[Federal Register: February 5, 2007 (Volume 72, Number 23)]
[Notices]
[Page 5310-5314]
[DOCID:fr05fe07-75]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55188; File No. SR-NYSE-2006-66]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of a Proposed Rule Change and Amendments No. 1 and 2
Thereto To List and Trade Exchange-Traded Notes of Barclays Bank PLC
Linked to the Performance of the Euro/U.S. Dollar Exchange Rate

January 29, 2007.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 24, 2006 the New York Stock Exchange LLC (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. On
December 26, 2006, the Exchange submitted Amendment No. 1.\3\ On
January 23, 2007, the Exchange submitted Amendment No. 2.\4\ The
Commission is publishing this notice to solicit comments on the
proposed rule change, as amended, from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 1 replaced and superseded the Exchange's
original submission in its entirety.
    \4\ Amendment No. 2 replaced and superseded Amendment No. 1 in
its entirety.
---------------------------------------------------------------------------

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

    The Exchange proposes to list and trade exchange-traded notes
(``Notes'') of Barclays Bank PLC (``Barclays'') linked to the
performance of the euro/U.S. dollar exchange rate (the ``EUR/USD
exchange rate'').

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

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

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

1. Purpose

The Notes

    Under Section 703.19 of the Listed Company Manual (the ``Manual''),
the Exchange may approve for listing and trading securities not
otherwise covered by the criteria of Sections 1 and 7 of the Manual,
provided the issue is suited for auction market trading. The Exchange
proposes to list and trade, under Section 703.19 of the Manual, the
Notes, which are linked to the performance of the EUR/USD exchange
rate. Barclays intends to issue the Notes under the name
``iPathSM Exchange Traded Notes.''
    The Exchange believes that the Notes will conform to the initial
listing standards for equity securities under Section 703.19, as
Barclays is an affiliate of Barclays PLC, which is a listed company in
good standing. The Notes will have a minimum life of one year, the
minimum public market value of the Notes at the time of issuance will
exceed $4 million, there will be at least one million Notes
outstanding, and there will be at least 400 holders at the time of
issuance. The Notes are a series of medium-term debt securities of
Barclays that provide for a cash payment at maturity or upon earlier
redemption at the holder's option, based on the performance of the EUR/
USD exchange rate subject to the adjustments described below. The
original issue price of each Note will be $25. The Notes will trade on
the Exchange's equity trading floor, and the Exchange's existing equity
trading rules will apply to trading in the Notes.
    The EUR/USD exchange rate is a foreign exchange spot rate that
measures the relative values of two currencies, the euro and the U.S.
dollar. When the euro appreciates relative to the U.S. dollar, the EUR/
USD exchange rate (and the value of the Notes) increases; when the euro
depreciates relative to the U.S. dollar, the EUR/USD exchange rate (and
the value of the Notes) decreases. The EUR/USD exchange rate is
expressed as a rate that reflects the number of U.S. dollars that can
be exchanged for one euro in the interbank market for settlement in two
days, as reported each day shortly after 10 a.m. Eastern Time (``ET'')
on Reuters page 1FED or any successor page.
    The Notes will not have a minimum principal amount that will be
repaid and, accordingly, payment on the Notes prior to or at maturity
may be less than the original issue price of the Notes. In fact, the
EUR/USD exchange rate must increase for the investor to receive at
least the $25 original issue price per Note at maturity or upon
redemption. If the EUR/USD exchange rate decreases or does not increase
sufficiently to offset any negative effect of the adjustment factor
(described below), the investor will receive less, and possibly
significantly less, than the $25 original issue price per Note. In
addition, holders of the Notes will not receive any interest payments
from the Notes. The Notes will have a term of 30 years. The Notes are
not callable.
    If the Notes are held to maturity, the holder will receive a cash
payment at maturity that is linked to the percentage change in the EUR/
USD exchange rate between the inception date and the final valuation
date. The cash payment at maturity will be equal to (1) the reference
currency amount times (2) the EUR/USD exchange rate on the final
valuation date times (3) the adjustment factor as determined on the
final valuation date. The reference currency amount is the original
issue price of the Notes divided by the EUR/USD exchange rate on the
inception date.
    The adjustment factor will be calculated on a daily basis in the
following manner: The adjustment factor on the inception date will
equal one. On each subsequent business day until the final valuation
date, the adjustment factor will equal (1) the adjustment factor on the
immediately preceding business day times (2) the sum of one plus (a)
the European Overnight Index Average, as reported on Reuters page EONIA
or any successor page on the immediately preceding business day (the
``EONIA'') minus (b) 0.27% minus (c) the investor fee times (3) the
relevant daycount fraction. The EONIA is the effective overnight
reference rate for the euro. It is computed as a weighted average of
all overnight unsecured lending transactions undertaken in the
interbank market, initiated within the euro area by the contributing
banks. The investor fee is equal to 0.40% of the reference currency
amount per year and is the only fee payable by investors in connection
with an investment in the Notes. The daycount fraction on any business
day will be the number of calendar days that have elapsed since the
immediately preceding business day divided by 365. If the maturity date
is not a business day, the maturity date will be the next following
business day. If the fifth business day before this day does not
qualify as a valuation date (as described below), then the maturity
date will be the fifth business day following the final valuation date.
In such event penalty interest will not accrue or be payable with
respect to that deferred payment.
    Prior to maturity, holders may, subject to certain restrictions,
choose to redeem their Notes on any redemption date during the term of
the Notes provided that they present at least 100,000 Notes for
redemption. Holders may also act through a broker or other financial
intermediary (such as a bank or other financial institution not
required to register as a broker-dealer to engage in securities
transactions) that is willing to bundle their Notes for redemption with
other investors' securities. Barclays may from time to time in its sole
discretion reduce, in part or in whole, the minimum redemption amount
of 100,000 Notes. Any such reduction will be applied on a consistent
basis for all holders of the Notes at the time the reduction becomes
effective. If holders redeem their Notes on a particular redemption
date, they will receive a cash payment on such date in an amount equal
to the weekly redemption value, which equals (1) the reference currency
amount times (2) the EUR/USD exchange rate on the applicable valuation
date times (3) the adjustment factor as determined on the applicable
valuation date. Holders must redeem at least 100,000 Notes at one time
in order to exercise their right to redeem their Notes on any
redemption date. Barclays may from time to time in its sole discretion
reduce, in part or in whole, the minimum redemption amount of 100,000
Notes. Any such reduction will be applied on a consistent basis for all
holders of Notes at the time the reduction becomes effective. A
valuation date is each Thursday from the first Thursday after issuance
of the Notes until the last Thursday before maturity of the Notes (the
``final valuation date'') inclusive or, if such date is not a trading
day, the next succeeding trading day, not to exceed five business days.
A redemption date is the second business day following a valuation date
(other than the final valuation date). The final redemption date will
be the second business day following the valuation date immediately
prior to the final valuation date.
    To redeem their Notes, Holders must instruct their broker or other
person with whom they hold their Notes to take the following steps:
     Deliver a notice of redemption to Barclays via email by no
later than 11 a.m. ET on the business day prior to the applicable
valuation date. If Barclays receives notice by the time specified in
the preceding sentence, it will respond

by sending a form of confirmation of redemption;
     Deliver the signed confirmation of redemption to Barclays
via facsimile in the specified form by 4 p.m. ET on the same day.
Barclays or its affiliate must acknowledge receipt in order for
confirmation to be effective;
     Instruct their DTC custodian to book a delivery vs.
payment trade with respect to their Notes on the valuation date at a
price equal to the applicable Weekly Redemption Value, facing Barclays
Capital DTC 5101; and
     Cause their DTC custodian to deliver the trade as booked
for settlement via DTC at or prior to 10 a.m. ET on the applicable
redemption date (the third business day following the valuation date).
    If holders elect to redeem their Notes, Barclays may request that
Barclays Capital Inc. (a broker-dealer) purchase the Notes for the cash
amount that would otherwise have been payable by Barclays upon
redemption. In this case, Barclays will remain obligated to redeem the
Notes if Barclays Capital Inc. fails to purchase the Notes. Any Notes
purchased by Barclays Capital Inc. may remain outstanding.
    If an event of default occurs and the maturity of the Notes is
accelerated, Barclays will pay the default amount in respect of the
principal of the Notes at maturity. The default amount for the Notes on
any day will be an amount, determined by the calculation agent in its
sole discretion, equal to the cost of having a qualified financial
institution, of the kind and selected as described below, expressly
assume all Barclays' payment and other obligations with respect to the
Notes as of that day and as if no default or acceleration had occurred,
or to undertake other obligations providing substantially equivalent
economic value to the holders of the Notes with respect to the Notes.
That cost will equal:
     The lowest amount that a qualified financial institution
would charge to effect this assumption or undertaking, plus
     The reasonable expenses, including reasonable attorneys'
fees, incurred by the holders of the Notes in preparing any
documentation necessary for this assumption or undertaking.
    During the default quotation period for the Notes (described
below), the holders of the Notes and/or Barclays may request a
qualified financial institution to provide a quotation of the amount it
would charge to effect this assumption or undertaking. If either party
obtains a quotation, it must notify the other party in writing of the
quotation. The amount referred to in the first bullet point above will
equal the lowest--or, if there is only one, the only--quotation
obtained, and as to which notice is so given, during the default
quotation period. With respect to any quotation, however, the party not
obtaining the quotation may object, on reasonable and significant
grounds, to the assumption or undertaking by the qualified financial
institution providing the quotation and notify the other party in
writing of those grounds within two business days after the last day of
the default quotation period, in which case that quotation will be
disregarded in determining the default amount. The default quotation
period is the period beginning on the day the default amount first
becomes due and ending on the third business day after that day,
unless:
     No quotation of the kind referred to above is obtained, or
     Every quotation of that kind obtained is objected to
within five business days after the due date as described above.
    If either of these two events occurs, the default quotation period
will continue until the third business day after the first business day
on which prompt notice of a quotation is given as described above. If
that quotation is objected to as described above within five business
days after that first business day, however, the default quotation
period will continue as described in the prior sentence and this
sentence.
    In any event, if the default quotation period and the subsequent
two business day objection period have not ended before the final
valuation date, then the default amount will equal the stated principal
amount of the Notes.

Indicative Value

    An intraday ``Indicative Value'' meant to approximate the intrinsic
economic value of the Notes will be calculated and published via the
facilities of the Consolidated Tape Association (``CTA'') every 15
seconds throughout the NYSE trading day on each day on which the Notes
are traded on the Exchange.
    Additionally, Barclays or an affiliate will calculate and publish
the closing Indicative Value of the Notes on each trading day at
http://www.ipathetn.com. The last sale price of the Notes will also be

disseminated over the consolidated tape, subject to a 20 minute delay.
In connection with the Notes, the term ``Indicative Value'' refers to
the value at a given time determined based on the following equation:

Indicative Value = Reference Currency Amount x Current EUR/USD Exchange
Rate x Current Adjustment Factor

Where:
    Current EUR/USD Exchange Rate = The exchange rate as reported on
that day.

    The Current EUR/USD Exchange Rate used for the calculation of the
Indicative Value will be the EUR/USD exchange rate disseminated by
Bloomberg L.P. during the course of the trading day on a 15 second
delayed basis.

Continued Listing Criteria

    The Exchange prohibits the initial and/or continued listing of any
security that is not in compliance with Rule 10A-3 under the Act.
    The Exchange will delist the Notes:
     If, following the initial twelve month period from the
date of commencement of trading of the Notes, (i) the Notes have more
than 60 days remaining until maturity and there are fewer than 50
beneficial holders of the Notes for 30 or more consecutive trading
days; (ii) if fewer than 100,000 Notes remain issued and outstanding;
or (iii) if the market value of all outstanding Notes is less than
$1,000,000.
     If, during the time the Notes trade on the Exchange, the
Indicative Value ceases to be available on a 15 second delayed basis.
     If, during the time the Notes trade on the Exchange, the
EUR/USD exchange rate ceases to be calculated or available on at least
a 15 second delayed basis from one or more major market data vendors.
     If such other event shall occur or condition exists which
in the opinion of the Exchange makes further dealings on the Exchange
inadvisable.

Trading Halts

    If the Exchange Rate or the Indicative Value is not being
disseminated as required, the Exchange may halt trading during the day
on which the interruption to the dissemination of the Exchange Rate or
the Indicative Value first occurs. If the interruption to the
dissemination of the Exchange Rate or the Indicative Value persists
past the trading day in which it occurred, the Exchange will halt
trading no later than the beginning of the trading day following the
interruption.

Rules Applicable to Specialists in Currency-Related Securities

    The Exchange has filed proposed Supplementary Material .10 to Rules
1300A and 1301A, which will apply the provisions of Rule 1300A(b) and
Rule 1301A to certain securities listed on the Exchange pursuant to
Section 703.19 (``Other Securities'') of the Exchange's

Listed Company Manual.\5\ Specifically, Rules 1300A(b) and 1301A will
apply to securities listed under Section 703.19 where the price of such
securities is based in whole or part on the price of (a) a non-U.S.
currency or currencies, (b) any futures contracts or other derivatives
based on a non-U.S. currency or currencies, or (c) any index based on
either (a) or (b) above. As a result of application of Rule 1300A(b),
the specialist in the Notes, the specialist's member organization and
other specified persons will be prohibited under paragraph (m) of
Exchange Rule 105 Guidelines from acting as market maker or functioning
in any capacity involving market-making responsibilities in the euro,
options, futures or options on futures on the euro, or any other
derivatives based on the euro (collectively, ``derivative
instruments''). If the member organization acting as specialist in the
Notes is entitled to an exemption under NYSE Rule 98 from paragraph (m)
of NYSE Rule 105 Guidelines, then that member organization could act in
a market making capacity in the euro or derivative instruments based on
the euro, other than as a specialist in the Notes themselves, in
another market center.
---------------------------------------------------------------------------

    \5\ See SR-NYSE-2006-68.
---------------------------------------------------------------------------

    Under Rule 1301A(a), the member organization acting as specialist
in the Notes (1) will be obligated to conduct all trading in the Notes
in its specialist account, (subject only to the ability to have one or
more investment accounts, all of which must be reported to the
Exchange), (2) will be required to file with the Exchange and keep
current a list identifying all accounts for trading in the euro or
derivative instruments based on the euro, which the member organization
acting as specialist may have or over which it may exercise investment
discretion, and (3) will be prohibited from trading in the euro or
derivative instruments based on the euro, in an account in which a
member organization acting as specialist, controls trading activities
which have not been reported to the Exchange as required by Rule 1301.
    Under Rule 1301A(b), the member organization acting as specialist
in the Notes will be required to make available to the Exchange such
books, records or other information pertaining to transactions by the
member organization and other specified persons for its or their own
accounts in the euro or derivative instruments based on the euro, as
may be requested by the Exchange. This requirement is in addition to
existing obligations under Exchange rules regarding the production of
books and records.
    Under Rule 1301A(c), in connection with trading the euro or
derivative instruments based on the euro, the specialist could not use
any material nonpublic information received from any person associated
with a member or employee of such person regarding trading by such
person or employee in the euro or derivative instruments based on the
euro.

Surveillance

    The Exchange's surveillance procedures will incorporate and rely
upon existing Exchange surveillance procedures governing equities with
respect to surveillance of the Notes. The Exchange believes that these
procedures are adequate to monitor Exchange trading of the Notes and to
detect violations of Exchange rules, thereby deterring manipulation. In
this regard, the Exchange currently has the authority under NYSE Rule
476 to request the Exchange specialist in the Notes to provide NYSE
Regulation with information that the specialist uses in connection with
pricing the Notes on the Exchange, including specialist, proprietary or
other information regarding securities, currencies, futures, options on
futures or other derivative instruments. The Exchange believes it also
has authority to request any other information from its members--
including floor brokers, specialists and ``upstairs'' firms--to fulfill
its regulatory obligations.
    The Exchange's current trading surveillances focus on detecting
securities trading outside normal patterns. When such situations are
detected, surveillance analysis follows and investigations are opened,
where appropriate, to review the behavior of all relevant parties for
all relevant trading violations.
    The Exchange is able to obtain information regarding trading in the
Notes, euro options and euro futures through NYSE members, in
connection with such members' proprietary or customer trades which they
effect on any relevant market. In addition, the Exchange may obtain
trading information via the Intermarket Surveillance Group (``ISG'')
from other exchanges who are members or affiliates of the ISG.
Specifically, the NYSE can obtain such information from the
Philadelphia Stock Exchange (the ``Phlx'') in connection with euro
options trading on the Phlx and from the Chicago Mercantile Exchange
(the ``CME'') and the Euronext.Liffe Exchange (the ``LIFFE'') in
connection with euro futures trading on the CME and the LIFFE
respectively.\6\ These markets are the primary trading markets in the
world for exchange-traded futures, options and options on futures on
the exchange rate between the dollar and the euro. The Exchange also
lists and trades CurrencyShares based on the euro and can therefore
surveil the trading of those CurrencyShares on the Exchange and on NYSE
Arca.
---------------------------------------------------------------------------

    \6\ The Phlx is a full member and the CME and the LIFFE are
affiliate members of the ISG.
---------------------------------------------------------------------------

Trading Rules

    The Exchange's existing trading rules will apply to trading of the
Notes. The Notes will trade between the hours of 9:30 a.m. and 4 p.m.
ET and will be subject to the equity margin rules of the Exchange.

Suitability

    Pursuant to Exchange Rule 405, the Exchange will impose a duty of
due diligence on its members and member firms to learn the essential
facts relating to every customer prior to trading the Notes. With
respect to suitability recommendations and risks, the Exchange will
require members, member organizations and employees thereof
recommending a transaction in the Notes: (1) To determine that such
transaction is suitable for the customer, and (2) to have a reasonable
basis for believing that the customer can evaluate the special
characteristics of, and is able to bear the financial risks of, such
transaction.

Information Memorandum

    The Exchange will, prior to trading the Notes, distribute an
information memorandum to the membership providing guidance with regard
to member firm compliance responsibilities (including suitability
recommendations) when handling transactions in the Notes. The
information memorandum will note to members language in the prospectus
used by Barclays in connection with the sale of the Notes regarding
prospectus delivery requirements for the Notes. In the initial
distribution of the Notes, and during any subsequent distribution of
the Notes, NYSE member organizations will deliver a prospectus to
investors purchasing from such distributors.
    The information memorandum will discuss the special characteristics
and risks of trading this type of security. Specifically, the
information memorandum, among other things, will discuss what the Notes
are, how the Notes are redeemed, applicable Exchange rules,
dissemination of information regarding the Indicative

Value, the EUR/USD exchange rate, trading information and applicable
suitability rules.
    The information memorandum will also notify members and member
organizations about the procedures for redemptions of Notes and that
Notes are not individually redeemable but are redeemable only in
aggregations of at least 100,000 Notes. The information memorandum will
also discuss any relief, if granted, by the Commission or the staff
from any rules under the Act. The information memorandum will also
reference that there is no regulated source of last sale information
regarding currency exchange rates and that the Commission has no
jurisdiction over the trading of currencies on which the value of the
Notes is based.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Act,\7\ in general, and furthers the objectives of Section 6(b)(5),\8\
in particular, in that it is 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, in general, to protect
investors and the public interest.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.

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

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

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which NYSE consents, the Commission will:
    (A) By order approve such proposed rule change, or
    (B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
    NYSE has requested accelerated approval of this proposed rule
change prior to the 30th day after the date of publication of the
notice of the filing thereof. The Commission has determined that a 15-
day comment period is appropriate in this case.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NYSE-2006-66.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
    All submissions should refer to File Number SR-NYSE-2006-66. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments,

all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room. Copies of the
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-NYSE-2006-66 and should be submitted on or before
February 20, 2007.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\9\
---------------------------------------------------------------------------

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

Nancy M. Morris,
Secretary.
[FR Doc. E7-1781 Filed 2-2-07; 8:45 am]

BILLING CODE 8011-01-P


suggested that EPA drop the opacity monitoring requirement for MWC units that use a PM CEMS. One commenter ( OAR 2005 0117 0079.1) suggested several shortcomings of opacity monitoring and noted that the variations in waste stream make up create particulate emissions where the size, shape, and density of particles change over time. These variations create opacity 0154 03 002\ Boiler MACT Recon  comment response. doc 52 readings that do not correlate with particulate emissions. The same commenter also indicated that, given the recent installations of PM CEMS as well as the promulgated performance specifications and quality assurance and control procedures, PM CEMS should replace the continuous opacity monitoring requirement.

One commenter ( OAR 2005 0117 0107) suggested that EPA drop the opacity requirement when a PM CEM is installed and opacity is typically less than 5 percent. The commenter added that ASTM D6216 03 states that the design specifications are not applicable for demonstrating compliance with opacity limits of less than 10%. The commenter encouraged the continued use of any existing opacity monitor to establish a correlation between opacity and PM emissions such that the PM data could demonstrate that the opacity limit is not being exceeded.

One commenter ( OAR 2005 0117 0084) also suggested that bag leak detectors ( triboelectric monitors) could also serve in lieu of opacity monitors if EPA developed corresponding performance specifications.

Response: EPA has considered the commenters' noted shortcomings of opacity monitors and EPA has changed the final amendments to provide the option to use a PM CEMS for continual compliance with the PM limit in lieu of monitoring opacity with an opacity monitor or doing manual stack tests. Furthermore, EPA does not believe it is necessary to limit this optional use of a PM CEMS to situations where an opacity threshold of 5% is met. EPA believes the requirement for an opacity monitor and manual stack tests should be dropped whenever a unit chooses to install a PM CEMS. As a PM CEMS provides direct measurement of emissions rather than a parametric value, bag leak detectors are unnecessary.

6.4 CEM Validation Requirements Comment: Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077)

requested that EPA clarify the procedures to address partial compliance averaging periods particularly for periods of start up, shutdown, and control device malfunction. The commenters requested that the final amendments include a revised monitoring requirement stating that hourly averages are not to be calculated for hours with less than 30 minutes of valid data.

The commenters also requested that EPA define data validation criteria for compliance averages to be a 75 percent validation requirement for the CO, NOx, and SO2 emissions 0154 03 002\ Boiler MACT Recon  comment response. doc 53 standards. For example, three hours of operating time to validate the four hour averaging period for CO and 18 hours of operating time to validate the 24 hours SO2 and NOx standards.

Response: Commenters raised questions on the proper use of CEMS data. One must always remember that under the regulations ( 1) determining CEMS data availability to judge CEMS performance and ( 2) the use of CEMS data to calculate emissions to determine compliance, are two different things. For CEMS data availability determination, each hour of data must have at least two data points and this must be done for at least 90% of operating hours per calendar quarter and at least 95 % of the operating hours per calendar year. The previous requirement in the 1995 rule to obtain data for 75% of the operating hours per day has been dropped. The CEMS data requirements apply for all pollutants monitored using CEMS. There is no change in use of CEMS data to calculate emissions. All valid continuous emissions monitoring data must be used for calculating the 24 hour average emission levels required by the rule, even if the minimum data availability requirements are not met.

6.5 CEM Data Availability Comment: One commenter ( OAR 2005 0117 0084) supported the proposed increase in CEM availability. The commenter cited their own study, which analyzed 3 years of data for all sources required to operate CEMS in their State, and found that the CEM 95% availability requirement could be met 97% of the time for all sources. Further, they added that the availability rate was higher for MWC sources. The commenter provided a caveat for this study with a note that the CEM did not include monitoring data for PM, Hg, or HCl CEMS.

One commenter ( OAR 2005 0117 0103.1) supported the increased CEM availability requirements. The commenter added that increased availability will provide the public and permitting authorities more adequate information with which to evaluate emissions and compliance from MWCs.

Nine commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0088, OAR 2005 0117

0096, OAR 2005 0117 0089, OAR 2005 0117 0081, OAR 2005 0117 0077, OAR 2005 0117

0080, OAR 2005 0117 0095, OAR 2005 0117 0092) disagreed with the proposed 95%

requirement for CEM availability. The commenters contended that raising the availability from 90 to 95% will require facilities to install redundant monitoring equipment in order to avoid violating CEM availability. The commenters added that the existing availability requirements 0154 03 002\ Boiler MACT Recon  comment response. doc 54 already provide for incentive to operate and maintain a high level of CEM availability, and that further increases in the availability will result in increased operating costs without any environmental benefit.

One commenter ( OAR 2005 0117 0089) suggested that the basis for proposing a 95%

availability requirement relied on an inappropriately low amount of calendar quarterly availability information ( 2 percent or 72 out of a possible 4008 calendar quarters). Another commenter ( OAR 2005 0117 0081) suggested that EPA should have based the availability on several or all of the large MWC in order to determine the proposed availability requirement.

One commenter ( OAR 2005 0117 0096) requested that EPA provide a more detailed discussion and presentation of the basis for the proposed increase in data availability requirements.

One commenter ( OAR 2005 0117 0092) noted that EPA does not suggest in its proposal that the current 90% availability requirement is yielding insufficient data on MWCs. Moreover,

the commenter stated that EPA's basis for increasing the availability relies on one year of data from a single plant, which does not meet the " achieved in practice" standard contained in CAA 129( a)( 2). The commenter also faulted the analysis contained in Docket Item OAR 2005 0117

0013, since this analysis does not consider days when a monitor fails to meet the 75% daily requirement.

Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0096) suggested that EPA analyze the costs of requiring a facility to install back up CEM equipment to meet the proposed availability. One commenter ( OAR 2005 0117 0073.1) added that, if EPA still sees fit to increase the availability after these costs are considered, EPA should maintain the quarterly requirements for hours per day and hours per quarter and only increase the availability to 95% of the number of operating days per year. The commenter suggested that these revised availability requirements allow for a facility to remain in compliance in the event of CEM equipment failure.

One commenter ( OAR 2005 0117 0083) noted that the expense of CEMS equipment to support the higher availability rate is inappropriate, given that these monitoring increases to not demonstrate a benefit to public health or the environment.

Response: EPA has considered the commenters' concerns and has adopted a 90 percent CEMS availability requirement per calendar quarter and a 95 percent availability requirement per calendar year as suggested by some commenters. EPA has eliminated the 75 percent daily 0154 03 002\ Boiler MACT Recon  comment response. doc 55 requirement because the 90 and 95 percent requirements are sufficient to ensure good data availability. It was not EPA intent to require sources to install back up monitoring equipment in order to meet the proposed 95 percent availability requirement. However, EPA sees no reason why CEMS should not be able to meet the data availability of the final amendments, and the 95 percent annual availability requirements assures that demonstrated performance of CEMS is reflected in the regulation. EPA has included a more complete discussion of CEMS availability in the preamble.

6.6 Harmonization of Monitoring Requirements between 40 CFR 60 and 75 Comment: Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077)

requested that EPA harmonize the monitoring requirements for 40 CFR part 60 and 40 CFR part 75. Specifically, the commenters requested that the definitions of operating hours and CEMS data as proposed in the Electric Utility source category be included in the final amendments.

The commenters also cited the harmonization of the monitoring requirements in the recently proposed Industrial Commercial Institutional Electric Utility Steam Generating units rulemaking.

Response: EPA agrees with the commenters about the advantages of harmonizing these two separate and sometimes overlapping monitoring requirements for certain applications.

Following proposal of the two utility rules mentioned in the comment, EPA determined that the language proposed to resolve these issues was overly broad and would lead to unintended consequences when applied to situations other than the utility or MWC applications or to low emissions rate situations. EPA is reviewing alternative language changes, and EPA expects to insert language to achieve harmonization at a later time.

6.7 Valid Data for Compliance Calculations Comment: Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077) noted conflicted language between the general provisions and 60.58b( i) on the validation procedures for MWC operating data such as carbon federate, steam flow, and baghouse inlet temperature.

The commenters added that because of this conflicting language, no validation procedures are defined for these operating parameters. The commenters suggested that EPA define how much of data is necessary for these parameters to make up a valid one hour average and recommended 0154 03 002\ Boiler MACT Recon  comment response. doc 56 that EPA require operating data to be collected at a minimum of 75% of the hour in order to validate these process parameters.

Response: The commenter did not submit any data to address the issue. EPA will investigate the issue and will address this concern in a separate notice.

6.8 ACI Pneumatic Pressure Comment: One commenter ( OAR 2005 0117 0103.1) supported the proposed requirement to monitor pneumatic injection pressure at the location where the activated carbon is injected into the flue gas. The commenter added that this measure would provide more certainty that the pollution control devices are working correctly, and that MWC are meeting the appropriate emission limits. The commenter also supported an 8 hour block average for measuring the activated carbon injection rate.

A second commenter ( OAR 2005 0117 0100) also supported the proposed amendment to measure the pneumatic injection pressure at the location where the activated carbon is injected into the flue gas. The commenter added that injector nozzle clogging will reduce the performance of emission control, and that the proposed metric will help improve the annual control efficiency.

Three commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077, OAR 2005 0117

0092) disagreed with the proposed amendment to require monitoring of the pneumatic pressure on activated carbon injection ( ACI) systems and stated this type of monitoring is unnecessary.

The commenters contended that the current methods for monitoring carbon feed rates with a carbon feeder speed or direct weight loss feeders provide for adequate monitoring method. The commenters added that carbon injection systems already have built in diagnostics to notify facility operators if there is a problem with the carbon feed. One commenter ( OAR 2005 0117

0092) added that its facility monitors the operation of the carbon feed screw in 8 hour block averages.

Response: As a result from the response from commenters, EPA recognizes that there are multiple methods to monitor and verify carbon feed rates, one of which is the method it proposed to monitor  ACI pneumatic pressure. However, several existing units have other types of monitoring procedures in place for monitoring carbon feed, which EPA believes are also 0154 03 002\ Boiler MACT Recon  comment response. doc 57 acceptable. EPA has amended the final rule to require monitoring of ACI pneumatic pressure or other carbon injection system operational indicator.

Comment: One commenter ( OAR 2005 0117 0096) requested that EPA clarify the pneumatic injection reporting and recordkeeping requirements. The commenter added that the proposed rule language requires monitoring at " the location where the activated carbon is injected into the flue gas" which seems to define a situation where a single orifice pressure is monitored at the point of injection. The commenter contended that the injection system typically has a monitor that is set to alarm an operator of either a low eductor suction pressure or a high blower discharge pressure. The commenter also suggested that on site recordkeeping of alarms without routine reporting are adequate to ensure that facilities maintain their ACI system.

Response: As noted in a previous comment, EPA has provided the allowance of ACI pneumatic pressure and updated the corresponding reporting and recordkeeping requirements in the rule.

6.9 Start up, Shutdown and Malfunction ( SSM) Provisions Comment: Five commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0088, OAR

2005 0117 0076, OAR 2005 0117 0085, OAR 2005 0117 0077) requested that EPA make the provisions governing CEM data during periods of start up, shutdown, or malfunction consistent with the language in the small MWC rule such that SSM data is not used in the calculation of multi hour averages during these time periods, as long as the time period does not exceed 3 hours. The commenter added that the SSM data will be reported as " excluded" data in the semiannual reports submitted in accordance with 40 CFR 60.59b( g)( 1)( v).

One commenter ( OAR 2005 0117 0073.1) requested that EPA extend the data exclusion period from 3 to 15 hours during certain periods of startup, shutdown, or malfunction for CO data, similar to the 15 hour extension provided for NOx and SO2 emissions. The commenter noted that the two major causes of malfunctions are loss of water seal or combustion air control.

During these periods there are high levels of excess O2, and the NOx and SO2 data corrected to 7% O2 will grossly exceed the limits for these two pollutants, and the commenter suggested that a 15 hour period is a more appropriate timeframe for emissions to return to normal levels.

The commenter also requested that the final rule amendments include a diluent cap for O2 and CO2 of 14% and 5%, respectively, similar to the diluent cap granted to 40 CFR Part 60 0154 03 002\ Boiler MACT Recon  comment response. doc 58 Subpart GG sources. The commenter emphasized that the diluent cap would prevent the overstatement of emissions during periods of start up, shutdown, and malfunction when O2 or CO2 exceeds the 14% and 5% cap values.

Response: EPA agrees with the commenters' suggestion to make provisions for CEM data handling during periods of start up, shutdown, or malfunction, and the rule language in the final amendments has been updated.

Additionally, the final amendments include an extension from 3 to 15 hours for data exclusion period for CO emissions. EPA recognizes that the 15 hour time frame is more appropriate for readjusting normal facility operations and CO emissions. This time frame is the same as the time frame included for NOx and SO2 emissions.

Finally, EPA agrees with using a diluent cap for O2 and CO2 during periods of a CO malfunction when the O2 level exceeds 14 percent or the CO2 level exceeds 5 percent. EPA has added language to support the use of a diluent cap during CO malfunctions in the final amendments. However, EPA disagrees with the use of a diluent cap during periods of start up and shutdown not related to CO malfunction.

6.10 Relative Accuracy Test Audits ( RATA)

Comment: Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077) proposed additional language to clarify that the five ppmdv RA criteria for CO includes the mean difference between the RM and the CEMS without the 2.5% confidence limit. The commenters suggested that the following language be included in 60.85( b)( i)( 3)( ii): " For affected facilities subject to the 100 ppmdv CO standard, the alternative relative accuracy criterion of 5 ppmdv is calculated as the absolute value of the average difference between the RM and CEMS."

Response: EPA agrees with the commenters. The Relative Accuracy criterion for CO CEMS should be changed as indicated. In the final amendments 60.58b ( i) ( 3) ( ii) is being changed to add the following sentence:

For affected facilities subject to the 100 ppmdv CO standard, the relative accuracy criterion of 5 ppmdv is calculated as the absolute value of the mean difference between the reference method and continuous emissions monitoring system.

Comment: Three commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077, OAR

2005 0117 0080) proposed additional language to the final rule amendments to allow for 0154 03 002\ Boiler MACT Recon  comment response. doc 59 situations where low inlet SO2 concentrations fail to meet the 20% relative accuracy standard.

The commenters suggested that the following language be included: " The RA of the CEMS must be no greater than 20 percent of the mean value of the RM test data in terms of the units of the emission standard, or 5 ppmdv mean difference, whichever is greater."

Response: EPA agrees with the commenter. The Relative Accuracy criterion for inlet SO2 CEMS should be changed as indicated. In the final amendments, 60.58b ( e) ( 12) is being changed to read as follows:

The continuous emission monitoring system shall be operated according to Performance Specification 2 in appendix B of this part. For sources that have actual inlet emissions less than 100 parts per million dry volume, the relative accuracy criterion for inlet sulfur dioxide continuous emission monitoring systems should be no greater than 20 percent of the mean value of the reference method test data in terms of the units of the emission standard, or 5 parts per million dry volume absolute value of the mean difference between the reference method and the continuous emission monitoring systems, whichever is greater.

6.11 Other Comment: One commenter ( OAR 2005 0117 0084) requested that EPA add ammonia to the list of pollutants that MWCs must monitor. The commenter recommended that CEM be used to monitor ammonia emissions. In light of a CEM monitor, the commenter requested a minimum of annual stack testing concurrent with parametric monitoring to ensure optimal use of the reagent. The commenter is concerned with ammonia emissions because SNCR was identified as the MACT for NOx and ammonia is a significant by product of the SNCR process.

The commenter added that ammonia is a pre cursor to PM and noted that it is important to reduce ammonia emissions in order to meet federal reductions for PM10 and PM 2.5.

Response: The NOx performance levels specified by the MWCs rules were established at an SNCR performance level that assures ammonia emissions ( ammonia slip) would be at a minimum. At such levels ammonia testing was judged unnecessary. At higher NOx performance levels ammonia testing would become more meaningful. If a source or a State agency wished to require ammonia testing, they can do so. EPA has two methods for ammonia. One is EPA Method 320, using FTIR as the analytical instrument. To date this has not been used for MWCs.

The other method is conditional method CTM 027. CTM 027 has been used for ammonia 0154 03 002\ Boiler MACT Recon  comment response. doc 60 testing at an electric utility plant but this method has not been proposed. Although EPA PS 15 is the performance specification using the FTIR technology and has the potential basis for a performance specification for ammonia CEMS, it has not been used on MWCs.

Comment: Three commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077, OAR

2005 0117 0080) supported the revised Hg testing requirements to allow for optimizations of mercury control operating parameters by waiving operating parameter limits during the mercury performance test and during the 2 weeks preceding the mercury performance test.

One commenter ( OAR 2005 0117 0068) requested that EPA revise the proposed language in 40 CFR 60.58b( m)( 2)( i) to clarify that the control operating parameter limits are waived for two ( 2) weeks prior to the annual performance test for both dioxin/ furan and mercury. The commenter was concerned that they could not find any regulatory language to support the statement in the proposal that recognized that the waiver of control operating parameter limits was already done for dioxin.

Response: EPA has inspected the rule language mentioned by the commenter and agrees that the language must be adjusted to waive the control operating parameter limits in order to be consistent with the statement in the preamble and with EPA intent. This correction has been made in the final amendments.

Comment: One commenter ( OAR 2005 0117 0092) requested that EPA modify the language in 60.53b( b)( 1) to conform to section 60.53b( c)( 1). The commenter added that currently 60.53b( b)( 1) requires prior approval from EPA or a State Agency to get a waiver for load limits during annual dioxin/ furan and mercury testing, whereas, 60.53b( c)( 1) provides for an automatic waiver of PM control device temperature limits during annual dioxin/ furan and mercury performance testing. The commenter suggested this was an oversight of EPA.

Response: EPA has considered this issue and it agrees with the commenter. In the final amendments, EPA has required that the facility notify the Administrator two weeks before the optimization tests will be run for dioxin and mercury. However, the Administrator is not required to approve a waiver of load limits during these periods of dioxin/ furan and mercury testing.

Comment: One commenter ( OAR 2005 0117 0092) requested that EPA clarify that a surrogate use of a facility specific parameter, such as average carbon mass feed rate or ACI operating parameters, is optional, and is not required to be applied to all units at the site. The commenter added that maximum and minimum operating parameters for Hg control can be unit 0154 03 002\ Boiler MACT Recon  comment response. doc 61 specific, and thus it would not be appropriate to require the use a facility wide parameter on each individual unit.

Response: EPA agrees that a facility retains the right to decide to use either a facilitywide parameter or a unit specific parameter. Although EPA has allowed for the option of using a facility wide parameter, which was intended to provide flexibility, a facility can still choose to use unit specific parameters. EPA has left this choice up to each affected facility.

Comment: Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077)

requested that EPA expand the list of optimized parametric monitoring data to include MWC unit loads and particulate control device ( PCD) inlet temperatures. The commenter added that these parameters tested at one unit should be applied to other similar units if a facility is eligible for the reduced dioxin test program as a result of exceptionally low dioxin/ furan emissions.

Response: EPA has reviewed the proposed regulatory text and it agrees that the list of optimized parameters should be expanded when a facility becomes eligible for the reduced dioxin testing program. It was EPA intent to include load, PCD inlet temperature, and ACI rate in the list of optimized parametric monitoring data under the reduced dioxin testing program.

EPA has revised the text in the final amendments to include these three parameters.

Comment: One commenter ( OAR 2005 0117 0084) suggested that EPA consider including a revised Method 202 in order to quantify the total particulate emissions. The commenter added this method is more appropriate given the trend toward regulating fine particulate and Method 5 does not require reporting of the back half catch of condensable particulate.

Response: The data that the particulate standard was based upon did not include the condensible portion of the sampling train and was gathered by Method 5. Therefore use of Method 202 did not have public notice and comment during proposal. Therefore EPA cannot consider using Method 202. Again, a State or MWC owner can always conduct additional testing. 0154 03 002\ Boiler MACT Recon  comment response. doc 62 Chapter 7 Cost Impacts Comment: Twelve commenters ( OAR 2005 0117 0088, OAR 2005 0117 0097, OAR

2005 0117 0094, OAR 2005 0117 0087, OAR 2005 0117 0064, OAR 2005 0117 0065, OAR

2005 0117 0076, OAR 2005 0117 0081, OAR 2005 0117 0073.1, OAR 2005 0117 0089,

OAR 2005 0117 0085, OAR 2005 0117 0077) disagreed with both of EPA's assertions that: 1)

the proposed amendments will not increase capital or operating costs for existing MWC units,

and 2) that the proposed emission standards can be achieved with the same pollution control technology used to achieve the existing limits.

One commenter ( OAR 2005 0117 0095) suggested that the limited data upon which EPA proposed the new performance standard underestimated the cost impact of the standard. The commenter suggested that cost to comply with the rule is likely to be in the millions of dollars.

The commenter added that if it is required to meet the proposed standards, as written, the standards would impose significant economic stress to the facility.

Four commenters ( OAR 2005 0117 0088, OAR 2005 0117 0094, OAR 2005 0117

0087, OAR 2005 0117 0085) suggested that, as a result of the tightened limits, the margin of compliance will be reduced and facility operators will have to modify operations and costs to reduce their risk of noncompliance. The commenter suggested that the costs will increase due to an increase in lime, carbon, urea/ ammonia usage and increased maintenance requirements.

Four other commenters ( OAR 2005 0117 0097, OAR 2005 0117 0064, OAR 2005

0117 0094, OAR 2005 0117 0087) suggested that the revised SO2 and NOx limits will cause an increase in costs in order to comply with the limits in the proposed rule. One commenter ( OAR 0154 03 002\ Boiler MACT Recon  comment response. doc 63 2005 0117 0097) added that the operating costs for SO2 removal will increase by an estimated $ 40,000 annually as a result of increased lime and water usage to maintain the increased lime slurry feed rate. The same commenter also anticipated increased maintenance costs for the lime slurry system as a result of the increased lime feed rate.

One commenter ( OAR 2005 0117 0097) suggested that EPA maintain the existing NOx emission limit. The commenter added that although the facility did not require a SNCR to meet the 1995 MACT NOx limit of 250 ppm, this facility would require an SNCR retrofit to meet the proposed 219 ppm NOx limit. The commenter recognized EPA's proposal to allow for an increase in CO emissions from the spreader stoker RDF fired/ 100 percent coal capable combustor in order to lower NOx emissions. However, the commenter contended that the proposed CO limits are based on levels necessary to achieve the 1995 NOx limits and not the CO levels that would occur if the MWC must achieve the proposed NOx limits. The commenter estimated that the capital costs to retrofit the four units at the facility to meet the proposed limits would be $ 2 to 3 million, and the annual operating costs are estimated to be an additional $ 250,000. Another commenter ( OAR 2005 0117 0076) contended that existing facilities meeting the existing NOx standards without ACI or SNCR will have to install new control equipment in order to meet the proposed NOx standard. The commenter added concerns about equipment costs and delivery by the 2009 compliance data due to many industries competing for the same types of pollution control equipment as a result of other federal regulations. The commenter added that EPA did not provide a basis for justifying a more stringent proposed NOx standard.

One commenter ( OAR 2005 0117 0081) determined that all three of its large MWC plants will not be able to continuously meet the proposed standards without retrofitting pollution control equipment, or ramping up operating costs to meet higher removal efficiencies.

Specifically, the commenter added that modifications required to meet the proposed NOx limits will increase capital costs at four of their MWC units. The commenter also added that operating costs will increase to comply with the proposed SO2, HCl, and NOx limits. The commenter also added that the increased use of lime and ammonia will increase emissions of ammonia and solid waste loads. Further the commenter contended that EPA does not present the environmental benefits, or impacts on energy associated with the proposed limits. The commenter concluded that EPA must develop a better basis for justifying these added costs. 0154 03 002\ Boiler MACT Recon  comment response. doc 64 One commenter ( OAR 2005 0117 0073.1) discussed the significant costs that came as part of the 1995 MWC MACT standards, and suggested that the additional costs tied to the 2005 proposed amendments would impede the viability of waste to energy and result in marginal improvements in emissions reductions from MWCs. The commenter stressed the importance of waste to energy facilities in light of the nation's need for renewable sources of energy and discouraged standards that would make these facilities economically out of reach.

One commenter ( OAR 2005 0117 0073.1) stated that devices such as a spray dryer will have to increase operating parameters to meet the higher removal efficiencies, with a compliance margin, in the proposed standards. The commenter added that many plants may have already reached the design and operating limits of their lime injection system or the process limits of their spray dryer absorber. The commenter added that the design of the control system and ash handling system might be undersized to handle increased amounts of lime in the control system and associated increased capture of particulates in the ESP or FF. The commenter also added that increased pollutant loading will impact the operating costs in several ways including:

shortened bag life for fabric filters, increased cleaning frequency, increased lime use, and increased disposal costs.

Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077) emphasized that, for removal efficiencies exceeding 95%, the lime feed rates become less efficient, removing only small increments of pollutant in return for large increases in lime feed. Both commenters estimated the increased lime feed rate at one plant to cost an additional $ 220,000 in order to meet the new SO2 and HCl standards with a compliance margin. In addition to these costs, the commenters suggested that the increased lime feed rates would impact air, water, and energy requirements to support the control system as well as adverse impacts to the environment resulting from an increased trucking of lime and disposal of particulate.

Aside from operating costs, one commenter ( OAR 2005 0117 0073.1) suggested that the capital components of a control system would also be impacted. The commenter added that if a control system at a MWC were designed to meet the proposed limits, the facility would have to install larger spray dryer absorbers and pumping systems in addition to larger ESP devices to handle the increased lime feed rates. Given that existing units were designed to meet the standards promulgated in 1995, the commenter stated that these increased lime feed rates will 0154 03 002\ Boiler MACT Recon  comment response. doc 65 increase the particulate matter input to the ESP and could affect the ESP's particulate collection efficiency and impede compliance with the standards for metals, dioxin and particulate.

Several commenters ( OAR 2005 0117 0089, OAR 2005 0117 0085, OAR 2005 0117

0122) provided an example of an additional cost to consider associated with contractual agreements between MWC operation and maintenance contractors and municipalities, such as the " change in law" provision. The costs that result from an increased risk of non compliance,

and the costs involved in renegotiating the contract fees, will impact the total cost to the communities that support the publicly owned large MWC.

All of these commenters concluded that the proposed emission rates will result in increased costs due to capital, operating, and compliance risk expenses. The commenter requested that EPA consider the cost and environmental impacts associated with constructing or modifying control systems to meet the new limits.

Two commenters ( OAR 2005 0117 0096, OAR 2005 0117 0083) requested that EPA provide additional technical data to support the claim that the proposed emission limits can be achieved using the same air pollution control technology that was used to comply with the current emission limits. The commenters are concerned that the proposed limits require facilities to maintain tight compliance margins, which will lead to increased costs.

One commenter ( OAR 2005 0117 0065) informed EPA that a facility it operates in Charleston, with a SD/ ACI/ SNCR/ ESP control will not be able to meet the proposed limit for lead and will not be able to continuously meet other pollutant limits without replacing its ESP with a fabric filter. The commenter suggested that this replacement will cost $ 10 million.

Response: EPA has considered the commenters' concerns and contends that its revised standards will not significantly increase capital or operating costs at existing MWC units.

Further, EPA believes its revised analysis, using a more robust database, demonstrates that the standards contained in the final rule can be achieved with the same pollution control technology used to achieve the existing limits with an adequate compliance margin. These adjustments to the final standards have addressed some of the commenters' concerns with respect to added cost from additional compliance risk and contractual agreements. For example, the SO2 and HCl limits in the final amendments are the same as in the 1995 MWC rules and some NOx limits are also higher than in the proposed amendments, so the commenters' concerns that there would be added costs to meet the lower emission limits for these pollutants are no longer applicable. EPA 0154 03 002\ Boiler MACT Recon  comment response. doc 66 has promulgated the final amendments under the assumption that these amendments will not cause any significant economic impact. 0154 03 002\ Boiler MACT Recon  comment response. doc 67 Chapter 8 Miscellaneous 8.1 Comment Period Comment: Nine commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0094, OAR

2005 0117 0087, OAR 2005 0117 0064, OAR 2005 0117 0089, OAR 2005 0117 0076, OAR

2005 0117 0085, OAR 2005 0117 0077, OAR 2005 0117 0088) declared that the review and comment period for the proposed standard is unreasonable. One commenter ( OAR 2005 0117

0073.1) suggested that the shortened period of 45 days was in reality shorter due to the fact that this review period fell over several major religious and federal holidays. The commenter also added that the issues raised by the proposed standards are very data intensive, which requires stakeholders to evaluate a large database containing emission information. Three commenters ( OAR 2005 0117 0094, OAR 2005 0117 0087, OAR 2005 0117 0064) added that the period was not sufficient for individual municipalities to prepare detailed comments.

Response: EPA recognizes the shortened length of time provided for public comment.

However, given the schedule required in order to meet a Court order to promulgate this standard,

EPA is unable to provide a longer amount of time for public comment.

8.2 State Plans Comment: One commenter ( OAR 2005 0117 0104) requested EPA to develop a streamlined procedure for efficiently updating the State Plan. The commenter suggested that the permitting authority modify title V or local air district permits with the proposed emission limits,

and then submit the permits to EPA as a State Plan update. 0154 03 002\ Boiler MACT Recon  comment response. doc 68 Response: The procedure for updating the State Plan is outside the scope of this specific rulemaking. However, EPA will consider these comments when guidance is provided on the procedures for updating the State plans.

8.3 Operator Training Comment: Three commenters ( OAR 2005 0117 0065, OAR 2005 0117 0073.1, OAR

2005 0117 0077)) requested that the training requirement of 40 CFR 60.54b( d) be removed from the emission guidelines and NSPS. The commenters added that the training provision is a subset of the ASME QRO certification program and is unnecessary. One commenter ( OAR 2005

0117 0065) added that certain sections of the 1993 version of the manual are outdated and less useful to operators in the present.

The commenters believe the training requirements have become obsolete and have been replaced by ASME QRO or state certification programs. The commenters suggested that the intent of the requirements in 40 CFR 60.54( d) was to bridge the gap in training during the initial implementation period of MACT until operators could obtain ASME or State certification, and now the EPA training requirements have become obsolete and redundant.

Two commenters ( OAR 2005 0117 0073.1, OAR 2005 0117 0077) suggested that a provisionally certified operator who is newly promoted or recently transferred to a fully certified operator/ shift supervisor be able to serve up to six months without notification before taking the ASME QRE certification exam. The commenter added that if the period of temporary service exceeds six months, the facility will submit notifications and progress reports to EPA.

Response: Section 129 of the CAA requires us to retain the training requirements set forth in 40 CFR 60.54( d) and therefore EPA is unable to remove these requirements even if there is overlap with the ASME QRO certification program. As noted in the preamble to the proposed rule, the ASME was in the midst of updating the 1993 version of the manual. This updated manual ( QRO 1 2005) was published on February 8th 2006. However, because of the late publication date of the QRO and the fact that new provisions affect operators of smaller MWC units, EPA has not incorporated the new QRO procedures into the final MWC rule at this time.

EPA agrees with the commenters' suggestion to allow for a provisionally certified operator to serve without notification prior to taking the ASME QRE exam for up to six months.

In order to allow for flexibility in operator and testing schedules this allowance has been 0154 03 002\ Boiler MACT Recon  comment response. doc 69 included in the final amendments and also required the source to submit notifications and progress reports to EPA when the period of a provisional operator extends past six months.

8.4 Renewable Energy Comment: Four commenters ( OAR 2005 0117 0094, OAR 2005 0117 0087, OAR

2005 0117 0076, OAR 2005 0117 0064) requested that EPA consider that Large MWC provide a form of renewable energy and reduce greenhouse gases. One commenter added that it would be unfortunate to adopt proposed standards that limit the likelihood of construction of new facilities or impede the operations at existing facilities.

Response: In developing the revised standards, it is not EPA intent to discourage this type of renewable energy. EPA believes the final standards provide for new facilities to enter this energy market while ensuring the safety of human health and the environment.

8.5 Support Other Commenters Comment: Ten commenters fully supported the issues raised and suggestions provided by commenter OAR 2005 0117 0073.1.

Response: Please see the individual comments raised by commenter OAR 2005 0117

0073.1 for EPA responses.

Comment: One commenter fully supported the issues raised and suggestions provided by SWANA ( OAR 2005 0117 0089.1).

Response: Please see the individual comments raised by commenter OAR 2005 0117

0089.1 for EPA responses.

8.6 Revised Emission Limits Below are the revised numerical emission limits that are included in the revised final rule.

Further discussion on the analysis associated with developing these limits is provided in Chapter 5 of this document. 0154 03 002\ Boiler MACT Recon  comment response. doc 70 Table 8 1 Final Results for Computed UCLs and LCLs for Stack Test and CEM Datac Upper Confidence Limit ( UCL)

Pollutant 95% 98% 99% 99.726% a SD/ FF/ CI/ SNCR Units CDD/ CDF ( ng/ dscm) 13.0 22.5 32.5 NA PM ( mg/ dscm) 11.9 15.7 18.6 NA Cd ( ug/ dscm) 3.4 5.0 6.5 NA Pb ( ug/ dscm) 56.5 95.2 135.4 NA Hg ( ug/ dscm) 35.1 55.5 75.7 NA Hg Reduction (%) b 77.8 74.5 72.4 NA HCl ( ppmV) 23.5 28.4 32.0 NA HCl Reduction (%) b 96.4 95.8 95.5 NA SO2 ( ppmV) 27.9 46.3 65.2 115.9 SO2 Reduction (%) b 80.1 76.7 74.3 70.1 NOx ( ppmV) 196.4 201.0 203.9 208.6 SD/ ESP/ CI/ SNCR Units CDD/ CDF ( ng/ dscm) 14.5 23.3 32.8 NA PM ( mg/ dscm) 18.4 21.4 23.5 NA Cd ( ug/ dscm) 24.6 28.8 31.9 NA Pb ( ug/ dscm) 262.7 304.8 335.5 NA Hg ( ug/ dscm) 62.7 73.0 80.5 NA Hg Reduction (%) b 69.2 64.6 61.2 NA HCl ( ppmV) 23.8 26.8 29.1 NA HCl Reduction (%) b 95.8 95.3 94.9 NA SO2 ( ppmV) 26.5 30.9 34.1 40.0 SO2 Reduction (%) b 70.0 65.6 62.5 56.6 NOx ( ppmV) 192.8 204.2 212.5 227.8 a  99.726 value if based on one exceedance in 365 days ( 1  1/ 365 = 0.99726). b  % reduction values are based on LCL values instead of UCL. c  the concept of upper confidence limits ( UCL) is discussed in the promulgation preamble.


[Federal Register: September 2, 2008 (Volume 73, Number 170)]
[Notices]
[Page 51322-51324]
[DOCID:fr02se08-78]

=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. IA-2772; File No. 803-192]

Woodcock Financial Management Company, LLC; Notice of Application

August 26, 2008.
AGENCY: Securities and Exchange Commission (``SEC'' or ``Commission'').

ACTION: Notice of Application for Exemption under the Investment
Advisers Act of 1940 (``Advisers Act'').

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

    Applicant: Woodcock Financial Management Company, LLC
(``Applicant'').
    Relevant Advisers Act Sections: Exemption requested under section
202(a)(11)(G) from section 202(a)(11) of the Advisers Act.
    Summary of Application: Applicant requests that the Commission
issue an order declaring it and its officers and employees acting
within the scope of their employment (``Applicant Employees'') not to
be persons within the intent of section 202(a)(11) of the Advisers Act,
which defines the term ``investment adviser.''
    Filing Dates: The application was filed on February 7, 2006 and
amended

and restated applications were filed on August 8, 2008 and August 25,
2008.
    Hearing or Notification of Hearing: An order granting the
application will be issued unless the SEC orders a hearing. Interested
persons may request a hearing by writing to the SEC's Secretary and
serving Applicant with a copy of the request, personally or by mail.
Hearing requests should be received by the SEC by 5:30 p.m. on
September 23, 2008 and should be accompanied by proof of service on
Applicant, in the form of an affidavit or, for lawyers, a certificate
of service. Hearing requests should state the nature of the writer's
interest, the reason for the request, and the issues contested. Persons
may request notification of a hearing by writing to the SEC's
Secretary.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street,
NE., Washington, DC 20549-1090. Applicant, Woodcock Financial
Management Company, LLC, 10 Rockefeller Plaza, Suite 609, New York, New
York 10020.

FOR FURTHER INFORMATION CONTACT: Sarah G. ten Siethoff, Attorney
Adviser, or Daniel S. Kahl, Branch Chief, at<PHONE_NUMBER> (Office of
Investment Adviser Regulation, Division of Investment Management).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained for a fee at the
SEC's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-
0102 (telephone<PHONE_NUMBER>)).

Applicant's Representations

    1. Applicant, a Delaware limited liability company, is a small,
limited service ``family office'' that manages investments and performs
incidental services exclusively for Polly and John Guth, their lineal
descendants (including adopted children), Polly's children from a
former marriage and their lineal descendants, and the spouses of such
children and descendents (collectively, the ``Family''). The Applicant
also provides advisory services to trusts created exclusively for the
benefit of Family members and to limited liability companies, private
foundations and other entities all owned exclusively by the Family (or,
in the case of private foundations, solely funded by the Family) and
operated exclusively for the benefit of the Family and/or charitable
organizations (the ``Related Entities'' and, together with the members
of the Family, the ``Family Clients''). Applicant is owned in equal
shares by Polly Guth and John Guth.
    2. Applicant (i) Provides investment management services to Family
Clients, (ii) assists Family Clients with cash management, record-
keeping and tax planning and (iii) engages third-party service
providers to perform ``back office'' services for Family Clients.
Applicant's investment management services consist of (i) Providing
discretionary asset management services to Family Clients, for example,
by placing orders through broker-dealers for the purchase and sale of
securities on public markets and making direct private equity
investments, (ii) evaluating the performance and strategies of third-
party investment managers, (iii) selecting those managers that it
determines to be appropriate for Family Clients, (iv) engaging managers
on behalf of Family Clients or recommending managers to Family Clients
(depending on whether Applicant has discretionary authority with
respect to the particular accounts involved) and (v) monitoring the
performance of managers and making disposition decisions or
recommendations. From time to time, Applicant engages a third-party
consultant to review and recommend outside managers.
    3. Applicant is paid a fee by the Family Clients. Overall fees have
historically been set at a level that allows Applicant to recover its
direct and overhead expenses without generating a profit. In the
future, Applicant will continue its policy of recovering expenses
without intending to generate a profit.
    4. Applicant represents that it does not hold itself out to the
public as an investment adviser. Applicant represents that it is not
listed in the telephone book, any other directory or Web site as an
investment adviser. Applicant does not engage in any advertising,
attend any investment management-related conferences as a vendor, or
conduct any marketing activities.
    5. Applicant represents that it has no, and in the future will not
have any, clients other than Family Clients. Applicant represents that
it has never solicited, and will not solicit clients other than Family
Clients. Applicant further represents that its sole purpose is to serve
as a ``family office'' for the Family.

Applicant's Legal Analysis

    1. Section 202(a)(11) of the Advisers Act defines the term
``investment adviser'' to mean ``any person who, for compensation,
engages in the business of advising others, either directly or through
publications or writings, as to the value of securities or as to the
advisability of investing in, purchasing, or selling securities, or
who, for compensation and as part of a regular business, issues or
promulgates analyses or reports concerning securities * * *.'' Section
202(a)(11)(G) of the Advisers Act authorizes the SEC to exclude from
the definition of ``investment adviser'' persons that are not within
the intent of section 202(a)(11) of the Advisers Act.
    2. Section 203(a) of the Advisers Act requires investment advisers
to register with the SEC. Section 203(b) of the Advisers Act provides
exemptions from this registration requirement.
    3. Applicant asserts that it does not qualify for any of the
exemptions provided by section 203(b). Applicant also asserts that it
is not prohibited from registering with the SEC under section 203A(a)
because it has assets under management of not less than $25,000,000.
    4. Applicant requests that the SEC declare Applicant and Applicant
Employees not to be persons within the intent of section 202(a)(11).
Applicant requests that the Commission's order include Applicant
Employees because, if an Order was issued with respect to Applicant
only, its officers and employees would not be ``associated persons'' of
a registered investment adviser, and therefore might themselves be
required to register as investment advisers. Applicant states that
there is no public interest in requiring it or Applicant Employees to
be registered under the Advisers Act because Applicant offers
investment advisory services only to Family Clients. Applicant states
that it is a private organization that was formed to be the ``family
office'' for the Family and that will continue to be its sole purpose.

Applicant's Conditions

    Applicant agrees that the requested relief will be subject to the
following conditions:
    1. Applicant will offer and provide investment advisory services
only to Family Clients and will not hold itself out to the public as an
investment adviser.
    2. If Applicant creates a board of directors or its equivalent,
members of the Family will comprise at least a majority of such board
of directors or its equivalent.
    3. Applicant will at all times be owned, directly or indirectly,
exclusively by one or more members of the Family.
    4. At all times all Related Entities that are exempt from
registration as an

investment company under Section 3(c)(1) or Section 3(c)(7) of the
Investment Company Act of 1940 (the ``1940 Act'') will continue to be
exempt from such registration. At all times no Related Entity will be
required to register as an investment company under the 1940 Act.

    For the SEC, by the Division of Investment Management, under
delegated authority.
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-20247 Filed 8-29-08; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Notices]
[Pages 31938-31939]
[FR Doc No: E9-15733]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 13417-000]

Western Technical College; Notice of Preliminary Permit
Application Accepted for Filing and Soliciting Comment; Motions To
Intervene, and Competing Applications

June 25, 2009.
    On March 30, 2009, Western Technical College filed an application,
pursuant to section 4(f) of the Federal Power Act, proposing to study
the feasibility of the Angelo Dam Project, to be located on the La
Crosse River in Monroe County, Wisconsin, and near the town of Sparta,
Wisconsin.
    The proposed project would consist of: (1) The existing Angelo dam
consisting of a 124-foot-long right earth embankment, a 91.5-foot-long,
20-foot-high concrete gravity spillway structure, and a 405-foot-long
left earth embankment; (2) an existing 52-acre impoundment with 140
acre-feet of usable storage; (3) a proposed 9-foot-diameter intake
structure on the right side of the spillway; (4) a proposed forebay;
(5) a proposed 20 by 40 by 28-foot powerhouse containing one generating
unit with a capacity of 205 kilowatts; and (5) a 1,540-foot-long, 600
volt transmission line. The project would have an estimated average
annual generation of 948,500 kilowatt-hours.
    Applicant Contact: Mr. Stephen C. Doret, Mill Road Engineering, 23
Mill Rd., Westborough, MA 01581, phone<PHONE_NUMBER>.
    FERC Contact: Michael Spencer,<PHONE_NUMBER>.
    Deadline for filing comments, motions to intervene, competing
applications (without notices of intent), or notices of intent to file
competing applications: 60 days from the issuance of this notice.
Comments, motions to intervene, notices of intent, and competing
applications may be filed electronically via the Internet. See 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
under the ``e-Filing'' link. If unable to be filed electronically,
documents may be paper-filed. To paper-file, an original and eight
copies should be mailed to: Kimberly D. Bose, Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426. For
more information on how to submit these types of filings please go to
the Commission's Web site located at http://www.ferc.gov/filing-comments.asp.
    More information about this project can be viewed or printed on the

``eLibrary'' link of the Commission's Web site at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number (P-13417) in the
docket number field to access the document. For assistance, call toll-
free 1-866-208-3372.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-15733 Filed 7-2-09; 8:45 am]
BILLING CODE P


[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Notices]
[Pages 53385-53386]
[FR Doc No: 2021-20854]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket No. FRA-2021-0006-N-12]

Proposed Agency Information Collection Activities; Comment
Request

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of information collection; request for comment.

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

SUMMARY: Under the Paperwork Reduction Act of 1995 (PRA) and its
implementing regulations, this notice announces that FRA is forwarding
the Information Collection Request (ICR) abstracted below to the Office
of Management and Budget (OMB) for review and comment. The ICR
describes the information collection and its expected burden. On June
29, 2021, FRA published a notice providing a 60-day period for public
comment on the ICR.

DATES: Interested persons are invited to submit comments on or before
October 27, 2021.

ADDRESSES: Written comments and recommendations for the proposed ICR
should be sent within 30 days of publication of this notice to
www.reginfo.gov/public/do/PRAMain. Find the particular ICR by selecting
``Currently under 30-day Review--Open for Public Comments'' or by using
the search function.

FOR FURTHER INFORMATION CONTACT: Ms. Hodan Wells, Information
Collection Clearance Officer at email<EMAIL_ADDRESS>or
telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The PRA, 44 U.S.C. 3501-3520, and its
implementing regulations, 5 CFR part 1320, require Federal agencies to
issue two notices seeking public comment on information collection
activities before OMB may approve paperwork packages. See 44 U.S.C.
3506, 3507; 5 CFR 1320.8 through 1320.12. On June 29, 2021, FRA
published a 60-day notice in the Federal Register soliciting comment on
the ICR for which it is now seeking OMB approval. See 86 FR 34303. FRA
received no comments in response to this 60-day notice.
    Before OMB decides whether to approve the proposed collection of
information, it must provide 30 days for public comment. Federal law
requires OMB to approve or disapprove paperwork packages between 30 and
60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5
CFR 1320.10(b); see also 60 FR 44978, 44983 (Aug. 29, 1995). OMB
believes the 30-day notice informs the regulated community to file
relevant comments and affords the agency adequate time to digest public
comments before it renders a decision. 60 FR 44983 (Aug. 29, 1995).
Therefore, respondents should submit their respective comments to OMB
within 30 days of publication to best ensure having their full effect.
    Comments are invited on the following ICR regarding: (1) Whether
the information collection activities are necessary for FRA to properly
execute its functions, including whether the information will have
practical utility; (2) the accuracy of FRA's estimates of the burden of
the information collection activities, including the validity of the
methodology and assumptions used to determine the estimates; (3) ways
for FRA to enhance the quality, utility, and clarity of the information
being collected; and (4) ways to minimize the burden of information
collection activities on the public, including the use of automated
collection techniques or other forms of information technology.
    The summary below describes the ICR that FRA will submit for OMB
clearance as the PRA requires:
    Title: Hours of Service Regulations.
    OMB Control Number: 2130-0005.
    Abstract: FRA's hours of service recordkeeping regulations (49 CFR
part 228), amended as mandated by the Rail Safety Improvement Act of
2008, include substantive hours of service requirements for train
employees (i.e., locomotive engineers and conductors) providing
commuter and intercity rail passenger transportation (e.g., maximum on-
duty periods, minimum off-duty periods, and other limitations). The
regulations also require railroads to evaluate passenger train employee
work schedules for risk of employee fatigue and implement measures to
mitigate the risk, and to submit to FRA for approval certain schedules
and mitigation plans. Finally, the regulations include recordkeeping
and reporting provisions requiring railroads to keep hours of service
records, and report excessive service, for train employees, signal
employees, and dispatching service employees on both freight and
passenger railroads.
    FRA uses the information collected to verify that railroads do not
require or allow their employees to exceed maximum on-duty periods, and
ensure that they abide by minimum off-duty periods, and adhere to other
limitations in this regulation, to enhance rail safety and reduce the
risk of accidents/

incidents caused, or contributed to, by train employee fatigue.
    Type of Request: Extension without change (with changes in
estimates) of a currently approved collection.
    Affected Public: Businesses (railroads and signal contractors).
    Form(s): FRA F 6180.3.
    Respondent Universe: 796 railroads, signal contractors and
subcontractors.
    Frequency of Submission: On occasion.
    Total Estimated Annual Responses: 18,660,400.
    Total Estimated Annual Burden: 1,283,507 hours.
    Total Estimated Annual Burden Hour Dollar Cost Equivalent:
$99,404,352.
    Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi),
FRA informs all interested parties that a respondent is not required to
respond to, conduct, or sponsor a collection of information that does
not display a currently valid OMB control number.
    Authority: 44 U.S.C. 3501-3520.

Brett A. Jortland,
Acting Chief Counsel.
[FR Doc. 2021-20854 Filed 9-24-21; 8:45 am]
BILLING CODE 4910-06-P