[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Notices]
[Pages 41263-41265]
[FR Doc No: 2020-14742]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89217; File No. SR-CboeBZX-2020-029]

Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order
Granting Approval of Proposed Rule Change, as Modified by Amendment No.
1, To List and Trade Shares of the JPMorgan Large Cap Growth ETF Under
Rule 14.11(k), Managed Portfolio Shares

July 2, 2020.

I. Introduction

    On March 25, 2020, Cboe BZX Exchange, Inc. (``Exchange'' or
``BZX'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) \1\ of the Securities
Exchange Act of 1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ a
proposed rule change to list and trade shares of the JPMorgan Large Cap
Growth ETF under Rule 14.11(k), Managed Portfolio Shares. The proposed
rule change was published for comment in the Federal Register on Apri1
9, 2020.\4\ On April 29, 2020, the Exchange filed Amendment No. 1 to
the proposed rule change.\5\ On May 15, 2020, pursuant to Section
19(b)(2) of the Act,\6\ the Commission designated a longer period
within which to approve the proposed rule change, disapprove the
proposed rule change, or institute proceedings to determine whether to
disapprove the proposed rule change.\7\ The Commission has received no
comments on the proposed rule change. This order approves the proposed
rule change, as modified by Amendment No. 1.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
    \4\ See Securities Exchange Act Release No. 88551 (April 3,
2020), 85 FR 19971 (``Notice'').
    \5\ In Amendment No. 1, the Exchange added the word ``each'' to
clarify that the Adviser has implemented and will maintain a ``fire
wall'' with respect to each affiliate broker-dealer regarding access
to information concerning the composition and/or changes to the
Fund's portfolio and Creation Basket (as defined below). Because the
change in Amendment No. 1 clarifies a statement in the proposal and
does not materially alter the substance of the proposed rule change
or raise any novel regulatory issues, Amendment No. 1 is not subject
to notice and comment. Amendment No. 1 is available on the
Commission's website at https://www.sec.gov/comments/sr-cboebzx-2020-029/srcboebzx2020029-7135317-216172.pdf.
    \6\ 15 U.S.C. 78s(b)(2).
    \7\ See Securities Exchange Act Release No. 88888, 85 FR 31016
(May 21, 2020). The Commission designated July 8, 2020, as the date
by which the Commission shall approve or disapprove, or institute
proceedings to determine whether to disapprove, the proposed rule
change.
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II. Description of the Proposed Rule Change, as Modified by Amendment
No. 1 \8\
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    \8\ For more information regarding the Fund and the Shares, see
Notice, supra note 4.
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    The Exchange proposes to list and trade shares of the JPMorgan
Large Cap Growth ETF (``Fund'') under BZX Rule 14.11(k), which governs
the listing and trading of any series of Managed Portfolio Shares on
the Exchange.\9\ The shares of the Fund (``Shares'') will be issued by
J.P. Morgan Exchange-Traded Fund Trust (``Trust''), a statutory trust
organized under the laws of the State of Delaware and registered with
the Commission as an open-end management investment company.\10\ The
investment adviser to the Trust will be J.P. Morgan Investment
Management Inc. (the ``Adviser''). JPMorgan Distribution Services, Inc.
will serve as the distributor of the Fund's Shares.
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    \9\ As defined in BZX Rule 14.11(k)(3)(A), the term ``Managed
Portfolio Share'' means a security that (a) represents an interest
in an investment company (``Investment Company'') registered under
the Investment Company Act of 1940 (``1940 Act'') organized as an
open-end management investment company, that invests in a portfolio
of securities selected by the Investment Company's investment
adviser consistent with the Investment Company's investment
objectives and policies; (b) is issued in a creation unit, or
multiples thereof, in return for a designated portfolio of
instruments (and/or an amount of cash) with a value equal to the
next determined net asset value and delivered to the Authorized
Participant (as defined in the Investment Company's Form N-1A filed
with the Commission) through a confidential account; (c) when
aggregated into a redemption unit, or multiples thereof, may be
redeemed for a designated portfolio of instruments (and/or an amount
of cash) with a value equal to the next determined net asset value
delivered to the confidential account for the benefit of the
Authorized Participant; and (d) the portfolio holdings for which are
disclosed within at least 60 days following the end of every fiscal
quarter.
    \10\ The Trust is registered under the 1940 Act. On February 3,
2020, the Trust filed a registration statement on Form N-1A relating
to the Fund (File No. 811-22903) (``Registration Statement''). The
Trust has submitted an application for exemptive relief (``Exemptive
Application'') (File No. 812-15093). The Exchange states that the
Exemptive Application incorporates by reference the terms and
conditions of the exemptive relief granted to Precidian ETFs Trust,
et al. See Investment Company Act Release No. 33477, May 20, 2019
(``Exemptive Order''). The Exchange states that it expects any
exemptive relief granted to the Trust to be substantively identical
to the Exemptive Order. The Exchange represents that the Fund will
not be listed or traded on the Exchange until it receives all
necessary exemptive relief and its Registration Statement is
effective.
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A. Description of the Fund

    The Exchange states that the Fund's holdings will conform to the
permissible investments as set forth in the Exemptive Application and
Exemptive Order and the holdings will be consistent with all
requirements in the Exemptive Application and

Exemptive Order.\11\ According to the Exchange, the Fund will seek
long-term capital appreciation. The Exchange states that, typically, in
implementing its strategy, the Fund will invest in common stocks of
companies with a history of above-average growth or companies expected
to enter periods of above-average growth.
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    \11\ Pursuant to the Exemptive Order, the permissible
investments include only the following instruments that trade on a
U.S. exchange contemporaneously with the Shares: Exchange-traded
funds (``ETFs'') and exchange-traded notes, common stocks, preferred
stocks, American depositary receipts, real estate investment trusts,
commodity pools, metals trusts, currency trusts, and futures for
which the reference asset the Fund may invest in directly or, in the
case of an index future, based on an index of a type of asset that
the Fund could invest in directly; as well as cash and cash
equivalents (short-term U.S. Treasury securities, government money
market funds and repurchase agreements).
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B. Investment Restrictions

    The Fund will not purchase any securities that are illiquid
investments at the time of purchase and the Fund's holdings will be
consistent with all requirements described in the Exemptive Application
and Exemptive Order.
    The Shares will conform to the initial and continued listing
criteria under BZX Rule 14.11(k). The Fund's holdings will be limited
to and consistent with what is permissible under the Exemptive Order.
    The Fund's investments will be consistent with its investment
objective and will not be used to enhance leverage.

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
change, as modified by Amendment No. 1, is consistent with the Act and
rules and regulations thereunder applicable to a national securities
exchange.\12\ In particular, the Commission finds that the proposed
rule change, as modified by Amendment No. 1, is consistent with Section
6(b)(5) of the Act,\13\ which requires, among other things, that the
Exchange's rules be designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
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.
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    \12\ In approving this proposed rule change, the Commission
notes that it has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
    \13\ 15 U.S.C. 78f(b)(5).
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    The Commission believes that the proposal is reasonably designed to
promote fair disclosure of information that may be necessary to price
the Shares appropriately and to prevent trading in the Shares when a
reasonable degree of certain pricing transparency cannot be assured. As
such, the Commission believes the proposal is reasonably designed to
maintain a fair and orderly market for trading the Shares. The
Commission also finds that the proposal is consistent with Section
11A(a)(1)(C)(iii) of the Act, which sets forth Congress's finding that
it is in the public interest and appropriate for the protection of
investors and the maintenance of fair and orderly markets to assure the
availability to brokers, dealers, and investors of information with
respect to quotations for, and transactions in, securities.
    Specifically, the Commission notes that the Exchange has obtained a
representation from the issuer that the net asset value per Share of
the Fund will be calculated daily and will be made available to all
market participants at the same time.\14\ Information regarding market
price and trading volume of the Shares will be continually available on
a real-time basis throughout the day on brokers' computer screens and
other electronic services. Quotation and last sale information for the
Shares will be available via the Consolidated Tape Association high-
speed line. In addition, the Verified Intraday Indicative Value
(``VIIV'') \15\ will be widely disseminated by the Reporting Authority
and/or one or more major market data vendors in one-second intervals
during Regular Trading Hours, and must be disseminated to all market
participants at the same time.\16\ Moreover, the Fund's website will
include a form of the prospectus and additional data relating to net
asset value and other applicable quantitative information for the Fund,
including any information regarding premiums/discounts that ETFs
registered under the 1940 Act are required to provide or that are
otherwise required under the Exemptive Order. Such website and
information will be publicly available at no charge.
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    \14\ See BZX Rule 14.11(k)(4)(A)(ii).
    \15\ BZX Rule 14.11(k)(3)(B) defines ``Verified Intraday
Indicative Value'' as the indicative value of a Managed Portfolio
Share based on all of the holdings of a series of Managed Portfolio
Shares as of the close of business on the prior business day and,
for corporate actions, based on the applicable holdings as of the
opening of business on the current business day, priced and
disseminated in one second intervals during Regular Trading Hours
(as defined in BZX Rule 1.5(w)) by the Reporting Authority (as
defined in BZX Rule 14.11(k)(3)(H)).
    \16\ See BZX Rule 14.11(k)(4)(B)(i).
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    The Commission also notes that the Exchange's rules regarding
trading halts help to ensure the maintenance of fair and orderly
markets for the Shares. Specifically, pursuant to its rules, the
Exchange may consider all relevant factors in exercising its discretion
to halt trading in the Shares, and will halt trading in the Shares
under the conditions specified in BZX Rule 11.18. Trading may be halted
because of market conditions or for reasons that, in the view of the
Exchange, make trading in the Shares inadvisable, including (1) the
extent to which trading is not occurring in the securities and/or the
financial instruments composing the portfolio; or (2) whether other
unusual conditions or circumstances detrimental to the maintenance of a
fair and orderly market are present.\17\ Trading in the Shares also
will be subject to BZX Rule 14.11(k)(4)(B)(iii)(b), which sets forth
additional circumstances under which trading in the Shares will be
halted.
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    \17\ See BZX Rule 14.11(k)(4)(B)(iii)(a).
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    The Commission also believes that the proposal is reasonably
designed to help prevent fraudulent and manipulative acts and
practices. The Exchange represents that it has a general policy
prohibiting the distribution of material, non-public information by its
employees. The Exchange states that the Adviser is not registered as a
broker-dealer, but is affiliated with multiple broker-dealers and has
implemented and will maintain a ``fire wall'' with respect to each such
broker-dealer affiliate regarding access to information concerning the
composition of and/or changes to the Fund's portfolio and Creation
Basket.\18\ Further, the Commission notes that any person related to
the Fund's investment adviser or to the Trust who makes decisions
pertaining to the Fund's portfolio composition or has access to
information regarding the Fund's portfolio composition or changes
thereto or the Creation Basket must be subject to procedures designed
to prevent the use and dissemination of material nonpublic information
regarding the Fund's portfolio or changes thereto and the Creation
Basket.\19\ In addition, any person or entity, including an AP

Representative,\20\ custodian, Reporting Authority, distributor, or
administrator, who has access to information regarding the Fund's
portfolio composition or changes thereto or its Creation Basket, must
be subject to procedures designed to prevent the use and dissemination
of material nonpublic information regarding the applicable Fund
portfolio or changes thereto or the Creation Basket.\21\ Moreover, if
any such person or entity is registered as a broker-dealer or
affiliated with a broker-dealer, such person or entity must erect and
maintain a ``fire wall'' between the person or entity and the broker-
dealer with respect to access to information concerning the composition
of and/or changes to such Fund's portfolio or Creation Basket.\22\
Finally, the Exchange represents that trading of the Shares through the
Exchange will be subject to the Exchange's surveillance procedures for
derivative products, including Managed Portfolio Shares,\23\ and that
its surveillance procedures are adequate to properly monitor the
trading of the Shares on the Exchange during all trading sessions and
to deter and detect violations of Exchange rules and the applicable
federal securities laws.
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    \18\ See BZX Rule 14.11(k)(3)(E).
    \19\ See BZX Rule 14.11(k)(2)(D). The Exchange represents that
any person related to the Adviser or the Trust who makes decisions
pertaining to the Fund's portfolio composition or that has access to
information regarding the Fund's portfolio or changes thereto or the
Creation Basket will be subject to procedures designed to prevent
the use and dissemination of material non-public information
regarding such portfolio or changes thereto and the Creation Basket.
    \20\ See BZX Rule 14.11(k)(3)(C).
    \21\ See BZX Rule 14.11(k)(2)(E).
    \22\ See id. The Exchange represents that any person or entity
who has access to information regarding the Fund's portfolio
composition or changes thereto or the Creation Basket will be
subject to procedures designed to prevent the use and dissemination
of material nonpublic information regarding the portfolio
composition or changes thereto or the Creation Basket.
    \23\ See BZX Rule 14.11(k)(2)(C), which requires, as part of the
surveillance procedures for Managed Portfolio Shares, the Fund's
investment adviser to, upon request by the Exchange or the Financial
Industry Regulatory Authority (``FINRA''), on behalf of the
Exchange, make available to the Exchange or FINRA the daily
portfolio holdings of each series of Managed Portfolio Shares.
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    The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities. Moreover, prior to
the commencement of trading, the Exchange will inform its members in an
Information Circular (``Circular'') of the special characteristics and
risks associated with trading the Shares.\24\
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    \24\ The Exchange represents that the Circular will discuss the
following: (1) Procedures for purchases and redemptions of Shares;
(2) BZX Rule 3.7, which imposes suitability obligations on Exchange
members with respect to recommending transactions in the Shares to
customers; (3) how information regarding the VIIV is disseminated;
(4) the requirement that members deliver a prospectus to investors
purchasing newly issued Shares prior to or concurrently with the
confirmation of a transaction; (5) trading information; and (6) that
the portfolio holdings will be disclosed within at least 60 days
following the end of every fiscal quarter.
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    In support of this proposal, the Exchange represents that:
    (1) The Shares will conform to the initial and continued listing
criteria under BZX Rule 14.11(k).
    (2) A minimum of 100,000 Shares of the Fund will be outstanding at
the commencement of trading on the Exchange.
    (3) The Exchange or FINRA, on behalf of the Exchange, or both, will
communicate as needed, and may obtain trading information, regarding
trading in the Shares, and the underlying exchange-traded instruments
with other markets and other entities that are members of the ISG. In
addition, the Exchange may obtain information regarding trading in the
Shares and the underlying exchange-traded instruments from markets and
other entities with which the Exchange has in place a comprehensive
surveillance sharing agreement.
    (4) The Exchange has appropriate rules to facilitate transactions
in the Shares during all trading sessions in which the Shares trade.
    (5) For initial and continued listing, the Fund will be in
compliance with Rule 10A-3 under the Act.\25\
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    \25\ See 17 CFR 240.10A-3.
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    (6) The Fund's holdings will conform to the permissible investments
as set forth in the Exemptive Application and Exemptive Order, and
investments made by the Fund will be consistent with all requirements
set forth in the Exemptive Application and Exemptive Order. The Fund's
investments will be consistent with its investment objective and will
not be used to enhance leverage.
    The Exchange represents that all statements and representations
made in the filing regarding: (1) The description of the portfolio or
reference assets; (2) limitations on portfolio holdings or reference
assets; (3) dissemination and availability of the VIIV, reference
assets, and intraday indicative values; and (4) the applicability of
Exchange rules constitute continued listing requirements for listing
the Shares on the Exchange. In addition, the Exchange represents that
the issuer will advise the Exchange of any failure by the Fund to
comply with the continued listing requirements and, pursuant to its
obligations under Section 19(g)(1) of the Act, the Exchange will
surveil for compliance with the continued listing requirements. If the
Fund is not in compliance with the applicable listing requirements, the
Exchange will commence delisting procedures under BZX Rule 14.12.
    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act \26\ and
Section 11A(a)(1)(C)(iii) of the Act \27\ and the rules and regulations
thereunder applicable to a national securities exchange.
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    \26\ 15 U.S.C. 78f(b)(5).
    \27\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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IV. Conclusion

    It is therefore ordered,pursuant to Section 19(b)(2) of the
Act,\28\ that the proposed rule change (SR-CboeBZX-2020-029), as
modified by Amendment No. 1, be, and it hereby is, approved.
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    \28\ 15 U.S.C. 78s(b)(1).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\29\
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    \29\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-14742 Filed 7-8-20; 8:45 am]
BILLING CODE 8011-01-P


                       Docket Index for Final Rulemaking
                             EPA-R09-OAR-2022-0936

Clean Air Plans; 2015 8-Hour Ozone Nonattainment Area Requirements; Clean Fuels for Fleets; California

Docket Index Table of Contents
A.	State Submittal, Supporting Information, and Correspondence	1
B.	EPA Rulemakings, Guidance, and Policies	2
C.	Additional Documents for Proposed Rulemaking	3
D.	Notice of Proposed Rulemaking	3
E.	Public Comments and Related Documents	3
F.	Additional Documents Considered for Final Plan Action	3
G.	Notice of Final Rulemaking, Plan Action	3

_____________________________________________________________________________
State Submittal, Supporting Information, and Correspondence
"California Clean Fuels for Fleets Certification for the 70 ppb Ozone Standard," Release Date: December 17, 2021, Hearing Date: January 27, 2022
"Completeness Checklist for SIP Revision - California Clean Fuels for Fleets Certification for the 70 ppb Ozone Standard," CARB.
CARB Resolution 22-1, California Clean Fuels for Fleets Certification for the 70 ppb Ozone Standard, January 27, 2022.
"Notice of Public Meeting to Consider the Proposed California Clean Fuels for Fleets Certification for the 70 ppb Ozone Standard" signed by Richard Corey, Executive Officer, CARB, December 17, 2021.
Letter dated February 3, 2022, from Richard Corey, Executive Officer, CARB, to Martha Guzman, Regional Administrator, EPA Region IX.
 "California Clean Fuels for Fleets Certification for the 70 ppb Ozone Standard", Adopted on January 27, 2022, by CARB.
CARB's 2022 SIP Submittal (CA-Clean Fuels for Fleets Certification-02032022), submitted on February 3, 2022, State Implementation Plans (SIPs) Summary, Plan Submission Information, State Planning Electronic Collaboration System (SPeCS) for SIPs.

EPA Rulemakings, Guidance, and Policies

Federal Register Notices

Note: Federal Register (FR) notices are available online at https://www.govinfo.gov/app/collection/FR/.
 "National Ambient Air Quality Standards for Ozone," Final Rule. 80 FR 65292 (October 26, 2015).
 "Additional Air Quality Designations for the 2015 Ozone National Ambient Air Quality Standards," Final Rule. 83 FR 25776 (June 4, 2018).
 "Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Areas Classified as Serious for the 2015 Ozone National Ambient Air Quality Standards," Proposed Rule. 87 FR 21842 (April 13, 2022).
 "Designation of Areas for Air Quality Planning Purposes; California; Eastern Kern, Sacramento Metro, and Western Nevada 2015 Ozone Nonattainment Areas; Reclassification to Serious," Final Rule. 86 FR 59648 (October 28, 2022).
 "Designation of Areas for Air Quality Planning Purposes; California; San Diego County Ozone Nonattainment Area; Reclassification to Severe," 86 FR 18227 (April 8, 2021).
 "Approval and Promulgation of State Implementation Plans; California," Final Rule. 64 FR 46849 (August 27, 1999).
EPA Policy and Guidance Documents

Note: The documents in this section are available in the docket and also made available via Web links provided below.
 "Guidance for Fulfilling the Clean Fuel Fleets Requirement of the Clean Air Act," EPA Office of Transportation and Air Quality, June 2022, available at https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P10155SA.pdf
Additional Documents for Proposed Rulemaking
[Reserved]

Notice of Proposed Rulemaking
D-1.	Clean Air Plans; 2015 8-Hour Ozone Nonattainment Area Requirements; Clean Fuels for Fleets; California. Proposed Rule. 88 FR 13392 (March 3, 2023).

Public Comments and Related Documents
E-1.	Public comment on proposal. "I like that the clean fuels fleet which helps in the emission in the covered areas in California. Especially in paragraph B. Evaluation of Requirements for Clean Fuels for Fleets stated that "CFF Program by...." ID: EPA-R09-OAR-2022-0936-0006

E-2.	Public comment on proposal. "The flexibility allowed in this proposed revision under section 2B is a good way to work with the budget and allowed certain areas to achieve the requirements in a way that is easier for them." EPA-R09-OAR-2022-0936-0007

E-3. 	Public comment on proposal. "I am currently a student attending university in the United States and I think that the EPA should approve these revisions because it is ultimately still promoting a lower emissions initiative." EPA-R09-OAR-2022-0936-0008

E-4.	Public comment on proposal. "In certain non-attainment locations of the 2015 ozone national ambient air quality criteria, the proposed amendments to the California State Implementation Plan (SIP) for Clean Fuels for Fleets (CFF) have my support." EPA-R09-OAR-2022-0936-0009

E-5.	Public comment on proposal. "The EPA's interest in accepting the 2022 CARB SIP proposal as it relates to the 2015 Ozone National Ambient Air Quality Standards is statutorily sound and will help to establish higher standards for air quality in...." EPA-R09-OAR-2022-0936-0010

Additional Documents Considered for Final Plan Action
[Reserved]

Notice of Final Rulemaking, Plan Action
G-1.	Clean Air Plans; 2015 8-Hour Ozone Nonattainment Area Requirements; Clean Fuels for Fleets; California. Final Rule. 88 FR 22830 (May 25, 2023).


[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Notices]
[Page 80779]
[FR Doc No: 2020-27439]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings

    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:

    Docket Numbers: RP21-300-000.
    Applicants: Equitrans, L.P.
    Description: Sec.  4(d) Rate Filing: Negotiated Rate Capacity
Release Agreement--12/4/2020 to be effective 12/4/2020.
    Filed Date: 12/4/20.
    Accession Number: 20201204-5026.
    Comments Due: 5 p.m. ET 12/16/20.
    Docket Numbers: RP21-301-000.
    Applicants: Algonquin Gas Transmission, LLC.
    Description: Sec.  4(d) Rate Filing: Negotiated Rate--Yankee Gas
510802 eff 12-5-2020 to be effective 12/5/2020.
    Filed Date: 12/4/20.
    Accession Number: 20201204-5087.
    Comments Due: 5 p.m. ET 12/16/20.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: December 8, 2020.
Kimberly D. Bose,
Secretary.
[FR Doc. 2020-27439 Filed 12-11-20; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Notices]
[Page 67834]
[FR Doc No: 2023-21621]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98536; File No. SR-ICEEU-2023-011]

Self-Regulatory Organizations; ICE Clear Europe Limited; Notice
of Designation of Longer Period for Commission Action on Proposed Rule
Change, as Modified by Amendment No. 1, Relating to Amendments to the
Wind Down Framework and Plan

September 26, 2023.
    On August 11, 2023, ICE Clear Europe Limited (``ICE Clear Europe'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change SR-ICEEU-2023-011 pursuant to Section 19(b) of the
Securities Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4
\2\ thereunder to amend its Wind Down Framework and Plan to make
certain updates and enhancements.\3\ On August 22, 2023, ICE Clear
Europe filed Amendment No. 1 to the proposed rule change to make
certain changes to the Exhibits 5.\4\ The proposed rule change, as
modified by Amendment No. 1 (hereafter ``the Proposed Rule Change''),
was published for public comment in the Federal Register on August 30,
2023.\5\ The Commission has not received comments regarding the
proposal described in the Proposed Rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Notice of Filing infra note 5, 88 FR 60001.
    \4\ Amendment No. 1 updates the Exhibit 5 to correct the
presentation of three of the proposed changes to the Wind Down
Framework and Plan that were filed with the Commission on August 11,
2023. The proposed rule change includes an Exhibit 4. Exhibit 4
shows the change that Amendment No. 1 makes to the Exhibit 5.
    \5\ Self-Regulatory Organizations; ICE Clear Europe Limited;
Notice of Filing of Proposed Rule Change, as Modified by Amendment
No. 1, Relating to Amendments to the Wind Down Framework and Plan,
Exchange Act Release No. 34-98217 (August 24, 2023); 88 FR 60001
(August 30, 2023) (SR-ICEEU-2023-011) (``Notice'').
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    Section 19(b)(2) of the Exchange Act \6\ provides that, within 45
days of the publication of notice of the filing of a proposed rule
change, or within such longer period up to 90 days as the Commission
may designate if it finds such longer period to be appropriate and
publishes its reasons for so finding, or as to which the self-
regulatory organization consents, the Commission shall either approve
the proposed rule change, disapprove the proposed rule change, or
institute proceedings to determine whether the proposed rule change
should be disapproved. The 45th day after publication of the Notice of
Filing is October 14, 2023. The Commission is extending this 45-day
time period.
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    \6\ 15 U.S.C. 78s(b)(2).
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    In order to provide the Commission with sufficient time to consider
the Proposed Rule Change, the Commission finds that it is appropriate
to designate a longer period within which to take action on the
Proposed Rule Change.
    Accordingly, the Commission, pursuant to Section 19(b)(2) of the
Exchange Act,\7\ designates November 28, 2023, as the date by which the
Commission shall either approve, disapprove, or institute proceedings
to determine whether to disapprove proposed rule change SR-ICEEU-2023-
011.
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    \7\ Id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------

    \8\ 17 CFR 200.30-3(a)(31).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-21621 Filed 9-29-23; 8:45 am]
BILLING CODE 8011-01-P


of the compliance periods are set as 30 day averages which allow for the
changes in the raw mill operations.

2.12	Environmental Justice

Comment: One commenter (2786) stated that mercury pollution more
significantly impacts poor and minority populations, and EPA should
regulate mercury emissions from the portland cement industry to the
greatest extent possible because of their adverse health impacts on poor
and minority communities. Executive Order 12898 states that to the
extent practicable and permitted by law, each federal agency shall make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, the disproportionately high and adverse
human health or environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the
United States. The commenter stated that EPA has historically devoted
little attention to evaluate the impact of decisions made under the
Clean Air Act on low-income and minority communities. The commenter
provided discussion about pathways for human ingestion of mercury and
how poor and racial minority group are exposed to higher levels of
mercury through their livelihood and culture. In addition to the impact
of mercury on poor and minority communities, the commenter also listed
the following HAPs as matters of potential regulation: lead, chromium,
arsenic, and beryllium.

Response: See discussion of Environmental Justice in Section VII of the
preamble to the final rule.

Comment: One commenter (2863) stated that the proposed rule has serious
environmental justice issues.

The first issue is that two plants are likely to have to close as a
result of the rule. The populations around these plants rely heavily on
the plants for income. The commenter conducted a comprehensive risk
assessment showing that the mercury emissions do not result in
unacceptable risks even before controls. The adverse impact of closure
would be to the health of the families who depend on this facility for
income and health insurance, with no commensurate improvement related to
the reduced emissions associated with closure as the plant will be well
under the acceptable risk thresholds when the controls currently being
constructed are operational.

Closure of the two plants will mean that more cement will be imported
from overseas. As Asia and India dominate imports to the west coast, the
gap left by California and Oregon plant closures will almost certainly
occur in nations with far less stringent controls and significantly
higher direct and indirect emissions of criteria pollutants, HAPs and
greenhouse gases. This is particularly relevant in relation to mercury
and greenhouse gases as these are the most obviously global pollutants.
However, moving production offshore will also result in localized
impacts and so will disproportionately impact impoverished areas.

Response: In this final rule, we are not projecting any facility
closures. To assess whether this rule's environmental and health impacts
would have a disproportionate effect on vulnerable populations, EPA
looked at demographic data in aggregate for census block groups in near
proximity to cement facilities. EPA analysis showed that within the
radii examined (0.5 mi, 3 mi, and 5 mi from sources subject to this
rule), the percentages of minority and low income populations were
similar to national averages. EPA's demographic analysis can be found in
the docket for this rulemaking.

In addition, as stated in the final rule preamble, EPA is reaching out
to the two high mercury limestone quarry sources to investigate the
possibilities of early aggressive reductions of mercury emissions with a
negotiated longer compliance period.

Comment: One commenter (2898) stated that EPA has failed to undertake an
actual analysis of the consequences of the rule on environmental justice
populations. The commenter stated that EPA should undertake a more
thorough analysis of the risks posed by the cement industry and the
benefits of more stringent standards.

Response: EPA analyzed each standard to determine if beyond the floor
control was warranted, and concluded that further controls were not
warranted due to high cost, poor cost effectiveness, non-air quality
impacts in the form of waste generation and water usage, and increased
energy use. Nothing in this comment undermines those conclusions. EPA
does note that it took two significant discretionary decisions in the
rule – adopting a MACT standard for HCl and not subcategorizing for
two high mercury emitting sources – which result in very significant
reductions of acid gases, secondary fine PM, and mercury.

Comment: One commenter (2908) stated that the proposed rule may
constrict cement supply and increase pressures on the availability of
affordable housing.

Response: In this final rule, we are not projecting any facility
closures. To assess whether this rule's environmental and health impacts
would have a disproportionate effect on vulnerable populations, EPA
looked at demographic data in aggregate for census block groups in near
proximity to cement facilities. EPA analysis showed that within the
radii examined (0.5 mi, 3 mi, and 5 mi from sources subject to this
rule), the percentages of minority and low income populations were
similar to national averages. EPA's demographic analysis can be found in
the docket for this rulemaking.

Comment: One commenter (3222) stated that the commenter’s local cement
plant creates environmental and social justice problems.

Response: In this final rule, we are not projecting any facility
closures. To assess whether this rule's environmental and health impacts
would have a disproportionate effect on vulnerable populations, EPA
looked at demographic data in aggregate for census block groups in near
proximity to cement facilities. EPA analysis showed that within the
radii examined (0.5 mi, 3 mi, and 5 mi from sources subject to this
rule), the percentages of minority and low income populations were
similar to national averages. EPA's demographic analysis can be found in
the docket for this rulemaking.

2.13	Open Clinker Piles

Comment: Several commenters (2845, 2864, and 2874) stated that in the
past, EPA considered regulating open storage piles; however, in the 2001
settlement agreement and subsequent follow-up letter from EPA to
American Portland Cement Alliance that settled litigation over the 1999
NESHAP final rule, EPA agreed not to regulate fugitive emissions from
open or unenclosed material stockpiles or haul roads. Although, the
proposal asserts that open clinker storage piles located at two
facilities had measurable emissions of hexavalent chromium, the
emissions and the ambient concentrations in the area surrounding cement
facilities were low. The ambient concentrations are also miniscule when
compared to benchmark regulatory standards. Also, several California air
quality district have decided against regulating hexavalent chromium
emissions from cement plants due to the lack of risk. For these reasons,
it would be inappropriate to define open clicker storage piles as
affected sources under the NESHAP.

Response: At proposal we noted that open clinker piles were currently
unregulated, and that hexavalent chromium emissions had been detected in
fugitive dust from these piles. See 74 FR at 21163. We requested comment
and information as to how common the practice of open clinker storage
is, appropriate ways to detect or measure fugitive emissions (ranging
from open-path techniques to continuous digital or intermittent manual
visible emissions techniques), any measurements of emissions of
hexavalent chromium (or other HAP) from these open storage piles,
potential controls to reduce emissions, or any other factors we should
consider.

Commenters did not provide data on this practice. Industry commenters
stated emissions were de minimis and should not be regulated. Other
commenters noted that the fact that we know these sources emit HAP is
sufficient to necessitate regulation.

We agree that these operations do emit HAP and that regulation of these
sources is necessary. See National Lime, 233 F. 3d at 640 (upholding EPA
position that de minimis exceptions are not to be read into the MACT
standard setting process). Because the emissions in question are
fugitive dust for which measurement is not feasible since (by
definition) the emissions are not emitted through a conveyance or other
device which allows their measurement (see section 112 (h) (1) and
(2)(A)), we are incorporating the work practice standards and opacity
emissions limits contained in Rule 1156 as amended by the South Coast
Air Quality Management District on March 6, 2009 and incorporating them
into this rule. There are only two plants which EPA can state
definitively have open storage piles and are complying with Rule 1156,
so these existing regulatory standards would constitute a floor level of
control (and EPA does not believe beyond-the-floor controls are needed,
since utilizing some type of enclosure should well control fugitive
emissions).

Industry commenters also maintained that regulation of open storage
piles would violate a 2001 settlement agreement between EPA and the
industry in which EPA agreed that the 1999 rule did not apply to
fugitive emission sources. But nothing in that settlement agreement
prevents EPA from amending its regulations if it is appropriate to do so
(nor could EPA legally bind itself in such a way). The agreement in fact
states that “[n]othing in this Agreement shall be construed to limit
or modify EPA's discretion to alter, amend, or revise, or to promulgate
regulations that supersede, the regulations identified in section III of
this Agreement.” Consequently, EPA’s action today amends the current
regulation, and does not violate any provisions of the settlement
agreement.

See the preamble discussion for more information on EPA’s decision.

Comment: Several commenters (2144, 2816, 2898, 2911, and 2913) supported
EPA’s efforts to investigate and address the effects of hexavalent
chromium from clinker storage.

Response: EPA acknowledges the commenter’s support.

Comment: Several commenters (2816, 2911, and 3162) agreed that open
clinker piles should be included in the regulation. Commenter 2816 noted
that the Agency is already regulating enclosed clinker piles, and the
Agency has noted measurable emissions of hexavalent chromium due to
fugitive emissions. The commenter stated that while it may be more
difficult to control fugitive emissions, it does not relieve either the
industry or the Agency from reducing to the maximum degree feasible
emissions from this source. Commenters 2816 and 3162 recommended that
EPA should review the rules adopted by the South Coast Air Quality
Management District and consider adopting similar requirements for open
clinker piles.

Response: EPA has adopted this approach in the final rule.

Comment: One commenter (2864) stated that EPA should set work practice
standards in the event that EPA is compelled to regulate open clinker
piles.

Response: EPA has done so in the final rule.

Comment: One commenter (2898) stated that the rule should cover all
emissions of hexavalent chromium from a cement manufacturing facility
that constitutes a major source, including emissions from storage units,
conveying system transfer points, and fugitive emissions, including
those from open clinker piles.

Response: The final rule includes provisions for clinker piles. See
preamble for more discussion.

2.14	Crushing Operations

Comment: Several commenters (2845 and 2874) stated that the 2001
settlement agreement that settled litigation over the 1999 NESHAP final
rule specified that the final rule should not apply to primary and
secondary crushing operations located at portland cement plants with
nonmetallic mineral processing operations. On April 05, 2002, EPA
amended §63.1240(c) to implement the language from the 2001 settlement
agreement. However, with no discussion in the preamble, the proposed
revision to §63.1240(c) would delete language concerning equipment of
the on-site nonmetallic mineral processing plant that precedes the raw
material storage not being subject to the NESHAP. The proposed rule only
leaves language stating that crushers are not covered by this subpart
regardless of their location without any explanation given in the
preamble. Commenter 2845 opposed the proposed breach of the 2001
settlement agreement negotiated 7 years ago. The rule would become
unclear as to whether subpart LLL of the NESHAP would apply to quarry
sources such as conveyance systems and exterior stockpiles associated
with crusher systems. There was no reason to eliminate the certainty of
the current language in §63.1340(c) which will only add to confusion
and needless applicability of the NESHAP to sources already regulated
under subpart OOO NSPS; thus, EPA should not amend §63.1340(c).
Commenter 2845 also stated that a word has been left out of the proposal
preamble language discussing §63.1340(c) where it states that crushers
were part of the affected source for this rule instead of crushers were
NOT part of the affected source for this rule. Thus, there appeared to
be a conflict with the current proposal, the current preamble, and also
the current preamble language is inconsistent with the 2006 portland
cement final rule. The commenters requested EPA to clarify in the final
rule that crushers were never covered by the NESHAP and should also
retain the existing language for §63.1340(c).

Response: We have not made the change requested by the commenters. See
the preamble to this final rule. The reason for this change was
explained in the proposed 2005 rule and final 2006 rule (Cite to 70 FR
72341-42 and 71 FR 76532).

2.15	Coal Mills

Comment: Several commenters (2845 and 2910) stated that portland cement
plants grind their coal using a stand-alone coal mill or in-line coal
mill and utilize two configurations of an inline coal mill. The first is
where air pollution control devices from the inline coal vent directly
to the atmosphere and the second configuration is where exhaust gases
from the inline coal mill are directed back to the main kiln stack,
where they are commingled with the kiln emissions. The commenter argued
that stand-alone coal mills that vent directly to the atmosphere should
remain regulated under Subpart Y whereas stand alone and inline coal
mills where the gases vent out the main kiln stack should be regulated
by the NESHAP. When inline coal mill gases are vented through the main
kiln stack, more THC emissions will exist than if there were no
commingling of kiln and coal mill exhaust gases. Thus, establishing a
subcategory for this particular configuration may be appropriate and the
commenter proposed that additional THC testing be conducted in order to
examine possible subcategorization for THC.

Response: EPA did consider subcategories based on coal grinding
configurations as suggested by the commenter but decided against
creating separate subcategories. See the preamble discussion under the
THC limits for more information on EPA’s decision.

Comment: Several commenters (2845 and 2864) stated that since coal mills
operate with a blend of kiln gases and ambient air, the concentration of
pollutants exiting the coal mill would not be expected to be higher than
the concentration exiting the kiln. In addition, coal mills are
generally equipped with some sort of temperature alarm or indicator to
avoid safety hazards related to the explosion potential of coal dust. If
the temperature of the gases leaving the coal mill is below the
temperature at which pollutants are formed, the concentration leaving
the coal mill would not exceed the concentration exiting the kiln and
thus performance testing and pollutant monitoring for coal mills should
not be necessary. The commenter suggests that language be added to the
rule specifying that although no in-line coal mills are covered by
subpart 63.1340(e), they must adhere to the standards in 40 CFR part 60
subpart Y, as applicable. In-line coal mills with exhaust that is
commingled with kiln exhaust are covered by this subpart, exempt from
subpart Y, and are exempt from monitoring and testing under this
subpart.

Response: If a coal mill is heated with kiln exhaust, it is subject to
all the emissions limits, and associated monitoring, reporting, and
recordkeeping requirements of this subpart.

Comment: One commenter (2863) stated that EPA should clarify that
indirect fired, in-line coal mills need not employ mercury or HCl CEMs
or separately demonstrate compliance if they vent through a separate
stack. Indirect fired in-line coal mills receive their sole source of
air and heat from the associated kiln (or in some cases, the clinker
cooler). Therefore, consistent with numerous EPA opinions, these units
are subject to the kiln exhaust standards. The proposal requires that
affected sources install and operate either a mercury CEM or sorbent
trap-based integrated monitor. There is no basis for concluding that the
drying of coal will increase the mercury or HCl concentration in the
kiln exhaust that is vented through the coal mill. In order to avoid
explosion hazard, indirect fired, in-line coal mills must be maintained
at temperatures below 200°F at all times and so the temperature is too
low to volatilize the mercury in the coal.

Response: We have not covered coal mills with separate stacks. They are
not listed as an affected source, so there is no need to mention them in
the rule. They were not originally covered in this subpart and are not
covered in the final rule.

If a coal mill is heated with kiln exhaust, it is subject to all the
emissions limits, and all associated monitoring, reporting, and
recordkeeping requirements of this subpart.

2.16	Compliance Assurance

Support for CEMS

Comment: Several commenters (2144, 2622, 2828, 2895, and 2911) supported
the provision for CEMS for portland cement kilns.

Response: We appreciate the commenters’ support.

2.16.1	Flow Rate Monitoring

Comment: One commenter (2845) stated that EPA has not developed and
promulgated appropriate performance specifications for effluent flow
rate monitors in 40 CFR 60 or 63. PS-6 is inappropriate for use with
either PM CEMS certified under PS-11 and/or mercury CEMS certified under
PS-12A or mercury sorbent trap monitoring systems certified under
PS-12B. Appropriate performance specifications and quality assurance
procedures should be developed for the proposed monitoring applications
in Subpart LLL.

Response: Part 75 contains flow rate specifications which are now
referenced on this rule.

2.16.2	Kiln Feed/Clinker Production

Comment: One commenter (2845) stated §63.1349(b)(1)(vi) requires
continuous measurement of kiln feed rate and clinker production during
the initial performance test for sources that use PM CEMS which is
unnecessary and should be changed. In addition to the PM concentration
measured by the PM CEMS, the effluent flow rate and clinker production
rate are needed to determine emissions in units of the standard (lb/ton
clinker produced). The measurement of both clinker production rate and
kiln feed rate are redundant. Measurement of one or the other process
parameter should be required, but not both.

Response: We have modified the rule language to make it clear that
separate direct measurements for kiln and clinker production are not
required. A facility always has the option of calculating clinker
production from the feed rate and their site specific clinker to feed
ratio..

Comment: One commenter (2845) stated that if an area source directly
monitors clinker output and emission limits are expressed as mass of
pollutant per ton of clinker produced, kiln feed does not need to be
recorded. If final standards are expressed as mass of pollutant per ton
of kiln feed, clinker production does not need to be recorded. Keeping
records of both parameters (daily clinker production rates and kiln feed
rates) as required by §63.1349(b)(3)(iii) is redundant.

Response: The emission limits for mercury and PM are based on clinker
production. Limits for HCl and THC are concentration-based. Most
facilities record kiln feed rates and apply a conversion to get clinker
production. If kiln feed is measured, records of the kiln feed and the
conversion factors should be kept. If clinker production is measured,
there is no need to keep records of kiln feed rates.

Comment: One commenter (2845) stated that very few cement plants in the
United States physically weigh clinker as it is produced. Those that do
weigh clinker are typically the newer precalciner kilns systems. In
older existing kilns, maintenance and calibration are difficult. Due to
the nature of the kiln process, at least on a short-term basis, clinker
output from the kiln will fluctuate while the kiln feed rate remains
constant. For those kilns that do continuously weigh clinker, the ±5%
accuracy requirement is not achievable for an hourly averaging period,
as is suggested in the proposed rule language. The ±5% accuracy is
achievable on a monthly basis where these short-term fluctuations and
upsets average out. Therefore, the commenter proposed that a monthly
averaging period for accuracy of clinker weigh scale systems for those
kilns that are able to employ clinker weigh scale systems.

The commenter agrees with EPA’s proposed alternative to measuring
clinker, but noted that procedures for development of the clinker factor
and verification of its accuracy need to be developed. The commenter
recommended that a standardized procedure should be developed through
ASTM.

The commenter provided suggested language for §63.1350(o)(1) to reflect
these suggestions.

Response: See response in preamble to final rule indicating that clinker
need not be weighed but can be estimated from the facility’s feed to
clinker ratio.

Comment: Several commenters (2845 and 2874) stated that there has been
confusion about the timeframe for the clinker weigh system. Some
interpret it as 30 days from when the rule is promulgated (i.e., 35
months before an existing source must comply with the rule), and others
interpret it as 30 days from the time existing facilities must comply
(i.e., 3 yrs + 30 days). The rule needs to specify that existing
facilities must comply on the compliance date for the revised PM or
mercury Standard (whichever may occur sooner), which is three years from
the effective date of the revised rules.

Response: For existing sources we proposed a compliance date of 3 years
after the promulgation of the new emission limits for mercury, THC, PM,
and HCl to take effect. This is the maximum period allowed by law. For
new sources, the compliance date will be the effective date of this
final rule or startup, whichever is later. Because this is a major rule
as defined by the Congressional Review Act, the effective date of the
rule is 60 days after publication of the Federal Register. Accordingly,
we have selected a date that allows facilities to design and install the
required control and other ancillary equipment (e.g., clinker weigh
systems) prior to the compliance date.

Comment: One commenter (2874) stated that EPA should clearly state that
the use of kiln feed monitoring does not require Administrator approval
and should modify the proposed regulatory text relating to compliance.
EPA’s acknowledgement in the regulations that this alternative method
is acceptable should act as Administrator approval and no owner or
operator should need to request Administrator approval to utilize a
methodology deemed acceptable by the regulations. Commenter 2874
suggested that the last proposed sentence appearing in both 40 CFR
63.1349(b)(1)(ii) and 40 CFR 63.1350(o)(1) be revised to state that The
use of a system that directly measures kiln feed rate and uses a
conversion factor to determine the clinker production rate is an
acceptable method and a method that does not require further
Administrator approval.

Response: Since it appears from comments that the equipment to
accurately measure clinker is not typically installed in this industry,
we must assume these facilities use a feed-to-clinker conversion factor
to calculate clinker production on whatever time basis is necessary
(e.g., daily, hourly, etc.). Therefore, we have modified the rule
language to more clearly provide the option allowing facilities to
measure feed inputs and to use their site specific feed/clinker ratio to
calculate clinker production (and that no prior approval from a
regulatory authority is necessary to do so). Facilities would be allowed
to use a constant feed/clinker ratio in accord with their usual cycles
for determining such ratios, typically on a monthly basis when clinker
inventories are reconciled.

2.16.3	Electronic Reporting

Comment: One commenter (2816) supported EPA’s decision to improve
accessibility of data from stack tests and include monitoring
information in the WebFIRE data base. The commenter urged EPA to make
electronic data submission a requirement of this rule. An electronic
database that is accessible to the public is an important accountability
and enforcement tool. Communities surrounding these industrial
facilities deserve to know detailed emissions data. Furthermore, as the
EPA points out in the preamble, electronic submission of data actually
reduces the burden on industry, and is a cost‐saving measure for the
Agency as well.

One commenter (2834) stated that requiring electronic submission of
emissions will allow EPA to bypass the laborious and cumbersome process
of collecting information from a variety of sources in a variety of
formats. Given that nearly every one of the categories in which EPA has
requested specific comments includes a request for additional data,
requiring electronic submission of emissions tests should be required.
Further, electronic submission of emissions results will facilitate
public to access those results. Standardized, electronic reporting of
emissions test results to EPA would facilitate the public’s access to
these emissions records.

Response: Our intent is to make electronic reporting a requirement
starting in 2012 when the system is fully capable of accepting data. The
rule language has been modified to reflect this.

2.16.4	Other

Detection limit

Comment: Several commenters (2832 and 2859) argued that EPA’s proposed
revision to an approved EPA stack testing method, specifically to
promulgate a downward revision of a method detection limit in an
approved stack testing method is arbitrary and reflects that EPA has
failed to consult and take action based on direction from its own
Emissions Measurement Center. In addition, EPA has failed to explain its
numeric approach to the actual lower detection limit selected. The
detection limit should be set at a level that all sources that are
subject to stack testing requirements would be able to achieve uniformly
in practice. The CAA requires that all stack testing detection limits
take all factors that can or do influence results into consideration
when proposing a detection limit.

Response: We have taken the appropriate steps to address the detection
limit issue, including consulting with EPA test experts and taking
comments on the detection limit in the proposal notice. Data obtained to
date conforms that detection limits using EPA Method 321 for HCl
emissions measurement are 0.2 to 0.3 ppmv in the field.

Alternatives to CEMS

Comment: Several commenters (2832 and 2859) opposed the proposed
requirement to install CEMS in order to satisfy compliance assurance
monitoring (CAM) for selected pollutants. Instead, the commenter
proposed that CAM requirements be satisfied using periodic stack testing
to the extent that stack testing is requested or require by state air
permits. According to EPA’s proposal, the MACT floor for new and
existing sources in this industry will be determined by stack testing
results of sources within the MACT pool. If EPA were to finalize a
numeric emissions limitation based on this approach to setting the new
and existing MACT floors, that limitation will be based on the same
stack testing data. CEMs will have played no role in this process. It
stands to reason that compliance assurance should be based on stack
testing results, and not a CEMs data that has played no part in this
process.

One commenter (2916) stated that EPA can achieve a reasonable assurance
of compliance without the use of CEMS. The requirement to use CEMS is
unreasonably costly and unnecessary, given that other reliable means of
showing compliance are available for all relevant pollutants. Raw
material sampling and kiln parametric monitoring, in conjunction with
periodic testing, would work well for THC and HCI. The sorbent trap
method for mercury is a good alternative to mercury CEMS and should be
retained in the final rule. EPA should refrain from requiring PM CEMS in
the final rule. Bag leak detection systems and parametric monitoring of
ESPs are proven methods for assuring ongoing compliance with PM limits.

Response: See response in preamble

Modified visible emission requirements

Comment: According to one commenter (2874), EPA has modified the visible
emission requirements of 40 CFR 63.1350(a)(4) without adequate
explanation for the proposed revisions. The commenter stated that EPA
originally set a 1-minute standard as it was believed by the industry
and EPA that a longer test would be unduly burdensome–especially in
light of the fact that tests must be conducted for each affected source.
Nothing has occurred during the past 10 years that warrants a 20-fold
increase in the manpower and cost required for the testing. The
commenter suggested that EPA retain the current 1-minute testing
requirement.

Response: As explained above we have changed the observation time to 10
minutes.

Clarifications

Comment: One commenter (2845) stated that §63.1349(b)(3)(iii) required
that hourly average temperatures be calculated for each dioxin/furan
performance test run which is inconsistent with §63.1349(b)(3)(iv) and
should be corrected. The language of the existing §63.1349(b)(3)(ii)
states that one minute average temperatures must be calculated for each
minute of each run of the test and was replaced by language which states
that hourly average temperatures must be calculated for each run of each
test. This is inconsistent with §63.1349(b)(3)(iv) which correctly
states that the run average temperature must be calculated and the
average of all runs is used to determine the applicable temperature
limit. This is easily corrected and clarified by re-inserting a slightly
modified version of the original language which states that one minute
average temperatures must be calculated and recorded for each minute of
each run of the test.

Response: We agree and have made the chances suggested by the commenter.

Comment: One commenter (2832) stated that EPA needed to ensure that the
regulatory rule analysis statements in the preamble are reflected in the
regulatory text, including proposing specific regulatory text to make
the regulation clearer and easier to implement.

Several commenters (2864 and 2874) stated that the regulations proposed
at 40 CFR 63.1349(f) and (g) are so vague and contain numerous
inappropriate cross references to other regulations that it impossible
to provide a meaningful comment. The commenters provided several
examples of what they considered inappropriate cross references.
Commenter 2874 suggested that EPA withdraw the rule and perform a
complete review for these types of errors, fix the errors and re-propose
the rule for comment.

Response: We agree that the proposed rule contained some errors, and we
have made several corrections and clarifications to the final rule to
ensure it is consistent with our stated intent in the preamble. These
corrections and clarifications are not significant changes to the
proposed rule, however, and reproposal is not needed. We disagree
however that §63.1349(f) and (g) are confusing, and have retained these
cross references as they are accurate and ensure consistency.

Mercury, HCl and PM CEMS not demonstrated

Comment: One commenter (2858) stated that while THC CEMS have been used
by cement plants for years, CEMS monitors for mercury, HCl and PM have
not been demonstrated to be reliable and sufficiently accurate to
satisfy EPA’s performance specifications when operating on cement
kilns.

Response: We disagree. Mercury CEMS have been widely applied in the
utility industry and there are no technical reasons that would imply
that do not work equally well on a cement kiln. PM CEMS have also been
demonstrated in utility boilers. Hydrochloric Acid CEMS have been used
on source categories such as municipal waste combustors and utility
boilers.

Publicly available monitoring data

Comment: Several commenters (2893 and 2895) requested that EPA make all
CEMS and other monitoring information readily available to the public,
and when produced in real time, available in real time on the web site.
Commenter 2893 stated that mechanisms to enforce the rules need to have
enforcement provisions that not only document agency compliance, but
also make the agency reports readily available to the public. Where
possible, emissions information should be posted on the EPA or Air
District’s web sites in a timely manner. This request is driven by the
commenter’s experience with inadequate responses from enforcement
agencies to potentially excessive emissions from local plants.

Several commenters (2816 and 2928) recommended the use of CEMS as the
better monitoring method, and suggested a specific mercury monitor
suitable for use. The commenter suggested that to further earn public
confidence, the data should be reported every thirty days and the
monitoring results be made available to the public online. Commenter
2816 urged EPA to adopt CEMS requirements for all of the pollutants for
which an emission limit will be adopted.

Response: We are currently developing a reporting mechanism for CEMS
data. We will consider these comments as we continue that effort. In
concept, the CEMS data base would be publically available. However, the
reporting frequency has not been developed.

Potential to emit to determine applicability

Comment: One commenter (3138) stated that EPA should determine whether a
facility must comply with the standard based on their potential to emit
under the worst case operating scenario. The commenter stated that it
should make no difference if the source is an area or a major source.
The potential to emit should be based on the facility’s permitted
fuels, hours, and potential emissions during SSM events. The
determination for compliance with the new standard should include the
potential emissions from grace periods allowed by state regulators.

Response: Questions of how to calculate Potential to Emit are not part
of this rulemaking, and therefore this comment is beyond the scope of
this proceeding.

2.17	Other – Miscellaneous Comments

Failure to address greenhouse gases

Comment: Several commenters (2832 and 2859) opposed the approach taken
by EPA in its beyond-the-floor MACT analysis. Among other things, EPA
failed to consider the creation of incremental greenhouse gas emissions
associated with the construction, installation and operation of new
emissions control equipment, and the minimal incremental environmental
benefit associated with those controls. Also, EPA failed to consider the
cost of carbon credit purchases by the industry.

Response: See preamble for response.

	Counting multiple production units in MACT pool

Comment: One commenter (2832) concurs with EPA’s approach to
determining the number of sources that comprise the so-called MACT pool
to the extent that EPA has counted multiple production units whose
emissions are ducted to a single control device as one source. Any
attempt to apportion emissions between or among multiple production
units in the foregoing configuration would be arbitrary. If EPA
determined to count each production unit as a separate source, it would
be obligated to attribute for MACT purposes, all of the emissions from
the single control device to each source because there is no
scientifically demonstrable methodology to apportion emissions. The
legal consequence of EPA’s approach to determining the number of
sources that comprise the so-called MACT pool is to establish an
emission standard based on air emission control device removal
efficiency and as required by §112. Failure to act in a manner
consistent with the foregoing would be arbitrary.

Response: EPA acknowledges the commenter’s support.

Clarifications

Comment: One commenter (2845) stated that the definition of clinker
should include that clinker can be ground with either gypsum and/or
other materials to form cement. Commenter 2845 suggests the definition
could be changed to read: clinker means the intermediate product of the
process in which limestone and other raw materials are heated in the
kiln and are then ground with gypsum and/or other materials to form
cement.

Response: See the final rule for the definition of clinker.

Comment: One commenter (2845) stated that since crushers vary in the
size of rock they produce and because crushers and their associated
conveying systems are already regulated under 40 CFR part 60 subpart
OOO, the definition of a crusher should be deleted and instead add a
definition describing a crusher system that reads as a crusher system
means equipment used to reduce the size of large raw material for
further processing and the associated material handling sources
including, but not limited to, screens conveying systems, storage bins
preceding the raw mill, and stockpiles or if §63.1340(c) is not changed
then no definition of crusher or crusher system will be needed.

Response: See the final rule for the definition of clinker.

Comment: One commenter (2845) stated that the definitions for greenfield
kilns, greenfield in-line kiln/raw mills, or greenfield raw material
dryers and new brownfield kilns, new brownfield in-line/raw mills, or
new brownfield raw material dryers are no longer needed because all
references to them have been remove from the rule.

Response: The definitions identified by the commenter were removed from
the final rule.

Comment: One commenter (2845) stated that a totally enclosed conveying
system transfer point is defined within §63.1350(a)(4)(v) as a
conveying system transfer point that is enclosed on all sides, top, and
bottom. This definition should be expanded and moved to §63.1341, and
should read: Totally enclosed conveying system transfer point means a
conveying system transfer point that is enclosed on all sides, top, and
bottom. This includes, but is not limited to, pneumatic transfer
systems.

Response: A definition of “totally enclosed conveying system transfer
point” was added to the final rule.

Comment: One commenter (2845) stated that §63.1343(b)(3) and
§63.1343(c)(3) should be clarified to state that dioxin/furan standards
are on a dry basis corrected to 7 percent oxygen.

Response: The rule was clarified to state that the standards for
dioxin/furan are on a dry basis at 7 percent oxygen.

Comment: One commenter (2845) stated that an additional option should be
included in §63.1344(a): §63.1344(a)(4) The owner or operator may
choose to set one applicable temperature limit for the main in-line
kiln/raw mill exhaust, specified in paragraph (b) of this section and
established during the performance test when the raw mill was not
operating. If the owner or operator chooses this option, the limit would
apply when the raw mill of the in-line kiln/raw mill is operating and
when the raw mill is not operating. As this is a more restrictive limit,
additional justification should not be necessary.

Response: The suggested revision was considered to be outside the scope
of this rulemaking; no change was made.

Comment: One commenter (2845) stated that §63.1344(e) should be
clarified to clearly state that the requirements only apply if using
carbon injection specifically for dioxin/furan control.

Response: The language was clarified as suggested by the commenter.

Comment: One commenter (2845) suggested that EPA should provide an
option for one dioxin/furan compliance limit set by using performance
test when raw mill was not operating. This is similar to the option
provided in 40 CFR 63 Subpart EEE. As it is a more restrictive limit,
additional justification should not be necessary.

Response: EPA did not believe the suggested change was within the scope
of this rulemaking.

Comment: One commenter (2845) stated that §63.1349(b)(3)(iv) should
include an option for maintaining the temperature limit if a repeat test
shows a lower value. The commenter noted that when conducting the repeat
performance test every 30 months for dioxins/furans, the resulting
temperature limit can often vary arbitrarily above or below the previous
temperature limit (set during the previous performance test). If no
change is operations has occurred, as described in 40 C.F.R. 63.1349(e)
as otherwise requiring the establishment of a new temperature limit, the
facility should be allowed to maintain their current temperature limit
even if a new repeat performance test average temperature is lower than
the current limit. The 30 month test should be allowed to be viewed as a
confirmatory type test that is demonstrating compliance with a limit
that is not changing, rather than to continuously change the actual
limit. This would be consistent with §63.1349(e) which requires
establishing new temperature limits only when a change in operations
occurs that would adversely affect compliance with a dioxins/furans
standard. The commenter provided suggested language.

Response: EPA did not believe the suggested change was within the scope
of this rulemaking.

Comment: One commenter (2845) stated that in §63.1349 (c) both existing
and new kiln and in-line kiln/raw mills are required to have CEMS for
PM, THC, mercury, and HCl. This rule appears to indicate that none of
the performance testing requirements in §63.1349 apply. If this is
indeed the correct interpretation, it should be made clearer in the
individual sections requiring performance testing that the CEMS are
sufficient to meet the initial and ongoing performance testing
requirements. The commenter suggested that EPA provide clarification on
the intent and extent of §63.1349 (c).

Response: Section 63.1349 (c) specifies that where CEMS is used for
monitoring, performance testing is not required.

Comment: One commenter (2845) stated that the final rule should clarify
if each vent must demonstrate compliance for situations where there are
multiple vents since there is no language in the current proposal
regarding sources with multiple stacks for a common source(s).

Response: We believe the rule is sufficiently clear that each source
must demonstrate compliance, regardless of the number of stacks or
vents.

Comment: One commenter (2845) stated that §63.1349(f) and (g) appear to
be direct excerpts from proposed HMIWI NSPS – 40 CFR §60.50, and
stated that these references do not apply to cement plants. Section
63.1349(a) already states what is required to be submitted as part of
the report required under the PC MACT regulation. The commenter noted
that there is a typographical error between bullets 3 and 4, and section
(g) appears to have been added in error.

Response: EPA has revised the section by removing paragraphs (f) and
(g).

Comment: One commenter (2845) stated that in §63.1350(g), the rule
should clarify that carbon injection requirements only apply to sources
utilizing carbon injection for dioxin/furan control.

Response: The rule is clear regarding monitoring requirements that apply
to sources using sorbent injection for D/F control.

Comment: One commenter (2845) stated that in §63.1350(g)(6), the
reference to mercury and THC should be removed to be consistent with
regulatory text.

Response: EPA has removed the reference to mercury and THC.

Comment: One commenter (2845) stated that Table 1 to §63.1350 was not
updated in the proposed rule.

Response: Table 1, Applicability of General Provisions, is updated.

Comment: One commenter (2845) suggested that EPA delete all sections in
63.1353, 63.1354, and 63.1355 that reference subpart A and provide a
paraphrase of subpart A. The commenter noted that because Table 1 will
contain a listing of the sections of subpart A that apply and those that
do not apply, sections that reference subpart A and provide a paraphrase
of subpart A should be removed to prevent multiple interpretations.

Response: Sections 63.1354, 63.1355, and 63.1356 are being retained
because many of the recordkeeping and reporting requirements specific to
this rule, are not contained in the General Provisions.

Comment: One commenter (2845) suggested that §63.1355(d) is no longer
needed, and can be deleted.

Response: See previous response.

Comment: One commenter (2845) suggested that §63.1355(e) can be
deleted, because it is a duplicate of §63.1350(o)(2). The commenter
noted that the reference to only area sources in §63.1355(e) may be a
typographical error, as the recordkeeping requirement applies to both
major and area sources.

Response: The rule requires both area sources and major sources to keep
clinker production records.

Comment: One commenter (2845) stated that §63.1350(o) no longer
requires fly ash certifications so §63.1355(f) should be deleted.

Response: This is correct.

Develop waste disposal requirements

Comment: One commenter (2816) stated that EPA’s sector-based approach
should include consideration of solid waste impacts and should
reinvigorate its efforts to develop stringent regulations governing the
disposal of wastes generated by portland cement kilns

Response: Comments on regulatory measures for cement kiln dust waste are
beyond the scope of this proceeding.

Comment: One commenter (2895) stated that site specific regulation of
CKD should be in each facility’s Title V permit. The commenter asked
how CKD will be disposed of without creating water and solid waste
problems if it is not recycled into the kiln.

Response: Site specific permitting issues relating to waste management
are beyond the scope of this proceeding.

Comment: One commenter (2844) stated that the technical, economical and
environmental implications of landfilling or blending cement kiln dust
rather than recycling it to the kiln are significantly negative and
should be avoided.

Response: EPA took this issue into account in determining not adopt
beyond the floor standards as part of its consideration of non-air
quality impacts.

More stringent dioxin/furan standards

Comment: One commenter (2828) suggested that EPA set more stringent
standards for dioxins and furans. The commenter stated that the cement
industry represents a high and disproportionate cancer risk. The science
of dioxin/furan monitoring has improved to the point that commercial
dioxin/furan CEMS are available, and analytical laboratories can measure
dioxin/furan at significantly lower levels thanks to technologies such
as gas chromatography-mass spectrometry (GC-MS-MS). The commenter
suggested that EPA should establish stringent dioxin/furan emission
standards, based on a comprehensive study of dioxin/furan emissions from
the current fleet of kilns, and recognizing that the RTO technologies
already in place at some kilns, and likely to be installed at other
kilns in the future are bound to be extremely effective (99%+) at
destroying dioxin/furan. EPA should require dioxin/furan CEMS for
monitoring (or at the very least quarterly monitoring) for any cement
kiln not using an RTO to control emissions. EPA should consider the
beyond-the-floor possibilities for dioxin/furan control that are now
possible with the advent of SCR systems on cement kilns. If EPA
continues recent practice of trying to integrate MACT and NSPS
rulemaking for particular industries, then the establishment of
SCR-driven NOx standards in the Portland Cement NSPS would integrate and
support the establishment of SCR-driven dioxin/furan standards in the
Portland Cement MACT rules.

Response: EPA did not reopen or reconsider the 1999 standard for CDD/CDF
and so is not addressing this comment.

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摧猻4Ѐ(摧ᇍ+Ѐ&摧猻4ᨀission level achieved by the best
performing 12 percent of sources for which EPA has emissions
information. The commenter provided additional arguments in support of
this statement. The commenter petitioned EPA to revise its dioxin
standards for cement kilns under the authorities described in Kennecott
Utah Copper Corp. v. Department of Interior, 88 F.3d 1191 (D.C. Cir.
1996).

Response: EPA did not reopen or reconsider the 1999 standard for CDD/CDF
and so is not addressing this comment here. EPA will consider the
commenter’s petition request separately from this rulemaking.

Comment: One commenter (2144) stated that consideration should be given
to more frequent measurement of dioxin and furan (D/F) from cement kilns
or to the possibility of requiring D/F-CEMS. One D/F test per 30-month
period followed by continuous temperature measurement and control is not
sufficient to ensure year round compliance at some kilns. In the short
run, increase the minimum frequency of dioxin/furan testing to once
every 12 months and begin assessment of D/F-CEMS.

One commenter (2867) emphasized the need for more dioxin/furan testing
to a minimum of once every 12 months and recommended that EPA begin
assessment of dioxin/furan-CEMS.

Response: EPA did not reopen or reconsider the 1999 standard for CDD/CDF
and so is not addressing this comment.

Regulatory approach allows flexibility in fuels

Comment: One commenter (2846) supported EPA in developing a regulatory
approach that maximizes the usefulness of secondary materials. The
commenter recommended using a straightforward qualitative
principle-based approach to defining solid waste that recognizes the
inherent advantages of useful energy recovery and materials handling
practices under §112 regulation. Such an approach can be more
universally applicable to not only existing materials, but also for new
materials and processes not yet developed. Trying to be too prescriptive
could inhibit new technology development and implementation and work
against high level national goals.

Response: EPA acknowledges the commenter’s support. On the matter of
defining solid waste, that involves issues beyond the scope of this
rulemaking.

Solid waste as fuel

Comment: One commenter (2816) supported EPA’s inclusion of cement
kilns that combust secondary materials in the proposed rule. One
commenter (2895) stated that EPA should provide a conclusive definition
of solid waste, and in particular, define the HAP emitted when these
solid wastes are used as fuel.

Response: This issue is beyond the scope of this rulemaking. The
definition of solid waste for purposes of section 129 is part of a
different regulatory proceeding. See 75 FR 31844, June 4, 2010. EPA is
also performing a concurrent rulemaking, the Commercial and Industrial
Solid Waste Incinerator rulemaking under section 129 of the CAA that
will regulate kilns that burn non-hazardous solid waste. At the time
that rule becomes final, kilns burning solid waste (as defined in the
to-be-completed rulemaking) will be regulated under to-be-adopted
standards for commercial and industrial solid waste incinerators
whenever they are burning solid waste.

Require natural gas

Comment: One commenter (2893) suggested that EPA require the use of
natural gas where available as less-polluting alternative to other
fossil fuels or other hazardous fuels.

Response: EPA acknowledges that the use of natural gas would reduce
emissions of mercury and other HAP in comparison to coal. We have
considered this approach but rejected it as an approach that would be
available to all cement plants on a nationwide basis. (71 FR 76520,
December 20, 2006).

Alternatives to cement and concrete

Comment: One commenter (2893) suggested volcanic ash as an alternative
to some conventionally manufactured cement, and alternative materials as
substitutes for the use of concrete in certain applications.

Response: Investigating alternatives to conventionally manufactured
cement, and exploring substitutes for concrete that may be used in
certain applications is beyond the scope of this rulemaking.

Benefits to industry of sector approach

Comment: One commenter (2898) agreed with EPA’s discussion of its
sector-based approach and of the impacts of the rule, stating that it is
a useful reminder for the portland cement manufacturing industry that
complying with the emission standards may help the industry meet other
pollution requirements. The commenter suggested that EPA discuss changes
in production practices or processes that may help facilities comply
with the emission standards. While this discussion should in no way
influence the final standards promulgated as the MACT floor, a fuller
discussion of these alternatives to incorporate consideration of
potential co-benefits will make EPA’s discussion a more useful tool
for the facilities trying to meet the standards and for the communities
living near these facilities as they evaluate the actions of the
facilities in their midst. Moreover, these co-benefits are important
considerations in any evaluation of the technologies for
beyond-the-floor standards. The commenter described aspects of energy
efficiency, adjusting the composition of cement, and cleaner fuel as
examples of actions that could provide these co-benefits.

Response: EPA acknowledges the commenter’s support of EPA’s
sector-based approach.

CO and combustion practices

Comment: One commenter (2928) stated that high CO levels are very often
an indication of poor combustion practices and should also be kept as
low as practical.

Response: A discussion of the EPA’s decision not to regulate CO can be
found in the preamble.

	At proposal, EPA also presented long term mercury data from an Essroc
kilns showing relative standard deviations similar to the range of the
relative standard deviations of the best performing kilns, based on
30-days of data, again suggesting that EPA had properly assessed
variability of mercury inputs. 74 FR at 21143.

 EPA notes the support of commenter 2898 in this regard.

	See Section <IP_ADDRESS> of the Credible Evidence Rule Response to Comment
Document, available at <  HYPERLINK
"http://www.epa.gov/ttncaaa1/t1/fr_notices/certcfin.pdf"
http://www.epa.gov/ttncaaa1/t1/fr_notices/certcfin.pdf >.

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Preliminary Summary Subject to Verification and Additional Editing