[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Rules and Regulations]
[Pages 68465-68469]
[FR Doc No: 2023-21722]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0397; FRL-10011-03-R4]

Air Plan Approval; South Carolina: New Source Review Updates

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
approval of a State Implementation Plan (SIP) revision submitted by the
State of South Carolina, through the South Carolina Department of
Health and Environmental Control (hereinafter referred to as SC DHEC or
South Carolina) via a letter dated February 3, 2022. The SIP revision
updates portions of South Carolina's Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NNSR)
regulations that pertain to Project Emissions Accounting (PEA)
provisions. EPA is approving these changes pursuant to the Clean Air
Act (CAA or Act) and implementing Federal regulations.

DATES: This rule is effective November 3, 2023.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2022-0397. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be 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 www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air and Radiation 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 a.m. to 4:30 p.m., excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Planning and
Implementation Branch, Air and Radiation Division, Region 4, U.S.
Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. The telephone number is<PHONE_NUMBER>. Ms. LaRocca can
also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    EPA is approving a SIP revision submitted by South Carolina on
February 3, 2022,\1\ which updates the State's PSD and NNSR rules.
Specifically, EPA is incorporating the PEA provisions in paragraphs
(A)(2)(d)(vi) and (A)(2)(d)(vii) of South Carolina's Regulation 61-
62.5, Standard No. 7--Prevention of Significant Deterioration, and the
PEA provisions in paragraphs (A)(8) and (A)(9) of South Carolina's
Regulation 61-62.5, Standard No. 7.1--Nonattainment New Source Review
into the South Carolina SIP.2 3
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    \1\ EPA notes that the February 3, 2022, submittal was received
by EPA on February 4, 2022. For clarity, EPA will refer to this
submittal based on the date of the letter.
    \2\ EPA notes that under the February 3, 2022, cover letter, SC
DHEC also submitted updates to the following State Regulations: 61-
62.60, South Carolina Designated Facility Plan and New Source
Performance Standards; Regulation 61-62.63, National Emission
Standards for Hazardous Air Pollutants (NESHAPs) for Source
Categories; and Regulation 61-62.70, Title V Operating Permit
Program. However, South Carolina explains in the February 3, 2022,
cover letter that these regulations are not part of the SIP, and
they are not being requested for approval by EPA into the South
Carolina SIP at this time.
    \3\ South Carolina's February 3, 2022, cover letter additionally
references a June 21, 2021, withdrawal letter, which was sent to EPA
while the Agency was in the process of approving the State's last
update to the NSR regulations into the SIP. In the February 3, 2022,
letter, SC DHEC confirms that the intention of the June 21, 2021,
withdrawal letter remains the same and that it is not requesting EPA
to approve the Ethanol Rule provisions, found in Regulation 61-62.5,
Standard No. 7.1, at this time.
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    Through a notice of proposed rulemaking (NPRM), published on July
26, 2022 (87 FR 44314), EPA proposed to approve the February 3, 2022,
SIP revision as meeting the requirements of the Federal PSD and NNSR
programs and as being consistent with the CAA.\4\ Additional details on
South Carolina's February 3, 2022, revision and EPA's analysis of the
changes can be found in the July 26, 2022, NPRM. Comments on the July
26, 2022, NPRM were due on or before August 25, 2022.
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    \4\ Following the July 26, 2022, NPRM, EPA approved portions of
South Carolina's PSD and NNSR regulations, including changes to
reflect the regulation of greenhouse gases (GHGs) pursuant to the
Tailoring Rule and updates promulgated in the recent NSR Corrections
Rule, on August 23, 2023. See 88 FR 57358 (August 23, 2023). At that
time, EPA took no action on the PEA provisions in paragraphs
(A)(2)(d)(vi) and (A)(2)(d)(vii) of South Carolina's Regulation 61-
62.5, Standard No. 7--Prevention of Significant Deterioration, the
PEA provisions in paragraphs (A)(8) and (A)(9) of South Carolina's
Regulation 61-62.5, Standard No. 7.1--Nonattainment New Source
Review, and the portions of paragraphs (A)(11)(t) and (B)(22)(c)(xx)
related to the Ethanol Rule Provisions found in Regulation 61-62.5,
Standard No. 7.1.
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II. Response to Comments

    EPA received comments on the July 26, 2022, NPRM, which are
included in the docket of this rulemaking. The comments arrived in a
letter dated August 25, 2022, and originate from one commenter, the
Center for Biological Diversity. The Commenter provided supplemental
documentation to support the comments submitted. The comments generally
oppose approval of the changes in the February 3, 2022, SIP revision
that incorporate the Federal PEA provisions at 40 CFR 51.165 and 40 CFR
51.166 \5\ into South Carolina's SIP. Below, EPA briefly summarizes the
PEA Rule, which the Agency finalized on November 24, 2020 (85 FR
74890), and responds to the comments received on the July 26, 2022,
NPRM.
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    \5\ Some States, including South Carolina, choose to meet
minimum PSD requirements within 40 CFR 51.166 by adopting language
within the Federal PSD plan codified at 40 CFR 52.21.
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    An existing major stationary source proposing a physical change or
a change in its method of operation must determine whether that project
is a major modification subject to new source review (NSR)
preconstruction permitting requirements by following a two-step test.
The first step is to determine if there is a ``significant emission
increase'' of a regulated NSR pollutant from the proposed modification.
If there is, the second step is to determine if there is a
``significant net emission increase'' of that pollutant.
    The PEA Rule maintained this two-step test while clarifying that
emissions increases and decreases for projects that involve new and
existing emissions units can be considered in the same manner as
emissions increases and decreases for projects that only involve new
units or only involve existing units in Step 1 of the NSR major
modification applicability test.\6\ More specifically, the PEA Rule
made this clarification in language addressing the ``hybrid test'' for
projects that involve a combination

of new and existing units by replacing the phrase ``sum of the
increases'' with the phrase ``sum of the difference.'' \7\ The Rule
also explained that the revised term ``sum of the difference,'' would
apply to ``all emissions units'' instead of ``for each emissions unit''
to better account for projects that involve multiple emission units.\8\
Finally, the Rule added regulatory text to clarify that the term ``sum
of the difference'' as used in the referenced subparagraphs shall
include both increases and decreases in emissions as calculated in
accordance with those subparagraphs.\9\
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    \6\ 88 FR at 74893.
    \7\ Id. at 74894.
    \8\ Id.
    \9\ Id.
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    When EPA finalized changes in the PEA Rule, the Agency responded to
adverse comments received on the changes as proposed. Since that time,
a petition for judicial review of the PEA Rule was filed in the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit).\10\ However, this does not impede finalization of separate
actions, including today's rulemaking approving revisions to the South
Carolina's PSD and NNSR regulations. EPA provides further explanation
below to address the Commenter's concerns.
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    \10\ See State of New Jersey v. EPA, 21-1033 (D.C. Cir. 2021).
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    Comment 1: The Commenter states that ``[e]ven under the EPA's 2020
[PEA] rule, EPA cannot approve [South Carolina's] plan revision without
a requirement that a project consist of `substantially related'
activities.'' The Commenter suggests that the February 3, 2022,
submission fails to include a requirement that projects consist of
substantially related activities.
    The Commenter states that EPA relies on its January 1, 2009,
rulemaking \11\ (hereafter referred to as the 2009 NSR Aggregation
Action, or the 2009 Action) in the PEA Rule to interpret ``major NSR
regulations as requiring that a project consist of `substantially
related' activities.'' The Commenter asserts that EPA cannot approve
South Carolina's SIP revision without requiring the State to revise its
SIP to conform with EPA's interpretation of the 2009 action referenced
in the PEA Rule. The Commenter further asserts that this requirement
must be made part of the SIP so that it can be enforced by EPA and
citizens pursuant to CAA sections 113 and 304. In the background
section of its comments, the Commenter also states that this concern is
``primarily a matter for the D.C. Circuit Court of Appeals,'' where the
PEA Rule is currently being challenged.
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    \11\ See 74 FR 2376.
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    Response 1: EPA requires NNSR and PSD SIP revisions to meet or
exceed the minimum requirements codified at 40 CFR 51.165 and 51.166,
respectively. Some States, including South Carolina, choose to meet
minimum PSD requirements by adopting certain language within the
Federal PSD plan codified at 40 CFR 52.21. The PEA Rule has been
adopted into 40 CFR 51.165, 40 CFR 51.166, 40 CFR 52.21, and Appendix S
to 40 CFR part 51. South Carolina adopted the PEA Rule changes within
these rules verbatim, as described more fully in its February 3, 2022,
submittal.
    In this comment, the Commenter focuses not on whether South
Carolina's proposed PSD and NNSR SIP revisions comply with EPA's
minimum standards for PSD and NNSR plans codified at 40 CFR 51.165 and
40 CFR 51.166, which have also been adopted into 40 CFR 52.21 and
Appendix S to 40 CFR part 51. Rather, the comments are directed at the
substance of the PEA Rule itself. The Commenter, for example,
explicitly takes the position that ``EPA's 2020 Rule is unlawful.''
    The time for submitting comments on the PEA Rule was when EPA
notified the public that it was considering adopting that rule and
requested the public's input.\12\ EPA notes that the Commenter did not
submit comments on the PEA Rule. EPA thus views the comments as
untimely comments on the PEA Rule itself.\13\ EPA addressed concerns
regarding project aggregation in response to comments by other parties
in that rulemaking action. See 85 FR 74890, 74898-900 (November 24,
2020). As noted by the Commenter, these concerns are ``primarily a
matter for the D.C. Circuit Court of Appeals,'' where the PEA Rule is
currently being challenged by States and organizations other than the
Commenter.
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    \12\ See 84 FR 39244 (August 9, 2019).
    \13\ As the Commenter also notes, litigation regarding the PEA
Rule has been filed in the D.C. Circuit. The Commenter is not a
party to that suit. Congress established a jurisdictional bar for
judicial review to EPA rulemakings which states that ``[a]ny
petition for review under this subsection shall be filed within
sixty days from the date notice of such promulgation, approval, or
action appears in the Federal Register, except that if such petition
is based solely on grounds arising after such sixtieth day, then any
petition for review under this subsection shall be filed within
sixty days after such grounds arise.'' CAA Subsection 307(b)(1).
This language further indicates that submitting comments on a
State's implementation of a preexisting EPA rule is an improper
method to challenge EPA's underlying rule--such comments (and any
related judicial review) must be submitted on the underlying rule
itself.
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    In EPA's July 26, 2022, NPRM, EPA did not propose to revise the
minimum standards within 40 CFR 51.165 or 51.166, and EPA did not seek
comment on the PEA Rule, which EPA finalized in 2020. Rather, EPA
explained that ``EPA is proposing to approve [changes to South
Carolina's SIP] as meeting the requirements of the Federal PSD and NNSR
programs and as being consistent with the CAA,'' and EPA sought the
public's comments on this preliminary determination. See 87 FR 44315.
The Commenter does not engage with the question of whether South
Carolina's proposed SIP revision (and EPA's proposal to approve this
SIP revision) complies with EPA's minimum NSR standards, and therefore,
these comments do not demonstrate that EPA may not approve the SIP
revision.
    The Commenter's position is also based on an erroneous reading of
the PEA rule. The PEA Rule preamble states ``that state and local air
agencies with approved SIPs are and were not required to amend their
plans to adopt the interpretation that projects should be aggregated
when `substantially related.' '' See 85 FR at 74895, FN 57 (November
24, 2020).\14\
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    \14\ Footnote 57 cites to the memorandum from the EPA
Administrator E. Scott Pruitt, to Regional Administrators, titled
``Project Emissions Accounting Under the New Source Review
Preconstruction Permitting Program,'' March 13, 2018 (``March 2018
Memorandum'') available at: https://www.epa.gov/sites/production/files/2018-03/documents/nsr_memo_03-13-2018.pdf.
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    Comment 2: The Commenter states that EPA's proposed approval
violates the anti-backsliding provisions of the Act. Specifically, the
Commenter asserts that adopting the PEA Rule would weaken the
stringency of South Carolina's SIP by allowing emission reductions to
be considered at Step 1 of the NSR applicability process for the hybrid
test for projects involving a combination of new and existing units; by
not requiring that a project consist of ``substantially related''
activities; and by not ensuring that emission decreases considered at
Step 1 will be ``contemporaneous'' with emission increases resulting
from the project. The Commenter thus takes the position that South
Carolina's rules are more stringent without the adoption of the
language from the PEA Rule. The Commenter asserts that South Carolina's
revision to the project emissions accounting portion of its rules is
substantive and that EPA must therefore provide analysis demonstrating
that the change to the South Carolina SIP will not violate section
110(l) and section 193 of the Act.
    Response 2: EPA addressed the topic of anti-backsliding in the
response to comments document for the PEA Rule.

In that document, EPA stated that ``implementation of this rule will
not cause States to violate the anti-backsliding requirements of the
Clean Air Act. Allowing for PEA is consistent with the intent of the
2002 NSR Reform Rule and is more consistent with the Act than
implementing Step 1 without PEA. That is because PEA would not subject
a project which does not significantly increase emissions in and of
itself, or actually result in a decrease [in] emissions, from being
subject to NSR.'' \15\
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    \15\ See ``Response to Comments Document on Proposed Rule:
``Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR): Project Emissions Accounting''--84 FR
39244, August 9, 2019'' (October 2020), at p. 114.
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    Regarding section 110(l) of the CAA, the nature of this revision to
the South Carolina SIP does not provide cause for EPA to find that this
revision would interfere with any applicable requirement of the South
Carolina SIP concerning attainment and reasonable further progress or
any other requirement of the CAA. The relevant South Carolina
regulations are identical to those adopted by EPA, and South Carolina
has been applying the prior version of its SIP-approved regulations
consistent with EPA's interpretation of its pre-PEA regulations, as
articulated in the March 2018 EPA memorandum.\16\ Like EPA's
regulations, South Carolina's prior regulations included the term ``sum
of the difference.'' \17\ As explained in the March 2018 Memorandum,
``the use of the phrase `sum of the difference' '' allowed for the
inclusion of both emission increases and decreases.\18\ ``The
`difference' between a unit's projected actual emissions or potential
to emit (following the completion of the project) and its baseline
actual emissions (prior to the project) may be either a positive number
(representing a projected increase) or a negative number (representing
a projected decrease). In either case, the values that result from
`summing' the `difference' could have been taken into consideration at
Step 1 in determining the emissions impact of the project.'' \19\ Thus,
this SIP action does not reflect a substantive change to South
Carolina's applicability requirements for NSR.\20\ As was the case with
the PEA Rule, this SIP revision only clarifies that PEA is allowed by
removing any ambiguity. South Carolina's regulations already allow for
PEA, and the State has implemented the regulations accordingly, without
interfering with attainment of the NAAQS. No areas within the State are
designated as nonattainment.
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    \16\ The March 2018 Memorandum explained that EPA interpreted
the pre-2020 PEA Rule NSR regulations as ``provid[ing] that
emissions decreases as well as increases are to be considered at
Step 1 of the NSR applicability process, provided they are part of a
single project.'' March 2018 Memorandum, at p. 1. More specifically,
in the March 2018 Memorandum, EPA interpreted the pre-2020 PEA Rule
major NSR regulations to mean that emissions increases and decreases
could be considered in Step 1 for projects that involve multiple
types of emissions units in the same manner as they are considered
for projects that only involve new or only involve existing
emissions units.
    \17\ See Regulation 61-62.5, Standard No. 7 subparagraphs
(a)(2)(iv)(c and d) and Standard No. 7.1 subparagraphs (b)(3 and 4)
(2020).
    \18\ March 2018 Memorandum at 6-8.
    \19\ Id.
    \20\ Permitting materials from a February 21, 2019, SC DHEC
permitting decision have been added to the docket for this action as
an example showing that South Carolina has already been implementing
project emissions accounting and this action will not result in a
substantive change to South Carolina's PSD and NNSR programs. In
this example, the source applied project emissions accounting at
Step 1 of the PSD process. South Carolina then determined that the
project in question was a major modification for volatile organic
compounds (VOCs) and it applied the reasonable possibility
provisions for all NSR pollutants calculated to have any increase
above baseline actual emissions.
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    Likewise, section 193 of the CAA does not prohibit EPA's approval
of this South Carolina's SIP revision to incorporate the 2020 PEA Rule.
This section of the Act requires analysis of a plan's changes to ensure
that an equivalent or greater emission reduction of a given pollutant
is achieved within a given nonattainment area. For the reasons
discussed above, the revised NSR provisions of the SIP should achieve
equivalent emissions reduction as the pre-existing NSR provisions of
the SIP. Moreover, although EPA is approving revisions to South
Carolina's NNSR provisions to be consistent with EPA's NNSR
regulations, there are currently no nonattainment areas in South
Carolina to which these regulations apply, and these rules would
therefore currently have no effect.\21\ EPA designated and classified a
portion of York County, South Carolina, within the Rock Hill-Fort Mill
area as a moderate nonattainment area for the 8-hour ozone NAAQS of
0.08 parts per million set in 1997. Since then, however, EPA
redesignated the area to attainment and, thus, South Carolina no longer
has nonattainment areas that can be specifically considered under
section 193 of the CAA. See 80 FR 76,865 (December 11, 2015).
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    \21\ South Carolina's SIP-approved NNSR rules have a state-
effective date of April 24, 2020. See 86 FR 59646 (October 28,
2021).
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    Comment 3: The Commenter asserts that EPA should not act on South
Carolina's February 3, 2022, revision related to the South Carolina
NNSR and PSD rules in the SIP while pending litigation exists
concerning the PEA Rule. The Commenter states that EPA provides no
explanation of the manner at which it would reverse an approved
revision should EPA rescind, or a court vacate, the PEA Rule.
    Response 3: EPA disagrees with the Commenter that, while litigation
is incomplete on the PEA Rule, EPA should not act on the South
Carolina's plan revision. The PEA Rule, promulgated November 24, 2020,
is a current Federal regulation addressing major new source review.
South Carolina's February 3, 2022, submission merely adopts federally
approved regulations. Should EPA rescind, or a court vacate, the PEA
Rule, EPA has tools available to ensure that SIPs remain compliant with
EPA's rules.

III. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, and as discussed in Sections I and II of this preamble, EPA is
finalizing the incorporation by reference of paragraphs (A)(2)(d)(vi)
and (A)(2)(d)(vii) of South Carolina's Regulation 61-62.5, Standard No.
7--Prevention of Significant Deterioration, and paragraphs (A)(8) and
(A)(9) of South Carolina's Regulation 61-62.5, Standard No. 7.1--
Nonattainment New Source Review, all state effective on November 26,
2021. EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 4
Office (please contact the person identified in the FOR fURTHER
iNFORMATION cONTACT section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion in
the SIP, have been incorporated by reference by EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of EPA's approval, and will
be incorporated by reference in the next update to the SIP
compilation.\22\
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    \22\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action

    EPA is approving the SIP revision adopting the PEA Rule provisions
of South Carolina Regulation 61-62.5, Standards No. 7--Prevention of
Significant Deterioration, and Standard No. 7.1--Nonattainment New
Source Review, both state effective on November 26, 2021, into the SIP.
These changes were submitted by South Carolina on February 3, 2022.

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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. This action merely
approves State law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by State law. For that
reason, this action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    Because this final rule merely approves State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law, this final rule for the State of South
Carolina does not have Tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action
will not impose substantial direct costs on Tribal governments or
preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is
located within the boundary of York County, South Carolina. Pursuant to
the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120
(Settlement Act), ``all State and local environmental laws and
regulations apply to the [Catawba Indian Nation] and Reservation and
are fully enforceable by all relevant State and local agencies and
authorities.'' The CIN also retains authority to impose regulations
applying higher environmental standards to the Reservation than those
imposed by State law or local governing bodies, in accordance with the
Settlement Act.
    Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
    SC DHEC did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this action. Due to the nature of
the action being taken here, this action is expected to have a neutral
to positive impact on the air quality of the affected area.
Consideration of EJ is not required as part of this action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898 of achieving EJ for people of color, low-income populations,
and Indigenous peoples.
    This action is subject to the Congressional Review Act, and 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).
    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 December 4, 2023. 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, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 27, 2023.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart PP--South Carolina

0
2. In Sec.  52.2120, in table 1 to paragraph (c), under ``Regulation
No. 62.5'' revise the entries for ``Standard No. 7'' and ``Standard No.
7.1'' to read as follows:

Sec.  52.2120  Identification of plan.

* * * * *
    (c) * * *

                        Table 1 to Paragraph (c)--EPA-Approved South Carolina Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State
          State citation              Title/subject     effective date   EPA approval date       Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Regulation No. 62.5..............  Air Pollution
                                    Control Standards.

                                                  * * * * * * *
Standard No. 7...................  Prevention of            11/26/2021  10/4/2023, [Insert
                                    Significant                          citation of
                                    Deterioration.                       publication].
Standard No. 7.1.................  Nonattainment New        11/26/2021  10/4/2023, [Insert   Except for the
                                    Source Review.                       citation of          ethanol production
                                                                         publication].        facilities
                                                                                exclusion in
                                                                                paragraphs
                                                                                (A)(11)(t) and
                                                                                (B)(22)(c)(xx).

                                                  * * * * * * *
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[FR Doc. 2023-21722 Filed 10-3-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Notices]
[Pages 60978-60981]
[FR Doc No: 2013-24013]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70522; File No. SR-CBOE-2013-090]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change to Amend the Fees Schedule

September 26, 2013.
    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 September 17, 2013, Chicago Board Options Exchange,
Incorporated (the ``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
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its Fees Schedule. The text of the
proposed rule change is available at the Exchange's Office of the
Secretary, on the Exchange's Web site at http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx, at the Commission's Public Reference
Room, and on the Commission's Web site at http://www.sec.gov.

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

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

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

1. Purpose
    The Exchange proposes to amend its Fees Schedule. First, the
Exchange is proposing to make changes to Footnote 26 of the Fees
Schedule. Pursuant to that section, the Exchange charges a Trading
Permit Holder (``TPH'') a monthly fee for a Trading Permit or Tier
Appointment, the amount of which fee is based on the type of Trading
Permit or Tier Appointment. Pursuant to the Fees Schedule, the Exchange
assesses these access fees in arrears during the first week of the
following month. For example, a TPH will be billed in February for use
of a Trading Permit in January. The Fees Schedule further provides that
if a Trading Permit is issued during a calendar month after the first
trading day of the month, the access fee for the Trading Permit for
that calendar month is prorated based on the remaining trading days in
the calendar month. A Trading Permit will be renewed automatically for
the next month unless the TPH submits written notification to the
Registration Services Department by the 25th day of the prior month (or
the preceding business day if the 25th is not a business day) to cancel
the Trading Permit effective at or prior to the end of the applicable
month.
    Under the Fees Schedule, if a TPH cancels a Trading Permit
effective prior to the end of the applicable month, the TPH will still
be assessed the full access fee for that month (the same amount it
would pay if the TPH had cancelled the Trading Permit effective at the
end of the month). However, if the TPH later requests that the Exchange
issue the same type of Trading Permit for the remainder of that same
month, pursuant to the Fees Schedule, the Exchange will assess a
prorated access fee based on the remaining trading days in that month.
Thus, the TPH would be double-paying the access fee for that remaining
portion of the month.
    The purpose of the proposed rule change is to prevent a TPH from
double-paying a portion of the monthly access fee in this situation.
The proposed rule change amends Footnote 26 of the Fees Schedule to
provide that if cancellation of a Trading Permit is effective prior to
the end of the applicable month, and the cancelling TPH later requests
issuance of the same type of Trading Permit for the remainder of that
same month, the Exchange may issue the same type of Trading Permit
(assuming one is available) but will not impose the additional prorated
access fee for the remainder of the month.\3\ The proposed rule change
results in a TPH that cancels a Trading Permit prior to the end of the
month but then has the same type of Trading Permit issued during that
same month paying the same monthly access fee amount as it would if it
had cancelled its Trading Permit effective at the end of a month. This
change is similar to a change made by C2 Options Exchange, Incorporated
(``C2'').\4\
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    \3\ The proposed rule change does not change the amounts of the
access fees imposed on TPHs for the use of Trading Permits.
    \4\ See Securities Exchange Act Release No. 68751 (January 29,
2013), 78 FR 7837 (February 4, 2013) (SR-C2-2013-005).
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    The Exchange proposes to make one other change to Footnote 26.
Currently, Footnote 26 states that ``Trading Permits will be renewed
automatically for the next month unless the Trading Permit Holder
submits written notification to the Registration Services Department by
the 25th day of the prior month (or the preceding business day if the
25th is not a business day) to cancel the Trading Permit effective at
or prior to the end of the applicable month.'' The Exchange proposes to
amend this statement to give TPHs until 4 p.m. on the second-to-last
business day of the prior month to cancel a Trading Permit. This will
give TPHs more time to cancel Trading Permits before such permits
renew.\5\
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    \5\ The proposed new language would read ``Trading Permits will
be renewed automatically for the next month unless the Trading
Permit Holder submits written notification to the Registration
Services Department by 4 p.m. [sic] on the second-to-last business
day of the prior month to cancel the Trading Permit effective at or
prior to the end of the applicable month.''
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    The Exchange also proposes to amend Footnote 28 (which is currently
``reserved'') to state that monthly fees are assessed and applied in
their entirety and are not prorated. This explicit statement will apply
specifically to monthly Facility Fees and CBOE Command Connectivity
Charges (but is not intended to imply that other monthly charges are
not applied in their entireties). This is not a proposed change, as
this is the manner in which those fees are currently assessed; the
Exchange merely desires to make this fact explicit. This means that,
regardless of whether a market participant incurs the fee at the
beginning or the end of the month, or the amount of the month for which
the market participant incurs the fee, the entirety of the monthly fee
will be assessed. For example, the OEX Standard Booth Rental Fee is
$550 per month. Regardless of whether a market participant rents an OEX
Standard Booth on the third of the month or the thirtieth of the month,
that market participant will be assessed the full $550 fee. This is how
the Exchange's billing system is set up, and absent a statement that
such fees are prorated, the manner that such fees have been and are to
be assessed. The Exchange expends resources to provide and administer
these facilities and connectivity, and in many circumstances, the same
amounts of Exchange resources are necessary regardless of the portion
of the month that the services, facilities and connectivity are used
(or at the very least, a disproportionate amount of resources are
necessary). Further, Exchange billing systems are arranged to bill for
these services on a monthly basis, and determining these costs on a
prorated basis would prove difficult and require further resources.
    The Exchange also proposes to amend its paper fees (which apply to
the paper that the Exchange provides for TPHs on the trading floor for
use in printing trade tickets). The Fees Schedule currently lists a fee
of $50 per box for 5-part and 2-part paper. However, the Exchange no

longer offers 5-part and 2-part paper. Instead, the Exchange provides
two types of printers to TPHs on the trading floor, and sells paper to
TPHs based on the type of printer the TPH uses. For TPHs that use a
Hewlett-Packard (``HP'') Laser Printer, the Exchange provides packets
of 500 sheets, for which the Exchange proposes to assess a fee of $5
per packet. For TPHs that use the more powerful Zebra printer, the
Exchange provides rolls of ink as well as rolls of paper, and proposes
to assess a fee of $19.50 for each roll of either. The proposed fees
would be intended to cover the costs of the paper (and ink), as well as
the costs of provision of such paper (and ink).
    The Exchange also proposes to add fees for the installation,
relocation, and removal of CBOE Trading Floor Terminals to the Fees
Schedule. Specifically, the Exchange proposes to list a fee of $175 for
the installation, $225 for the relocation, and $125 for the removal of
such terminals. These fee amounts are currently being assessed for such
services, as they are the fees that are assessed by electricians for
their work and then passed through to the relevant TPHs by the
Exchange.\6\ Because these are set fee amounts, the Exchange proposes
to list them on the Fees Schedule for clarity.
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    \6\ This is pursuant to the ``DPM requests for post
modifications/equipment'' fee listed in the ``Miscellaneous''
section of the Fees Schedule.
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    Finally, the Exchange proposes to amend a typographical error on
its Fees Schedule. The ``Trading Permit and Tier Appointment Fees''
table of the Fees Schedule lists a column for ``Origin Code'' to
delineate to which origin codes (which correspond to different types of
market participants) the different permits and tier appointments apply.
Next to the ``Electronic Access Permit'' and ``CBSX Trading Permit'',
the letter ``M'' (corresponding to Market-Makers) is listed in the
``Origin Code'' column. However, these types of permits are not limited
to Market-Makers, and the Exchange believes that the letter ``M'' was
unintentionally added to these rows because it was also added
(correctly) to a number of rows above it. As such, the Exchange
proposes to delete the ``M'' from these rows.
2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Act and the rules and regulations thereunder applicable to the
Exchange and, in particular, the requirements of Section 6(b) of the
Act.\7\ Specifically, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \8\ requirements that the rules of
an exchange be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitation [sic] transactions in securities, to remove impediments to
and perfect the mechanism of a free and open market and a national
market system, and, in general, to protect investors and the public
interest. Additionally, the Exchange believes the proposed rule change
is consistent with the Section 6(b)(5) \9\ requirement that the rules
of an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. The Exchange also believes the
proposed rule change is consistent with Section 6(b)(4) of the Act,\10\
which provides that Exchange rules may provide for the equitable
allocation of reasonable dues, fees, and other charges among its
Trading Permit Holders and other persons using its facilities.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
    \9\ Id.
    \10\ 15 U.S.C. 78f(b)(4).
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    The Exchange believes that the proposed change to amend Footnote 26
to prevent the double-paying of a Trading Permit fee is equitable and
not unfairly discriminatory as it applies to all TPHs that cancel a
Trading Permit effective prior to the end of a month and request
issuance of the same type of Trading Permit during that same month. The
Exchange believes the proposed rule change protects investors and the
public interest, as it prevents a TPH from paying the monthly access
fee twice during the same month for a Trading Permit in the event that
the TPH cancels the Trading Permit effective prior to the end of the
month but later requests issuance of the same type of Trading Permit
during that month. The Exchange believes that the proposed rule change
is fair and reasonable, because it results in a TPH that cancels a
Trading Permit prior to the end of the month but then has the same type
of Trading Permit issued that month paying the same amount in access
fees for that month as a TPH that cancels a Trading Permit effective at
the end of a month. A Trading Permit Holder is able to trade the same
amount in either situation; therefore, the Exchange believes it is
reasonable that the TPH pay the same amount in either situation.
    The Exchange believes that the proposal to amend Footnote 26 to
give TPHs until 4 p.m. on the second-to-last business day of the prior
month to cancel a Trading Permit is reasonable because it will give
TPHs more time to determine whether to cancel a Trading Permit. The
Exchange believes that the proposed change is equitable and not
unfairly discriminatory because it will apply to all TPHs.
    The Exchange believes that the proposal to amend Footnote 28 state
that monthly Facility Fees and CBOE Command Connectivity Charges are
assessed and applied in their entireties and are not prorated removes
impediments to and perfects the mechanism of a free and open market and
a national market system, and, in general, protects investors and the
public interest because it makes clear this current policy, thereby
avoiding possible confusion. The Exchange believes that assessing these
fees in their entireties is reasonable, equitable and not unfairly
discriminatory because the Exchange expends resources to provide and
administer these facilities and connectivity, and in many
circumstances, the same amounts of Exchange resources are necessary
regardless of the portion of the month that the services, facilities
and connectivity are used (or at the very least, a disproportionate
amount of resources are necessary). Further, Exchange billing systems
are arranged to bill for these services on a monthly basis, and
determining these costs on a prorated basis would prove difficult and
require further resources. Also, this policy applies to all TPHs
equally.
    The Exchange believes that its proposed amendment to state that
paper fees are assessed for $5 per packet of 500 sheets for HP Laser
Printer paper and $19.50 per roll of either Zebra printer paper or ink
(and the deletion of the $50 fee per box of 5-part or 2-part paper) is
reasonable because this change would better align the Exchange's paper
provision practice, and because the proposed fees would be intended to
cover the costs of the paper (and ink), as well as the costs of
provision of such paper (and ink). The Exchange believes that this
change is equitable and not unfairly discriminatory because the fees
will apply to all TPHs equally.
    The Exchange believes that the proposed listing of the fees for the
installation, relocation, and removal of CBOE Trading Floor Terminals
will remove impediments to and perfect the mechanism of a free and open
market and a national market system by letting TPHs who may need those
services know explicitly on the Fees Schedule

what the fees for such services will be (thereby eliminating any
possible confusion). The Exchange believes that these fee amounts are
reasonable because they reflect the amounts necessary to perform such
services (and indeed, are the amounts assessed by electricians for such
services). The Exchange believes that these fees are equitable and not
unfairly discriminatory because they will apply to all TPHs equally.
    The Exchange believes that the proposal to delete the erroneous
listing of the letter ``M'' from the ``Origin Code'' column of [sic]
next to the ``Electronic Access Permit'' and ``CBSX Trading Permit''
rows of the Trading Permit and Tier Appointment Fees table of the Fees
Schedule will eliminate possible investor confusion, thereby removing
impediments to and perfecting the mechanism of a free and open market
and a national market system.

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

    CBOE does not believe that the proposed rule changes will impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange does not believe
that the proposed rule changes will impose any burden on intramarket
competition that is not necessary or appropriate in furtherance of the
purposes of the Act because the proposed changes apply to all TPHs
equally, regardless of the type of market participant. The Exchange
does does [sic] not believe that the proposed rule changes will impose
any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act because these
changes all apply to billing and fees that affect CBOE only (and not
other exchanges). Further, to the extent that the proposed changes make
CBOE more attractive to market participants on other exchanges, such
market participants may elect to become CBOE market participants.

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

    The Exchange neither solicited nor received comments on the
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \11\ and paragraph (f) of Rule 19b-4 \12\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2013-090 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-2013-090. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Section, 100 F Street
NE., Washington, DC 20549-1090 on official business days between the
hours of 10:00 a.m. and 3:00 p.m. Copies of the filing will also be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
CBOE-2013-090 and should be submitted on or before October 23, 2013.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-24013 Filed 10-1-13; 8:45 am]
BILLING CODE 8011-01-P