[Federal Register Volume 83, Number 123 (Tuesday, June 26, 2018)]
[Proposed Rules]
[Pages 29731-29736]
[FR Doc No: 2018-13720]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 300

[EPA-HQ-SFUND-2003-0010; FRL-9979-86--Region 7]

National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List: Partial Deletion of the Omaha Lead Superfund
Site

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; notice of intent.

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SUMMARY: Environmental Protection Agency (EPA) Region 7 is issuing a
Notice of Intent to Delete 101 residential parcels of the Omaha Lead
Superfund site located in Omaha, Nebraska, from the National Priorities
List (NPL) and requests public comments on this proposed action. The
NPL, promulgated pursuant to section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), as amended, is

an appendix of the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP). The EPA and the state of Nebraska, through the
Nebraska Department of Environmental Quality, determined that all
appropriate response actions under CERCLA were completed at the
identified parcels. However, this deletion does not preclude future
actions under CERCLA.
    This partial deletion pertains to 101 residential parcels. The
remaining parcels will remain on the NPL and are not being considered
for deletion as part of this action.

DATES: Comments must be received on or before July 26, 2018.

ADDRESSES: Submit your comments, identified by Docket ID no. EPA-HQ-
SFUND-2003-0010, by one of the following methods:
     https://www.regulations.gov. Follow the on-line
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information or
other information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
     Email: [email protected] or
[email protected].
     Mail: Environmental Protection Agency Region 7, 11201
Renner Boulevard, Lenexa, KS 66219 Attention: Elizabeth Hagenmaier,
SUPR Division or Tamara Freeman, ECO Office.
     Hand delivery: Environmental Protection Agency Region 7,
11201 Renner Boulevard, Lenexa, KS 66219. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
     For additional submission methods, please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section.
    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-
2003-0010. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or email. The https://www.regulations.gov website
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through https://www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: The docket contains the information that was the basis for
the partial deletion, specifically the documentation regarding the
results of soil cleanup activities. Information regarding the optional
voluntary cleanup activities such as the lead-based paint stabilization
and interior dust sampling is not provided in the docket but is
available from EPA on a case-by-case basis. Certain other material,
such as copyrighted material, will be publicly available only in the
hard copy.
    All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in the hard
copy. Publicly available docket materials are available either
electronically in https://www.regulations.gov or in hard copy at: USEPA
Region 7 Records Center at 11201 Renner Boulevard, Lenexa, Kansas
66219, between 8:00 a.m. and 4:00 p.m.
    The Omaha public libraries also have computer resources available
to assist the public. The W Dale Clark Library, located at 215 S 15th
Street, Omaha, NE 68102 is centrally located within the site boundary.

FOR FURTHER INFORMATION CONTACT: Elizabeth Hagenmaier, Remedial Project
Manager, Environmental Protection Agency, Region 7, SUPR/LMSE, 11201
Renner Boulevard, Lenexa, KS 66219, telephone<PHONE_NUMBER>, email:
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' refer to EPA. This section provides additional information by
addressing the following:

I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Background and Basis for Intended Partial Site Deletion

I. Introduction

    EPA Region 7 is proposing to delete 101 residential parcels of the
Omaha Lead Superfund site, from the NPL and is requesting public
comment on this proposed action. The table of 101 Properties Proposed
for the Third Partial Deletion of Properties from the Omaha Lead
Superfund site 2018 (EPA-HQ-SFUND-2003-0010-1900) identifies specific
properties included for this proposed partial deletion. The location of
the 101 properties are shown on Figure 1 ``2018 Partial Deletion Omaha
Lead Site'' (EPA-HQ-SFUND-2003-0010-1895). The NPL constitutes appendix
B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant
to section 105 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, or CERLA as amended. EPA
maintains the NPL as those sites that appear to present a significant
risk to public health, welfare, or the environment. Sites on the NPL
may be the subject of remedial actions financed by the Hazardous
Substance Superfund, or Fund. This partial deletion of the Omaha Lead
Superfund site is proposed in accordance with 40 CFR 300.425(e) and is
consistent with the Notice of Policy Change: Partial Deletion of Sites
Listed on the National Priorities List and 60 FR 55466 (November 1,
1995). As described in 300.425(e)(3) of the NCP, a portion of a site
deleted from the NPL remains eligible for Fund-financed remedial action
if future conditions warrant such actions.
    EPA will accept comments on the proposal to partially delete this
site for

thirty (30) days after publication of this document in the Federal
Register.
    Section II of this document explains the criteria for deleting
sites from the NPL. Section III discusses procedures that EPA is using
for this action. Section IV discusses the 101 residential parcels of
the Omaha Lead Superfund site and demonstrates how they meet the
deletion criteria.

II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from
the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted
from the NPL where no further response is appropriate. In making such a
determination pursuant to 40 CFR 300.425(e), EPA will consider, in
consultation with the state, whether any of the following criteria have
been met:
    i. Responsible parties or other persons have implemented all
appropriate response actions required;
    ii. all appropriate Fund-financed response under CERCLA has been
implemented, and no further response action by responsible parties is
appropriate; or
    iii. the remedial investigation has shown that the release poses no
significant threat to public health or the environment and, therefore,
the taking of remedial measures is not appropriate.
    Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-
year reviews to ensure the continued protectiveness of remedial actions
where hazardous substances, pollutants, or contaminants remain at a
site above levels that allow for unlimited use and unrestricted
exposure. EPA conducts such five-year reviews even if a site is deleted
from the NPL. EPA may initiate further action to ensure continued
protectiveness at a deleted site if new information becomes available
that indicates it is appropriate. Whenever there is a significant
release from a site deleted from the NPL, the deleted site may be
restored to the NPL without application of the hazard ranking system.

III. Deletion Procedures

    The following procedures apply to deletion of the 101 residential
parcels of the Site:
    (1) EPA consulted with the state before developing this Notice of
Intent for Partial Deletion.
    (2) EPA has provided the state 30 working days for review of this
action prior to this publication.
    (3) In accordance with the criteria discussed above, EPA has
determined that no further response is appropriate.
    (4) The state of Nebraska, through the Nebraska Department of
Environmental Quality, has concurred with the deletion of the 101
residential parcels of the Omaha Lead Superfund site, from the NPL.
    (5) Concurrently, with the publication of this Notice of Intent for
Partial Deletion in the Federal Register, a notice is being published
in a major local newspaper, Omaha World Herald. The newspaper announces
the 30-day public comment period concerning the Notice of Intent for
Partial Deletion of the Site from the NPL.
    (6) The EPA placed copies of documents supporting the proposed
partial deletion in the deletion docket, and made these items available
for public inspection and copying at the site information repositories
identified above.
    If comments are received within the 30-day comment period on this
document, EPA will evaluate and respond appropriately to the comments
before making a final decision to delete the 101 residential parcels.
If necessary, EPA will prepare a Responsiveness Summary to address any
significant public comments received. After the public comment period,
if EPA determines it is still appropriate to delete the 101 residential
parcels of the Omaha Lead Superfund site, the Regional Administrator
will publish a final Notice of Partial Deletion in the Federal
Register. Public notices, public submissions and copies of the
Responsiveness Summary, if prepared, will be made available to
interested parties and included in the site information repositories
listed above.
    Deletion of a portion of a site from the NPL does not itself
create, alter, or revoke any individual's rights or obligations.
Deletion of a portion of a site from the NPL does not in any way alter
EPA's right to take enforcement actions, as appropriate. The NPL is
designed primarily for informational purposes and to assist EPA
management. Section 300.425(e)(3) of the NCP states that the deletion
of a site from the NPL does not preclude eligibility for future
response actions, should future conditions warrant such actions.

IV. Background and Basis for Intended Partial Site Deletion

    The following information provides EPA's rationale for deleting the
101 residential parcels of the Omaha Lead Superfund site from the NPL,
as previously identified.

Site Background and History

    The Omaha Lead Superfund site, or OLS, [CERCLIS ID #NESFN0703481])
includes surface soils present at residential properties, child-care
centers, and other residential-type properties in the city of Omaha,
Douglas County, Nebraska. The properties were contaminated as a result
of deposition of aerial emissions from historic lead smelting and
refining operations. The OLS encompasses the eastern portion of the
greater metropolitan area in Omaha, Nebraska. The site extends from the
Douglas-Sarpy County line on the south, north to Read Street and from
the Missouri River on the east to 56th Street on the west. The site is
centered around downtown Omaha, Nebraska, where two former lead-
processing facilities operated. American Smelting and Refining Company,
Inc., or ASARCO, operated a lead refinery at 500 Douglas Street in
Omaha, Nebraska, for over 120 years. Aaron Ferer & Sons Company, and
later Gould Electronics, Inc., operated a lead battery recycling plant
located at 555 Farnam Street. Both ASARCO and Aaron Ferer/Gould
facilities released lead-containing particulates into the atmosphere
from their smokestacks. The lead particles were subsequently deposited
on surrounding residential properties.
    Beginning in 1984, the Douglas County Health Department, or DCHD
monitored ambient air quality around the ASARCO facility. This air
monitoring routinely measured ambient air lead concentrations in excess
of the ambient air standard. Between 1972 and 1998 the DCHD measured
the blood lead level in children within the county. The results of the
measurements indicated a high incidence of elevated blood lead level in
children. Blood lead screening of children living in zip codes located
east of 45th Street consistently exceeded 10 micrograms per deciliter
([mu]g/dl) more frequently than children living elsewhere in the
county.
    In 1998, the Omaha City Council requested assistance from the EPA
to address the high incidence of children found with elevated blood
lead levels by the DCHD. In 1999, the EPA initiated an investigation
into the lead contamination under the authority of CERCLA. On April 30,
2003, the OLS was listed on the NPL (68 FR 23077).
    The OLS includes those residential properties where EPA determined
through soil sampling that soil lead levels represent an unacceptable
risk to human health. Residential properties where soil sampling
indicates that lead concentrations in the soil are below a level that
represent an unacceptable risk

are not included in the Site. Residential properties include those with
high accessibility to sensitive populations (children seven years of
age and younger [0 to 84 months] and pregnant or nursing women). The
properties include single and multi-family dwellings, apartment
complexes, child daycare facilities, vacant lots in residential areas,
schools, churches, community centers, parks, greenways, and any other
areas where children may be exposed to site-related contaminated media.
Commercial and industrial properties are excluded from the definition
of the Site.
    The residential properties proposed for deletion from the NPL site
were cleaned up under both CERCLA removal and remedial authority.
Regardless of the authority used for the remediation of yards, the
cleanup levels for soils for all the properties proposed for deletion
were the same.

Response Actions

    The initial EPA response was conducted under CERCLA removal
authority. Due to the size of the site and the very large number of
individual properties, it was necessary to prioritize sites for
cleanup. The prioritization was based on factors such as the elevated
blood level of children at each property and the lead concentration in
the soil at each property. The result was a series of action levels
that reflected the priority of categories of sites. Consequently, the
action level for the site changed over time from 2,500 mg/kg to 400 mg/
kg, as the highest priority sites were cleaned up first. The cleanup
level was established using the Integrated Exposure Uptake Biokinetic,
or IEUBK model to determine the concentration to which the lead is
cleaned up at each property within the site. The cleanup level for the
OLS is 400 mg/kg of lead in the soil. The cleanup level of 400 mg/kg
was selected to allow for unlimited use and unrestricted exposure. The
cleanup level has not changed, and all properties, regardless of the
action level, were cleaned up to 400 mg/kg.

Removal Activities

    Beginning in March 1999, the EPA began collecting soil samples from
properties that provided licensed child daycare services. The initial
removal action dated August 2, 1999, consisted of excavation and
replacement of contaminated soil where the lead concentration exceeded
the action levels identified in the Action Memorandum. Response actions
were implemented at properties that met either of the following
criteria:
     A child seven years of age or younger (0 to 84 months)
residing at the property was identified with an elevated blood level,
or EBL exceeding 15 [mu]g/dl (this EBL was reduced to 10 [mu]g/dl in
August 2001) and a soil sample collected from a non-foundation quadrant
exhibited lead concentrations greater than 400 mg/kg, or
     A property was a used as a child-care facility and a soil
sample collected from a non-foundation quadrant exhibited a lead
concentration greater than 400 mg/kg.
    On August 22, 2002, EPA initiated a second removal action. This
second removal action included all other residential type properties
where the maximum non-foundation soil lead concentration exceeded an
action level of 2,500 mg/kg. The 2002 Action Memorandum explicitly
identifies the possibility of lead-based paint as a potential
contributor to lead contamination of soils within thirty inches of the
foundation of a painted structure. Due to the potential contribution of
deteriorating lead-based paint near the foundations of structures, a
lead concentration greater than 400 mg/kg in the soil in the drip zone
(areas near structure foundations) was not, in itself, sufficient to
trigger soil removal. However, if a soil sample from any mid-yard
quadrant exceeded the action level, soil was removed from all areas of
the property exceeding the 400 mg/kg cleanup level, including the drip
zone. In November 2003, EPA amended the second removal action to reduce
the action level to 1,200 mg/kg. In March 2004, EPA amended the second
removal action to combine the two removal actions. In March 2005, EPA
amended the removal action to reduce the action level from 1,200 mg/kg
to 800 mg/kg.
    At properties determined to be eligible for response under either
of the Action Memoranda soil with lead concentrations greater than the
cleanup level was excavated and replaced with clean soil and the
excavated areas were revegetated.
    Beginning with the construction season of 2005, the scope of the
removal action was expanded to address the requirements of the 2004
Interim ROD to include: (1) Stabilization of deteriorating exterior
lead-based paint at properties where the continued effectiveness of the
soil remediation was threatened; (2) response to interior dust at
properties where interior dust lead levels exceeded applicable
criteria; (3) public health education; and (4) participation in a
comprehensive remedy with other agencies and organizations that
addresses all identified lead hazards in the Omaha community.

Remedial Investigation/Feasibility Study (RI/FS)--Human Health Risk
Assessment

    As part of the RI/FS EPA developed a Human Health Risk Assessment,
or HHRA for the site using site-specific information collected during
the OLS Remedial Investigation. Lead was identified as the primary
contaminant of concern. The HHRA also identified arsenic as a potential
contaminant of concern, but arsenic was eliminated based on its
relatively low overall risk to residents and lack of connection to the
release from the industrial sources being addressed by this Superfund
action.
    The risk assessment for lead focused on young children under the
age of seven (0 to 84 months) who are site residents. Young children
are most susceptible to lead exposure because they have higher contact
rates with soil or dust, absorb lead more readily than adults, and are
more sensitive to the adverse effects of lead than are older children
and adults. The effect of greatest concern in children is impairment of
the nervous system, including learning deficits, reduced intelligence,
and adverse effects on behavior. The IEUBK model for lead in children
was used to evaluate the risks posed to young children (0 to 84 months)
resulting from the lead contamination at the site. Because lead does
not have a nationally-approved reference dose (RfD), cancer slope
factor, or other accepted toxicological factor which can be used to
assess risk, standard risk assessment methods cannot be used to
evaluate the health risks associated with lead contamination. The
modeling results determined that there was an unacceptable risk to
young children from exposure to soils above 400 mg/kg.
    In October 2008, EPA released a draft Final Remedial Investigation.
Based on the 2008 data set, EPA established the boundary of the Final
Focus Area for the Site. The Final Focus Area is generally bounded by
Read Street to the north, 56th Street to the west, Harrison Street
(Sarpy County line) to the south, and the Missouri River to the east,
and encompasses 17,280 acres (27.0 square miles). By the time the Final
Remedial Investigation was completed, EPA had collected soil samples
from 37,076 residential properties, including 34,565 properties within
the Final Focus Area's boundary. In total, 34.2 percent of properties
sampled through completion of the 2008 RI had at least one mid-yard
sample with a soil lead level exceeding

400 mg/kg. In addition to soil sampling, EPA collected dust samples
from the interior of 159 residences to support the OLS Human Health
Risk Assessment.

Record of Decision

    EPA completed the Final Record of Decision, or ROD for the OLS in
May 2009. The Remedial Action Objective is to reduce the risk of
exposure of young children to lead such that an individual child, or
group of similarly exposed children, have no greater than a 5 percent
chance of having a blood-lead concentration exceeding 10 [mu]g/dl. The
selected remedy includes the following components:

 Excavation and Replacement of Soils Exceeding 400 mg/kg Lead
 Stabilization of Deteriorating Exterior Lead-Based Paint
 Response to Lead-Contaminated Interior Dust
 Health Education
 Operation of a Local Lead Hazard Registry as a type of
Institutional Control

    Each of these components is described below.

Remedial Actions

Excavation and Replacement of Soils Exceeding 400 mg/kg Lead

    Excavation of soils was accomplished using lightweight excavation
equipment and hand tools in the portions of the yard where the
concentration of lead in the surface soil exceeded 400 mg/kg.
Excavation continued in all quadrants, play zones, and drip zone areas
exceeding 400 mg/kg lead until the residual lead concentration measured
at the exposed surface of the excavation was less than 400 mg/kg in the
upper foot, or less than 1,200 mg/kg at depths greater than one foot.
Typically, soil excavation depths were between six and ten inches in
depth. Soils in garden areas were excavated until reaching a residual
concentration of less than 400 mg/kg in the upper two feet measured
from the original surface, or less than 1,200 mg/kg at depths greater
than two feet.
    After confirmation sampling verified that cleanup goals were
achieved, the excavated areas were backfilled with clean soil to
original grade and sod was placed over the remediated areas.
    EPA's remediation contractors stockpiled contaminated soil in
staging areas, collected samples, and subsequently transported soil to
an off-site subtitle D solid waste disposal landfill for use as daily
cover and/or disposal.

Stabilization of Deteriorating Exterior Lead-Based Paint

    EPA used the lead-based paint assessment protocol, presented in the
Final Lead-Based Paint Recontamination Study Report prepared for the
OLS, to determine eligibility for exterior lead-based paint
stabilization at those properties where soil lead concentrations
exceeded 400 mg/kg. At those properties where the exterior lead-based
paint assessment identified a threat from deteriorating paint to the
continued protectiveness of the soil remedy, the owner of the property
was offered stabilization of painted surfaces on structures located on
the property. Exterior lead-based paint stabilization is not mandatory
and was provided to those qualifying property owners who chose to have
their exterior paint stabilized. Removal of loose and flaking lead-
based paint was performed using lead-safe practices as described in
EPA's Renovate, Repair and Painting Rule. The practices include wet
scraping, and collection of paint chips using plastic sheeting. Scraped
areas were primed and all previously painted surfaces had two coats of
paint applied.

Response to Lead-Contaminated Interior Dust

    As part of the final remedy, residents at eligible properties are
provided the opportunity to have interior dust sampled. The interior
dust response is not mandatory, and the resident may choose to decline.
If the property owner agrees, EPA collects samples of dust from
interior surfaces. The analytical data is provided to the resident/
tenant in a letter and the letter informs them whether any HUD criteria
are exceeded. The DCHD conducts follow up activities at any residence
where the concentration of lead in the interior dust levels exceed the
HUD criteria. For those residences that qualify and where the resident
agrees, the residents are provided with a high-efficiency household
vacuum cleaner, training on the maintenance and the importance of
proper usage of the vacuum, and education on mitigation of household
lead hazards. The DCHD also provides training and education regarding
the need to mitigate interior dust.
    Exterior lead-based paint stabilization and interior dust response
were conducted retroactively at properties where soil cleanups were
performed under CERCLA removal authority, as well as to properties
addressed under CERCLA remedial authority.

Health Education

    There are a number of identified lead hazards within the OLS, not
all of which are connected to the contaminant source of the OLS. To
better address all potential lead sources within the OLS, a health
education program was developed and continues to be implemented to
increase public awareness and mitigate exposure. An active educational
program continues in cooperation with agencies and organizations that
include ATSDR, the Nebraska Department of Health and Human Services, or
NDHHS, DCHD, local non-governmental organizations, and other interested
parties. The following, although not an exhaustive list, indicate the
types of educational activities provided at the Site:

     Support for in-home assessments for children identified
with elevated blood lead levels.
     Development and implementation of lead poisoning
prevention curriculum in schools.
     Support for efforts to increase community-wide blood lead
monitoring.
     Physicians' education for diagnosis, treatment, and
surveillance of lead exposure.
     Operation of Public Information Centers to distribute
information, and respond to questions about the EPA response activities
and lead hazards in the community.
     Use of mass media (television, radio, internet, print
media, etc.) to distribute health education messages.
     Development and distribution of informational tools such
as fact sheets, brochures, refrigerator magnets, etc., to inform the
public about lead hazards and measures that can be taken to avoid or
eliminate exposure.

Institutional Controls

    The Omaha Lead Registry, (available at www.omahalead.org) is a
geographic information system, or GIS, based database that provides the
public with on-line access to the status of the EPA investigation and
response actions. EPA notifies residents and property owners about the
information that is available through the lead hazard registry as part
of the transmittal sent at the completion of soil remediation at each
individual property.

Community Involvement

    EPA worked extensively with the Omaha community through a variety
of communication vehicles including, but not limited to: Local speaking
engagements, participation in citizens' groups and city council
meetings, local public access television, public service

announcements on local cable television, coverage on radio, television,
in local and national newspapers, mass mailings of informational
materials, public outreach by telephone, conducting public meetings,
and through the EPA website.
    EPA has been performing outreach to Omaha citizens, elected
officials, school officials, health officials, the media, nonprofit
groups, and others since becoming involved in the project in an effort
to convey information about the hazards of lead poisoning, particularly
the ways that lead affects the health of children. The EPA participated
in numerous formal and informal meetings to explain EPA's role and
commitment in Omaha, convey information about the Superfund process,
and provide general information about the site and lead contamination.
EPA responds to inquiries on a daily basis regarding the site and
individual property owner's sampling results.
    In January 2004, a Community Advisory Group, or CAG was formed for
the OLS site. A CAG is a committee, task force, or board made up of
residents affected by a Superfund site. They provided a public forum
where representatives with diverse community interests could present
and discuss their needs and concerns related to the site and the
cleanup process. The CAG was discontinued after the last meeting was
held in October 2011. A new group, Child Lead Poisoning Prevention
Group, formed. The first meeting of the Child Lead Poisoning Group was
held at City Hall in May 2012. The Group is no longer active.

Five-Year Review

    EPA completed the first Five-Year Review for the site in September
2014. Five-Year Reviews for the site are statutory. The triggering
action for the Five-Year Review is the completion of the Final Record
of Decision for Operable Unit 2, completed in May 2009.
    The protectiveness of the remedy was deferred in the Five-Year
Review because the remedy had not been completed at all of the
properties within the site boundary. However, cleanup activities at the
101 residential parcels included in this partial deletion action are
complete and protective of human health. There are no issues or
recommendations in the Five-Year Review related to these 101
residential parcels proposed for deletion.
    The next Five-Year Review will be completed in 2019.

Summary of EPA Work Completed

Soil Testing and Remediation

    EPA Region 7 completed the EPA lead portion of the remedial action
on December 29, 2015. The city of Omaha and the DCHD will be performing
the remaining field work. As of December 29, 2015, EPA collected soil
samples from 42,047 properties. There are 489 remaining properties to
be sampled. The EPA has obtained access to collect samples from 163 of
the 489 properties.
    Based on the soil sampling results, 14,019 properties were eligible
for soil remediation. The EPA remediated lead contaminated soil at
13,090 properties (93 percent) of the properties that were eligible for
remediation. There are approximately 929 remaining properties that are
eligible for soil remediation. The EPA obtained access to remediate
fifty-one of the remaining properties.

Lead-Based Paint Testing and Stabilization

    The EPA tested 12,057 properties for the presence of lead-based
paint, or LBP. 6,782 properties qualify for LBP stabilization. The EPA
completed LBP stabilization on 6,249,(92 percent) of the eligible
properties.

Dust Sampling

    The EPA collected dust samples from 3,933 properties consisting of
4,477 residences for lead contaminated dust. These numbers reflect the
fact that some of the properties are multi-residence properties.

Continuing Remedial Action

    EPA completed Cooperative Agreements with the city of Omaha and the
DCHD that provide funds to allow these local government agencies to
continue efforts to obtain access to the remaining properties and
conduct sampling and remediation activities at those properties where
they obtain access.

Determination That the Criteria for Deletion Has Been Achieved

    In accordance with 40 CFR 300.425(e), Region 7 of the EPA finds
that the 101 residential parcels of the Omaha Lead Superfund site (the
subject of this deletion) meet the substantive criteria for deletion
from the NPL. EPA has consulted with and has the concurrence of the
state of Nebraska. All responsible parties or other persons have
implemented all appropriate response actions required. All appropriate
Fund-financed response under CERCLA was implemented, and no further
response action by responsible parties is appropriate.
    The implemented remedy at the 101 residential parcels have achieved
the degree of cleanup specified in the ROD for all pathways of
exposure. All selected remedial action objectives and associated
cleanup levels are consistent with agency policy and guidance. No
further Superfund response is needed to protect human health and the
environment.

List of Subjects in 40 CFR Part 300

    Environmental Protection, Air Pollution Control, Chemicals,
Hazardous waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.

    Authority: 33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626,
77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3
CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp.,
p. 193.

    Dated: June 13, 2018.
James B. Gulliford,
Regional Administrator, Region 7.
[FR Doc. 2018-13720 Filed 6-25-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register: February 2, 2009 (Volume 74, Number 20)]
[Notices]
[Page 5889]
[DOCID:fr02fe09-103]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

Reports, Forms and Recordkeeping Requirements; Agency Information
Collection Activity Under OMB Review

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Notice.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), this notice announces that the Information
Collection Request (ICR) abstracted below has been forwarded to the
Office of Management and Budget (OMB) for review and comment. The ICR
describes the nature of the information collections and their expected
burden. The Federal Register Notice with a 60-day comment period was
published on November 5, 2008 [73 FR 65920].

DATES: Comments must be submitted on or before March 4, 2009.

FOR FURTHER INFORMATION CONTACT: Mike Pyne at the National Highway
Traffic Safety Administration, Office of Rulemaking (NVS-123), 202-366-
4171, 1200 New Jersey Avenue, SE., Room W43-457, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

National Highway Traffic Safety Administration

    Title: 49 CFR 571.403, Platform lift systems for motor vehicles and
49 CFR 571.404, Platform lift installations in motor vehicles.
    OMB Number: 2127-0621.
    Type of Request: Extension of a currently approved collection.
    Abstract: FMVSS No. 403, Platform lift systems for motor vehicle,
establishes minimum performance standards for platform lifts designed
for installation on motor vehicles. Its purpose is to prevent injuries
and fatalities to passengers and bystanders during the operation of
platform lifts that assist persons with limited mobility in entering
and leaving a vehicle. FMVSS No. 404, ``Platform lift installations in
motor vehicles,'' places specific requirements on vehicle manufacturers
or alterers who install platform lifts in new vehicles. Under these
regulations, lift manufacturers must certify that their lifts meet the
requirements of FMVSS No. 403 and must declare the certification on the
owner's manual insert, the installation instructions, and the lift
operating instruction label. Certification of compliance with FMVSS No.
404 is on the certification label already required of vehicle
manufacturers and alterers under 49 CFR part 567. Therefore, lift
manufacturers must produce an insert that is placed in the vehicle
owner's manual, installation instructions, and one or two labels that
are placed near the controls of the lift.
    Affected Public: Business or other-for-profit organizations.
    Estimated Total Annual Burden: There is no burden to the general
public.

ADDRESSES: Send comments, within 30 days, to the Office of Information
and Regulatory Affairs, Office of Management and Budget, 725 17th
Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer.
    Comments are invited on: Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Department, including whether the information will have practical
utility; the accuracy of the Department's estimate of the burden of the
proposed information collection; ways to enhance the quality, utility
and clarity of the information to be collected; and ways to minimize
the burden of the collection of information on respondents, including
the use of automated collection techniques or other forms of
information technology. A comment to OMB is most effective if OMB
receives it within 30 days of publication.

    Issued: January 27, 2009.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
 [FR Doc. E9-2104 Filed 1-30-09; 8:45 am]

BILLING CODE 4910-59-P


[Federal Register Volume 83, Number 30 (Tuesday, February 13, 2018)]
[Notices]
[Pages 6174-6175]
[FR Doc No: 2018-02813]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

[9974-34-ORD]

Ambient Air Monitoring Reference and Equivalent Methods;
Designation of One New Reference Method

AGENCY: Office of Research and Development; Environmental Protection
Agency.

ACTION: Notice of the designation of a new reference method for
monitoring ambient air quality.

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SUMMARY: Notice is hereby given that the Environmental Protection
Agency (EPA) has designated one new reference method for measuring
concentrations of nitrogen dioxide (NO2) in ambient air.

FOR FURTHER INFORMATION CONTACT: Robert Vanderpool, Exposure Methods
and Measurements Division (MD-D205-03), National Exposure Research
Laboratory, U.S. EPA, Research Triangle Park, North Carolina 27711.
Phone:<PHONE_NUMBER>. Email: [email protected].

SUPPLEMENTARY INFORMATION: In accordance with regulations at 40 CFR
part 53, the EPA evaluates various methods for monitoring the
concentrations of those ambient air pollutants for which EPA has
established National Ambient Air Quality Standards (NAAQS) as set forth
in 40 CFR part 50. Monitoring methods that are determined to meet
specific requirements for adequacy are designated by the EPA as either
reference or equivalent methods (as applicable), thereby permitting
their use under 40 CFR part 58 by States and other agencies for
determining compliance with the NAAQS. A list of all reference or
equivalent methods that have been previously designated by EPA may be
found at http://www.epa.gov/ttn/amtic/criteria.html.
    The EPA hereby announces the designation of one new reference
method for measuring concentrations of NO2 in ambient air.
This designation is made under the provisions of 40 CFR part 53, as
amended on October 26, 2015 (80 FR 65291-65468).
    The new reference method for NO2 is an automated method
(analyzer) utilizing the measurement principle based on gas phase
chemiluminescence. This newly designated reference method is identified
as follows:
    RFNA-0118-249, ``Environnement S. A. Model AC32e and AC32e*
Chemiluminescent NO, NOX, NO2 Analyzer,''
operated with user selectable ranges of 0-1 ppm or 0-10 ppm, at any
temperature in the range of 0 [deg]C to 40 [deg]C, equipped with a 5-
micron PTFE sample inlet filter, molybdenum NOX converter
operating at 340 [deg]C, heated catalytic ozone scrubber, external
pump, operating with a sample flow rate of 0.66 Lpm (1.00 Lpm with
optional sample dryer), with an ozone flow rate of 0.06 Lpm, and
operating from a 115V/60Hz, 230V/50Hz power source. Includes 7'' touch
screen and USB and Ethernet outputs. Model AC32e* does not contain
touch screen and communicates via user-provided computer, smartphone,
or tablet. Analyzer operated and maintained in accordance with the
Model AC32e Technical Manual.
    This application for a reference method determination for this
NO2 method was received by the Office of Research and
Development on December 6, 2017. This analyzer is commercially
available from the applicant, Environment S.A., 111, bd Robespierre,
78300 Poissy, France.
    A representative test analyzer was tested in accordance with the
applicable test procedures specified in 40 CFR part 53, as amended on
October 26, 2015. After reviewing the results of those tests and other
information submitted by the applicant, EPA has determined, in
accordance with part 53, that this method should be designated as a
reference method.
    As a designated reference method, this method is acceptable for use
by states and other air monitoring agencies under the requirements of
40 CFR part 58, Ambient Air Quality Surveillance. For such purposes,
this method must be used in strict accordance with the operation or
instruction manual associated with the method and subject to any
specifications and limitations (e.g., configuration or operational
settings) specified in the designated method description (see the
identification of the method above).
    Use of the method also should be in general accordance with the
guidance and recommendations of applicable sections of the ``Quality
Assurance Handbook for Air Pollution Measurement Systems, Volume I,''
EPA/600/R-94/038a and ``Quality Assurance Handbook for Air Pollution
Measurement Systems, Volume II, Ambient Air Quality Monitoring
Program,'' EPA-454/B-13-003, (both

available at http://www.epa.gov/ttn/amtic/qalist.html). Provisions
concerning modification of such methods by users are specified under
Section 2.8 (Modifications of Methods by Users) of Appendix C to 40 CFR
part 58.
    Consistent or repeated noncompliance with any of these conditions
should be reported to: Director, Exposure Methods and Measurements
Division (MD-E205-01), National Exposure Research Laboratory, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711.
    Designation of this reference method is intended to assist the
States in establishing and operating their air quality surveillance
systems under 40 CFR part 58. Questions concerning the commercial
availability or technical aspects of the method should be directed to
the applicant.

    Dated: February 5, 2018.
Timothy H. Watkins,
Acting Director, National Exposure Research Laboratory.
[FR Doc. 2018-02813 Filed 2-12-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 67 (Friday, April 7, 2023)]
[Notices]
[Pages 20924-20930]
[FR Doc No: 2023-07266]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97240; File No. SR-CBOE-2023-016]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
its Fees Schedule

April 3, 2023.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on March 21, 2023, Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe
Options'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to amend its Fees Schedule. The text of the proposed rule change is
provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), at the Exchange's Office of the
Secretary, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its Fees Schedule to modify the fee
for the SPX (and SPXW) Floor Market-Maker Tier Appointment Fee.\3\
---------------------------------------------------------------------------

    \3\ The Exchange initially filed the proposed fee change, among
other changes, on June 1, 2022 (SR-CBOE-2022-026). On June 10, 2022,
the Exchange withdrew that filing and submitted SR-CBOE-2022-029. On
August 5, 2022, the Exchange withdrew that filing and submitted SR-
CBOE-2022-042. On September 26, 2022, the Exchange withdrew that
filing and submitted SR-CBOE-2022-050 to address the proposed fee
change relating to the SPX/SPXW Floor Market-Maker Tier Appointment
Fee. On November 23, 2022, the Exchange advised of its intent to
withdraw that filing and submitted SR-CBOE-2022-060. On January 20,
2023, the Exchange withdrew SR-CBOE-2022-060 and submitted SR-CBOE-
2023-008. On March 21, 2023, the Exchange withdrew SR-CBOE-2023-008
and submitted this filing. No comment letters were received in
connection with any of the foregoing rule filings.
---------------------------------------------------------------------------

    By way of background, Exchange Rule 5.50(g)(2) provides that the
Exchange may establish one or more types of tier appointments and
Exchange Rule 5.50(g)(2)(B) provides such tier appointments are subject
to such fees and charges the Exchange may establish. In 2010, the
Exchange established the SPX Tier Appointment and adopted an initial
fee of $3,000 per Market-Maker trading permit, per month.\4\ The SPX
(and SPXW) Tier Appointment fee for Floor Market-Makers currently
applies to any Market-Maker that executes any contracts in SPX and/or
SPXW on the trading floor.\5\ The Exchange now seeks to increase the
fee for the SPX/SPXW Floor Market-Maker Tier Appointment from $3,000
per Market-Maker Floor Trading Permit to $5,000 per Market-Maker Floor
Trading Permit.
---------------------------------------------------------------------------

    \4\ See Securities Exchange Act Release No. 62386 (June 25,
2010), 75 FR 38566 (July 2, 2010) (SR-CBOE-2010-060).
    \5\ The Exchange notes that the fee is not assessed to a Market-
Maker Floor Permit Holder who only executes SPX (including SPXW)
options transactions as part of multi-class broad-based index spread
transactions. See Cboe Options Fees Schedule, Market-Maker Tier
Appointment Fees, Notes.
---------------------------------------------------------------------------

    In connection with the proposed change, the Exchange also proposes
to update Footnote 24 in the Fees Schedule, as well as remove the
reference to Footnote 24 in the Market-Maker Tier Appointment Fee
Table. By way of background, in June 2020, the Exchange adopted
Footnote 24 to describe pricing changes that would apply for the
duration of time the Exchange trading floor was being operated in a
modified manner in connection with the COVID-19 pandemic.\6\ Among
other changes, Footnote 24 provided that the monthly fee for the SPX/
SPXW Floor Market-Maker Tier Appointment Fee was to be increased to
$5,000 per Trading Permit from $3,000 per Trading Permit. As the
Exchange now proposes to maintain the $5,000 rate on a permanent basis
(i.e., regardless of whether the Exchange is operating in a modified
state due to COVID-19 pandemic), the Exchange proposes to eliminate the
reference to the SPX/SPXW Floor Market-Maker Tier Appointment Fee in
Footnote 24.\7\
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    \6\ See Securities Exchange Act Release No. 89189 (June 30,
2020), 85 FR 40344 (July 6, 2020) (SR-CBOE-2020-058).
    \7\ The Exchange notes that since its transition to a new
trading floor facility on June 6, 2022, it has not been operating in
a modified manner. As such Footnote 24 (i.e., the modified fee
changes it describes) does not currently apply.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of section 6(b) of the Act.\8\ Specifically, the
Exchange believes the proposed rule change is consistent with the
section 6(b)(5) \9\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in regulating, clearing,
settling, processing information with respect to, and facilitating
transactions in securities, to remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, to protect investors and the public interest. Additionally,
the Exchange believes the proposed rule change is consistent with the
section 6(b)(5) \10\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ Id.
---------------------------------------------------------------------------

    The Exchange operates in a highly competitive environment. On May
21, 2019, the SEC Division of Trading and Markets issued non-rulemaking
fee filing guidance titled ``Staff Guidance on SRO Rule Filings
Relating to Fees'' (``Fee Guidance''), which provided, among other
things, that in determining whether a proposed fee is constrained by
significant competitive forces, the Commission will consider whether
there are reasonable substitutes for the product or service that is the
subject of a proposed fee.\11\ As described in further detail below,
the Exchange believes substitutable products \12\ are in fact available
to market participants, including in the Over-the-Counter (OTC)
markets. Indeed, there are currently 16 registered options exchanges
that trade options, with a 17th options exchange expected to launch in
2023. Based on publicly available information, no single options
exchange has more than 15% of the market share as of January 19,
2023.\13\ Further, low barriers to entry mean that new exchanges may
rapidly and inexpensively enter the market and offer additional
substitute platforms to further compete with the Exchange and the
products it offers, including exclusively listed products as discussed
further below. For example, there are 3 exchanges that have been added
in the U.S. options markets in the last 5 years

(i.e., Nasdaq MRX, LLC, MIAX Pearl, LLC, and MIAX Emerald LLC) and one
additional options exchange that is expected to launch in 2023 (i.e.,
MEMX LLC).
---------------------------------------------------------------------------

    \11\ See Chairman Jay Clayton, Statement on Division of Trading
and Markets Staff Fee Guidance, June 12, 2019. The Fee Guidance also
recognized that ``products need to be substantially similar but not
identical to be substitutable.''
    \12\ A substitute, or substitutable good, in economics and
consumer theory refers to a product or service that consumers see as
essentially the same or similar-enough to another product. See
https://www.investopedia.com/terms/s/substitute.asp.
    \13\ See Cboe Global Markets U.S. Options Market Volume Summary
(March 17, 2023), available at https://markets.cboe.com/us/options/market_statistics/.
---------------------------------------------------------------------------

    The Exchange believes that competition in the marketplace
constrains the ability of exchanges to charge supracompetitive fees for
access to its products exclusive to that market (``proprietary
products''). Notably, just as there is no regulatory requirement to
become a member of any one options exchange, there is also no
regulatory requirement for any market participant to participate on the
Exchange in any particular capacity, including as a Market Maker, nor
trade any particular product. Additionally, there is no requirement
that any Exchange create or indefinitely maintain any particular
product.\14\ The Exchange also highlights that market participants may
trade an exchange's proprietary products through a third-party without
directly or indirectly connecting to the exchange. Further, market
participants, including Market-Makers, may trade the Exchange's
products, including proprietary products, on or off the Exchange's
trading floor (i.e., all products are available both electronically and
via open outcry on the Exchange's trading floor). Particularly, market
participants are not obligated to trade on the Exchange's trading floor
and therefore a market participant, including Market-Makers, can choose
to trade a product electronically instead of on the Exchange's trading
floor at any time and for any reason, including due to an assessment of
the reasonableness of fees charged. Indeed, the Exchange notes that
only one Market-Maker TPH trades SPX exclusively on the floor. The
Exchange notes that nothing precludes such TPH from also deciding to
trade SPX electronically. Rather, what products a market participant
chooses to trade, and the manner in which they choose to do so, is
ultimately determined by factors relevant and specific to each market
participant, including its business model and associated costs.
---------------------------------------------------------------------------

    \14\ If an option class is open for trading on another national
securities exchange, the Exchange may delist such option class
immediately. For proprietary products, the Exchange may determine to
not open for trading any additional series in that option class; may
restrict series with open interest to closing transactions, provided
that, opening transactions by Market-Makers executed to accommodate
closing transactions of other market participants and opening
transactions by TPH organizations to facilitate the closing
transactions of public customers executed as crosses pursuant to and
in accordance with Rule 6.74(b) or (d) may be permitted; and may
delist the option class when all series within that class have
expired. See Cboe Rule 4.4, Interpretations and Policies .11.
---------------------------------------------------------------------------

    Additionally, market participants may trade any options product,
including proprietary products, in the unregulated Over-the-Counter
(OTC) \15\ markets for which there is no requirement for fees related
to those markets to be public. Given the benefits offered by trading
options on a listed exchange, such as increased market transparency and
heightened contra-party creditworthiness due to the role of the Options
Clearing Corporation as issuer and guarantor, the Exchange generally
seeks to incentivize market participants to trade options on an
exchange, which further constrains fees that an Exchange may assess.
Market participants may also access other exchanges to trade other
similar or competing proprietary or multi-listed products. Alternative
products to the Exchange's proprietary products may include other
options products, including options on ETFs or options futures, as well
as particular ETFs or futures. Particularly, exclusively listed SPX
options (i.e., a proprietary product) may compete with the following
products traded on other markets: multiply-listed SPY options (options
on the ETF that replicates performance of the S&P 500), E-mini S&P 500
Options (options on futures), and E-Mini S&P 500 futures (futures on
index). Indeed, as a practical matter, investors utilize SPX and SPY
options and their respective underlying instruments and futures to gain
exposure to the same benchmark index: the S&P 500.
---------------------------------------------------------------------------

    \15\ Derivatives that are functionally identical to the
Exchange's exclusively-listed options, including SPX, can be traded
on the OTC market.
---------------------------------------------------------------------------

    Notably, the Commission itself has affirmed that notwithstanding
the exclusive nature of SPX options, alternatives to this product exist
in the marketplace. For example, in approving a PM-settled S&P 500 cash
settled contract (``SPXPM'') on its affiliate exchange Cboe C2
Exchange, Inc. (which product was later transferred to the Exchange),
the Commission stated that it ``recognizes the potential impact on
competition resulting from the inability of other options exchanges to
list and trade SPXPM. In acting on this proposal, however, the
Commission has balanced the potentially negative competitive effects
with the countervailing positive competitive effects of C2's proposal.
The Commission believes that the availability of SPXPM on the C2
exchange will enhance competition by providing investors with an
additional investment vehicle, in a fully-electronic trading
environment, through which investors can gain and hedge exposure to the
S&P 500 stocks. Further, this product could offer a competitive
alternative to other existing investment products that seek to allow
investors to gain broad market exposure. Also, we note that it is
possible for other exchanges to develop or license the use of a new or
different index to compete with the S&P 500 index and seek Commission
approval to list and trade options on such index.'' \16\
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    \16\ See Securities Exchange Act Release No. 65256 (September 2,
2011), 76 FR 55969 (September 9, 2011) (SR-C2-2011-008). The
Exchanges notes SPXPM was later transferred to the Exchange, where
it currently remains listed. See Securities Exchange Act Release No.
68888 (February 8, 2013), 78 FR 10668 (February 14, 2013) (SR-CBOE-
2012-120).
---------------------------------------------------------------------------

    The economic equivalence of SPX and SPY options was further
acknowledged and cited as a basis for the elimination of position
limits for SPY options across the industry not long after the
Commission's findings above in 2011.\17\ Moreover, other exchanges have
acknowledged that SPY options are considered to be an economic
equivalent to SPX options.\18\
---------------------------------------------------------------------------

    \17\ See, e.g., Securities Exchange Act Release No. 67936
(September 27, 2012), 77 FR 60491 (October 3, 2012) (SR-BOX-2012-
013). See also Securities Exchange Act Release No. 67999 (October 5,
2012), 77 FR 62295 (October 12, 2012) (SR-Phlx-2012-122).
    \18\ NYSE Euronext, on behalf of its subsidiary options
exchanges, NYSE Arca Inc. and NYSE Amex LLC, commented on a Nasdaq
OMX PHLX LLC (``PHLX'') proposal to increase the position limits for
SPY options, noting ``. . . when a contract that is considered by
many to be economically equivalent to SPY options--namely SPX
options . . .'' See (http://www.sec.gov/comments/sr-phlx-2011-58/phlx201158-1.pdf).
---------------------------------------------------------------------------

    Additionally, in connection with a proposed amendment to the
National Market System Plan Governing the Consolidated Audit Trail
(``CAT NMS Plan'') the Commission again discussed the existence of
competition in the marketplace generally, and particularly for
exchanges with unique business models.\19\ Similar to, and consistent
with, its findings in approving SPXPM, the Commission recognized that
while some exchanges may have a unique business model that is not
currently offered by competitors, a competitor could create similar
business models if demand were adequate, and if a competitor did not do
so, the Commission believes it would be likely that new entrants would
do so if the exchange with that unique business model was otherwise
profitable.\20\ Accordingly, although the Exchange may have proprietary
products not

offered by other competitors, not unlike unique business models, a
competitor could create similar products to an existing proprietary
product if demand were adequate. As an illustration of this point, MIAX
created its exclusive product SPIKES specifically to compete against
VIX options, another product exclusive to the Exchange.\21\
---------------------------------------------------------------------------

    \19\ See Securities Exchange Act Release No. 86901 (September 9,
2019), 84 FR 48458 (September 13, 2019) (File No. S7-13-19).
    \20\ Id.
    \21\ MIAX has described SPIKES options as ``designed
specifically to compete head-to-head against Cboe's proprietary
VIX[supreg] product.'' See MIAX Press Release, SPIKES Options
Launched on MIAX, February 21, 2019, available at: https://www.miaxoptions.com/sites/default/files/press_release-files/MIAX_Press_Release_02212019.pdf.
---------------------------------------------------------------------------

    The Commission has also acknowledged competition with respect to
OTC products. For example, in its proposal to eliminate position and
exercise limits for broad-based index options, the Exchange had noted
that ``[i]nvestors who trade listed options on the [Exchange] are
placed at a serious disadvantage in comparison to the OTC market where
index options and other types of index based derivatives (e.g.,
forwards and swaps) are not subject to position and exercise limits.
Member firms continue to express concern to the Exchange that position
limits on [Exchange] products are an impediment to their business and
that they have no choice but to move their business to the OTC market
where position limits are not an issue.'' \22\ In approving the
Exchange's proposal to eliminate position and exercise limits for
certain broad-based index options, including SPX, on a two-year pilot
basis, the Commission stated that ``the index options and other types
of index-based derivatives (e.g., forwards and swaps) are not subject
to position and exercise limits in the OTC market. The Commission
believes that eliminating position and exercise limits for the SPX . .
. options on a two-year pilot basis will better allow [the Exchange] to
compete with the OTC market.'' \23\
---------------------------------------------------------------------------

    \22\ See Securities Exchange Act Release No. 40158 (July 1,
1998), 63 FR 37153 (July 9, 1998) (SR-CBOE-1998-23).
    \23\ See Securities Exchange Act Release No. 40969 (January 22,
1999), 64 FR 4911 (February 1, 1999) (SR-CBOE-1998-23). The pilot
program that was originally allowed for the elimination of position
and exercise limits of SPX was approved on a permanent basis in
2001. See Securities Exchange Act Release No. 44994 (November 2,
2001), 66 FR 55722 (October 26, 2001) (SR-CBOE-2001-22).
---------------------------------------------------------------------------

    The Exchange is not aware of any changes in the market that make
the Commission's foregoing findings and assertions relating to
competition for SPX and exclusively listed products generally any less
true today. In fact, competitive forces within the market have resulted
in an expansion of products. For example, in recent years, the
exchange-traded fund (``ETF'') industry has experienced significant
growth and diversification. ETFs that hold options have become
increasingly popular. There are several examples of ETFs that hold SPX
options and others that hold SPY options, as both types of options may
offer investors different benefits. Accordingly, if a market
participant views the Exchange's proprietary products, including SPX
and SPXW, as more or less attractive than the competition they can and
do switch between substantially similar products. Despite having
economic differences, substitute products have significant similarities
and may have characteristics that cause investors to find those
products to beneficial to SPX options (e.g., strike availability,
settlement, liquidity, tax reasons, product size). As such, the
Exchange is subject to competition and does not possess anti-
competitive pricing power, even with its offering of proprietary
products such as SPX.
    The Exchange also believes the proposed fee is reasonable as the
Exchange believes it remains commensurate with the value of operating
as a Market-Maker on the Exchange's trading floor in the SPX pit. For
example, the Exchange recently transitioned from its previous trading
floor, which it had occupied since the 1980s, to a brand new, modern
and upgraded trading floor facility. The Exchange believes customers
continue to find value in open outcry trading and rely on the floor for
price discovery and the deep liquidity provided by floor Market-Makers.
The build out of a new modern trading floor reflects the Exchange's
commitment to open outcry trading and focus on providing the best
possible trading experience for its customers, including Market-Makers.
For example, the new trading floor provides a state-of-the-art
environment and technology and more efficient use of physical space,
which the Exchange believes better reflects and supports the current
trading environment. The Exchange also believes the new infrastructure
provides a cost-effective, streamlined, and modernized approach to
floor connectivity. For example, the new trading floor has more than
330 individual kiosks, equipped with top-of-the-line technology, that
enable floor participants to plug in and use their devices with greater
ease and flexibility. It also provides floor Market-Makers with more
space and increased capacity to support additional floor-based traders
on the trading floor. Moreover, the new trading floor is conveniently
located across the street from the LaSalle trading floor, which
resulted in minimal disruption to TPH floor participants, many of whom
have office space nearby, including in the same facility in which the
trading floor is located. The Exchange believes the new location, which
was also home to the Exchange's original trading floor in the 1970s and
early 1980s, is also able to support robust trading floor
infrastructure as it currently hosts several banks, trading firms and
even trading floors (i.e., trading floors for the Chicago Mercantile
Exchange and BOX Options Market). The Exchange also believes the
relocation to the new trading floor resulted in a streamlined and
simplified trading floor and facility fee structure, as further
described in the Exchange's proposal to amend certain facility fees in
connection with the new trading floor.\24\
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    \24\ See Securities Exchange Act Release No. 96001 (October 6,
2022), 87 FR 62129 (October 13, 2022) (SR-CBOE-2022-049).
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    The Exchange further believes the proposal to increase the fee is
reasonable as the Exchange has expanded the suite of SPX products
available to Market-Makers on the trading floor since 2010 when the SPX
(and SPXW) Floor Market-Maker Tier Appointment fee was first adopted.
For example, in 2013, the Exchange began listing SPXPM.\25\ In 2016,
the Exchange began listing SPX Weekly options with Monday and Wednesday
expirations.\26\ Most recently in 2022, the Exchange added SPX Weekly
options with Tuesday and Thursday expirations.\27\ The introduction of
these products means SPX options now have an available expiration every
trading day of the week, thereby providing Floor Market-Makers with
additional opportunities to trade SPX and greater trading flexibility
as compared to 2010. Moreover, average daily volume (ADV) in SPX has
increased nearly 30%. Therefore, increasing the price to trade SPX on
the trading floor is consistent with the simple law of supply and
demand--demand to trade SPX options has increased (as evidenced by the
ADV increase), and therefore the Exchange is proposing to increase the
price to trade these options. Additionally, the notional ADV in SPX has
increased over 380% on the trading floor since July 2010

when the fee was first adopted. Given this significant increase in the
cost of an SPX option contract, compared to the SPX Tier Appointment
Fee, it is cheaper to trade SPX options on the trading floor than it
was in 2010 when the fee was first adopted.\28\
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    \25\ See Securities Exchange Act Release No. 68888 (February 8,
2013), 78 FR 10668 (February 14, 2013) (SR-CBOE-2012-120).
    \26\ See Securities Exchange Act Release No. 76909 (January 14,
2016), 81 FR 3512 (January 21, 2016) (SR-CBOE-2015-106). See also
Securities Exchange Act Release No. 78531 (August 10, 2016), 81 FR
54643(August 16, 2016) (SR-CBOE-2016-146).
    \27\ See Securities Exchange Act Release No. 94682 (April 12,
2022), 87 FR 22993 (April 18, 2022) (CBOE-2022-005).
    \28\ On December 31, 2010, the S&P 500 Index closed at 1,257.64,
making the notional value of one SPX contract $125,764 on that date.
On March 20, 2023, the S&P 500 Index closed at 3,951.57, making the
notional value of one SPX contract $395,157 on that date. Therefore,
based on the cost of the SPX Floor Market Maker Tier Appointment fee
of $3,000 in 2010 and $5,000 in 2023, it is cheaper per SPX contract
despite the higher fee ($0.0239 ($3,000/$125,764) v. $0.0127
($5,000/$393,157)). Consistent with basic economic principles, if
the value of a good increases, it is reasonable for the price of
that good to also increase.
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    To demonstrate the value the Exchange believes Marker-Makers find
transacting with SPX on the trading floor (notwithstanding the proposed
fee change), Market-Maker presence on the new trading floor in SPX and
SPXW has actually increased. Particularly, as of December 30, 2022,
there are 12 additional Market-Makers trading SPX and SPXW on the
trading floor as compared to May 2022 (which was the month prior to the
proposed fee change being implemented on a permanent basis and
transition to the new trading floor).\29\ Further, in June 2022, the
month in which the proposed fee change took effect on the new trading
floor on a permanent basis, there were 5 additional Market-Makers
trading SPX and SPXW on the trading Floor as compared to May 2022.
Further, as of December 30, 2022, there are 4 additional Market-Makers
trading SPX and SPXW on the trading floor as compared to March 2020,
which was the last month the Exchange assessed $3,000 for the SPX and
SPXW Floor Market Maker Tier Appointment fee. The Exchange believes the
increasing SPX and SPXW Market-Maker presence on the trading floor
since the last time the Exchange assessed $3,000 for the SPX and SPXW
Floor Market Maker Tier Appointment fee (i.e., March 2020) and since
the time the current proposal was submitted (i.e., June 2020) speaks
not only to the value Market-Makers find in participating as a Market-
Maker in SPX and SPXW on the (new and improved) trading floor, but also
to the reasonableness of the fee. Moreover, as established above, if a
Market-Maker viewed trading SPX and SPXW as less attractive than
competitive products, including those described above, they can switch
between such similar products and choose not to remain as a Market-
Maker trading SPX and SPX on the trading floor. As such, the Exchange
is subject to competition and does not possess anti-competitive pricing
power, even with its offering of proprietary products such as SPX.
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    \29\ As noted above, the Exchange has been assessing $5,000 for
the SPX and SPXW Floor Market Maker Tier Appointment fee since June
2020 as the Exchange was operating in a modified state until its
transition to the new trading floor in June 2022, at which time the
Exchange submitted this proposal to make such increase permanent.
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    Moreover, as noted above, market participants are not obligated to
trade on the Exchange's trading floor and therefore a market
participant, including Market-Makers, can choose to trade a product
electronically instead of on the Exchange's trading floor at any time
and for any reason, including due to an assessment of the
reasonableness of fees charged. In particular, as of January 2023, SPX
and SPXW open outcry volume accounted for approximately 26% of total
SPX and SPXW volume (i.e., approximately 74% is traded electronically).
Accordingly, Market-Makers may continue to choose to trade SPX and SPXW
electronically should they deem fees associated with trading on the
trading floor as unreasonable, further demonstrating that the Exchange
is constrained from imposing unreasonable and supracompetitive fees.
The Exchange notes this applies to all SPX Market-Makers, even a
Market-Maker who may currently not participate electronically and only
trades SPX in open outcry. Should any Market-Maker find the costs for
executing SPX in open outcry unreasonable based on its business model
and needs, such Market-Maker could instead elect to execute SPX solely
electronically (or choose to trade other competing products).
Accordingly, the Exchange believes that SPX Floor Market-Makers that
continue to participate in open outcry trading find value in doing so.
    The Exchange finally believes its proposal to increase the SPX (and
SPXW) Floor Market-Maker Tier Appointment fee is reasonable because the
proposed amount is not significantly higher than was previously
assessed (and is the same amount that has been assessed under Footnote
24 for the last two years). Additionally, the Exchange believes its
proposal to increase the fee is reasonable as the fee amount has not
been increased since it was adopted over 12 years ago in July 2010.\30\
Particularly, since its adoption 12 years ago, there has been notable
inflation. Indeed, the dollar has had an average inflation rate of 2.6%
per year between 2010 and today, producing a cumulative price increase
of approximately 37% inflation since 2010, when the SPX and SPXW Floor
Market-Maker Tier Appointment was first adopted.\31\ Additionally, for
nearly ten years, Market-Makers were only subject to the original rate
that was adopted in 2010 (i.e., $3,000) notwithstanding an average
inflation rate of 2.64% per year. The Exchange acknowledges its
proposed fee exceeds 37%. However, the Exchange believes such increase
is reasonable given many Market-Makers for nearly 10 years did not have
to pay increased fees notwithstanding yearly inflation. For example, by
not increasing the fee each year to correspond to the average per year
inflation rate of 2.6%, Market-Makers trading SPX on the trading floor
since 2011 through 2020 (when then Exchange originally increased the
fee due to the COVID-19 pandemic) have saved nearly $10,000. The
Exchange therefore believes that proposing a fee in excess of the
cumulative 37% inflation rate is still reasonable, especially when
considered in conjunction with all of the additional and further
rationale discussed above. The Exchange is also unaware of any standard
that suggests any fee proposal that exceeds a yearly or cumulative
inflation rate is unreasonable.
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    \30\ See Securities Exchange Act Release No. 62386 (June 25,
2010), 75 FR 38566 (July 2, 2010) (SR-CBOE-2010-060).
    \31\ See https://www.officialdata.org/us/inflation/2010?amount=1.
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    The proposed change is also equitable and not unfairly
discriminatory as it applies to all Market-Makers that trade SPX on the
trading floor uniformly. The Exchange believes it's reasonable,
equitable and not unfairly discriminatory to increase the SPX/SPXW
floor Market-Maker Tier Appointment fee and not the SPX/SPXW electronic
Market-Maker Tier Appointment fee, as Floor Market-Makers are not
subject to other costs that electronic Market-Makers are subject to.
For example, while all Floor Market-Makers automatically have an
appointment to trade open outcry in all classes traded on the Exchange
and at no additional cost per appointment, electronic Market-Makers
must select an appointment in a class (such as SPX) to make markets
electronically and such appointments are subject to fees under the
Market-Maker Electronic Appointments Sliding Scale.\32\
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    \32\ See Cboe Options Rules 5.50(a) and (e). See also Cboe
Options Fees Schedule, Market-Maker EAP Appointments Sliding Scale.
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    The Exchange lastly notes that it is not required by the Exchange
Act, nor any other rule or regulation, to undertake a cost-of-service
or rate-making approach with respect to fee proposals. The Exchange
believes that,

even if it were possible as a matter of economic theory, cost-based
pricing for the proposed fee would be so complicated that it could not
be done practically.

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. The Exchange does not
believe that the proposed rule changes will impose any burden on
intramarket competition that is not necessary or appropriate in
furtherance of the purposes of the Act because the proposed changes
would be applied in the same manner to all Floor Market-Makers that
trade SPX (and/or SPXW). As noted above, the Exchange believes it's
reasonable to increase the SPX/SPWX Tier Appointment Fee for only Floor
Market-Makers only as opposed to electronic Market-Makers, because
electronic Market-Makers are subject to costs Floor Market-Makers are
not, such as the fees under Market-Maker EAP Appointments Sliding
Scale.
    The Exchange does not believe that the proposed rule change will
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act because the
proposed rule changes apply only to a fee relating to a product
exclusively listed on the Exchange. Additionally, the Exchange operates
in a highly competitive market. In addition to Cboe Options, TPHs have
numerous alternative venues that they may participate on (which, as
described above, list products that compete with SPX options) and
direct their order flow, including 15 other options exchanges (four of
which also maintain physical trading floors), as well as off-exchange
venues, where competitive products are available for trading. Based on
publicly available information, no single options exchange has more
than 15% of the market share of executed volume of options trades.\33\
Therefore, no exchange possesses significant pricing power in the
execution of option order flow. Moreover, as discussed above, the
Commission has repeatedly expressed its preference for competition over
regulatory intervention in determining prices, products, and services
in the securities markets. Specifically, in Regulation NMS, the
Commission highlighted the importance of market forces in determining
prices and SRO revenues and, also, recognized that current regulation
of the market system ``has been remarkably successful in promoting
market competition in its broader forms that are most important to
investors and listed companies.'' \34\ The fact that this market is
competitive has also long been recognized by the courts. In
NetCoalition v. Securities and Exchange Commission, the D.C. Circuit
stated as follows: ``[n]o one disputes that competition for order flow
is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market
system, buyers and sellers of securities, and the broker-dealers that
act as their order-routing agents, have a wide range of choices of
where to route orders for execution'; [and] `no exchange can afford to
take its market share percentages for granted' because `no exchange
possesses a monopoly, regulatory or otherwise, in the execution of
order flow from broker dealers'. . . .''.\35\ Accordingly, the Exchange
does not believe its proposed changes to the incentive programs impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.
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    \33\ See Cboe Global Markets, U.S. Options Market Volume Summary
by Month (January 19, 2023), available at: http://markets.cboe.com/us/options/market_share/.
    \34\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \35\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

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

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

    The foregoing rule change has become effective pursuant to section
19(b)(3)(A) of the Act \36\ and paragraph (f) of Rule 19b-4 \37\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
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    \36\ 15 U.S.C. 78s(b)(3)(A).
    \37\ 17 CFR 240.19b-4(f).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-CBOE-2023-016 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CBOE-2023-016. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change.
    Persons submitting comments are cautioned that we do not redact or
edit personal identifying information from comment submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-CBOE-2023-016
and should be submitted on or before April 28, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\38\
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    \38\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-07266 Filed 4-6-23; 8:45 am]
BILLING CODE 8011-01-P