Summary of Definition of Solid Waste Discussion at

Environmental Technology Council Quarterly Meeting

On July 25, 2007, Tracy Atagi and Marilyn Goode from the Office of Solid
Waste (OSW) attended the Quarterly Meeting of the Environmental
Technology Council (ETC) from 1:00 am to 2:00 am. The purpose of the
session was for ETC to prioritize and clarify their public comments on
the proposed definition of solid waste rulemaking.  Attached is a copy
of ETC’s slide presentation on their comments.  ETC also indicated
that their membership was having further discussions on the topic of
brokers and other middlemen and may be submitting additional comments on
this issue.

Tracy Atagi		Environmental Protection Agency

Marilyn Goode	Environmental Protection Agency

David Case		Environmental Technology Council

Scott Slessinger	Environmental Technology Council

Plus representatives from ETC member companies


[Federal Register: September 13, 2007 (Volume 72, Number 177)]
[Rules and Regulations]
[Page 52289-52293]
[DOCID:fr13se07-6]

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-R03-OAR-2007-0448; FRL-8465-6]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Clean Air Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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

SUMMARY: EPA is taking direct final action to approve a revision to the
West Virginia State Implementation Plan (SIP) submitted on June 8,
2007. This revision incorporates provisions related to the
implementation of EPA's Clean Air Interstate Rule (CAIR), promulgated
on May 12, 2005 and subsequently revised on April 28, 2006 and December
13, 2006, and the CAIR Federal Implementation Plan (CAIR FIP)
concerning sulfur dioxide (SO2), nitrogen oxides
(NOX) annual, and NOX ozone season emissions for
the State of West Virginia, promulgated on April 28, 2006 and
subsequently revised on December 13, 2006. In this direct final action,
EPA is not making any changes to the CAIR FIP, but is amending the
appropriate appendices in the CAIR FIP trading rules simply to note
that approval. In accordance with the Clean Air Act, EPA is approving
this West Virginia SIP revision as an abbreviated SIP revision which
addresses the methodology to be used to allocate annual and ozone
season NOX allowances under the CAIR FIPs.

DATES: This rule is effective on November 13, 2007 without further
notice, unless EPA receives adverse written comment by October 15,
2007. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0448 by one of the following methods:
    A. Follow the on-line instructions for submitting comments.
    B. E-mail<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2007-0448, 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-
2007-0448. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at http://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 http://www.regulations.gov
 or e-mail. The www.regulations.gov Web site is an

``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://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
http://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 http://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 West Virginia Department of Environmental
Protection, Division of Air Quality, 601 57th Street SE., Charleston,
West Virginia 25304.

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

Table of Contents

I. What Action is EPA Taking?
II. What is the Regulatory History of CAIR and the CAIR FIPs?
III. What are the General Requirements of CAIR and the CAIR FIPs?
IV. What is an Abbreviated CAIR SIP Revision?
V. Analysis of West Virginia's Abbreviated CAIR SIP Submittal
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What Action is EPA Taking?

    EPA is approving a revision to West Virginia's SIP, submitted on
June 8, 2007 that will modify the application of certain provisions of
the CAIR FIP concerning SO2, NOX annual and
NOX ozone season emissions. As discussed below, this less
comprehensive CAIR SIP is termed an abbreviated SIP. West Virginia is
subject to the CAIR FIPs that implement the CAIR requirements by
requiring certain EGUs to participate in the EPA-administered Federal
CAIR SO2, NOX annual, and NOX ozone
season cap-and-trade programs.
    The West Virginia SIP revision provides a methodology for
allocating NOX allowances for the NOX annual and
NOX ozone season trading programs. The CAIR FIPs provide
that this methodology, if approved as EPA is proposing, will be used to
allocate NOX allowances to sources in West Virginia, instead
of the federal allocation methodology otherwise provided in the FIP.
EPA is not proposing to make any changes to the CAIR FIP, but is
proposing, to the extent EPA approves West Virginia's SIP revision, to
amend the appropriate appendices in the CAIR FIP trading rules simply
to note that approval.

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

    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/or interfere with
maintenance of the national ambient air quality standards (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 1 to September 30). Under CAIR, States may implement
these emission budgets by participating in the EPA-administered cap-
and-trade programs or by adopting control measures.
    Section 110(a)(2)(D) of the Clean Air Act requires that States
prohibit emissions that contribute significantly to nonattainment of,
or interfere with, maintenance of the NAAQS in downwind States. CAIR
explains to subject States what must be included in SIPs to address the
requirements of section 110(a)(2)(D) of the Clean Air Act with regard
to interstate transport with respect to the 8-hour ozone and
PM2.5 NAAQS. EPA made national findings, effective 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, 3 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 Federal Implementation Plan (FIP)
to address the requirements of section 110(a)(2)(D). Under Clean Air
Act 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, 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 certain EGUs to participate
in the EPA-administered CAIR SO2, NOX annual, and
NOX ozone-season model trading programs, as appropriate. The
CAIR FIP SO2, NOX annual, and NOX
ozone season trading programs impose essentially the same requirements
as, and are integrated with, the respective CAIR SIP trading programs.
The integration of the CAIR 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 CAIR FIP or SIP trading program for that pollutant. The CAIR
FIPs also allow States to submit abbreviated SIP revisions that, if
approved by EPA, will automatically replace or supplement the
corresponding 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. The CAIR FIP trading rules
include appendices in which EPA intends to list each State for which
EPA approves an abbreviated SIP revision. The appendices will indicate
which provisions of the CAIR FIP are automatically replaced or
supplemented by each approved, abbreviated SIP.
    On April 28, 2006, EPA published two 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?

    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. 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 \1\ trading programs in their CAIR
NOX ozone season trading programs.
---------------------------------------------------------------------------

    \1\ EPA promulgated the NOX SIP Call on October 27,
1998 (63 FR 57356) to address transported emissons of ozone in 22
States and the District of Columbia that significantly contributed
to downwind nonattainment of the one-hour ozone standard. The
NOX SIP Call trading program applied to large EGUs and
large industrial units.
---------------------------------------------------------------------------

IV. What is an Abbreviated CAIR SIP Revision?

    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 an abbreviated SIP revision may submit limited
SIP revisions to tailor the CAIR FIP cap-and-trade programs to the
state submitting the revision. Specifically, an abbreviated SIP
revision may establish certain applicability and allowance allocation
provisions that, as the CAIR FIPs provide, will be used instead of, or
in conjunction with, the corresponding provisions in the CAIR FIP rules
in that State. Specifically, the abbreviated SIP revisions may:
    1. Include NOX SIP Call trading sources that are not
EGUs under CAIR

in the CAIR FIP NOX ozone season trading program;
    2. Provide for allocation of NOX annual or ozone season
allowances by the State, rather than the Administrator, and using a
methodology chosen by the State;
    3. Provide for allocation of NOX annual allowances from
the compliance supplement pool (CSP) by the State, rather than by the
Administrator, and using the State's choice of allowed alternative
methodologies; or
    4. Allow units that are not otherwise CAIR units to opt
individually into the CAIR FIP cap-and-trade program under the opt-in
provisions in the CAIR FIP rules.
    With approval of an abbreviated SIP revision, the CAIR FIP remains
in place, as tailored to sources in the State by that approved SIP
revision. Abbreviated SIP revisions can be submitted in lieu of, or as
part of, CAIR full SIP revisions. States may want to designate part of
their full SIP as an abbreviated SIP for EPA to act on first when the
timing of the State's submission might not provide EPA with sufficient
time to approve the full SIP prior to the deadline for recording
NOX allocations. This will help ensure that the elements of
the trading programs where flexibility is allowed are implemented
according to the State's decisions. Submission of an abbreviated SIP
revision does not preclude future submission of a CAIR full SIP
revision.
    As discussed below, West Virginia is requesting approval of only
one of the four provisions for which a State may request an abbreviated
SIP. The State is requesting that its allocation of NOX
annual and NOX ozone season allowances for EGUs under the
CAIR FIP be used instead of the corresponding provisions of the CAIR
FIPs in effect in the State.

V. Analysis of West Virginia's Abbreviated CAIR SIP Submittal

    On June 1, 2006, West Virginia submitted a full SIP revision to
meet the requirements of CAIR as promulgated on May 12, 2005. The SIP
revision is comprised of three regulations: 45CSR39, 45CSR40 and
45CSR41 for the NOX annual trading program, the
NOX ozone season trading program, and the SO2
annual trading program, respectively. The regulations adopted the part
96 model rules as set forth in the May 12, 2005 rulemaking, but,
because revisions to part 96 were finalized after the State had started
its rulemaking process, did not include the changes to the model rules
that were made as part of the April 28, 2006 CAIR FIP. Consistent with
the provisions of the CAIR FIP as discussed above, West Virginia
submitted a letter on June 8, 2007, requesting that portions of its
June 1, 2006 SIP revision be considered as an abbreviated SIP revision.
The June 8, 2007 letter designated the NOX allocation
methodology provisions applicable to EGUs under the CAIR FIP and
originally submitted as part of its June 1, 2006 CAIR SIP revision as
replacing the corresponding provisions of the CAIR FIPs. Consistent
with this request, EPA is treating the following provisions of West
Virginia's CAIR rules an abbreviated SIP revision: sections 45-39-40,
45-39-41, and 45-39-42; and sections 45-40-40, 45-40-41, and 45-40-42,
except for paragraphs 40.3, 42.2.c, 42.2.d, 42.2.e, 42.3.a.2, and
42.4.b.
    The NOX allowance allocation methodology in these
provisions of West Virginia's June 1, 2006 SIP revision is consistent
with the methodology in part 96 and the FIP, under which units that
have operated for five years will receive allowances, based on heat
input data from a three-year period adjusted for fuel type by using
fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels.
Based on this methodology, West Virginia determined NOX
allocations for EGUs in the State under the CAIR FIP, and submitted its
allocations to EPA on October 30, 2006.
    West Virginia's abbreviated SIP revision does not affect the CAIR
budgets, which are total amounts of allowances available for allocation
for each year under the EPA-administered cap-and-trade programs under
the CAIR FIPs. The abbreviated SIP revision only affects allocations of
allowances under the established budgets. Information on how the
budgets were developed may be found in the May 12, 2005 CAIR rulemaking
(70 FR 25162).
    EPA is today taking action only on this request for an abbreviated
SIP revision and not the full CAIR SIP revision originally submitted,
which will be the subject of a separate rulemaking action. In the June
8, 2007 letter, West Virginia states that it will revise and promulgate
its CAIR rules 45CSR39, 45CSR40, and 45CSR41 to incorporate the
revisions to part 96 and indicates that it plans to submit an amended
CAIR SIP revision to EPA in 2008.

VI. Final Action

    EPA is approving West Virginia's abbreviated CAIR SIP revision
submitted on June 8, 2007, as discussed above. West Virginia is subject
to the CAIR FIPs, which require participation in the EPA-administered
SO2, NOX annual, and NOX ozone season
cap-and-trade programs. Under this abbreviated SIP revision and,
consistent with the flexibility given to States in the FIPs, West
Virgnia has adopted provisions for allocating allowances under the CAIR
FIP NOX annual and ozone season trading programs. As
provided for in the CAIR FIPs, these provisions in the abbreviated SIP
revision will replace or supplement the corresponding provisions of the
CAIR FIPs in West Virginia. The abbreviated SIP revision meets the
applicable requirements in 40 CFR 51.123(p) and (ee), with regard to
NOX annual and NOX ozone season emissions. In
this final action, EPA is not making any changes to the CAIR FIP, but
is amending the appropriate appendices in the CAIR FIP trading rules
simply to note approval of West Virginia's abbreviated CAIR SIP.
    EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comment. However, in the ``Proposed Rules'' section of today's
Federal Register, EPA is publishing a separate document that will serve
as the proposal to approve the SIP revision if adverse comments are
filed. This rule will be effective on November 13, 2007 without further
notice unless EPA receives adverse comment by October 15, 2007. If EPA
receives adverse comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. EPA will address all public comments in a subsequent final rule
based on the proposed rule. EPA will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time. Please note that if EPA receives adverse comment on an
amendment, paragraph, or section of this rule and if that provision may
be severed from the remainder of the rule, EPA may adopt as final those
provisions of the rule that are not the subject of an adverse comment.

VII. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
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 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by

state law. Accordingly, the Administrator certifies that this 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 approves 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 (Pub. L. 104-4). This rule also
does not have tribal implications because it will 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). This action also does not have Federalism
implications because it 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, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal requirement, and does not alter the relationship
or the distribution of power and responsibilities established in the
Clean Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (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 Clean Air Act. 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. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

B. Submission to Congress and the Comptroller General

    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 rule 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    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 13, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 to approve West Virginia's abbreviated CAIR
SIP revision may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 97

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen oxides,
Ozone, Reporting and recordkeeping requirements.

    Dated: August 30, 2007.
Donald S. Welsh,
Regional Administrator, Region III.

0
40 CFR parts 52 and 97 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR part 52 continues to read as
follows:

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table in paragraph (c) is amended by adding
entries for 45 CSR 39 and 40 at the end of the table. The table in
paragraph (e) is amended by adding the entry for Article 3, Chapter 64
of the Code of West Virginia at the end of the table. The amendments
read as follows:

Sec.  52.2520  Identification of plan.

* * * * *
    (c) * * *

                                EPA-Approved Regulations in the West Virginia SIP
----------------------------------------------------------------------------------------------------------------
                                                                                Additional
State citation  [Chapter 16-20                                State                              explanation/
           or 45 CSR]                 Title/subject         effective    EPA approval date    citation at 40 CFR
                                                               date                             Sec.   52.2565
----------------------------------------------------------------------------------------------------------------
                                                 * * * * * * *
     [45 CSR] Series 39 Control of Annual Nitrogen Oxide Emissions to Mitigate Interstate Transport of Fine
                                     Particulate Matter and Nitrogen Ozides
----------------------------------------------------------------------------------------------------------------
Section 45-39-40..............  CAIR NOX Annual Trading         5/1/06  9/13/07 [Insert      Only Phase I (2009-
                                 Budget.                                 page number where    2014).
                                                                         the document
                                                                         begins].
Section 45-39-41..............  Timing Requirements for         5/1/06  9/13/07 [Insert      Only Phase I (2009-
                                 CAIR NOX Annual                         page number where    2014).
                                 Allowance Allocations.                  the document
                                                                         begins].

Section 45-39-42..............  CAIR NOX Annual Allowance       5/1/06  9/13/07 [Insert      Only for Phase I
                                 Allocations.                            page number where    (2009-2014).
                                                                         the document
                                                                         begins].
----------------------------------------------------------------------------------------------------------------
  [45 CSR] Series 40 Control of Ozone Season Nitrogen Oxide Emissions to Mitigate Interstate Transport of Ozone
                                               and Nitrogen Ozides
----------------------------------------------------------------------------------------------------------------
Section 45-40-40..............  CAIR NOX Ozone Season           5/1/06  9/13/07 [Insert      1. Except for
                                 Trading Budget.                         page number where    subsection 40.3,
                                                                         the document         and non-EGUs in
                                                                         begins].             subsection 40.1
                                                                                table 2. Only
                                                                                Phase I (2009-
                                                                                2014).
Section 45-40-41..............  Timing Requirements for         5/1/06  9/13/07 [Insert      Only Phase I (2009-
                                 CAIR NOX Ozone Season                   page number where    2014).
                                 Allowance Allocations.                  the document
                                                                         begins].
Section 45-40-42..............  CAIR NOX Ozone Season           5/1/06  9/13/07 [Insert      1. Except for
                                 Allowance Allocations.                  page number where    subsections
                                                                         the document         42.2.d, 42.2.e,
                                                                         begins].             42.3.a.2, and
                                                                                42.4.b. 2. Only
                                                                                Phase I (2009-
                                                                                2014).
----------------------------------------------------------------------------------------------------------------

* * * * *
    (e)* * *

----------------------------------------------------------------------------------------------------------------
                                                            State
    Name of non-regulatory SIP          Applicable        submittal     EPA approval date        Additional
             revision                 geographic area        date                                explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Article 3, Chapter 64 of the Code  Statewide...........       5/1/06  9/13/07 [Insert page  Effective date of
 of West Virginia, 1931.                                               number where the      March 11, 2006.
                                                                       document begins].
----------------------------------------------------------------------------------------------------------------

PART 97--[AMENDED]

0
3. The authority citation for 40 CFR part 97 continues to read as
follows:

     Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et
seq.

0
4. Appendix A to Subpart EE is amended by adding the entry for ``West
Virginia'' in alphabetical order under paragraph 1 to read as follows:

Appendix A to Subpart EE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations

    1. * * *
West Virginia (for control periods 2009--2014)
* * * * *

0
5. Appendix A to Subpart EEEE is amended by adding the entry for West
Virginia in alphabetical order under paragraph 1 to read as follows:

Appendix A to Subpart EEEE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations

* * * * *
West Virginia (for control periods 2009--2014)
* * * * *
[FR Doc. E7-17874 Filed 9-12-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 172 (Thursday, September 3, 2020)]
[Rules and Regulations]
[Pages 54885-54888]
[FR Doc No: 2020-19387]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2019-1070; Product Identifier 2019-NM-178-AD; Amendment
39-21218; AD 2020-17-13]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The FAA is adopting a new airworthiness directive (AD) for
certain The Boeing Company Model 787-8 and 787-9 airplanes. This AD was
prompted by reports that the cabin air compressor (CAC) outlet check
valve failed due to fatigue of the aluminum flappers, and exposed the
Y-duct to temperatures above its design limit. This AD requires
installing new inboard and outboard CAC outlet check valves on the
left-side and right-side cabin air conditioning and temperature control
system (CACTCS) packs. The FAA is issuing this AD to address the unsafe
condition on these products.

DATES: This AD is effective October 8, 2020.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of October 8,
2020.

ADDRESSES: For service information identified in this final rule,
contact Boeing Commercial Airplanes, Attention: Contractual & Data
Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA
90740-5600; telephone<PHONE_NUMBER>; internet https://www.myboeingfleet.com. You may view this service information at the
FAA, Airworthiness Products Section, Operational Safety Branch, 2200
South 216th St., Des Moines, WA. For information on the availability of
this

material at the FAA, call<PHONE_NUMBER>. It is also available on the
internet at https://www.regulations.gov by searching for and locating
Docket No. FAA-2019-1070.

Examining the AD Docket

    You may examine the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2019-
1070; or in person at Docket Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. The AD docket contains
this final rule, any comments received, and other information. The
address for Docket Operations is U.S. Department of Transportation,
Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200
New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Scott Craig, Aerospace Engineer, Cabin
Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200
South 216th St., Des Moines, WA 98198; phone and fax:<PHONE_NUMBER>;
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Discussion

    The FAA issued a notice of proposed rulemaking (NPRM) to amend 14
CFR part 39 by adding an AD that would apply to certain The Boeing
Company Model 787-8 and 787-9 airplanes. The NPRM published in the
Federal Register on January 10, 2020 (85 FR 1295). The NPRM was
prompted by reports that the CAC outlet check valve failed due to
fatigue of the aluminum flappers, and exposed the Y-duct to
temperatures above its design limit. The NPRM proposed to require
installing new inboard and outboard CAC outlet check valves on the
left-side and right-side CACTCS packs.
    The FAA is issuing this AD to address failed CAC outlet check
valves, which could expose the flight deck and passenger cabin to smoke
and fumes, and lead to reduced crew performance or produce passenger
discomfort. Off-gassed compounds could cause respiratory distress and
could cause serious injury for an individual with a compromised
respiratory system.

Comments

    The FAA gave the public the opportunity to participate in
developing this final rule. The following presents the comments
received on the NPRM and the FAA's response to each comment.

Support for the NPRM

    The Air Line Pilots Association, International, stated that it
supports the NPRM.

Request to Reference Part Number for Parts Installation Prohibition
Within the AD

    All Nippon Airways (ANA) requested that the FAA reference CAC
outlet check valve, part number (P/N) 7010105H01, directly in paragraph
(i) of the proposed AD. ANA noted that paragraph (i) of the proposed AD
stated that ``no person may install a CAC outlet check valve, with a
part number listed in paragraph 1.B, `Spares Affected' of Boeing
Service Bulletin B787-81205-SB210108-00, Issue 002, dated October 15,
2019, on any airplane.'' ANA pointed out that only CACTCS Pack P/Ns are
listed in paragraph 1.B, ``Spares Affected'' of Boeing Service Bulletin
B787-81205-SB210108-00, Issue 002, dated October 15, 2019 (``SB B787-
81205-SB210108-00, Issue 002''), and the part number of the CAC outlet
check valve that is of concern is not listed.
    The FAA agrees with the request for the reasons provided. Although
SB B787-81205-SB210108-00, Issue 002, does list CAC outlet check valves
part numbers in paragraph 1.B of the service bulletin, the CAC outlet
check valve part number that is of concern, P/N 7010105H01, is not
listed in paragraph 1.B of the service bulletin. The CAC outlet check
valve part number of concern, P/N 7010105H01, was intended to be a part
prohibited from installation. The Accomplishment Instructions of SB
B787-81205-SB210108-00, Issue 002, Note 9 of the General Information
section states, among other things, that any CAC outlet check valve
having P/N 7010105H01 cannot be installed again and must be made
unserviceable. Additionally, supplier service information UTC Aerospace
Systems Service Bulletin 7110097/098/188/189-21-4, dated May 3, 2018;
and UTC Aerospace Systems Service Bulletin 7010097/098/188/189-21-9,
dated May 3, 2018, which are referenced in SB B787-81205-SB210108-00,
Issue 001; dated May 25, 2018 (``SB B787-81205-SB210108-00, Issue
001''), and SB B787-81205-SB210108-00, Issue 002, also state that all
replaced CAC outlet check valves having P/N 7010105H01 cannot be
installed again and must be made unserviceable. The FAA has revised
paragraph (i) of this AD to specify that no person may install a CAC
outlet check valve with a part number listed in paragraph 1.B of SB
B787-81205-SB210108-00, Issue 002, or P/N 7010105H01 on any airplane as
of the effective date of this AD.

Request To Clarify Part Marking Requirements

    American Airlines (AA) and United Airlines (UA) requested that the
FAA clarify the requirements for marking the MOD DOT number on the
CACTCS pack identification plate. Both commenters noted that paragraphs
2.A.(2), 2.A.(3), 2.B.(2), and 2.B.(3) of the Accomplishment
Instructions of SB B787-81205-SB210108-00, Issue 002, are listed as
``RC'' (Required for Compliance) and specify to replace the CAC outlet
check valve and mark the MOD DOT number on the CACTCS pack
identification plate. The commenters pointed out that paragraph (j) of
the proposed AD provides credit for actions accomplished in accordance
with Boeing Service Bulletin B787-81205-SB210108-00, Issue 001, which
does not have instructions for marking the MOD DOT number on the CACTCS
pack identification plate. Because SB B787-81205-SB210108-00, Issue
002, specifies to mark the MOD DOT number on the CACTCS pack
identification plate, but SB B787-81205-SB210108-00, Issue 001, does
not, the commenters requested clarification on this requirement.
    The FAA agrees to clarify. SB B787-81205-SB210108-00, Issue 001,
specifies to do actions ``in accordance with'' the supplier service
information, which included instructions for part marking. Therefore,
operators that accomplished this issue of the service bulletin should
have also marked the MOD DOT number on the CACTCS pack identification
plate. However, the FAA acknowledges that SB B787-81205-SB210108-00,
Issue 001 specified only replacing the parts, not marking them. If
operators otherwise complied with SB B787-81205-SB210108-00, Issue 001,
but did not mark the MOD DOT number on the CACTCS pack identification
plate, they cannot claim credit for part marking and must mark the part
as specified in SB B787-81205-SB210108-00, Issue 002. The FAA has not
changed this AD in this regard.

Request To Clarify Part Marking of an ``X'' on the CACTCS Pack
Identification Plate

    UA requested that the FAA clarify the requirement to part mark an
``X'' on the CACTCS pack identification plate. UA pointed out that
paragraphs 2.A.(2), 2.A.(3), 2.B.(2), and 2.B.(3) of the Work
Instructions of SB B787-81205-SB210108-00, Issue 002, specify to mark
the MOD DOT number on the CACTCS pack identification plate. In

the associated tables, footnote [1] specifies to ``also part mark an
`X' on the applicable number in the MOD DOT area of the identification
plate . . .'' UA stated that the result is that MOD DOT markings are
required in two places, which UA maintains is redundant and not
consistent.
    The FAA agrees to clarify. Footnote [1] of Tables 1 through 8 of
the Work Instructions of SB B787-81205-SB210108-00, Issue 002,
specifies to mark an ``X'' on the identification plate for the
appropriate MOD DOT for CACTCS pack configuration H05 and H09 only,
which is a separate action from marking the MOD DOT number on the
CACTCS pack identification plate. The FAA has not changed this AD in
this regard.

Requests To Update Supplier Warranty Information

    Boeing requested that the FAA update the Costs of Compliance
section of the NPRM to reflect a name change for the supplier warranty
information from UTC Aerospace Systems to Collins Aerospace. The FAA
has revised the Costs of Compliance section of this AD accordingly.

Request To Clarify Discussion

    Boeing requested that the FAA modify portions of the Discussion of
the NPRM to clarify the cause of failing CAC outlet check valves and
more clearly explain the sequence of events leading to the unsafe
condition. Whereas the NPRM described the cause of the flapper fatigue
as ``increasing open/close cycles,'' Boeing stated that the flapper
fatigue was due to ``open/close cycles exceeding design requirements.''
Boeing also requested that the FAA modify the Discussion of the NPRM to
clarify that ``This [open/close cycles exceeding design requirements]
can cause reverse flow through the broken check valve during times of
single CAC operation. With repeated exposure to temperatures in excess
of the Y-Duct design limit, the duct may degrade and this can lead to
failure of the Y-Duct if not addressed. Dual CAC operation with a
failed Y-Duct may lead to high temperatures that can result in off
gassing from the duct material.''
    The FAA agrees that the description in the NPRM was inaccurate and
is clarified in the previous paragraph. Since that section of the
preamble does not reappear in the final rule, no change to the final
rule is necessary.

Conclusion

    The FAA reviewed the relevant data, considered the comments
received, and determined that air safety and the public interest
require adopting this final rule with the changes described previously
and minor editorial changes. The FAA has determined that these changes:
     Are consistent with the intent that was proposed in the
NPRM for addressing the unsafe condition; and
     Do not add any additional burden upon the public than was
already proposed in the NPRM.
    The FAA also determined that these changes will not increase the
economic burden on any operator or increase the scope of this final
rule.

Related Service Information Under 1 CFR Part 51

    The FAA reviewed Boeing Service Bulletin B787-81205-SB210108-00,
Issue 002, dated October 15, 2019. The service information describes
procedures for installing new inboard and outboard CAC outlet check
valves on the left-side and right-side CACTCS packs. This service
information is reasonably available because the interested parties have
access to it through their normal course of business or by the means
identified in the ADDRESSES section.

Costs of Compliance

    The FAA estimates that this AD affects 90 airplanes of U.S.
registry. The FAA estimates the following costs to comply with this AD:

                                      Estimated Costs for Required Actions
----------------------------------------------------------------------------------------------------------------
                                                                                Cost on U.S.
              Action                    Labor cost        Parts cost      Cost per product        operators
----------------------------------------------------------------------------------------------------------------
Replace CAC outlet check valves..  3 work-hours x $85               $0  $255 per check       $22,950 per check
                                    per hour = $255                      valve.               valve.
                                    per check valve.
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    According to the manufacturer, some or all of the costs of this AD
may be covered under warranty by Collins Aerospace, thereby reducing
the cost impact on affected individuals. The FAA does not control
warranty coverage for affected individuals. As a result, the FAA has
included all known costs in the cost estimate.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect 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.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Will not affect intrastate aviation in Alaska, and
    (3) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2020-17-13 The Boeing Company: Amendment 39-21218; Docket No. FAA-
2019-1070; Product Identifier 2019-NM-178-AD.

(a) Effective Date

    This AD is effective October 8, 2020.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to The Boeing Company Model 787-8 and 787-9
airplanes, certificated in any category, as identified in Boeing
Service Bulletin B787-81205-SB210108-00, Issue 002, dated October
15, 2019.

(d) Subject

    Air Transport Association (ATA) of America Code 21, Air
conditioning.

(e) Unsafe Condition

    This AD was prompted by reports that the cabin air compressor
(CAC) outlet check valve failed due to fatigue of the aluminum
flappers, and exposed the Y-duct to temperatures above its design
limit. The FAA is issuing this AD to address this condition, which
could expose the flight deck and passenger cabin to smoke and fumes,
and lead to reduced crew performance or produce passenger
discomfort. Off-gassed compounds could cause respiratory distress
and could cause serious injury for an individual with a compromised
respiratory system.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Actions

    Except as specified in paragraph (h) of this AD: At the
applicable times specified in paragraph 5., ``Compliance,'' of
Boeing Service Bulletin B787-81205-SB210108-00, Issue 002, dated
October 15, 2019, do all applicable actions identified as ``RC''
(required for compliance) in, and in accordance with, the
Accomplishment Instructions of Boeing Service Bulletin B787-81205-
SB210108-00, Issue 002, dated October 15, 2019.

(h) Exceptions to Service Information Specifications

    Where Boeing Service Bulletin B787-81205-SB210108-00, Issue 002,
dated October 15, 2019, uses the phrase ``the Issue 002 date of this
service bulletin,'' this AD requires using ``the effective date of
this AD.''

(i) Parts Installation Prohibition

    As of the effective date of this AD, no person may install a CAC
outlet check valve, with a part number listed in paragraph 1.B,
``Spares Affected'' of Boeing Service Bulletin B787-81205-SB210108-
00, Issue 002, dated October 15, 2019, or CAC outlet check valve P/N
7010105H01, on any airplane.

(j) Credit for Previous Actions

    This paragraph provides credit for the actions specified in
paragraph (g) of this AD, if those actions were performed before the
effective date of this AD using Boeing Service Bulletin B787-81205-
SB210108-00, Issue 001, dated May 25, 2018.

(k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle ACO Branch, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request
to your principal inspector or local Flight Standards District
Office, as appropriate. If sending information directly to the
manager of the certification office, send it to the attention of the
person identified in paragraph (l) of this AD. Information may be
emailed to<EMAIL_ADDRESS>    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair, modification, or alteration required by this AD
if it is approved by The Boeing Company Organization Designation
Authorization (ODA) that has been authorized by the Manager, Seattle
ACO Branch, FAA, to make those findings. To be approved, the repair
method, modification deviation, or alteration deviation must meet
the certification basis of the airplane, and the approval must
specifically refer to this AD.
    (4) For service information that contains steps that are labeled
as Required for Compliance (RC), the provisions of paragraphs
(k)(4)(i) and (ii) of this AD apply.
    (i) The steps labeled as RC, including substeps under an RC step
and any figures identified in an RC step, must be done to comply
with the AD. If a step or substep is labeled ``RC Exempt,'' then the
RC requirement is removed from that step or substep. An AMOC is
required for any deviations to RC steps, including substeps and
identified figures.
    (ii) Steps not labeled as RC may be deviated from using accepted
methods in accordance with the operator's maintenance or inspection
program without obtaining approval of an AMOC, provided the RC
steps, including substeps and identified figures, can still be done
as specified, and the airplane can be put back in an airworthy
condition.

(l) Related Information

    For more information about this AD, contact Scott Craig,
Aerospace Engineer, Cabin Safety and Environmental Systems Section,
FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198;
phone and fax:<PHONE_NUMBER>; email<EMAIL_ADDRESS>
(m) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless the AD specifies otherwise.
    (i) Boeing Service Bulletin B787-81205-SB210108-00, Issue 002,
dated October 15, 2019.
    (ii) [Reserved]
    (3) For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Contractual & Data Services
(C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-
5600; telephone<PHONE_NUMBER>; internet https://www.myboeingfleet.com.
    (4) You may view this service information at the FAA,
Airworthiness Products Section, Operational Safety Branch, 2200
South 216th St., Des Moines, WA. For information on the availability
of this material at the FAA, call<PHONE_NUMBER>.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, email<EMAIL_ADDRESS>or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued on August 13, 2020.
Lance T. Gant,
Director, Compliance & Airworthiness Division, Aircraft Certification
Service.
[FR Doc. 2020-19387 Filed 9-2-20; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 82, Number 27 (Friday, February 10, 2017)]
[Notices]
[Pages 10417-10418]
[FR Doc No: 2017-02739]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79974; File No. 4-678]

Program for Allocation of Regulatory Responsibilities Pursuant to
Rule 17d-2; Order Approving and Declaring Effective a Proposed Amended
Plan for the Allocation of Regulatory Responsibilities Among the
Financial Industry Regulatory Authority, Inc., Miami International
Securities Exchange, LLC, and MIAX PEARL, LLC

February 6, 2017.
    On January 12, 2017, Miami International Securities Exchange, LLC
(``MIAX''), MIAX PEARL, LLC (``MIAX PEARL''), and the Financial
Industry Regulatory Authority, Inc. (``FINRA'') (collectively, the
``Parties'') filed with the Securities and Exchange Commission
(``Commission'' or ``SEC'') an amended plan for the allocation of
regulatory responsibilities, dated January 11, 2017 (``Amended 17d-2
Plan'' or the ``Amended Plan''). The Amended Plan was published for
comment on January 19, 2017.\1\ The Commission received no comments on
the Amended Plan. This order approves and declares effective the
Amended Plan.
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    \1\ See Securities Exchange Act Release No. 79779 (January 12,
2017), 82 FR 6674 (January 19, 2017).
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I. Introduction

    Section 19(g)(1) of the Securities Exchange Act of 1934
(``Act''),\2\ among other things, requires every self-regulatory
organization (``SRO'') registered as either a national securities
exchange or national securities association to examine for, and enforce
compliance by, its members and persons associated with its members with
the Act, the rules and regulations thereunder, and the SRO's own rules,
unless the SRO is relieved of this responsibility pursuant to Section
17(d) or Section 19(g)(2) of the Act.\3\ Without this relief, the
statutory obligation of each individual SRO could result in a pattern
of multiple examinations of broker-dealers that maintain memberships in
more than one SRO (``Common Members''). Such regulatory duplication
would add unnecessary expenses for common members and their SROs.
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    \2\ 15 U.S.C. 78s(g)(1).
    \3\ 15 U.S.C. 78q(d) and 15 U.S.C. 78s(g)(2), respectively.
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    Section 17(d)(1) of the Act \4\ was intended, in part, to eliminate
unnecessary multiple examinations and regulatory duplication.\5\ With
respect to a common member, Section 17(d)(1) authorizes the Commission,
by rule or order, to relieve an SRO of the responsibility to receive
regulatory reports, to examine for and enforce compliance with
applicable statutes, rules, and regulations, or to perform other
specified regulatory functions.
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    \4\ 15 U.S.C. 78q(d)(1).
    \5\ See Securities Act Amendments of 1975, Report of the Senate
Committee on Banking, Housing, and Urban Affairs to Accompany S.
249, S. Rep. No. 94-75, 94th Cong., 1st Session 32 (1975).
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    To implement Section 17(d)(1), the Commission adopted two rules:
Rule 17d-1 and Rule 17d-2 under the Act.\6\ Rule 17d-1 authorizes the
Commission to name a single SRO as the designated examining authority
(``DEA'') to examine common members for compliance with the financial
responsibility requirements imposed by the Act, or by Commission or SRO
rules.\7\ When an SRO has been named as a common member's DEA, all
other SROs to which the common member belongs are relieved of the
responsibility to examine the firm for compliance with the applicable
financial responsibility rules. On its face, Rule 17d-1 deals only with
an SRO's obligations to enforce member compliance with financial
responsibility requirements. Rule 17d-1 does not relieve an SRO from
its obligation to examine a common member for compliance with its own
rules and provisions of the federal securities laws governing matters
other than financial responsibility, including sales practices and
trading activities and practices.
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    \6\ 17 CFR 240.17d-1 and 17 CFR 240.17d-2, respectively.
    \7\ See Securities Exchange Act Release No. 12352 (April 20,
1976), 41 FR 18808 (May 7, 1976).
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    To address regulatory duplication in these and other areas, the
Commission adopted Rule 17d-2 under the Act.\8\ Rule 17d-2 permits SROs
to propose joint plans for the allocation of regulatory
responsibilities with respect to their common members. Under paragraph
(c) of Rule 17d-2, the Commission may declare such a plan effective if,
after providing for appropriate notice and comment, it determines that
the plan is necessary or appropriate in the public interest and for the
protection of investors; to foster cooperation and coordination among
the SROs; to remove impediments to, and foster the development of, a
national market system and a national clearance and settlement system;
and is in conformity with the factors set forth in Section 17(d) of the
Act. Commission approval of a plan filed pursuant to Rule 17d-2
relieves an SRO of those regulatory responsibilities allocated by the
plan to another SRO.
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    \8\ See Securities Exchange Act Release No. 12935 (October 28,
1976), 41 FR 49091 (November 8, 1976).
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II. Proposed Amended Plan

    On November 19, 2014, the Commission declared effective the Plan
entered into between FINRA and MIAX for allocating regulatory
responsibility pursuant to Rule 17d-2.\9\ The Plan is intended to
reduce regulatory duplication for firms that are common members of both
MIAX and FINRA. The plan reduces regulatory duplication for firms that
are members of MIAX and FINRA by allocating regulatory

responsibility with respect to certain applicable laws, rules, and
regulations. Included in the Plan is an exhibit that lists every MIAX
rule for which FINRA bears responsibility under the Plan for overseeing
and enforcing with respect to MIAX members that are also members of
FINRA and the associated persons therewith (``Certification''). On
January 12, 2017, the parties submitted the proposed Amended Plan. The
primary purpose of the amendment is to add MIAX PEARL as a Participant
to the Plan.
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    \9\ See Securities Exchange Act Release No. 73641 (November 19,
2014), 79 FR 70230 (November 25, 2014).
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III. Discussion

    The Commission finds that the proposed Amended Plan is consistent
with the factors set forth in Section 17(d) of the Act \10\ and Rule
17d-2(c) thereunder \11\ in that the proposed Amended Plan is necessary
or appropriate in the public interest and for the protection of
investors, fosters cooperation and coordination among SROs, and removes
impediments to and fosters the development of the national market
system. In particular, the Commission believes that the proposed
Amended Plan should reduce unnecessary regulatory duplication by
allocating to FINRA certain examination and enforcement
responsibilities for Common Members that would otherwise be performed
by MIAX, MIAX PEARL, and FINRA. Accordingly, the proposed Amended Plan
promotes efficiency by reducing costs to Common Members. Furthermore,
because MIAX, MIAX PEARL, and FINRA will coordinate their regulatory
functions in accordance with the Amended Plan, the Amended Plan should
promote investor protection.
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    \10\ 15 U.S.C. 78q(d).
    \11\ 17 CFR 240.17d-2(c).
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    The Commission notes that, under the Amended Plan, MIAX, MIAX
PEARL, and FINRA have allocated regulatory responsibility for those
MIAX and MIAX PEARL rules, set forth in the Certification, that are
substantially similar to the applicable FINRA rules in that examination
for compliance with such provisions and rules would not require FINRA
to develop one or more new examination standards, modules, procedures,
or criteria in order to analyze the application of the rule, or a
Common Member's activity, conduct, or output in relation to such rule.
In addition, under the Amended Plan, FINRA would assume regulatory
responsibility for certain provisions of the federal securities laws
and the rules and regulations thereunder that are set forth in the
Certification. The Common Rules covered by the Amended Plan are
specifically listed in the Certification, as may be amended by the
Parties from time to time.
    According to the Amended Plan, MIAX and MIAX PEARL will review the
Certification, at least annually, or more frequently if required by
changes in either the rules of MIAX, MIAX PEARL, or FINRA, and, if
necessary, submit to FINRA an updated list of Common Rules to add MIAX
and MIAX PEARL rules not included on the then-current list of Common
Rules that are substantially similar to FINRA rules; delete MIAX and
MIAX PEARL rules included in the then-current list of Common Rules that
are no longer substantially similar to FINRA rules; and confirm that
the remaining rules on the list of Common Rules continue to be MIAX and
MIAX PEARL rules that are substantially similar to FINRA rules.\12\
FINRA will then confirm in writing whether the rules listed in any
updated list are Common Rules as defined in the Amended Plan. Under the
Amended Plan, MIAX and MIAX PEARL will also provide FINRA with a
current list of Common Members and shall update the list no less
frequently than once each quarter.\13\ The Commission believes that
these provisions are designed to provide for continuing communication
between the Parties to ensure the continued accuracy of the scope of
the proposed allocation of regulatory responsibility.
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    \12\ See paragraph 2 of the Amended Plan.
    \13\ See paragraph 3 of the Amended Plan.
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    The Commission is hereby declaring effective an Amended Plan that,
among other things, allocates regulatory responsibility to FINRA for
the oversight and enforcement of all MIAX and MIAX PEARL rules that are
substantially similar to the rules of FINRA for Common Members of MIAX
and FINRA, and MIAX PEARL and FINRA. Therefore, modifications to the
Certification need not be filed with the Commission as an amendment to
the Amended Plan, provided that the Parties are only adding to,
deleting from, or confirming changes to MIAX or MIAX PEARL rules in the
Certification in conformance with the definition of Common Rules
provided in the Amended Plan. However, should the Parties decide to add
a MIAX or MIAX PEARL rule to the Certification that is not
substantially similar to a FINRA rule; delete a MIAX or MIAX PEARL rule
from the Certification that is substantially similar to a FINRA rule;
or leave on the Certification a MIAX or MIAX PEARL rule that is no
longer substantially similar to a FINRA rule, then such a change would
constitute an amendment to the Amended Plan, which must be filed with
the Commission pursuant to Rule 17d-2 under the Act.\14\
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    \14\ The Commission also notes that the addition to or deletion
from the Certification of any federal securities laws, rules, and
regulations for which FINRA would bear responsibility under the
Amended Plan for examining, and enforcing compliance by, Common
Members, also would constitute an amendment to the Amended Plan.
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IV. Conclusion

    This Order gives effect to the Amended Plan filed with the
Commission in File No. 4-678. The Parties shall notify all members
affected by the Amended Plan of their rights and obligations under the
Amended Plan.
    It is therefore ordered, pursuant to Section 17(d) of the Act, that
the Amended Plan in File No. 4-678, between FINRA, MIAX, and MIAX
PEARL, filed pursuant to Rule 17d-2 under the Act, is approved and
declared effective.
    It is further ordered that MIAX and MIAX PEARL are relieved of
those responsibilities allocated to FINRA under the Amended Plan in
File No. 4-678.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(34).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-02739 Filed 2-9-17; 8:45 am]
 BILLING CODE 8011-01-P