provided such emissions are not elsewhere subject to the provisions
of the regulations of the Division of Air Pollution.'' 401 KAR 63:020
Section 1. ``Potentially hazardous matter or toxic substances'' is
defined in Section 2 of the rule to mean ``matter which may be harmful
to the health and welfare of humans, animals, and plants, including,
but not limited to, antimony, arsenic, bismuth, lead, silica, tin and
compounds of such materials.'' The rule prohibits emissions of
``potentially hazardous matter or toxic substances in such quantities
or duration as to be harmful to the health and welfare of humans,
animals and plants.'' 401 KAR 63:020 Section 3.
---------------------------------------------------------------------------

    \1\ The table at 40 CFR 52.920 contains an incorrect Federal
Register citation for EPA's approval date of 401 KAR 63:020.
---------------------------------------------------------------------------

    On May 25, 2007, Kentucky, through KDAQ, requested that EPA correct
the Kentucky SIP by deleting this rule. In addition, KDAQ has explained
to EPA that 401 KAR 63:020 ``has never been used by the Cabinet to
regulate emissions of any of the six criteria pollutants in any way
that is related to the attainment and maintenance of the NAAQS * * *
Nor have any reduction credits ever been claimed under this
regulation.'' (March 31, 2008, letter from John S. Lyons, Director,
KDAQ to Beverly Banister, Director, Air, Pesticides, and Toxics
Management Division, EPA Region 4) (``March 31st letter''). Instead,
Kentucky has ``used this rule as a risk-based Screening tool for toxic
air emissions and [the rule] has been the authority under which
modeling and permit conditions have been imposed.'' (March 31st
letter). Kentucky has not relied on or attributed any emission
reductions from this rule to any NAAQS attainment or maintenance plans
required under Section 110 of the CAA. (June 15, 2009, letter from John
S. Lyons, Director,

KDAQ to Carol L. Kemker, Acting Director, Air, Pesticides, and Toxics
Management Division, EPA Region 4) (June 15th letter). In sum, Kentucky
has consistently used this rule to address hazardous or toxic air
pollutants, and has never used this rule to regulate CAA Section 110
criteria pollutants in any way that is related to the attainment and
maintenance of NAAQS. For these reasons, EPA's 1982 approval of this
rule into the Kentucky SIP was in error.
    EPA is therefore removing the rule from the approved SIP under the
authority of section 110(k)(6) of the CAA. EPA is doing so, because it
has determined that this rule is not related to the attainment and
maintenance of the NAAQS. This Kentucky rule applies to emissions of
potentially hazardous matters or toxic substances, if such emissions
are not elsewhere subject to regulation by KDAQ (formerly Division of
Air Pollution). However, KDAQ elsewhere regulates emissions of
pollutants to attain and maintain the NAAQS. For example 401 KAR
Chapters 51 and 53 regulate emissions of criteria pollutants, and
emissions affecting criteria pollutants such as precursors. Because
other KDAQ uses other regulations to regulate emissions of criteria
pollutants to attain and maintain the NAAQS, and because KDAQ has
confirmed that 401 KAR 63:020 ``has never been used by the Cabinet to
regulate emissions of any of the six criteria pollutants in any way
that is related to the attainment and maintenance of the NAAQS . . .
Nor have any reduction credits ever been claimed under this
regulation,'' (March 31st letter), EPA has concluded that 401 KAR
63:020 does not apply to emissions relevant to the attainment and
maintenance of the NAAQS. As stated above, under Section 110 of the
CAA, SIPs should contain provisions relevant to attaining and
maintaining the NAAQS. Kentucky rule 401 KAR 63:020 is not relevant to
attaining and maintaining the NAAQS and was erroneously included in the
SIP.
    Section 110(k)(6) provides a process for EPA to correct such
errors. Specifically, it provides that: ``[w]henever the Administrator
determines that the Administrator's action approving, disapproving, or
promulgating any plan or plan revision (or part thereof), area
designation, redesignation, classification, or reclassification was in
error, the Administrator may in the same manner as the approval,
disapproval, or promulgation, revise such action as appropriate without
requiring any further submission from the State. Such determination and
the basis thereof shall be provided to the State and public.'' As
stated above, EPA previously has relied on Section 110(k)(6) of the CAA
to remove provisions that were erroneously incorporated from SIPs.
    On October 29, 2007 (72 FR 61087), EPA proposed to remove 401 KAR
63:020 from the approved SIP under the authority of section 110(k)(6)
of the CAA. EPA subsequently received comments from one commenter who
opposed the proposed correction. In this action, EPA is addressing the
adverse comments received and taking final action as described in
Section I and Section IV for this rulemaking.

III. Response to Comments

    On May 25, 2007, the Commonwealth of Kentucky, through KDAQ,
requested that EPA correct the Kentucky SIP to remove 401 KAR 63:020.
In an action published on October 31, 2007 (72 FR 61589), EPA proposed
to correct the Kentucky SIP through removal of 401 KAR 63:020 from the
Kentucky SIP. EPA received comments from one commenter on the October
31, 2007, proposal. The comments are summarized below with EPA
responses. EPA is now taking final action under Section 110(k)(6) to
remove 401 KAR 63:020 from the Kentucky SIP.
    Comment: The commenter states that 401 KAR 63:020 is not limited in
scope to antimony, bismuth, lead, silica, tin and compounds of such
materials, but is a narrative backstop regulation broadly applicable to
any matter emitted in such quantity to be potentially hazardous. The
regulation, the commenter continues, ``is applicable to the six
criteria pollutants in those instances where the emission of those
pollutants is not otherwise addressed by regulation, such as instances
where such emissions * * * come from a source which is classified as
``minor'' but has significant localized impacts.''
    Response: Pursuant to Section 110 of the CAA, SIPs contain measures
used by states to attain and maintain the NAAQS for the six criteria
pollutants. Air toxics, on the other hand, are regulated pursuant to
other parts of the CAA, including Section 112. The Kentucky rule, by
its terms, applies to emissions of hazardous air pollutants, not
elsewhere regulated by Kentucky. The applicability provision for 401
KAR 63:020, Section 1, states that the rule applies ``to each affected
facility which emits or may emit potentially hazardous matter or toxic
substances as defined in Section 2 of this administrative regulation,
provided such emissions are not elsewhere subject to the provisions of
the administrative regulations of the Division for Air Quality.'' 401
KAR 63:020 Section 1 (emphasis added). KDAQ elsewhere regulates
emissions of pollutants to attain and maintain the NAAQS and KDAQ has
confirmed that it has never used 401 KAR 63:020 to regulate criteria
pollutants in any way related to attaining or maintaining the NAAQS.
Examples of other rules used by KDAQ to regulate emissions relevant to
attainment and maintenance of the NAAQS include 401 KAR Chapters 51 and
53, regulating emissions of criteria pollutants and emissions affecting
criteria pollutants such as precursors. Kentucky's rules also include
various provisions regarding minor sources, such as 401 KAR 52:040.
Therefore, by its terms, 401 KAR 63:020, does not apply to emissions
relevant to the attainment and maintenance of the NAAQS.
    As was explained above, the purpose of SIP-approved rules,
consistent with section 110 of the CAA, is to implement a program to
attain and maintain the NAAQS. The rule, 401 KAR 63:020, is not
directed at attainment or maintenance of any NAAQS. Kentucky uses other
rules to regulate criteria pollutants to attain and maintain the NAAQS,
and KDAQ has confirmed that it has never used 401 KAR 63:020 to
regulate criteria pollutants in any way related to attaining and
maintaining the NAAQS. Thus, the commenter's statement that 63:020 ``is
broadly applicable to any matter emitted in such quantity to be
potentially hazardous'' does not consider the language in the Kentucky
rule which limits its applicability to such emissions that ``are not
elsewhere subject to the provisions of the administrative regulations
of the Division for Air Quality.'' 401 KAR 63:020 Section 1.
    The March 31, 2008, and June 15, 2009, letters, and other
information provided by KDAQ to EPA responding to comments raised in
response to EPA's October 29, 2007, proposal to remove 401 KAR 63:020
from the SIP are available in the docket for the current final action.
This information is consistent with KDAQ's position in submitting the
May 25, 2007, SIP revision requesting that the rule be removed. In its
letters, KDAQ confirmed that this rule has never been used ``to
regulate the emissions of any of the six criteria pollutants in any way
that is related to the attainment and maintenance of the NAAQS'' under
Section 110 of the CAA.
    It should also be noted that EPA's current action does not affect
the enforceability or applicability of the rule as a matter of state
law. Nothing in today's action in any way alters the

status of 401 KAR 63:020 as a Kentucky law or Kentucky's ability to use
the rule impose requirements into enforceable permits for sources to
which the rule applies.
    Comment: The commenter states that this regulation has been
utilized in many instances during the years it has been part of the
SIP, as a risk-based screening tool and that it has been the authority
under which the state has required modeling of pollutants and imposed
permit conditions for such emissions, including volatile organic
compounds that are both potential air toxics and are criteria pollutant
ozone precursors. The commenter further states that the regulation has
been utilized to require further reductions beyond those categorically
applicable to emissions, including criteria pollutant emissions.
    Response: In its March 31, 2008, letter and repeated in its June
15, 2009, letter, KDAQ explained that 63:020 has been used as a risk-
based screening tool for toxic air emissions, and ``to the extent that
a particular emission is both an air toxic and a criteria pollutant,''
the application of this rule ``has only been concerned with the toxic
impacts of the pollutant.'' (March 31st letter). In addition, as stated
above, Kentucky explained that it ``has never used this regulation to
regulate criteria pollutants in any way that is related to the
attainment and maintenance of NAAQS; and ``never claimed any NAAQS
reduction credits under this regulation.'' (March 31st letter; June
15th letter).
    This statement by KDAQ confirms its historical usage of the rule as
separate from regulation of criteria pollutants for the purpose of
attaining and maintaining the NAAQS, and supports KDAQ's intent in
submitting the May 25, 2007, SIP submission. This statement explains
that 401 KAR 63:020 was erroneously incorporated into the SIP because
it does not relate to the implementation, maintenance, and enforcement
of the NAAQS in Kentucky.
    EPA is reasonable in relying on information provided by KDAQ about
the use of its rule, and has relied on similar information from other
states to delete erroneously incorporated provisions from SIPs. See
e.g., 71 FR 13551 (EPA relied on information provided by Georgia in
deleting a nuisance rule from Georgia SIP); 63 FR 27492 and 64 FR 7790
(EPA relied on information provided by Michigan in deleting a rule used
to address odors and nuisances from Michigan SIP).
    Comment: The commenter states that Kentucky has previously proposed
to repeal this regulation and replace it with a ``safety net''
regulation.
    Response: Kentucky's authority over its administrative rules is
separate from EPA's SIP process and is not relevant to this rulemaking.
The current action will have no effect on the status of 401 KAR 63:020
as a rule as a matter of the law of the Commonwealth of Kentucky.
    Comment: The commenter states that the removal of this rule is not
authorized under 110(k)(6) because this rule is related to attainment
and maintenance of the SIP since it has been the regulatory mechanism
for requiring reductions of emissions of criteria pollutants. By
removing this rule from the SIP, EPA is removing a regulatory tool that
Kentucky has utilized to control criteria pollutants. The commenter
also requests that EPA withdraw the proposed rule and request
documentation from Kentucky of all instances in which emissions,
operating conditions, or limits have been imposed and where applicants
have accepted such limits to avoid imposition of conditions arising
from the application of this rule. The commenter argues that if the
application of 401 KAR 63:020 has resulted in control of criteria
pollutants from major or area sources, then unless the Commonwealth
submits a formal SIP revision providing offsetting reductions and
demonstrates that removal of this regulation will not result in or
interfere with continued maintenance and achievement of such
reductions, the removal of 401 KAR 63:020 is inappropriate and cannot
be undertaken by EPA.
    Response: KDAQ's March 31, 2008, and June 15, 2009, letters to EPA
confirmed that 401 KAR 63:020 has never been used by KDAQ to regulate
the emissions of the six criteria pollutants in any way that is related
to attainment and maintenance of the NAAQS. EPA is also not aware of
any such use by Kentucky.

IV. Final Action

    EPA is now taking final action to remove Kentucky rule 401 KAR
63:020 from the Kentucky SIP pursuant to section 110(k)(6) of the CAA.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR Sec.  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 CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and

the Comptroller General of the United States prior to publication of
the rule in the Federal Register. A major rule cannot take effect until
60 days after it is published in the Federal Register. This action is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 16, 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. 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, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Sulfur oxides, Volatile organic compounds.

    Dated: January 4, 2010.
Beverly H. Banister,
Acting Regional Administrator, Region 4.

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 S--Kentucky

0
2. In Sec.  52.920(c) Table 1 is amended under Chapter 63--General
Standards of Performance by removing the entry for ``401 KAR 63:020''
``Potentially hazardous matter or toxic substances''.

[FR Doc. 2010-587 Filed 1-14-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: December 15, 2008 (Volume 73, Number 241)]
[Notices]
[Page 76078-76080]
[DOCID:fr15de08-106]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59053; File No. SR-ISE-2008-90]

Self-Regulatory Organizations; International Securities Exchange,
LLC; Notice of Filing of Proposed Rule Change Relating to Alternative
Primary Market Makers

December 4, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on November 21, 2008, the International Securities Exchange, LLC
(the ``Exchange'' or the ``ISE'') filed with the Securities and
Exchange 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.
---------------------------------------------------------------------------

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

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

    The ISE proposes to amend Rule 802 to provide for an Alternative
Primary Market Maker. The text of the proposed rule change is as
follows, with additions italicized:

Rule 802. Appointment of Market Makers

    (a) No change.
    (b) (1) The Board or designated committee will allocate equity
options classes into groupings (``Groups'' of options) and will make
appointments to those Groups rather than individual classes, except as
provided in paragraph (f) and Supplementary Material .02 below. Absent
an exemption by the Exchange, an appointment of a market maker shall be
limited to the options classes trading in no more than one Group for
each Membership held by the market maker.
    (2) No change.
    (c)-(f) No change.
Supplementary Material to Rule 802
    .01 No change.
    .02 A Member that is approved to act in the capacity of a
Competitive Market Maker with respect to one or more CMM Rights may
voluntarily be appointed to act as an ``Alternative Primary Market
Maker,'' so long as the Exchange has determined that such Member has
the appropriate systems and procedures in place to undertake the
responsibilities of a Primary Market Maker.
    (a) The Exchange may appoint an Alternative Primary Market Maker to
an options class only in the event that no Primary Market Makers or
Second Market Primary Market Makers seek allocation of the security.
    (b) If no Primary Market Makers or Second Market Primary Market
Makers seek allocation of an options class, all eligible Competitive
Market Makers will be given notice and an opportunity to seek
allocation of the security as an Alternative Primary Market Maker. Such
allocations will be made by the Allocation Committee according to the
guidelines contained in Rule 802.
    (c) An Alternative Primary Market Maker shall have all of the
responsibilities and privileges of a Primary Market Maker under the
Rules with respect to all appointed options classes.
    (d) Options classes allocated to Alternative Primary Market Makers
may be traded in the Second Market as provided in Chapter 9 of the
Rules. With respect to options classes traded in the First Market, such
classes will not be allocated to a particular Group under Rule
802(b)(1), and all Competitive Market Makers shall be eligible for
appointment to such classes.
    (e) If an Alternative Primary Market Maker ceases trading of an
options

class, the class will be reallocated by the Exchange to a Primary
Market Maker or another Alternative Primary Market Maker, as
appropriate.
* * * * *

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 these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in sections A, B and C below, of the
most significant aspects of such statements.

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

 1. Purpose
    The Exchange proposes to enhance its market by establishing
Alternative Primary Market Makers (``Alternative PMMs''). Currently,
when the ISE lists new options classes, it allocates them to one of its
Primary Market Makers (``PMMs'') under Rule 802. Pursuant to power
delegated to the Board, an Allocation Committee, which consists of
representatives of Electronic Access Members, makes allocation
decisions according to the guidelines contained in Rule 802. Under Rule
802, allocations are voluntary, and at times ISE is unable to list new
products because none of the PMMs are interested in trading the class.
At other times, ISE must delist certain products due to lack of PMM
interest. Most frequently, this occurs with respect to options on
stocks that have pending corporate actions, and options products that
are not listed at any other options exchange. Despite the lack of PMM
interest, these products may be of interest to other market making
firms at the Exchange.
    To better enable the Exchange to list and retain these options
classes, ISE proposes to appoint Competitive Market Makers (``CMMs'')
that meet certain qualifications as Alternative PMMs when none of the
PMMs want an allocation.\3\ Specifically, under this proposal, in order
to be appointed as an Alternative PMM, the Exchange must first
determine that a CMM has the appropriate systems and procedures in
place to undertake the responsibilities of a PMM. Further, before an
Alternative PMM is appointed to an options class, that options class
will always be offered first to the PMMs or Second Market PMMs (as
applicable) under the Exchange's regular allocation procedure. Rule
802(b)(1) currently states that the Board or a designated committee
will make appointments to ``Groups'' of options rather than individual
classes. For the purpose of allocating a product, i.e., an individual
options class, to an Alternative PMM, the Exchange proposes to carve
out an exception in Rule 802(b)(1) pursuant to which the Allocation
Committee shall allocate individual options classes to an Alternative
PMM in accordance with Supplementary Material .02 to Rule 802. The
options class may be a new listing or a listing that the current PMM or
Second Market PMM (as applicable) no longer wishes to make a market in.
---------------------------------------------------------------------------

    \3\ Only CMMs that own or lease CMM Rights shall be eligible to
be appointed as an Alternative PMM. That is, Electronic Access
Members (``EAMs'') acting as market makers in the Second Market will
not be eligible to be appointed as Alternative PMMs.
---------------------------------------------------------------------------

    Under the proposal, if no PMMs or Second Market PMMs (as
applicable) want the allocation, then the Alternative PMMs will be
offered the opportunity to serve as PMM in the options class according
to ISE's regular allocation procedures. Once appointed to an options
class, the Alternative PMM will have all of the responsibilities and
privileges of a PMM under the Rules with respect to all appointed
options classes. For example, Alternative PMMs will enjoy privileges
that include, among other things, participation rights and small order
execution preference while accepting responsibilities that include,
among other things, the obligation to provide continuous quotations in
the options class to which the Alternative PMM is appointed, to
conducting the opening rotation on a daily basis for as long as the
Alternative PMM is appointed to that options class.
    Finally, if an Alternative PMM ceases trading of an options class,
that options class will be reallocated by the Exchange. An Alternative
PMM will not have any transferable rights in options classes to which
it is appointed nor will it have any PMM voting rights.
2. Statutory Basis
    The basis under the Securities Exchange Act of 1934 (``Exchange
Act'') for this proposed rule change is the requirement under Section
6(b)(5) that an exchange have rules that are designed to promote just
and equitable principles of trade, and to remove impediments to and
perfect the mechanism for a free and open market and a national market
system, and in general, to protect investors and the public interest.
In particular, the proposed rule change will allow the Exchange to
allocate more new products and continue listing existing products for
the benefit of both investors and the Exchange. Further, the Exchange
believes that Alternative PMMs will make ISE a more competitive market.

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

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

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

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

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve such proposed rule change; or
    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.

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-ISE-2008-90 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-ISE-2008-90. 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 ISE. 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-ISE-2008-90 and should be
submitted on or before January 5, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\4\
---------------------------------------------------------------------------

    \4\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-29555 Filed 12-12-08; 8:45 am]

BILLING CODE 8011-01-P