[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Rules and Regulations]
[Pages 15271-15274]
[FR Doc No: 2023-05076]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1989

[Docket Number: OSHA-2020-0006]
RIN 1218-AD27

Procedures for the Handling of Retaliation Complaints Under the
Taxpayer First Act (TFA)

AGENCY: Occupational Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: On March 7, 2022, the Occupational Safety and Health
Administration (OSHA) of the U.S. Department of Labor (Department)
issued an interim final rule (IFR) that provided procedures for the
Department's processing of complaints under the employee protection
(retaliation or whistleblower) provisions of Section 7623(d) of the
Taxpayer First Act (TFA or Act). The IFR established procedures and
time frames for the handling of retaliation complaints under

TFA, including procedures and time frames for employee complaints to
OSHA, investigations by OSHA, appeals of OSHA determinations to an
administrative law judge (ALJ) for a hearing de novo, hearings by ALJs,
review of ALJ decisions by the Administrative Review Board (ARB)
(acting on behalf of the Secretary of Labor) and judicial review of the
Secretary's final decision. It also set forth the Department's
interpretations of the TFA whistleblower provisions on certain matters.
This final rule adopts the IFR with one technical change.

DATES: This final rule is effective on March 13, 2023.

FOR FURTHER INFORMATION CONTACT: Ms. Meghan Smith, Program Analyst,
Directorate of Whistleblower Protection Programs, Occupational Safety
and Health Administration, U.S. Department of Labor; telephone (202)
693-2199 (this is not a toll-free number) or email: [email protected].
This Federal Register publication is available in alternative formats.

SUPPLEMENTARY INFORMATION:

I. Background

    The Taxpayer First Act (TFA or Act), Public Law 116-25, 133 Stat.
981, was enacted on July 1, 2019. Section 1405(b) of the Act, codified
at 26 U.S.C. 7623(d) and referred to throughout the interim final rule
and this final rule as the TFA ``anti-retaliation,'' ``employee
protection,'' or ``whistleblower'' provision, prohibits retaliation by
an employer, or any officer, employee, contractor, subcontractor, or
agent of such employer against an employee in the terms and conditions
of employment in reprisal for the employee having engaged in protected
activity. Protected activity under the TFA includes any lawful act done
by an employee to provide information, cause information to be
provided, or otherwise assist in an investigation regarding
underpayment of tax or conduct which the employee reasonably believes
constitutes a violation of the internal revenue laws or any provision
of Federal law relating to tax fraud. To be protected, the information
or assistance must be provided to one of the persons or entities listed
in the statute, which include the Internal Revenue Service (IRS), the
Secretary of the Treasury, the Treasury Inspector General for Tax
Administration, the Comptroller General of the United States, the
Department of Justice, the United States Congress, a person with
supervisory authority over the employee, or any other person working
for the employer who has the authority to investigate, discover, or
terminate misconduct. The Act also protects employees from retaliation
in reprisal for any lawful act done to testify, participate in, or
otherwise assist in any administrative or judicial action taken by the
IRS relating to an alleged underpayment of tax or any violation of the
internal revenue laws or any provision of Federal law relating to tax
fraud. The interim final rules established procedures for the handling
of retaliation complaints under the Act, which OSHA is finalizing with
one technical correction in this final rule.

II. Interim Final Rule, Comments Received and OSHA's Response

    On March 7, 2022, OSHA published in the Federal Register an IFR
establishing procedures for the handling of whistleblower retaliation
complaints under the TFA. 81 FR 13976. The IFR also requested public
comments. The prescribed comment period closed on May 6, 2022. OSHA
received two comments responsive to the IFR.
    The first commenter, a private citizen, stated their opinion that
the proposed regulation was ``totally outside the purview of OSHA and
Safety and Health concerns,'' and that ``OSHA and other government
agencies'' are ``unconstitutional.'' OSHA disagrees with this comment.
The TFA rule is a procedural and interpretative rule that implements a
statutory provision lawfully enacted by Congress in which Congress
assigned to the Secretary of Labor the responsibility to receive and
adjudicate TFA retaliation complaints. The Secretary of Labor in turn
assigned to OSHA the responsibility to administer the whistleblower
program with respect to TFA retaliation complaints. See Sec'y's Order
No. 8-2020 (May 15, 2020), 85 FR 58,393, 2020 WL 5578580 (Sept. 18,
2020). In OSHA's experience, promulgating procedural and interpretative
rules governing the more than twenty whistleblower protection statutes
that OSHA administers aids the public in understanding the procedures
applicable to whistleblower cases and the standards that will apply to
adjudication of such cases. As such, OSHA is making no revisions to the
TFA rule in response to this comment.
    The second commenter, the United Brotherhood of Carpenters and
Joiners of America, expressed support for the rule and recommended
adding ``making referrals to immigration authorities'' in the list of
prohibited conduct outlined in 29 CFR 1989.102(a). OSHA agrees with the
commenter that referring a worker to immigration authorities in
retaliation for the worker's complaint about the employer's tax law
violation would violate the TFA anti-retaliation provision. OSHA has
reaffirmed this view in recent public guidance regarding retaliation in
violation of the whistleblower protection laws it administers. See,
e.g., OSHA Whistleblower Protection Program Fact Sheet (August 2022),
available at https://www.osha.gov/sites/default/files/publications/OSHA3638.pdf (``Retaliation can involve several types of actions, such
as . . . [r]eporting the employee to the police or immigration
authorities''), Whistleblower Investigations Manual, p. 29 (April 29,
2022), available at https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-03-011.pdf (noting adverse action can
include ``[r]eporting or threatening to report an employee to the
police or immigration authorities''). However, because the list of
prohibited conduct in 29 CFR 1989.102(a) is not exhaustive, OSHA
believes that the language in the IFR is expansive enough to encompass
retaliatory referrals to immigration authorities.
    Additionally, OSHA has drafted the regulatory text of 29 CFR
1989.102 to be consistent with its rules governing other OSHA-enforced
whistleblower statutes to the extent possible under the applicable
statutory language. See, e.g., 29 CFR 1987.102 (listing examples of
retaliatory conduct prohibited under the FDA Food Safety Modernization
Act whistleblower provision); 29 CFR 1980.102 (listing examples of
retaliatory conduct prohibited under the Sarbanes-Oxley Act
whistleblower provision). OSHA's rules implementing other whistleblower
statutes do not include the suggested language and adding the language
in this rule could lead to confusion regarding whether this conduct is
prohibited under the other whistleblower-protection statutes.
Accordingly, OSHA is making no revisions to the TFA rule in response to
this comment.

III. Discussion of Change

    This final rule corrects one section of the Code of Federal
Regulations, 29 CFR 1989.110(a), to harmonize the final rule with 29
CFR part 26. Under that part, pro se litigants do not have to
electronically file petitions with the ARB, or show ``good cause'' to
file by mail or some other non-electronic method. Therefore, OSHA is
revising 29 CFR 1989.110(a) to be consistent with 29 CFR part 26.
Accordingly, this rule modifies the IFR published on March 7, 2022. In
all other respects, this rule adopts as final, without change, the IFR
published on March 7, 2022.

IV. Paperwork Reduction Act

    This rule contains a reporting provision (filing a retaliation
complaint, Sec.  1989.103) which was previously reviewed as a statutory
requirement of TFA and approved for use by the Office of Management and
Budget (OMB), as part of the Information Collection Request (ICR)
assigned OMB control number 1218-0236 under the provisions of the
Paperwork Reduction Act of 1995 (PRA). See Public Law 104-13, 109 Stat.
163 (1995). A non-material change has been submitted to OMB to include
the regulatory citation.

V. Administrative Procedure Act

    The notice and comment rulemaking procedures of Sec.  553 of the
Administrative Procedure Act (APA) do not apply ``to interpretative
rules, general statements of policy, or rules of agency organization,
procedure, or practice.'' 5 U.S.C. 553(b)(A). This is a rule of agency
procedure, practice, and interpretation within the meaning of that
section. Therefore, publication in the Federal Register of a notice of
proposed rulemaking and request for comments was not required for this
rulemaking. Although this is a procedural and interpretative rule not
subject to the notice and comment procedures of the APA, OSHA provided
persons interested in the IFR 60 days to submit comments and considered
the two comments pertinent to the IFR that it received in deciding to
finalize the procedures in the IFR.
    Furthermore, because this rule is procedural and interpretative
rather than substantive, the normal requirement of 5 U.S.C. 553(d) that
a rule be effective 30 days after publication in the Federal Register
is inapplicable. OSHA also finds good cause to provide an immediate
effective date for this final rule, which makes one technical change
and otherwise simply finalizes without change the procedures that have
been in place since publication of the IFR. It is in the public
interest that the rule be effective immediately so that parties know
with the certainty afforded by a final rule what procedures are
applicable to pending cases.

VI. Executive Orders 12866, and 13563; Unfunded Mandates Reform Act of
1995; Executive Order 13132

    The Office of Information and Regulatory Affairs has concluded that
this rule is not a ``significant regulatory action'' within the meaning
of Executive Order 12866, reaffirmed by Executive Order 13563, because
it is not likely to: (1) have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866. Therefore, no economic impact analysis under
Sec.  6(a)(3)(C) of Executive Order 12866 has been prepared.
    Also, because this rule is not significant under Executive Order
12866, and because no notice of proposed rulemaking has been published,
no statement is required under section 202 of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is
procedural and interpretative in nature and is thus not expected to
have a significant economic impact. Finally, this rule does not have
``federalism implications.'' The rule does not have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government[,]'' and
therefore, is not subject to Executive Order 13132 (Federalism).

VII. Regulatory Flexibility Analysis

    The notice and comment rulemaking procedures of section 553 of the
APA do not apply ``to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or practice.'' 5
U.S.C. 553(b)(A). Rules that are exempt from APA notice and comment
requirements are also exempt from the Regulatory Flexibility Act (RFA).
See Small Business Administration Office of Advocacy, A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility Act,
at 9; also found at https://www.sba.gov/advocacy/guide-government-agencies-how-comply-regulatory-flexibility-act. This is a rule of
agency procedure, practice, and interpretation within the meaning of 5
U.S.C. 553; and, therefore, the rule is exempt from both the notice and
comment rulemaking procedures of the APA and the requirements under the
RFA. Nonetheless, OSHA, in the IFR, provided interested persons 60 days
to comment on the procedures applicable to retaliation complaints under
TFA and considered the two comments pertinent to the IFR that it
received in deciding to finalize the procedures in the IFR.

List of Subjects in 29 CFR Part 1989

    Administrative practice and procedure, Employment, Taxation,
Whistleblower.

Authority and Signature

    This document was prepared under the direction and control of
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety
and Health.

    Signed at Washington, DC, on February 27, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons set forth in the preamble, the Department of Labor
amends 29 CFR part 1989, which was published as an interim final rule
at 87 FR 12575 on March 7, 2022, as follows:

PART 1989--PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS
UNDER THE TAXPAYER FIRST ACT (TFA)

0
1. The authority citation for part 1989 continues to read as follows:

    Authority:  26 U.S.C. 7623(d); Secretary of Labor's Order 08-
2020 (May 15, 2020), 85 FR 58393 (September 18, 2020); Secretary of
Labor's Order 01-2020 (Feb. 21, 2020), 85 FR 13024-01 (Mar. 6,
2020).

0
2. Amend Sec.  1989.110 by revising paragraph (a) to read as follows:

Sec.  1989.110  Decisions and orders of the Administrative Review
Board.

    (a) Any party desiring to seek review, including judicial review,
of a decision of the ALJ, or a respondent alleging that the complaint
was frivolous or brought in bad faith who seeks an award of attorney
fees, must file a written petition for review with the ARB, which has
been delegated the authority to act for the Secretary and issue
decisions under this part subject to the Secretary's discretionary
review. The parties should identify in their petitions for review the
legal conclusions or orders to which they object, or the objections may
be deemed waived. A petition must be filed within 30 days of the date
of the decision of the ALJ. All petitions and documents submitted to
the ARB must be filed in accordance with 29 CFR part 26. The date of
the postmark, facsimile transmittal, or electronic transmittal will be
considered to be the date of filing; if the petition is filed in
person, by hand delivery, or other means, the petition is considered
filed upon receipt. The petition must be served on

all parties and on the Chief Administrative Law Judge at the time it is
filed with the ARB. The petition for review must also be served on the
Assistant Secretary and on the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of Labor. OSHA and the Associate
Solicitor for Fair Labor Standards may specify the means, including
electronic means, for service of petitions for review on them under
this section.
* * * * *
[FR Doc. 2023-05076 Filed 3-10-23; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register Volume 82, Number 173 (Friday, September 8, 2017)]
[Rules and Regulations]
[Pages 42454-42457]
[FR Doc No: 2017-18950]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0550; FRL-9966-98-Region 6]

Approval and Promulgation of Implementation Plans; Texas; El Paso
Carbon Monoxide Limited Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is approving the required second
carbon monoxide (CO) maintenance plan as a revision to the Texas State
Implementation Plan (SIP). The El Paso, Texas CO maintenance area (El
Paso Area) has been demonstrating consistent air quality monitoring at
or below 85% of the CO National Ambient Air Quality Standard (NAAQS or
standard). Because of this, the State of Texas, through its designee,
submitted the required second maintenance plan for the El Paso Area as
a Limited Maintenance Plan (LMP).

DATES: This final rule is effective on October 10, 2017.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2016-0550. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://

www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT: Jeff Riley,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.

I. Background

    The factual background for this action is discussed in detail in
our March 21, 2017 direct final rule and proposal (82 FR 14442, 82 FR
14499). Originally, we issued a direct final rule to approve the
required second CO maintenance plan for the El Paso, Texas CO
maintenance area as a revision to the Texas SIP.
    However, the direct final rule and proposal stated that if any
relevant adverse comments were received by the end of the public
comment period on April 20, 2017, the direct final rule would be
withdrawn and we would respond to the comments in a subsequent final
action. Relevant adverse comments were received during the comment
period, and the direct final rule was withdrawn on May 22, 2017 (82 FR
23148). The background information found in the direct final is still
relevant and our March 21, 2017 proposal provides the basis for this
final action.
    We received comments on our proposal from one commenter. Our
response to the comments are below.

II. Response to Comments

    Comment 1: The Commenter states that ``(a)dditional CO monitors are
necessary to effectively monitor compliance'' of the CO NAAQS in the El
Paso maintenance area, and asserts that the current El Paso CO
monitoring network operated by TCEQ is inadequate in terms of the
number, siting, type, and scale of representativeness of the monitors
that comprise the network.
    Response 1: EPA disagrees with the assertion that the current El
Paso CO monitoring network is inadequate to effectively monitor
compliance with the CO NAAQS. Each state-submitted annual monitoring
network plan is evaluated by EPA pursuant to 40 CFR part 58.10
requirements to determine if the criteria for implementation and
maintenance of the area's air quality surveillance system have been
met. Annual monitoring plans for the El Paso area have been reviewed
and ultimately approved by EPA for the full extent of the timeframe
noted by the Commenter. In recognition of significantly declining CO
concentrations in the El Paso Area since 2000, Texas has gradually
reduced and consolidated the El Paso CO monitoring network to three
sites in 2015 with approval from the EPA. The reductions in the number
of active network monitors specifically during the 2012-2014 timeframe
were conducted in consultation with EPA, and were done in accordance
with 40 CFR part 58.10 requirements. We have included EPA's responses
to the State's annual monitoring network plans for the years 2012-2017
in the docket for this rulemaking.
    We further note that 40 CFR 58.10(a)(1) requires that beginning
July 1, 2007, the State shall adopt and submit to the Regional
Administrator an annual monitoring network plan, and that this annual
monitoring network plan must be made available for public inspection
for at least 30 days prior to submission to EPA. This public inspection
period of annual monitoring network plans has been provided by the
State for all submittals since July 1, 2007, and no adverse comments
have been received pertaining to the El Paso Area CO monitoring network
in this time.
    In the September 21, 2016 limited maintenance plan SIP submission,
the State provided data showing monitored CO values from 2006-2015,
reflecting a 2015 8-hour CO design value of 2.8 ppm. Thus, the design
value represented for the 8-hour standard was less than 31% of the CO
NAAQS. Only 1 CO monitor is currently required for El Paso, the
Chamizal monitor (AQS #48-141-0044) required for NCore (National Core
monitoring network) monitoring. This is a neighborhood-scale, high CO
concentration site for the city and it recorded a 2.3 ppm 8-hour CO
design value for 2016, similar to the 2.4 ppm 8-hour CO design value
for 2016 recorded at the nearby Ascarate Park monitor to the southeast
of Chamizal. The 2.3 ppm and 2.4 ppm 8-hour CO design values are
significantly below the 8-hour CO NAAQS of 9.4 ppm, representing
ambient concentrations 24% and 26%, respectively, of the 8-hour CO
NAAQS. Both of these monitors are located in the CO maintenance area,
and we note that these design values also represent a continued
downward trend of CO ambient concentrations beyond the 2015 design
value provided in the State's September 21, 2016 submittal.
    The Commenter also states that the El Paso CO LMP should include a
commitment to collocate at least one near-road nitrogen dioxide
(NO2) monitor with a CO monitor as a contingency should a
triggering event take place during the maintenance period. The basis of
this argument is twofold: EPA network design criteria under 40 CFR part
58, Appendix D require at least one CO monitor to operate collocated
with one required near-road NO2 monitor in Core Based
Statistical Areas with a population of 1,000,000 or more persons.
Further, the Commenter refers to Texas Department of State Health
Services (TDSHS) estimates that the El Paso population will be
approaching 1,000,000 as early as 2020. The Commenter provided no
specific citation for this TDSHS data.
    The 40 CFR part 58, Appendix D standard for population data is
considered to be U.S. Census Bureau data. Based on U.S. Census data, El
Paso will most likely not reach 1,000,000 in population by 2028. The
current population growth estimate rate per year for El Paso is 5,811/
year based upon U.S. Census estimates from 2010-2016.\1\ The 2010
estimate was 807,108 and the 2016 estimate was 841,971. Using this
growth estimate rate, the U.S. Census data indicates that the
population of El Paso would reach around 912,000 in 2028, and would
reach 1,000,000 by roughly 2043. So, pursuant to EPA 40 CFR part 58
requirements, a near road NO2/CO monitoring site will most
likely not be required in El Paso until well after 2028 due to this
slower growth estimation rate. At this time and based on the data
provided, EPA does not believe such a contingency would provide
meaningful air quality benefit to the El Paso area.
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    \1\ https://www.census.gov/data/tables/2016/demo/popest/total-metro-and-micro-statistical-areas.html.
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    Comment 2: The Commenter argues that statements made by the current
EPA Administration on March 15, 2017 are an indication that the Tier 3
Motor Vehicle Emission and Fuel Standards may be repealed or weakened,
and therefore the state's reliance upon these standards as Federal
control measures is a tenuous assumption.
    Response 2: We disagree with the Commenter. The EPA
Administration's March 15, 2017 statements do not pertain to the Tier 3
Motor Vehicle Emission and Fuel Standards. See 79 FR 23414 (April 28,
2014). Rather, these statements concern reopening a mid-term evaluation
of the National Program for greenhouse gas (GHG) emissions and fuel
economy standards for light-duty vehicles, developed jointly by EPA and
the National Highway Traffic Safety Administration (NHTSA). The Phase 2
standards of this program, applying to model years 2017-2025, were
promulgated in the Final Rule for 2017 and Later Model Year Light-Duty
Vehicle Greenhouse Gas Emissions and

Corporate Average Fuel Economy Standards. 77 FR 62624 (October 15,
2012). This rulemaking is separate, distinct, and independent of the
action we are addressing here. The October 15, 2012 rulemaking is
therefore beyond the scope of this rulemaking action and we refer the
Commenter to the October 15, 2012 action for further detail.
    To EPA's knowledge, no such statements have been made concerning
implementation of the Tier 3 Motor Vehicle Emission and Fuel Standards,
and therefore the state's reliance upon these standards as valid
Federal control measures is appropriate for this SIP action. At this
time, we see no legal requirement for the state to revise the LMP with
an explicit commitment to reevaluate its reliance thereof in the
speculative chance that a Federal measure could be weakened or removed
some time in the future. We note that in any case of Federal measures
being repealed or weakened, pursuant to 42 U.S.C. 7410(k)(5), the EPA
has Clean Air Act authority to require a state to revise an approved
SIP if it finds that it has become substantially inadequate to maintain
the NAAQS. Moreover, CAA section 175A provides the EPA discretion to
require the state to submit a revised SIP should the area fail to
maintain the NAAQS.
    Comment 3: The Commenter claims that the El Paso CO LMP lacks an
adequate contingency plan because the State has not identified an
appropriate trigger, and ``has not identified measures that will be
promptly adopted nor . . . identified a schedule or procedure to
implement additional control measures.''
    Response 3: The State's September 21, 2016 LMP submission
identifies violation of the CO NAAQS as a contingency trigger. EPA's
interpretation of section 175A of the CAA, as it pertains to LMP's for
CO, is contained in the October 6, 1995, national guidance memorandum
titled ``Limited Maintenance Plan Option for Nonclassifiable CO
Nonattainment Areas'' from Joseph Paisie, Office of Air Quality
Planning and Standards.\2\ While the Commenter correctly notes that
under EPA's guidance, ``states are encouraged to choose a pre-violation
action level as a trigger'', the guidance explicitly states that a
violation of the NAAQS is an acceptable trigger.\3\ Further, the State
has identified potential contingency measures, as well as a schedule
and procedure for timely implementation in the event of a CO NAAQS
violation.
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    \2\ A copy of the October 6, 1995 Guidance Memorandum is
included in the docket for this rulemaking.
    \3\ EPA's September 4, 1992, John Calcagni policy memorandum
entitled ``Procedures for Processing Requests to Redesignate Areas
to Attainment'' provides further support of this interpretation.
---------------------------------------------------------------------------

    EPA disagrees with the Commenter's contention that the maintenance
plan's implementation schedules for contingency measures fail to
satisfy the ``prompt response'' requirement in CAA section 175A(d).
This section of the CAA requires that a maintenance plan include such
contingency provisions as the Administrator deems necessary to assure
that the state ``will promptly correct any violation'' of the NAAQS
that occurs after redesignation of an area. Thus, Congress gave EPA
discretion to evaluate and determine the contingency measures that EPA
``deems necessary'' to assure that the state will ``promptly correct''
any subsequent violation.
    Section 175A does not establish any deadlines for implementation of
contingency measures after redesignation to attainment. It also
provides far more latitude than does Section 172(c)(9), which applies
to a different set of contingency measures applicable to nonattainment
areas. Section 172(c)(9) contingency measures must ``take effect . . .
without further action by the State or [EPA].'' By contrast, section
175A(d) allows EPA to take into account the need of a state to assess,
adopt, and implement contingency measures if and when a violation
occurs after an area's redesignation to attainment. As noted by the
U.S. Court of Appeals for the Sixth Circuit in Greenbaum v. EPA, 370
F.3d 527, 540 (6th Cir. 2004), that was cited by the Commenter, the EPA
``has been granted broad discretion by Congress in determining what is
`necessary to assure' prompt correction'' under section 175A, and ``no
pre-determined schedule for adoption of the measures is necessary in
each specific case.'' In making this determination, EPA accounts for
the time that is required for states to analyze data and address the
causes and appropriate means of remedying a violation. EPA also
considers the time required to adopt and implement appropriate measures
in assessing what ``promptly'' means in this context.
    In the case of the El Paso Area, EPA believes that the contingency
measures set forth in the submittal, combined with the State's
commitment to implement contingency measures as expeditiously as
practicable but no later than 18 months of a trigger, provide assurance
that the State will ``promptly'' correct a future NAAQS CO violation.
Given the uncertainty regarding the nature of the contingency measures
required to address a violation, a State may need up to 24 months to
enact new statutes; develop new or modified regulations and complete
notice and comment rulemaking; or take actions authorized by current
state law that require the purchase and installation of equipment
(e.g., diesel retrofits) or the development and implementation of new
programs. In addition, EPA has previously approved implementation of
contingency measures within 24 months of a violation to comply with the
requirements of Section 175A in several instances. See, e.g., 81 FR
76891 (November 4, 2016), 80 FR 61775 (October 14, 2015), 79 FR 67120
(November 12, 2014), 78 FR 44494 (July 24, 2013), 77 FR 34819 (June 12,
2012), 76 FR 59512 (Sept. 27, 2011), 75 FR 2091 (January 14, 2010). EPA
also notes that the Commenter did not provide any rationale for
concluding that a suggested 120-day implementation period of control
strategies is necessary to satisfy section 175A.

III. Final Action

    We are approving the CO LMP for the El Paso Area submitted by the
TCEQ on September 21, 2016 as a revision to the Texas SIP because the
State adequately demonstrates that the El Paso Area will maintain the
CO NAAQS and meet all the criteria of a LMP through the second 10-year
maintenance period.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     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, described in the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 7, 2017. 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, Reporting and
recordkeeping requirements.

    Dated: August 29, 2017.
Samuel Coleman,
Acting Regional Administrator, Region 6.

    40 CFR part 52 is amended 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 SS--Texas

0
2. In Sec.  52.2270 (e), the second table entitled ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' is amended by adding a new entry at the end of the table for
``Second 10-year Carbon Monoxide maintenance plan (limited maintenance
plan) for the El Paso CO area'' to read as follows:

Sec.  52.2270  Identification of plan.

* * * * *
    (e) * * *

              EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
                                        Applicable           State
      Name of SIP provision           geographic or       submittal/     EPA approval date         Comments
                                    nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Second 10-year Carbon Monoxide     El Paso, TX........       9/21/2016  9/8/2017, [Insert    ...................
 maintenance plan (limited                                               Federal Register
 maintenance plan) for the El                                            citation].
 Paso CO area.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2017-18950 Filed 9-7-17; 8:45 am]
 BILLING CODE 6560-50-P


	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52

	[EPA-R03-OAR-2007-0381]; FRL-        ]

Approval and Promulgation of Air Quality Implementation Plans; Virginia;
Clean Air Interstate Rule Budget Trading Programs

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

SUMMARY:  EPA is proposing to approve a revision to the Virginia State
Implementation Plan (SIP) submitted on March 30, 2007 and supplemented
on April 30, 2007 and June 11, 2007.  This revision addresses the
requirements of EPA’s Clean Air Interstate Rule (CAIR), promulgated on
May 12, 2005 and subsequently revised on April 28, 2006 and December 13,
2006.  EPA is proposing to determine that the SIP revision fully
implements the CAIR requirements for Virginia.  Therefore, as a
consequence of the SIP approval, EPA will also withdraw the CAIR Federal
Implementation Plans (FIP) that address sulfur dioxide (SO2), nitrogen
oxides (NOx ) annual, and NOX ozone season emissions in Virginia.  The
CAIR FIPs for all States in the CAIR region were promulgated on April
28, 2006 and subsequently revised on December 13, 2006.  The CAIR
requires affected States to reduce emissions of SO2 and NOX that
significantly contribute to, and interfere with maintenance of, the
national ambient air quality standards (NAAQS) for fine particulates
and/or ozone in any downwind state.  The CAIR establishes State budgets
for SO2 and NOX and requires States to submit SIP revisions that
implement these budgets in States that EPA determined contribute to
nonattainment in downwind states.  States have the flexibility to choose
which control measures to adopt to achieve the budgets, and may choose
whether or not to participate in the EPA-administered cap-and-trade
programs.  In the SIP revision that EPA is proposing to approve,
Virginia would meet CAIR requirements by participating in the
EPA-administered cap-and-trade programs addressing SO2, NOX annual, and
NOX ozone season emissions.

DATES: Written comments must be received on or before [insert date 30
days from date of publication].

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2007-0381 by one of the following methods:

 www.regulations.gov.  Follow the on-line instructions for submitting
comments.

B.    E-mail<EMAIL_ADDRESS>
C.    Mail:   EPA-R03-OAR-2007-0381, Marilyn Powers, Acting Chief, Air
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

 D.   Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket(s normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.

Instructions:  Direct your comments to Docket ID No.
EPA-R03-OAR-2007-0381.  EPA's policy is that all comments received will
be included in the public docket without change, and may be made
available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov or
e-mail.  The www.regulations.gov website is an (anonymous access(
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment.  If you
send an e-mail comment directly to EPA without going through
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet.  If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit.  If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.  Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.

Docket:  All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute.  Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.  Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT: Marilyn Powers,<PHONE_NUMBER>, or by
e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

What Action Is EPA Proposing to Take?

What Is the Regulatory History of CAIR and the CAIR FIPs?

What are the General Requirements of CAIR and the CAIR FIPs?

What are the Types of CAIR SIP Submittals?

Analysis of Virginia’s CAIR SIP Submittal

	A.  State Budgets for Allowance Allocations

	B.  CAIR Cap-and-Trade Programs

	C. Applicability Provisions for non-EGU NOX SIP Call Sources

	D.  NOX Allowance Allocations

	E.  Allocation of NOX Allowances from Compliance Supplement Pool

F.  Individual Opt-in Units

VI. 	Proposed Actions

VII.  	Statutory and Executive Order Reviews

  What Action Is EPA Proposing to Take?

EPA is proposing to approve a revision to Virginia’s SIP, submitted on
March 30, 2007 and supplemented on April 30, 2007 and June 11, 2007.
In its SIP revision, Virginia would meet CAIR requirements by requiring
certain electric generating units (EGUs) to participate in the
EPA-administered CAIR cap-and-trade programs addressing SO2, NOX annual,
and NOX ozone season emissions.  EPA is proposing to determine that the
Virginia SIP, as revised, will meet the applicable requirements of CAIR.
 Any final action approving Virginia’s SIP revision will be taken by
the Regional Administrator for Region 3.  As a consequence of the SIP
approval, the EPA Administrator will issue a final rule to withdraw the
FIPs addressing SO2, NOX annual, and NOX ozone season emissions for
Virginia, which will delete and reserve 40 CFR 52.2440 and 2441.  The
withdrawal of the CAIR FIPs for Virginia is a conforming amendment that
must be made once the SIP is approved because EPA’s authority to issue
the FIPs was premised on a deficiency in the SIP for Virginia.  Once the
SIP to implement CAIR is fully approved, EPA no longer has authority for
the FIPs.  Thus, EPA will not have the option of maintaining the FIPs
following the full SIP approval.  Accordingly, EPA does not intend to
offer an opportunity for a public hearing or an additional opportunity
for written public comment on the withdrawal of the FIPs.

II.  What is the Regulatory History of CAIR and the CAIR FIPs?

The CAIR was published by EPA on May 12, 2005 (70 FR 25162).   In this
rule, EPA determined that 28 States and the District of Columbia
contribute significantly to nonattainment and interfere with maintenance
of the NAAQS for fine particles (PM2.5) and /or 8-hour ozone in downwind
States in the eastern part of the country.  As a result, EPA required
those upwind States to revise their SIPs to include control measures
that reduce emissions of SO2, which is a precursor to PM2.5 formation,
and/or NOX, which is a precursor to both ozone and PM2.5 formation.  For
jurisdictions that contribute significantly to downwind PM2.5
nonattainment, CAIR sets annual State-wide emission reduction
requirements (i.e., budgets) for SO2 and annual State-wide emission
reduction requirements for NOX.  Similarly, for jurisdictions that
contribute significantly to 8-hour ozone nonattainment, CAIR sets
State-wide emission reduction requirements for NOX for the ozone season
(May 1st to September 30th).  Under CAIR, States may implement these
reduction requirements by participating in the EPA-administered
cap-and-trade programs or by adopting any other control measures.

Section 110(a)(2)(D) of the CAA requires states to reduce emissions that
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in downwind states.  CAIR explains to subject States what
must be included in their SIPs to address the requirements of section
110(a)(2)(D) with respect to the 8-hour ozone and PM2.5 NAAQS.  EPA made
national findings, effective on May 25, 2005, that the States had failed
to submit SIPs meeting the requirements of section 110(a)(2)(D).  The
SIPs were due in July 2000, three years after the promulgation of the
8-hour ozone and PM2.5 NAAQS.  These findings started a 2-year clock for
EPA to promulgate a FIP to address the requirements of section
110(a)(2)(D).  Under CAA section 110(c)(1), EPA may issue a FIP anytime
after such findings are made and must do so within two years unless a
SIP revision correcting the deficiency is approved by EPA before the FIP
is promulgated.

On April 28, 2006 (71 FR 25328), EPA promulgated FIPs for all States
covered by CAIR in order to ensure the emissions reductions required by
CAIR are achieved on schedule.  Each CAIR State is subject to the FIPs
until the State fully adopts, and EPA approves, a SIP revision meeting
the requirements of CAIR.  The CAIR FIPs require EGUs to participate in
the EPA-administered CAIR SO2, NOX annual, and NOX ozone season trading
programs, as appropriate.  The SO2, NOX annual, and NOX ozone season
trading programs of the CAIR FIPs impose essentially the same
requirements as, and are integrated with, the respective CAIR SIP
trading programs.  The integration of the FIP and SIP trading programs
means that these trading programs will work together to create,
effectively, a single trading program for each regulated pollutant (SO2,
NOX annual, and NOX ozone season) in all States covered by the CAIR FIP
or SIP trading program for that pollutant.  The CAIR FIP also allows
States to submit abbreviated SIP revisions that, if approved by EPA,
will automatically replace or supplement certain CAIR FIP provisions
(e.g., the methodology for allocating NOX allowances to sources in the
State), while the CAIR FIP remains in place for all other provisions.

On April 28, 2006 (71 FR 25287 and 71 FR 25303), EPA published two
additional CAIR-related final rules that added the States of Delaware
and New Jersey to the list of States subject to CAIR for PM2.5 , and
announced EPA’s final decisions on reconsideration of five issues,
without making any substantive changes to the CAIR requirements.

III.  	What are the General Requirements of CAIR and the CAIR FIPs?

The CAIR establishes State-wide emission budgets for SO2 and NOX and is
to be implemented in two phases.  The first phase of NOX reductions
starts in 2009 and continues through 2014, while the first phase of SO2
reductions starts in 2010 and continues through 2014.  The second phase
of reductions for both NOX and SO2 starts in 2015 and continues
thereafter.  The CAIR requires States to implement the budgets by
either: (1) requiring EGUs to participate in the EPA-administered
cap-and-trade programs; or (2) adopting other control measures of the
State's choosing and demonstrating that such control measures will
result in compliance with the applicable State SO2 and NOX budgets.

The May 12, 2005 and April 28, 2006 CAIR rules provide model rules that
States must adopt (with certain limited changes, if desired) if they
want to participate in the EPA-administered trading programs.  With two
exceptions, only States that choose to meet the requirements of CAIR
through methods that exclusively regulate EGUs are allowed to
participate in the EPA-administered trading programs.  One exception is
for States that adopt the opt-in provisions of the model rules to allow
non-EGUs individually to opt into the EPA-administered trading programs.
 The other exception is for States that include all non-EGUs from their
NOX SIP Call trading programs in their CAIR NOX ozone season trading
programs.

IV.  	What are the Types of CAIR SIP Submittals?

States have the flexibility to choose the type of control measures they
will use to meet the requirements of CAIR.  EPA anticipates that most
States will choose to meet the CAIR requirements by selecting an option
that requires EGUs to participate in the EPA-administered CAIR
cap-and-trade programs.  For such States, EPA has provided two
approaches for submitting and obtaining approval for CAIR SIP revisions.
 States may submit full SIP revisions that adopt the model CAIR
cap-and-trade rules.  If approved, these SIP revisions will fully
replace the CAIR FIPs.  Alternatively, States may submit abbreviated SIP
revisions.  These SIP revisions will not replace the CAIR FIPs; however,
the CAIR FIPs provide that, when approved, the provisions in these
abbreviated SIP revisions will be used instead of or in conjunction
with, as appropriate, the corresponding provisions of the CAIR FIPs
(e.g., the NOX allowance allocation methodology).

A State submitting a full SIP revision may either adopt regulations that
are substantively identical to the model rules or incorporate by
reference the model rules.  The CAIR provides that States may only make
limited changes to the model rules if the States want to participate in
the EPA-administered trading programs.  A full SIP revision may change
the model rules only by altering their applicability and allowance
allocation provisions to:

Include  NOX SIP Call trading sources that are not EGUs under CAIR in
the CAIR NOX ozone season trading program;

Provide for State allocation of  NOX annual or ozone season allowances
using a methodology chosen by the State;

Provide for State allocation of  NOX annual allowances from the
compliance supplement pool (CSP) using the State’s choice of  allowed,
alternative methodologies; or

Allow units that are not otherwise CAIR units to opt individually into
the CAIR SO2, NOX annual, or NOX ozone season trading programs under the
opt-in provisions in the model rules.

An approved CAIR full SIP revision addressing EGUs’ SO2, NOX annual,
or NOX ozone season emissions will replace the CAIR FIP for that State
for the respective EGU emissions.

V.  	Analysis of Virginia’s CAIR SIP Submittal

EPA believes that Virginia clearly intends, by this SIP submittal, to
replace the CAIR FIP with a State plan that is based on the CAIR model
rule and allow subject sources, non-EGUs from its NOx SIP Call budget
trading program, and opt-in units meeting the CAIR opt-in criteria to
participate in the EPA-administered regional CAIR trading program.
However, EPA also believes that there are some provisions of the
amendments to Virginia regulations (9 VAC 5-140) that could be
interpreted in a way that might be inconsistent with the
Commonwealth’s intent.  These specific provisions pertain to
definitions associated with Virginia’s participation in the regional
CAIR trading program, definitions associated with the State’s decision
to bring its non-EGUs from its NOx SIP Call budget trading program into
the CAIR trading program, and a definition of the term “most stringent
state of federal NOx emissions limitation” that is based upon the
model rule but has been expanded to include the situation where more
than one fuel is allowed by a permit.

On September 12, 2007, EPA sent a letter to the Virginia Department of
Environmental Quality (VADEQ) asking the Commonwealth to confirm that
EPA correctly understood how Virginia intended to interpret and
implement these regulatory definitions.  In response to EPA’s letter,
VADEQ sent a letter dated September 17, 2007, confirming in writing its
interpretations of these regulatory provisions.  EPA has reviewed
VADEQ’s interpretations and has determined that they clarify the
language of the Virginia regulations and are also consistent with having
the EPA-administered CAIR trading program become effective in Virginia.
In addition, the letter accepts EPA’s recommendation that the
Commonwealth promulgate and codify clarifying amendments to these
provisions of its regulations at the earliest opportunity.

A.  State Budgets for Allowance Allocations

The CAIR NOX annual and NOx ozone season budgets were developed from
historical heat input data for EGUs.  Using these data, EPA calculated
annual and ozone season regional heat input values, which were
multiplied by 0.15 lb/MMBtu, for phase 1, and 0.125 lb/MMBtu, for phase
2, to obtain regional NOX budgets for 2009-2014 and for 2015 and
thereafter, respectively.  EPA derived the State NOX annual and NOx
ozone season budgets from the regional budgets using State heat input
data adjusted by fuel factors.

The CAIR State SO2 budgets were derived by discounting the tonnage of
emissions authorized by annual allowance allocations under the Acid Rain
Program under title IV of the CAA.  Under CAIR, each allowance allocated
in the Acid Rain Program for the years in phase 1 of CAIR (2010 through
2014) authorizes 0.5 ton of SO2 emissions in the CAIR trading program,
and each Acid Rain Program allowance allocated for the years in phase 2
of CAIR (2015 and thereafter) authorizes 0.35 ton of SO2 emissions in
the CAIR trading program.

In today’s action, EPA is proposing approval of Virginia’s SIP
revision that adopts the budgets established for the Commonwealth in
CAIR.  These budgets are: 36,074  tons for NOX annual emissions from
2009 though 2014, and 30,062 tons from 2015 and thereafter; 20,098 tons
for NOX ozone season emissions from 2009 through 2014, and 17,432 tons
from 2015 and thereafter; and 63,478 tons for SO2 emissions from 2010
through 2014, and 44,435 tons from 2015 and thereafter.   Virginia’s
SIP revision sets these budgets as the total amounts of allowances
available for allocation for each year under the EPA-administered
cap-and-trade programs.  The NOx ozone season budget properly reflects
the inclusion of NOx SIP Call trading program units in the CAIR NOx
ozone season program.

B.  CAIR Cap-and-Trade Programs

The CAIR NOX annual and ozone-season model trading rules both largely
mirror the structure of the NOX SIP Call model trading rule in 40 CFR
part 96, subparts A through I.  While the provisions of the NOX annual
and NOx ozone-season model rules are similar, there are some
differences.  For example, the NOX annual model rule (but not the NOX
ozone season model rule) provides for a CSP under which allowances may
be awarded for early reductions of NOX annual emissions.  As a further
example, the NOX ozone season model rule reflects the fact that the CAIR
NOX ozone season trading program replaces the NOX SIP Call trading
program after the 2008 ozone season and is coordinated with the NOX SIP
Call program.  The NOX ozone season model rule provides incentives for
early emissions reductions by allowing banked, pre-2009 NOX SIP Call
allowances to be used for compliance in the CAIR NOX ozone-season
trading program.  In addition, States have the option of continuing to
meet their NOX SIP Call requirement by participating in the CAIR NOX
ozone season trading program and including all their NOX SIP Call
trading sources in that program.

The provisions of the CAIR SO2 model rule are also similar to the
provisions of the NOX annual and NOx ozone season model rules.  However,
the SO2 model rule is coordinated with the ongoing Acid Rain SO2
cap-and-trade program under title IV of the CAA.  The SO2 model rule
uses the title IV allowances for compliance, with each title IV
allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions
and each allowance allocated for 2015 and thereafter authorizing only
0.35 ton of emissions.  Banked title IV allowances allocated for years
before 2010 can be used at any time in the CAIR SO2 cap-and-trade
program, with each such allowance authorizing 1 ton of emissions.  Title
IV allowances are to be freely transferable among sources covered by the
Acid Rain Program and sources covered by the CAIR SO2 cap-and-trade
program.

EPA also used the CAIR model trading rules as the basis for the trading
programs in the CAIR FIPs.  The CAIR FIP trading rules are virtually
identical to the CAIR model trading rules, with changes made to account
for federal rather than state implementation.  The CAIR model SO2, NOX
annual, and NOX ozone season trading rules and the respective CAIR FIP
trading rules are designed to work together as integrated SO2, NOX
annual, and NOX ozone season trading programs.

In its SIP revision, Virginia chooses to implement its CAIR budgets by
requiring EGUs to participate in the EPA-administered cap-and-trade
programs for SO2, NOX annual, and NOX ozone season emissions.
Virginia’s full CAIR SIP revision adopts, with certain allowed
changes, the CAIR model cap-and-trade rules for SO2, NOX annual, and NOX
ozone season emissions.

C.  Applicability Provisions for Non-EGU NOX SIP Call sources

In general, the CAIR model trading rules apply to any stationary,
fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion
turbine serving at any time, since the later of November 15, 1990 or the
start-up of the unit's combustion chamber, a generator with nameplate
capacity of more than 25 MWe producing electricity for sale.

States have the option of bringing in, for the CAIR NOX ozone season
program only, those units in the State's NOX SIP Call trading program
that are not EGUs as defined under CAIR.  EPA advises States exercising
this option to add the applicability provisions in the State's NOX SIP
Call trading rule for non-EGUs to the applicability provisions in 40 CFR
96.304 in order to include in the CAIR NOX ozone season trading program
all units required to be in the State's NOX SIP Call trading program
that are not already included under 40 CFR 96.304.  Under this option,
the CAIR NOX ozone season program must cover all large industrial
boilers and combustion turbines, as well as any small EGUs (i.e. units
serving a generator with a nameplate capacity of 25 MWe or less) that
the State currently requires to be in the NOX SIP Call trading program.

Virginia has chosen to expand the applicability provisions of the CAIR
NOX ozone season trading program to include all non-EGUs in the
Commonwealth’s NOX SIP Call trading program, and has incorporated into
CAIR the definitions from its NOx SIP Call trading program that are
required in order to cover all the large industrial boilers and
combustion turbines that are currently or may become subject to the
rule.

D.  NOX Allowance Allocations

Under the NOX allowance allocation methodology in the CAIR model trading
rules and in the CAIR FIP, NOX annual and NOx ozone season allowances
are allocated to units that have operated for five years, based on heat
input data from a three-year period that are adjusted for fuel type by
using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other
fuels.  The CAIR model trading rules and the CAIR FIP also provide a new
unit set-aside from which units without five years of operation are
allocated allowances based on the units’ prior year emissions.

States may establish in their SIP submissions a different NOX allowance
allocation methodology that will be used to allocate allowances to
sources in the States if certain requirements are met concerning the
timing of submission of units’ allocations to the Administrator for
recordation and the total amount of allowances allocated for each
control period.   In adopting alternative NOX allowance allocation
methodologies, States have flexibility with regard to:

The cost to recipients of the allowances, which may be distributed for
free or auctioned;

The frequency of allocations;

The basis for allocating allowances, which may be distributed, for
example, based on historical heat input or electric and thermal output;
and

The use of allowance set-asides and, if used, their size.

Virginia has retained most aspects of the NOx annual and NOx ozone
season model trading rules pertaining to allowance allocations, but has
changed the basis for allocating allowances, and the use and size of the
allowance set-asides, within the flexibilities described.  The
Commonwealth uses a commencement of operation date of January 1, 2006
for purposes of calculating the average baseline heat input. The CAIR
NOx units that commenced operation prior to this date receive allowance
allocations in accordance with the model rule. The CAIR NOx units that
commence operation after this date receive allocations in accordance
with expanded provisions that allow for computation of an average heat
input for units operating from between one to five years.  Virginia
chose not to adjust for fuel type in its computation of average heat
input.

Virginia has also chosen to modify the NOx annual and NOx ozone season
model rule provisions pertaining to the set aside.  It has established a
new unit set aside that consists of four percent of the total
Commonwealth budget from 2009 through 2013 and one percent from 2014 and
after.  It has also established an annual, voluntary public health
set-aside that will be retired, and a one percent energy
efficiency/renewable energy set-aside for each control period.

E.  Allocation of NOX Allowances from Compliance Supplement Pool (CSP)

The CAIR establishes a CSP to provide an incentive for early reductions
in NOX annual emissions.   The CSP consists of 200,000 CAIR NOX annual
allowances of vintage 2009 for the entire CAIR region, and a State’s
share of the CSP is based upon the projected magnitude of the emission
reductions required by CAIR in that State.  States may distribute CSP
allowances, one allowance for each ton of early reduction, to sources
that make NOX reductions during 2007 or 2008 beyond what is required by
any applicable State or Federal emission limitation.  States also may
distribute CSP allowances based upon a demonstration of need for an
extension of the 2009 deadline for implementing emission controls.

The CAIR NOX annual model trading rule establishes specific
methodologies for allocations of CSP allowances.  States may choose an
allowed, alternative CSP allocation methodology to be used to allocate
CSP allowances to sources in the States.

The CSP for Virginia is comprised of 5,134 tons of NOx.  Virginia has
chosen to distribute the CSP, but has modified the provisions of the
CAIR NOX annual model trading rule concerning the allocation of
allowances from the CSP.  Virginia requires that CAIR NOx units that are
part of a group of units under single ownership, with combined emissions
of NOx that exceeded 40,000 tons in 2004, collectively reduce emissions
in 2007 and/or 2008 by an amount equal in number to the CSP, and
establishes a methodology for allocating to such units from the CSP.
This change is within the flexibility of the CAIR NOx annual model rule.

F.  Individual Opt-in Units

The opt-in provisions of the CAIR SIP model trading rules allow certain
non-EGUs (i.e., boilers, combustion turbines, and other stationary
fossil-fuel-fired devices) that do not meet the applicability criteria
for a CAIR trading program to participate voluntarily in (i.e., opt
into) the CAIR trading program.  A non-EGU may opt into one or more of
the CAIR trading programs.  In order to qualify to opt into a CAIR
trading program, a unit must vent all emissions through a stack and be
able to meet monitoring, recordkeeping, and recording requirements of 40
CFR part 75.  The owners and operators seeking to opt a unit into a CAIR
trading program must apply for a CAIR opt-in permit.  If the unit is
issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated
allowances, and must meet the same allowance-holding and emissions
monitoring and reporting requirements as other units subject to the CAIR
trading program.   The opt-in provisions provide for two methodologies
for allocating allowances for opt-in units, one methodology that applies
to opt-in units in general and a second methodology that allocates
allowances only to opt-in units that the owners and operators intend to
repower before January 1, 2015.

States have several options concerning the opt-in provisions.  States
may adopt the CAIR opt-in provisions entirely or may adopt them but
exclude one of the methodologies for allocating allowances.  States may
also decline to adopt the opt-in provisions at all.

For the CAIR NOx annual trading program, the CAIR NOx ozone season
trading program, and the CAIR SO2 trading program, Virginia has chosen
to allow non-EGUs meeting certain requirements to opt into the CAIR NOX
annual trading program.  Virginia has adopted both of the methodologies
for allocating allowances that are in the model rule.

VI.  Information Pertaining to SIP Submittals from the Commonwealth of
Virginia

In 1995, Virginia adopted legislation that provides, subject to certain
conditions, for an environmental assessment (audit) (privilege(' for
voluntary compliance evaluations performed by a regulated entity.  The
legislation further addresses the relative burden of proof for parties
either asserting the privilege or seeking disclosure of documents for
which the privilege is claimed.  Virginia's legislation also provides,
subject to certain conditions, for a penalty waiver for violations of
environmental laws when a regulated entity discovers such violations
pursuant to a voluntary compliance evaluation and voluntarily discloses
such violations to the Commonwealth and takes prompt and appropriate
measures to remedy the violations.  Virginia's Voluntary Environmental
Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege
that protects from disclosure documents and information about the
content of those documents that are the product of a voluntary
environmental assessment. The Privilege Law does not extend to documents
or information (1) that are generated or developed before the
commencement of a voluntary environmental assessment; (2) that are
prepared independently of the assessment process; (3) that demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney
General provided a legal opinion that states that the Privilege law,Va.
Code Sec. 10.1-1198,  precludes granting a privilege to documents and
information (required by law,( including documents and information
(required by Federal law to maintain program delegation, authorization
or approval,( since Virginia must (enforce Federally authorized
environmental programs in a manner that is no less stringent than their
Federal counterparts. . . .(   The opinion concludes that ([r]egarding (
10.1-1198, therefore, documents or other information needed for civil or
criminal enforcement under one of these programs could not be privileged
because such documents and information are  essential to pursuing
enforcement in a manner required by Federal law to maintain program
delegation, authorization or approval.(

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that ([t]o
the extent consistent with requirements imposed by Federal law,(  any
person making a voluntary disclosure of information to a state agency
regarding a violation of an environmental statute, regulation, permit,
or administrative order is granted immunity from administrative or civil
penalty.  The Attorney General's January 12, 1998 opinion states that
the quoted language renders this statute inapplicable to enforcement of
any Federally authorized programs, since (no immunity could be afforded
from administrative, civil, or criminal penalties because granting such
immunity would not be consistent with Federal law, which is one of the
criteria for immunity.(

Therefore, EPA has determined that Virginia's Privilege and Immunity
statutes will not preclude the Commonwealth from enforcing its program
consistent with the Federal requirements.  In any event, because EPA has
also determined that a state audit privilege and immunity law can affect
only state enforcement and cannot have any impact on Federal enforcement
authorities, EPA may at any time invoke its authority under the CAA,
including, for example, sections 113, 167, 205, 211 or 213, to enforce
the requirements or prohibitions of the state plan, independently of any
state enforcement effort.  In addition, citizen enforcement under
section 304 of the CAA is likewise unaffected by this, or any, state
audit privilege or immunity law.

VII.  Proposed Action

EPA is proposing to approve Virginia’s full CAIR SIP revision
submitted on March 30, 2007, and supplemented on April 30, 2007 and June
11, 2007 .  Under the SIP revision, Virginia is choosing to participate
in the EPA-administered cap-and-trade programs for SO2, NOX annual, and
NOX ozone season emissions.  The SIP revision meets the applicable
requirements in 40 CFR 51.123(o) and (aa), with regard to NOX annual and
NOX ozone season emissions, and 40 CFR 51.124(o), with regard to SO2
emissions.  EPA is proposing to determine that the SIP revision will
meet the requirements of CAIR.  As a consequence of the SIP approval,
the Administrator of EPA will issue, without providing an opportunity
for a public hearing or an additional opportunity for written public
comment, a final rule to withdraw the CAIR FIPs for SO2, NOx annual, and
NOx ozone season emissions for Virginia.  EPA is soliciting public
comments on the issues discussed in this document.  These comments will
be considered before taking final action.

VII.  Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a "significant regulatory action" and therefore
is not subject to review by the Office of Management and Budget.  For
this reason, this action is also not subject to Executive Order 13211,
"Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use"  (66 Fed. Reg. 28355 (May 22, 2001)).  This action
merely proposes to approve state law as meeting Federal requirements and
imposes no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this proposed rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule proposes to approve pre-existing requirements under
state law and does not impose any additional enforceable duty beyond
that required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4).  This proposed
rule also does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes, as specified by
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to approve a state rule implementing a
Federal requirement, and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.  This
proposed rule also is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997), because it approves a state rule implementing a Federal
standard.

In reviewing SIP submissions, EPA(s role is to approve state choices,
provided that they meet the criteria of the CAA.  In this context, in
the absence of a prior existing requirement for the State to use
voluntary consensus standards (VCS), EPA has no authority to disapprove
a SIP submission for failure to use VCS.  It would thus be inconsistent
with applicable law for EPA, when it reviews a SIP submission, to use
VCS in place of a SIP submission that otherwise satisfies the provisions
of the Clean Air Act.  Thus, the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) do not apply.  As required by section 3 of Executive Order 12988
(61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has
taken the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct.  EPA has complied with Executive Order 12630 (53 FR
8859, March 15, 1988) by examining the takings implications of the rule
in accordance with the (Attorney General(s Supplemental Guidelines for
the Evaluation of Risk and Avoidance of Unanticipated Takings( issued
under the executive order.  This action proposing approval of
Virginia’s CAIR budget trading program does not impose an information
collection burden under the provisions of the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control,  Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Sulfur oxides.

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

_September 19, 2007__________
______/s/______________________

Dated:
     William T. Wisniewski, Acting

          Regional Administrator,

          Region III.

 PAGE

 PAGE   2

 PAGE  23


[Federal Register Volume 87, Number 166 (Monday, August 29, 2022)]
[Notices]
[Pages 52823-52825]
[FR Doc No: 2022-18500]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95579; File No. SR-NYSENAT-2022-15]

Self-Regulatory Organizations; NYSE National, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule To Change the Name
of Its Business Conduct Committee

August 23, 2022.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on August 8, 2022, NYSE National, Inc. (``NYSE National'' or the
``Exchange'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. 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\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    The Exchange proposes to change the name of its ``Business Conduct
Committee'' to the ``Hearing Board.'' The proposed rule change is
available on the Exchange's website at www.nyse.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 self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to change the name of its ``Business Conduct
Committee'' (``BCC'') to the ``Hearing Board.'' The change will require
amendments to the Sixth Amended and Restated Bylaws of the Exchange
(``Bylaws'') and Rules 10.9120(v) (Definitions), 10.9217(b) (Violations
Appropriate for Disposition Under Rule 10.9216(b)), and 10.9232
(Criteria for Selection of Panelists and Replacement Panelists). Only
the committee's name would change, and there would be no other change
to the Bylaws and rules with respect to the committee.
    Pursuant to the Bylaws, the BCC is a committee of the Board and
presides over all disciplinary proceedings in accordance with the rules
and as may be specified in its charter. In turn, the rules mandate that
the Board appoint the BCC annually and set the requirements for the
BCC's composition.\4\ The rule further provide that the Chief Hearing
Officer selects the members of hearing panels from the BCC, and the
role of the hearing panels in adjudicating individual disciplinary
proceedings.\5\
---------------------------------------------------------------------------

    \4\ See Rule 10.9232.
    \5\ See, e.g., Rules 10.9231 (Appointment by the Chief Hearing
Officer of Hearing Panel or Extended Hearing Panel or Replacement
Hearing Officer), 10.9232, and 10.9268 (Decision of Hearing Panel or
Extended Hearing Panel). Chief Hearing Officer is defined in Rule
10.9120(c).
---------------------------------------------------------------------------

    Starting in 2013, the Exchange and its self-regulatory organization
affiliates (together with the Exchange, the ``NYSE Exchanges'') \6\
have adopted rules relating to investigation, discipline, and
sanctions, and other procedural rules, based on the rules of the
Financial

Industry Regulatory Authority.\7\ As a result, the NYSE Exchanges all
have disciplinary committees that play substantially the same role and
are subject to the same or substantially similar rules as the BCC.\8\
The Exchange now proposes to conform the legacy name of its
disciplinary committee with such other committees.
---------------------------------------------------------------------------

    \6\ The other NYSE Exchanges are the New York Stock Exchange LLC
(``NYSE''), NYSE American LLC (``NYSE American''), NYSE Arca, Inc.
(``NYSE Arca'') and NYSE Chicago, Inc. (``NYSE Chicago'').
    \7\ See Exchange Act Release Nos. 69045 (March 5, 2013), 78 FR
15394 (March 11, 2013) (SR-NYSE-2013-02); 77241 (February 26, 2016),
81 FR 11311 (March 3, 2016) (SR-NYSEMKT-2016-30); 83289 (May 17,
2018), 83 FR 23968 (May 23, 2018) (SR-NYSENat-2018-02); 85639 (April
12, 2019), 84 FR 16346 (April 18, 2019) (SR-NYSEArca-2019-15); and
95020 (June 1, 2020), 87 FR 35034 (June 8, 2022) (SR-NYSECHX-2022-
10).
    \8\ The differences between the rules are largely attributable
to the NYSE Exchanges' distinct membership structures and use of
terminology, as well as the fact that not all of the NYSE Exchanges
have a trading floor. See 83 FR 23968, supra note 7, at 23973; see,
e.g., NYSE Rule 9231; NYSE American Rule 9231; NYSE Arca Rule
10.9231; and NYSE Chicago Rule 9231.
---------------------------------------------------------------------------

    In order to implement the change, the Exchange proposes to amend
the Exchange Bylaws as follows.
     The first sentence of Article V, Section 5.1 (Number of
Committees) lists the committees of the Board. The Exchange proposes to
exchange the reference to the BCC with a reference to the Hearing
Board, in alphabetical order, as follows (deletion in brackets,
addition in italics):
    The committees of the Board shall consist of [a Business Conduct
Committee,] a Committee for Review, a Hearing Board, a Nominating
Committee, a Regulatory Oversight Committee, and such other committees
as may be from time to time established by the Board.
     In Section 5.9 (Business Conduct Committee), ``Business
Conduct Committee'' would be replaced with ``Hearing Board'' in the
title and body of the section.
     In a non-substantive change, the Exchange proposes to
amend the title of the Bylaws to reflect that they are the ``Seventh
Amended and Restated Bylaws of NYSE National, Inc.''
    In addition, the Exchange proposes to amend the rules of the
Exchange as follows.
     The Exchange proposes to delete the final sentence of the
definition of ``Panelist'' in Rule 10.9120(v). The text of the sentence
states that Hearing Panel members will be drawn from the BCC. Under the
proposed change, that sentence would not be required, because revised
Rule 10.9232 would state that each Panelist ``shall be a member of the
Exchange Hearing Board,'' making the previous statement redundant. The
proposed deletion would make the definition the same as the definition
of ``Panelist'' in the rules of the NYSE Arca and NYSE Chicago,\9\ and,
apart from the cross references, the same as the definition in the
rules of the NYSE and NYSE American.\10\
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    \9\ See NYSE Arca Rule 10.9120(v) (Definitions) and NYSE Chicago
Rule 9120(v) (Definitions).
    \10\ The NYSE and NYSE American definitions reference the Rule
9200 Series, Rule 9550 Series, and Rule 9800 Series instead of the
Rule 10.9200 Series, the Rule 10.9550 Series, and the Rule 10.9800
Series. See NYSE Rule 9120(v) (Definitions) and NYSE American Rule
9120(v) (Definitions). See also 83 FR 23968, supra note 7, at 23973
(noting the difference between the Exchange and NYSE American
rules).
---------------------------------------------------------------------------

     Current Rule 10.9217(b) (Violations Appropriate for
Disposition Under Rule 10.9216(b)) would be amended to replace the
reference to the BCC with a reference to the Hearing Board.\11\
---------------------------------------------------------------------------

    \11\ Rule 10.9217(b) incorporates the requirement in previous
Rule 8.15(c) that if a person or organization fined pursuant to the
Rule pays the fine, such payment is deemed a waiver of any right to
a disciplinary proceeding under the Rule 10.9000 Series and of any
right to review of the matter by the BCC, Committee for Review, or
the Board. See id., at 23973 (noting that Rule 10.9217 is a merger
of NYSE American Rule 9217 and Rule 8.15).
---------------------------------------------------------------------------

     ``BCC'' would be replaced with ``Hearing Board'' in Rule
10.9232. The other NYSE Exchanges use ``hearing board,'' but
capitalizing ``Hearing Board'' would be consistent with proposed
Article V, Section 5.1 of the Bylaws, which would capitalize the name
of the committee. Otherwise, the revised text would be consistent with
the same provision in the rules of the NYSE, NYSE American, NYSE Arca,
and NYSE Chicago.\12\
---------------------------------------------------------------------------

    \12\ See NYSE Rule 9232 (Criteria for Selection of Panelists and
Replacement Panelists); NYSE American Rule 9232 (Criteria for
Selection of Panelists and Replacement Panelists); NYSE Arca Rule
10.9232 (Criteria for Selection of Panelists and Replacement
Panelists); and NYSE Chicago Rule 10.9232 (Criteria for Selection of
Panelists and Replacement Panelists).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act,\13\ in general, and furthers the
objectives of Section 6(b)(1) \14\ in particular, in that it enables
the Exchange to be so organized as to have the capacity to be able to
carry out the purposes of the Exchange Act and to comply, and to
enforce compliance by its exchange members and persons associated with
its exchange members, with the provisions of the Exchange Act, the
rules and regulations thereunder, and the rules of the Exchange. The
Exchange also believes that the proposed rule change is consistent with
Section 6(b)(5) of the Exchange Act,\15\ in that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, 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.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(1).
    \15\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Changing the name of the BCC to ``Hearing Board'' would make the
name of the Exchange's disciplinary committee consistent with those of
the other NYSE Exchanges, each of which has a hearing board with the
same responsibilities and functions. The Exchange believes that this
change would contribute to the orderly operation of the Exchange and
would enable the Exchange to be so organized as to have the capacity to
carry out the purposes of the Exchange Act and comply with the
provisions of the Exchange Act by its members and persons associated
with members, because the BCC plays substantially the same role, and is
subject to the same or substantially similar rules, as the other NYSE
Exchanges' hearing boards.\16\ The proposed name change therefore would
increase conformity in the committee names, reflecting the similarity
among the committees themselves. For the same reason, the Exchange
believes that the proposed change would protect investors and the
public interest.
---------------------------------------------------------------------------

    \16\ Starting in 2013, the NYSE Exchanges have adopted rules
relating to investigation, discipline, and sanctions, and other
procedural rules, based on the rules of the Financial Industry
Regulatory Authority. See note 7, supra.
---------------------------------------------------------------------------

    The Exchange also believes that the greater consistency among the
names of the NYSE Exchanges' hearing boards would promote the
maintenance of a fair and orderly market and the protection of
investors and the public interest by removing any confusion that may
result from the Exchange's disciplinary committee being called the BCC,
given that NYSE Arca has a business conduct committee, also referred to
as the ``BCC,'' that is subject to different rules and has a distinct
function and authority than the NYSE National BCC.\17\
---------------------------------------------------------------------------

    \17\ See, e.g., NYSE Arca Rules 3.2(B)(2) (Exchange Committees),
10.3 (Ex Parte Communications), 10.4 (Complaints), and 10.12 (Minor
Rule Plan). See also 84 FR 16346, supra note 7, at 16356.
---------------------------------------------------------------------------

    The proposed change would reduce redundancy by deleting the final
sentence of the definition of ``Panelist'' in Rule 10.9120(v), which
states that Hearing Panel members will be drawn from the BCC. Under the
proposed change, that sentence would not be

required, because revised Rule 10.9232 would state that each Panelist
``shall be a member of the Exchange Hearing Board,'' thereby making any
previous statement redundant. The change would streamline and increase
the clarity of the rules, which would contribute to the orderly
operation of the Exchange and be beneficial to both investors and the
public interest.
    For the same reasons, the proposed amendments would remove
impediments to and perfect the mechanism of a free and open market by
ensuring that persons subject to the Exchange's jurisdiction,
regulators, and the investing public could more easily navigate and
understand the Exchange Bylaws and rules. The Exchange further believes
that the proposed amendments would not be inconsistent with the public
interest and the protection of investors because investors will not be
harmed and in fact would benefit from increased transparency and
clarity, thereby reducing potential confusion.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act. The proposed rule
change is not intended to address competitive issues but rather is
concerned solely with the name of the disciplinary committee of the
Exchange. Because the only proposed change would be to the name of the
committee, there would be no other change to the Bylaws and rules
governing the BCC, including those regarding its appointment,
composition, or jurisdiction.

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

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

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \18\ and Rule 19b-4(f)(6) thereunder.\19\
Because the proposed rule change does not: (i) significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.\20\
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6).
    \20\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such 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 shall institute proceedings under
Section 19(b)(2)(B) \21\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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-NYSENAT-2022-15 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-NYSENAT-2022-15. 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-NYSENAT-2022-15 and should be submitted
on or before September 19, 2022.
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    \22\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-18500 Filed 8-26-22; 8:45 am]
BILLING CODE 8011-01-P