We do not agree with the commenter that the Title V permit process is the vehicle for establishing the limits that apply to each facility that demonstrates eligibility for the health based compliance alternatives in the ICI boilers and process heater NESHAP. It is important to clarify that the alternative health based emissions standards are created under the authority of section 112( d)( 4) and pursuant to the process outlined in Appendix A of the Part 63, Subpart DDDDD. Title V does not provide authority to create applicable requirements under section 112; but rather, it is title V's role to incorporate applicable requirements, such as Subpart DDDDD, that are established under other provisions of the Clean Air Act. 57 If the parameters that are incorporated into a Title V permit based on the healthbased alternative in the ICI boiler NESHAP need to be modified after the initial incorporation due to a change subject to section 11 of Appendix A of the NESHAP, we agree that a significant permit modification process might need to be used. However,

contrary to our earlier response to comments, EPA agrees with the commenter that the gatekeeper in section 70.7( e)( 2)( i)( A)( 4) may not be relevant under the ICI boiler and process heater NESHAP. The section 70.7( e)( 2)( i)( A)( 4) gatekeeper says that minor permit modification procedures may be used for permit modifications that " Do not seek to establish or change a permit term or condition for which there is no corresponding underlying applicable requirement and that the source has assumed to avoid an applicable requirement to which the source would otherwise be subject...."

We agree that this gatekeeper may not apply because a source subject to the alternative health based emission standard under the ICI boiler and process heater NESHAP is subject to an underlying applicable requirement and is not assuming additional Title V permit conditions in order to avoid the applicable requirements in Subpart DDDDD. Rather, such a source submits an eligibility demonstration ( under the procedures set forth in Subpart DDDDD) to establish eligibility for an alternative applicable requirement derived from the same NESHAP.

11.3 Enforceable Parameters Comment: Four commenters ( OAR 2002 0058 0670, OAR 2002 0058 0677, OAR

2002 0058 0694, OAR 2002 0058 0683) requested that EPA specify several additional process and non process related parameters under section 11 of appendix A to clarify the enforceable alternative limits for the facility. One commenter ( OAR 2002 0058 0670) specifically requested that " emission rate" be added to the list of parameters. Three commenters ( OAR 2002 0058

0677, OAR 2002 0058 0694, OAR 2002 0058 0683) requested that non process parameters that can affect a change in the air dispersion modeling be included, such as stack height, exit gas temperature, distance to the plant property line, and changes in RfCs or land use. One commenter ( OAR 2002 0058 0683) stated that in order for a source to certify compliance with the health based compliance alternatives, the parameters defining the affected source must not be 58 limited to process parameters, and suggested that key inputs to a facility's demonstration of eligibility ( e. g., RfCs, look up table values, emission rates , etc ) be added to the list of enforceable conditions that must be submitted for incorporation in the Title V permit.

Response: We recognize that a large number of parameters can affect continuous compliance with the health based compliance alternatives. These parameters include, but are not limited to, HAP emission rates, fuel type, type of control device, stack parameters,

reference values, and location of local residences. Some of these parameters are appropriate for incorporation into Title V permits ( e. g., HAP emission rates or a surrogate for emission rate such as production volume) while others are not ( e. g., reference values).

However, changes in any of these parameters can trigger the need for a re assessment.

Therefore, we are adding language to Appendix A expanding the list of parameters that should be considered for inclusion as enforceable permit limits. In section 11 of Appendix A, we are also expanding the list of parameters that, if changes occur, could also necessitate a re assessment.

Comment: One commenter ( OAR 2002 0058 0684) requested that sources eligible for the health based compliance alternative be required to review all modeling parameters annually including both process and non process parameters in order to ensure continuous compliance.

The commenter suggested this review could become part of the Title V certifications.

Another commenter ( OAR 2002 0058 0670) requested additional language, similar to section 13 of Appendix B the Plywood and Composite Wood Products NESHAP, which identifies steps to be taken if process and non process parameters of the risk based compliance demonstration change. The commenter suggested that the rule ( 1) specify non process parameters that can affect continuous compliance with the health based compliance alternatives; ( 2) require facilities to annually certify continuous compliance with all process and non process parameters used in the risk determination; and ( 3) provide a timeline for the facility to come into compliance based on a change in a process or non process parameter. The commenter added that the current rule does not consider changes to non process parameters, whereas both process and non process parameters are evaluated during annual Title V compliance certifications under the Plywood and Composite Wood Products NESHAP.

Response: Sources that demonstrate eligibility for the health based compliance alternatives and have the necessary conditions incorporated in their Title V permits are 59 subject to the normal Title V permitting requirements set forth in 40 CFR Part 70 and state regulations. This includes the requirement for compliance certifications at least annually based on 40 CFR 70.6( c)( 5) and equivalent state provisions. Thus, on at least an annual basis, sources will have to review and certify their compliance with their Title V permit conditions, including those conditions that implement the health based alternatives in this rule.

However, we do not believe that sources should be required to submit a new eligibility demonstration each year. Under the final rule, sources are only required to resubmit the eligibility demonstration if parameters included in their risk assessment change in a way that could increase risks. These parameters include, but are not limited to,

fuel type, fuel mix ( annual average), reference values, type of control device, emission rate,

stack parameters, and location of local residences. We agree that both process and nonprocess parameters can impact risk and, therefore, changes in both types of parameters could necessitate a re assessment. We have added language to this effect in sections 10 and 11 of appendix A.

If a change results in a source no longer being eligible for the health based alternative compliance options, then that source must comply with the technology requirements of the MACT. Further, 63.9( j) of the MACT general provisions requires that a source must provide permitting authorities with any changes to information already provided in the notification of compliance status within 15 calendar days after the change.

The notification of compliance status includes the methods used to determine compliance.

We believe that these requirements to conduct the regular Title V compliance certification and to resubmit the eligibility demonstration when there is a change that could increase risks are adequate to ensure continuous compliance. With regard to the timeline requested by one commenter, appendix A indicates that if a parameter changes that is within the source's control, such as a change in stack height at the facility, the updated eligibility demonstration must be submitted prior to making the change and revising the Title V permit. If the source is no longer eligible for the health based compliance alternatives, that source must come into compliance with the technology standards prior to making the change and revising the permit. We have also added language to section 11 indicating that if a parameter changes that is outside the control of the source ( e. g., a 60 change in a reference value), and that change causes the source to no longer be able to meet the criteria for the health based compliance alternatives, the source is allowed a 3 year timeline to come into compliance with the technology standards. 61 Chapter 12 Miscellaneous 12.1 Wording Changes/ Additions Comment: One commenter ( OAR 2002 0058 0670) requested EPA incorporate the RfCs from EPA website into the final rule as opposed to a reference to the website. The commenter also requested that EPA maintain and update the tables in the rule as RfCs change in the future.

Response: We disagree with this suggestion. Referencing the toxicity tables, located on EPA's website, provides an efficient mechanism for adapting to scientific advances without requiring extensive revision to the regulatory text when a reference value changes.

12.2 Decision to Adopt Health Based Compliance Alternatives Comment: Several commenters ( OAR 2002 0058 0683, OAR 2002 0058 0676, OAR

2002 0058 0677, OAR 2002 0058 0660, OAR 2002 0058 0677, OAR 2002 0058 0684)

disapproved of incorporating the health based compliance alternatives into the Boiler and Process Heater MACT standard. Four commenters ( OAR 2002 0058 0683, OAR 2002 0058 0676, OAR

2002 0058 0677, OAR 2002 0058 0660) disagreed with the authority for EPA to implement health based compliance alternatives as part of the MACT standard. Both commenters added that the MACT standards are technology based standards, not risk based and that these risk based health based compliance alternatives contradict provisions of the 1990 amendments to the CAA.

One commenter ( OAR 2002 0058 0683) added that the risk based approach was to be used separately and subsequently during residual risk evaluations to improve a technology based standard. One commenter ( OAR 2002 0058 0660) stated this major objective to reduce compliance costs for sources through the health based compliance alternatives is in violation with section 8 of the U. S. Constitution.

Several other commenters ( OAR 2002 0058 0667, OAR 2002 0058 0668, OAR 2002

0058 0671, OAR 2002 0058 0675, OAR 2002 0058 0679, OAR 2002 0058 0696, OAR 2002

0058 0697, OAR 2002 0058 0698, OAR 2002 0058 0688) believed that EPA acted within 62 statutory authority to implement the health based compliance alternatives for Mn and HCl,

recognized threshold pollutants, under section 112( d)( 4). One commenter ( OAR 2002 0058

0667) provided an attachment of the comments made in response to the HWC MACT " Replacement Standards" proposal, to support EPA's authority to develop health based compliance alternatives. Several of these commenters cited a 1990 Senate report to support the Agency's authority.

Response: As stated in the comment summary in final boiler and process heater NESHAP rule Promulgated on September 13, 2004, we have determined that we have the legal authority to establish health based alternative emission standards for HCl and manganese for affected sources in this category pursuant to the authority provided under section 112( d)( 4) of the CAA. This reconsideration only opened comments on the certain provisions of the approach for demonstrating eligibility under appendix A and on the provisions for establishing the health based compliance alternative for TSM. We are not reconsidering our legal authority to implement health based compliance alternatives. For further explanation of our legal basis for adopting the health based alternative, see the Response to Comments documents associated with our September 14, 2004 final rule.

Comment: Three commenters ( OAR 2002 0058 0677, OAR 2002 0058 0683, OAR

2002 0058 0686) suggested that the risk based alternatives remove the level playing field benefit of national technology based regulations, and as a result would encourage industries to move to areas with less stringent air toxics regulations and thus create ` hot spots' of HAP. One commenter ( OAR 2002 0058 0683) concluded that a national technology based approach is necessary based on the results of the NATA, which indicated high levels of HAP in both rural and urban areas.

Response: We disagree with the commenters and contend that the inclusion of health based compliance alternatives in the final rule is appropriate. By using this approach, EPA is availing itself of the authority Congress granted it in section 112( d)( 4) of the CAA. The requirements of the health based compliance alternatives are the same for all sources across the nation. These requirements will ensure that affected sources which choose to comply with the health based alternatives do not emit HCl, Cl2, and/ or manganese at levels that are harmful to public health. We do not agree that our rule will result in " hot spots" where the risk from HAP emissions in some area is higher than in 63 other areas. The risk based eligibility criteria are the same in all areas of the country. No matter where a source locates, it is not eligible to comply with the health based alternatives if it emits manganese or HCl at levels that results in health risk above the applicable thresholds.

Comment: Two commenters ( OAR 2002 0058 0676, OAR 2002 0058 0677) stated that the health based compliance alternatives ignore the threat of fine particulates. The commenters suggested the transport of fine particulates are long range, and the health based compliance alternative focus on short term exposure from facilities with tall stacks located in rural settings is not sound public health policy.

Response: In accordance with our authority in section 112 of the Clean Air Act, this rule is focused on limiting emissions of HAP rather than fine particulates. Although some HAP metals are contained in particulate matter and we have adopted particulate matter limitations to control these HAPs, the focus of this NESHAP is not on the control of fine PM. In accordance with other parts of the Clean Air Act, EPA and the states are developing other policy mechanisms and regulations to address fine PM. Even if sources are subject to the health based alternatives for HAPs in this rule, these sources must comply with all applicable requirements designed to meet fine particulate standards.

Additionally, we disagree with the second part of this comment regarding transport,

exposure, and stack heights. First, the health based compliance alternatives require sources to include site specific stack heights in their risk assessment. These stack heights are either incorporated directly into their site specific modeling analyses or used to calculate a weighted stack height value ( for a lookup table analysis). Second, risks from long term exposure to relevant HAP must be assessed. Third, there is no assumption that sources will be located in rural environments. Rather, the level of development surrounding a source can be factored into the risk assessment on a site specific basis for a site specific risk assessment. Risk assessments based on the lookup tables will use the maximum pollutant concentration beyond the facility fence line regardless of whether the site of maximum concentration is populated. Therefore, the lookup table analysis is protective regardless of the distribution of population surrounding a source. 64 Comment: One commenter ( OAR 2002 0058 0683) suggested these health based compliance alternatives do not address ecological risks to sensitive habitats in areas where few people currently live.

Response: We disagree with the commenter. As discussed in an earlier response,

we have assembled a list of HAP with significant potential to persist in the environment and to bioaccumulate. This list does not include Mn, HCl, or Cl2 , which are the only HAP relevant for the health based compliance alternative under the final rule.

Comment: Two commenters ( OAR 2002 0058 0676, OAR 2002 0058 0677) expressed concern that facilities existing in a state would not reduce their HAP emissions and the cumulative effect would be a continuing air toxics burden on the residents of the state.

Response: Only facilities that meet the risk based criteria are eligible for the healthbased alternatives. Furthermore, sources using the health based compliance alternatives are still required to meet an emission standard for HCl and Mn that is implemented through parameters contained in Title V permit conditions under appendix A. This is a health based standard that is designed to protect public health.

Comment: One commenter ( OAR 2002 0058 0669) supported the health based compliance alternative and stated these alternatives are essential to the economic survival of the small businesses that make up the pressure treated wood industry. The commenter added that the requirements to install bag houses or ESPs are significant for small units and the commenter suggested such controls are unnecessary at facilities located in rural areas. One commenter ( OAR 2002 0058 0668) supported the alternative to reduce the cost of regulatory controls on units that can demonstrate little risk to the public health or the environment. The commenter added these health based compliance alternatives provide for an efficient use of both Agency and affected sources resources, and the commenter called for these health based compliance alternatives to be considered in all MACT rules and future residual risk evaluations.

One commenter ( OAR 2002 0058 0674) added that without the presence of tiered healthbased compliance alternative small plants would be economically threatened if required to meet the MACT standard. The commenter stated that affected sources should not be required to install controls if the source does not pose a threat to human health or the environment.

Several commenters ( OAR 2002 0058 0675, OAR 2002 0058 0679, OAR 2002 0058

0692, OAR 2002 0058 0696, OAR 2002 0058 0697, OAR 2002 0058 0698) added that without 65 these two tiers, small municipal generators would be required to install expensive controls in return for no health benefit or cease electricity production.

Two commenters ( OAR 2002 0058 0671, OAR 2002 0058 0673) supported the flexible regulatory structure of the health based compliance alternative. One of these commenters ( OAR

2002 0058 0671) cited section 112( b)( c) and ( d)( 2), and concluded that Congress discussed the need for standards to be both adaptable and feasible for the source categories. The commenters suggested the variability in the affected source category of this boiler and process heater NESHAP calls for a regulatory format that is responsive to the diversity of its affected sources.

Response: Our purpose in adopting the health based compliance alternatives was to minimize compliance costs for sources with emissions that do not present an appreciable risk of causing adverse health effects. We acknowledge the commenters' recognition of the benefits achieved by adopting the health based compliance alternatives to reduce the compliance costs for small businesses. For many affected sources, the costs associated with demonstrating eligibility for the health based compliance alternatives will likely be lower than the costs associated with complying with the technology requirements of the MACT.

This includes small facilities and other facilities that have already otherwise installed pollution controls. Successfully demonstrating eligibility for the health based compliance alternative( s) will result in cost savings for smaller affected sources because these facilities will not have to expend costs on installing or upgrading, operating, and maintaining the add on emission controls needed to comply with the MACT emission limits.

Comment: Two commenters ( OAR 2002 0058 0671, OAR 2002 0058 0695) refuted claims that these health based compliance alternatives are exemptions, since facilities that opt for the health based compliance alternative must meet certain standards or become subject to the MACT compliance requirements. The commenters added that these health based compliance alternatives are real, enforceable emission standards under the law.

Response: We agree with the commenter that the health based compliance alternatives are not exemptions from regulation. The health based compliance alternatives are alternative standards for threshold pollutants based on health considerations, rather than the technology based MACT criteria. Sources that demonstrate they are eligible to comply with the health based alternatives must operate in accordance with parameters set forth in their Title V operating permits to ensure that their emissions of particular 66 pollutants remain at levels that do not present an appreciable risk of adverse health effects.

12.3 Effects on Energy Supplies Comment: One commenter ( OAR 2002 0058 0681) requested EPA to consider the cumulative effects on energy supplies, in accordance with Executive Order 13211, if a fuel switch is required to comply in the event of the removal of the health based compliance options. The commenter expressed concern that the removal of a health based compliance alternative would require some affected sources to switch from coal to natural gas.

Response: The health based compliance alternatives remain intact as a result of this reconsideration. In accordance with Executive Order 13211, we have determined that our final action on reconsideration is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that these final rule amendments are not likely to have any adverse energy effects.

12.4 Reference Values Comment: One commenter ( OAR 2002 0058 0688) stated stakeholders had adequate notice on the RfC values and opportunity to comment on the legitimacy of the values. In support of this argument, the commenter identified specific references to the IRIS RfC concentrations in both the text and Table 4 of the proposed rule.

One commenter ( OAR 2002 0058 0660) requested that citizens with TILT ( Toxicant Loss of Tolerance) be considered in the health based compliance alternatives of this MACT standard. The commenter suggested that the current levels of acceptable injury allowed for in this rule have never been established to present an ` ample margin of safety' with respect to this population subset.

Response: We disagree with the commenters' request for further consideration of special populations when developing the health based compliance alternatives. The reference values, which are used as the basis for the health based compliance alternatives set in appendix A ( both the site specific assessment option and the lookup table assessment option), are designed to be protective of sensitive populations. The reference values have undergone scientific peer review and have been determined to be scientifically appropriate.

Additionally, we agree with the commenter that the use of these reference values as a basis 67 for establishing health based alternatives was open to public comment at the proposal of this NESHAP for this application.

12.5 Self Monitoring Comment: One commenter ( OAR 2002 0058 0660) objected to industry self monitoring,

stating such an allowance is in direct conflict with EPA's duty to develop a rule that is specific and enforceable.

Response: We contend that these health based compliance alternatives are both enforceable and adequately specific to the boiler and process heater source category. The affected source is required to: ( 1) conduct emissions tests or fuel analysis as specified in the rule, ( 2), perform a risk assessment as outlined in Appendix A, ( 3) demonstrate that it meets the criteria established by the final rule ( 4) assume Federally enforceable permit limits ( as described in appendix A of subpart DDDDD of 40 CFR part 63) that reflect the parameters in their risk assessment, and ( 5) maintain records to show continued eligibility.

12.6 Other Petitioner Issues Comment: Several commenters ( OAR 2002 0058 0663, OAR 2002 0058 0680, OAR

2002 0058 0675, OAR 2002 0058 0679, OAR 2002 0058 0692, OAR 2002 0058 0696, OAR

2002 0058 0697, OAR 2002 0058 0698, OAR 2002 0058 0673) supported EPA's decision not to reopen petitioner issues that were excluded from this reconsideration. One commenter ( OAR

2002 0058 0680) added that a disagreement with the result of an analysis does not constitute that an analysis must be reconsidered and the commenter recognized that the remaining issues were fully noticed with an appropriate comment period in the proposed rule.

Response: The decision to include certain elements of the petition brought about by NRDC and EIP was previously made and discussed in the proposed rule and notice of reconsideration.

Comment: Several commenters ( OAR 2002 0058 0675, OAR 2002 0058 0679, OAR

2002 0058 0692, OAR 2002 0058 0696, OAR 2002 0058 0697, OAR 2002 0058 0698, OAR

2002 0058 0673) supported the refusal on the request to stay the health based limits. Several commenters ( OAR 2002 0058 0675, OAR 2002 0058 0679, OAR 2002 0058 0692, OAR

2002 0058 0696, OAR 2002 0058 0697, OAR 2002 0058 0698) added that municipal entities 68 require longer timeframes and regulatory certainty in order to allocate public resources towards a compliance method. One commenter ( OAR 2002 0058 0673) stated that granting a stay would cause harm to affected facilities by effectively mandating the use of costly MACT controls. The commenter referenced the Industry Interveners' Response to Show Cause Order in NRDC v.

EPA and EPA papers which opposed the judicial stay.

Response: The decision to refuse the request to stay the health based compliance option was previously addressed in the notice of reconsideration.

12.7 State Resources Comment: Three commenters ( OAR 2002 0058 0677, OAR 2002 0058 0683, OAR

2002 0058 0694) expressed concern with the time and labor required to implement the healthbased compliance alternatives. One commenter ( OAR 2002 0058 0677) added that the incentive to apply for the health based compliance alternative would place intensive demands on state permitting authorities. Two commenters ( OAR 2002 0058 0683, OAR 2002 0058 0694) cited a lack of training and expertise in risk assessment methodologies and the Risk Assessment Reference Library. One commenter ( OAR 2002 0058 0694) added that there was a significant time and effort involved in reviewing a site specific assessment that is allowed to follow " any scientifically peer reviewed" method. Further, the commenter suggested that without more specific guidance, there is a lack of basis for accepting or rejecting applications for the healthbased compliance alternatives. The commenter requested that in light of a lack of expertise or resources to review the site specific assessments, these assessments should be submitted for approval by US EPA with notification to the state and local permit authority.

One commenter ( OAR 2002 0058 0672) suggested the requirement to submit a transparent and reproducible format of the Tier 2 risk assessment one year in advance provides authorities with adequate time and information in order to verify the assessment. The commenter suggested this timeline also allows facilities adequate time to change their assessments based on any comments from the reviewing authority. The commenter cited the section of the rule ( 69 FR 55284) to support this claim.

Response: We acknowledge the resource challenges faced by States. However,

appendix A does not require states to review and approve assessments before a source becomes eligible for the health based alternative. States have the discretion to prioritize 69 and manage their resources in reviewing eligibility demonstrations. Furthermore, EPA will review some assessments as part of an audit program.

12.8 Point of Maximum Impact Two commenters ( OAR 2002 0058 0670, OAR 2002 0058 0684) addressed the vagueness of the phrase " where people live." One commenter ( OAR 2002 0058 0670) requested to incorporate potential land use changes where people could reasonably be expected to live in the future into the demonstrations of eligibility. The commenter stated the rule language ` where people live' does not account for the individual most exposed ( IME) in the future for a location that was not residentially zoned at the time of the risk assessment. One commenter ( OAR 2002

0058 0684) suggested the wording " location where people live" is too vague and suggested replacing this language with the " point of maximum impact beyond the facility's property boundary."

Response: We agree that there is a need to clarify the wording of the phrase " where people live" in section 5 of Appendix A. To address some of the commenters concerns, we are changing the phrase to " where people live or congregate ( e. g. including schools or daycares)." We believe that this is an appropriate approach given that, as described in EPA's Air Toxics Risk Assessment Reference Library, sources can deviate from the default assumption that an exposed individual remains at the location of highest exposure for 24 hours per day, 365 days per year.

We do not believe any additional changes are needed in section 5 of Appendix A to account for future land use changes. The final rule requires that a source complying with a health based compliance alternative must resubmit their demonstration of eligibility if process or non process parameters change in a way that could increase public health risk.

Thus, if people have moved into an area, or if schools or day care centers are constructed,

the demonstration of eligibility must be resubmitted with a new risk assessment that incorporates updated parameters to account for the public health risk of these new populations. This resubmission of the eligibility demonstration is part of the existing requirements of appendix A for maintaining continuous compliance. If a source is no longer in compliance with the health based alternative due to changes in land use, that source must comply with the technology standards in the MACT. 70 12.9 Fire Tube Boilers Comment: One commenter ( OAR 2002 0058 0694) expressed concern that the NESHAP excludes any size fire tube boiler from regulation and as a result, not even the combined risk of all boiler emissions would be considered during the risk screening.

Response: We disagree that emissions from fire tube boilers are excluded from the health based compliance alternatives. Fire tube boilers are included in the small unit subcategory and are covered by the MACT rule. The commenter is correct that the subcategory of existing small unit boilers are not required to meet emission limits.

However, new solid fuel small units are required to meet an emission limit of 0.0003 lb/ mmBtu for TSM or 0.025 lb/ mmBtu for PM. Because fire tube boilers are part of the affected source category under subpart DDDDD, the emissions from fire tube boilers must be included in the risk assessment in order to determine eligibility with the health based compliance alternatives in appendix A.

12.10 Test Plans Comment: One commenter ( OAR 2002 0058 0694) requested that facilities opting to comply with the health based alternative be required to submit a stack test plan prior to conducting HAP emissions tests.

Response: Since the health based compliance alternatives are a component of the rule, all testing and reporting requirements listed in the rule are applicable when demonstrating eligibility for these alternatives. Thus, a source planning to demonstrate eligibility with the health based compliance alternatives is required to develop a sitespecific test plan as required by section 63.7520( a) of the rule. If a source elects to conduct fuel analysis as part of the eligibility demonstration, then the source must develop and submit a site specific fuel analysis plan as required by section 63.7521( b) of the rule.


[Federal Register Volume 76, Number 6 (Monday, January 10, 2011)]
[Notices]
[Page 1428]
[FR Doc No: 2011-186]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ID-6464-000]

Hemphill, Stuart R.; Notice of Filing

January 3, 2011.
    Take notice that on December 30, 2010, Stuart R. Hemphill submitted
for filing, an application for authority to hold interlocking
positions, pursuant to section 305(b) of the Federal Power Act, 16
U.S.C. 825d (b) and part 45 of title 18 of the Code of Federal
Regulations, 18 CFR part 45.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on January 20, 2011.

Kimberly D. Bose,
Secretary.
[FR Doc. 2011-186 Filed 1-7-11; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 83, Number 143 (Wednesday, July 25, 2018)]
[Notices]
[Pages 35302-35303]
[FR Doc No: 2018-15846]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83670; File No. SR-NASDAQ-2018-056]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Amend Rule 7015(b) To Provide for Port Connectivity the FINRA/Nasdaq
Trade Reporting Facility Chicago

July 19, 2018.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 6, 2018, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to amend the Exchange's transaction fees at
Rule 7015(b) to provide for port connectivity [sic] the FINRA/Nasdaq
Trade Reporting Facility Chicago, as described further below. The text
of the proposed rule change is available on the Exchange's website at
http://nasdaq.cchwallstreet.com/, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend Rules 7015(b) to establish fees for
Financial Information Exchange or ``FIX'' Port connectivity to the
FINRA/Nasdaq Trade Reporting Facility Chicago (``FINRA/Nasdaq TRF
Chicago''). The FINRA/Nasdaq TRF Chicago is a second iteration of the
FINRA/Nasdaq Trade Reporting Facility (now known as the FINRA/Nasdaq
Trade Reporting Facility Carteret or ``FINRA/Nasdaq TRF Carteret'')
that the Commission approved on June 29, 2018.\3\ The FINRA/Nasdaq TRF
Chicago is expected to launch in September 2018.
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 83559 (June 29,
2018), 83 FR 31589 (July 6, 2018) (SR-FINRA-2018-013).
---------------------------------------------------------------------------

    The proposal will amend Rule 7015(b), which presently charges a
$500 per port per month fee for FIX Ports to connect to the ``FINRA/
Nasdaq Trade Reporting Facility, ORF, and TRACE.'' The proposal will
amend this provision of the Rule to: (i) Refer to the FINRA/Nasdaq
Trade Facility by its new name, the ``FINRA/Nasdaq TRF Carteret''; (ii)
apply a $500 per port per month fee to FIX Ports to connect to the
FINRA/Nasdaq TRF Chicago; and (3) waive this fee for FIX Port
connections to the FINRA/Nasdaq TRF Chicago until November 1, 2018 so
as to encourage firms to test connectivity to the new facility and also
to provide them with a transition period to adjust to the new fees. As
of November 1, 2018, the same fee that the Exchange charges for FIX
Ports to connect to the FINRA/Nasdaq TRF Carteret will apply to FIX
Port connections to the FINRA/Nasdaq TRF Chicago.\4\
---------------------------------------------------------------------------

    \4\ For avoidance of doubt, the Exchange notes that a firm that
pays a fee for a FIX Port to connect to the FINRA/Nasdaq TRF
Carteret will also be liable for an additional fee to connect to the
FINRA/Nasdaq TRF Chicago.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\5\ in general, and furthers the objectives of Sections
6(b)(4) and 6(b)(5) of the Act,\6\ in particular, in that it provides
for the equitable allocation of reasonable dues, fees and other charges
among members and issuers and other persons using any facility, and is
not designed to permit unfair discrimination between customers,
issuers, brokers, or dealers.
---------------------------------------------------------------------------

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

    The Exchange believes that the Exchange's proposal to charge a fee
for FIX Ports that connect to the FINRA/Nasdaq TRF Chicago is
reasonable because the proposed fee accounts for the costs to the
Exchange of developing and maintaining connectivity to the FINRA/Nasdaq
TRF Chicago. The proposed fee is also reasonable because it mirrors a
fee that the Exchange already charges for connections to the FINRA/
Nasdaq TRF Carteret, which is the sister facility to the FINRA/Nasdaq
TRF Chicago and to which the Chicago facility will be identical in all
material respects.
    The Exchange also believes that it is reasonable to waive the
aforementioned fee for a brief transition period to allow participants
to test and configure their connections to the FINRA/Nasdaq TRF Chicago
and also to facilitate an adjustment to the new fees.
    The Exchange believes that the proposal is an equitable allocation
and is not unfairly discriminatory because the Exchange will apply the
same fee--and the same fee waiver--to all similarly situated members
that choose to connect to the FINRA/Nasdaq TRF Chicago. It is also
equitable to temporarily waive fees for connecting to the new facility
because doing so will ease the burden of testing and configuring the
connections.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. In terms of inter-market
competition, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive, or rebate opportunities available at other venues to be more
favorable. In such an environment, the Exchange must continually adjust
its fees to remain competitive with other exchanges and with
alternative trading systems that have been exempted from compliance
with the statutory standards applicable to exchanges. Because
competitors are free to modify their own fees in response, and because
market participants may readily adjust their order routing practices,
the Exchange believes that the degree to which fee changes in this
market may impose any burden on competition is extremely limited.

    In this instance, the proposed changes do not impose a burden on
competition because the proposed fee for connectivity to the FINRA/
Nasdaq TRF Chicago will be the same as that which the Exchange
presently charges to connect to the Chicago facility's sister facility,
the FINRA/Nasdaq TRF Carteret. Moreover, use of and connection to the
FINRA/Nasdaq TRF Chicago is voluntary. If a firm does not wish to pay
fees to connect to the FINRA/Nasdaq TRF Chicago, it may choose instead
to connect to a competing trade reporting facility that charges lower
fees.
    Lastly, the proposed fee waiver does not burden competition because
it will apply only for a brief transition period. Such transitional fee
waivers are a commonly accepted means of facilitating the adoption,
testing, and use of new functionalities and the attraction of new
participants.\7\
---------------------------------------------------------------------------

    \7\ See, e.g., Securities Exchange Act Release No. 81095 (July
7, 2017), 82 FR 32409 (July 13, 2017) (SR-ISE-2017-62) (temporarily
waiving port fees for connections to the re-platformed Nasdaq ISE
Exchange).
---------------------------------------------------------------------------

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

    No written comments were either solicited or received.

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)(ii) of the Act.\8\
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

    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: (i)
Necessary or appropriate in the public interest; (ii) for the
protection of investors; or (iii) otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or 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 email to [email protected]. Please include
File Number SR-NASDAQ-2018-056 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-NASDAQ-2018-056. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NASDAQ-2018-056, and should be submitted
on or before August 15, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
---------------------------------------------------------------------------

    \9\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-15846 Filed 7-24-18; 8:45 am]
 BILLING CODE 8011-01-P