[Federal Register: January 23, 2006 (Volume 71, Number 14)]
[Notices]
[Page 3582-3584]
[DOCID:fr23ja06-105]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53127; File No. SR-ISE-2005-57]

Self-Regulatory Organizations; International Securities Exchange,
Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule
Change and Amendment No. 1 Thereto Relating to Payment for Order Flow
Fee Changes

January 13, 2006.
    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 December 1, 2005, the International Securities Exchange, Inc.
(``ISE'' 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 23, 2005, the ISE submitted Amendment No. 1 to
the proposed rule change.\3\ The ISE has designated this proposal as
one changing a fee imposed by the ISE under Section 19(b)(3)(A)(ii) of
the Act \4\ and Rule 19b-4(f)(2) thereunder,\5\ which renders the
proposal, as amended, effective upon filing with the Commission. The
Commission is publishing this notice to solicit comments on the
proposed rule change, as amended, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1 (``Amendment No. 1''), the ISE: (1)
Eliminates the proposed $450,000 per firm cap and keeps the current
cap of $450,000 per group of option classes; (2) states the
procedures that Competitive Market Makers must follow in order to
opt out of the payment for order flow program; (3) clarifies that
the payment for order flow portion of the fee schedule will expire
when the preferenced market maker program pilot program expires; (4)
makes minor clarifications to the purpose section; (5) amends the
rule text to conform it to the amended purpose section; and (6)
makes technical corrections to the rule text.
    \4\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \5\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The ISE proposes to amend its payment for order flow program to
allow preferenced Competitive Market Makers to administer payment for
order flow fees collected by the Exchange.\6\
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    \6\ See Amendment No. 1, supra note 3.
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    Below is the text of the proposed rule change, as amended. Proposed
new language is in italics; proposed deletions are in [brackets].\7\
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    \7\ Id.

                                              ISE Schedule of Fees
----------------------------------------------------------------------------------------------------------------
   Electronic market place     Amount         Billable unit               Frequency                 Notes
----------------------------------------------------------------------------------------------------------------
Execution Fees

                                                  * * * * * * *
 Payment for Order       $0.55  Contract................  Transaction.............  Applies to market
 Flow.                                                                                makers only for
                                                                                each public
                                                                                customer contract
                                                                                executed; does not
                                                                                apply to Complex
                                                                                Orders; does not
                                                                                apply to the
                                                                                execution of a
                                                                                Public Customer
                                                                                Order by a Primary
                                                                                Market Maker if the
                                                                                Primary Market
                                                                                Maker executes a
                                                                                corresponding P/A
                                                                                trade on another
                                                                                exchange; does not
                                                                                apply to a market
                                                                                maker executing a
                                                                                Public Customer
                                                                                Order in the Price
                                                                                Improvement
                                                                                Mechanism; does not
                                                                                apply to
                                                                                transactions in
                                                                                HSX, OOG, BYT, HVY,
                                                                                RUF, JLO, SIN, RND,
                                                                                IXZ, IXX and IXK.
                                                                                The Payment for
                                                                                Order Flow Fee will
                                                                                be rebated
                                                                                proportionately to
                                                                                the members that
                                                                                paid the fee
                                                                                [suspended for a
                                                                                Group of options
                                                                                established under
                                                                                Rule 802(b) when]
                                                                                such that on a
                                                                                quarterly basis the
                                                                                Payment for Order
                                                                                Flow fund balance
                                                                                administered by a
                                                                                Primary Market
                                                                                Maker for [such
                                                                                Group reaches] a
                                                                                Group of options
                                                                                established under
                                                                                Rule 802(b) does
                                                                                not exceed $450,000
                                                                                and the Payment for
                                                                                Order Flow fund
                                                                                balance
                                                                                administered by a
                                                                                preferenced
                                                                                Competitive Market
                                                                                Maker for such a
                                                                                Group does not
                                                                                exceed $50,000[,
                                                                                and shall be
                                                                                reinstated when any
                                                                                such fund balance
                                                                                falls below
                                                                                $450,000]. With
                                                                                respect to orders
                                                                                preferenced to a
                                                                                Competitive Marker
                                                                                Maker under Rule
                                                                                713, a preferenced
                                                                                Competitive Market
                                                                                Maker that elects
                                                                                not to administer a
                                                                                fund will not be
                                                                                charged the Payment
                                                                                for Order Flow fee.
                                                                                The Payment for
                                                                                Order Flow fee
                                                                                administered by
                                                                                preferenced
                                                                                Competitive Market
                                                                                Makers, as
                                                                                described above,
                                                                                will be in effect
                                                                                until June 10,
                                                                                2006, the date on
                                                                                which the
                                                                                Preferenced Orders
                                                                                pilot program
                                                                                expires.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

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 ISE included statements
concerning the purpose of and basis for the proposed rule change, as
amended, and discussed any comments it received on the proposed rule
change, as amended. The text of these statements may be examined at the
places specified in Item IV below. The ISE 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 ISE proposes to amend its payment for order flow program to
allow preferenced Competitive Market Makers to administer payment for
order flow fees collected by the Exchange. The Commission recently
approved the Exchange's proposed rule change to permit Electronic
Access Members (EAMs) to ``preference'' their order flow to specified
market makers.\8\ The Exchange states that, under this rule, if a
preferenced market maker, which could be either a Primary Market Maker
(PMM) or a Competitive Market Maker (CMM), is quoting at the national
best bid or offer when ISE receives a preferenced order, that market
maker receives an enhanced allocation of the order. The Exchange also
operates a payment for order flow (``PFOF'') program as approved by the
Commission.\9\ The Exchange states that this program is funded through
a fee paid by Exchange market makers for each customer contract they
execute. The Exchange represents that, currently, all funds collected
by the Exchange are administered by the PMM for their group (or
``bin'') of options classes.
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    \8\ See Exchange Act Release No. 51818 (June 10, 2005), 70 FR
35146 (June 16, 2005) (SR-ISE-2005-18).
    \9\ See Exchange Act Release No. 43833 (January 10, 2001), 66 FR
7822 (January 25, 2001) (SR-ISE-2000-10).
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    The Exchange proposes to amend its PFOF program to allow a CMM to
administer the PFOF funds collected by the Exchange with respect to
orders preferenced to it in a group of options classes.\10\ Each CMM
pool would have a ceiling of $50,000.\11\ Preferenced CMMs would be
able to choose not to administer PFOF pools, in which case the PFOF fee
collected by the Exchange would go into the PFOF fund administered by
the PMM in the group of options as it would have had the order not been
preferenced to the CMM.\12\ A CMM will not be charged the PFOF fee for
orders preferenced to it if

it determines not to administer PFOF pools.\13\
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    \10\ As is the case with the PFOF funds administered by the PMM,
the PFOF fee collected on a preferenced order would be administered
by the preferenced CMM whether or not the CMM was a party on a
particular trade.
    \11\ In order to accommodate the introduction of the preferenced
CMM PFOF pools each having a $50,000 ceiling in addition to the
existing PMM PFOF fund that has a $450,000 ceiling, the Exchange
will rebate back to members any balance of a fund that exceeds the
applicable ceiling for a particular PFOF fund on a quarterly basis.
    \12\ CMMs must notify the Exchange if they elect to opt-out of
the proposed payment for order flow fee program in writing no later
than five business days prior to the end of the month for which the
payment for order flow fee is to be assessed. Once an election not
to participate has been made by a CMM, no notice to the Exchange is
required in subsequent months unless there is a change in
participation status.
    \13\ The Exchange states that the proposed rule change would be
in effect until June 10, 2006, the date on which the Preferenced
Orders pilot program expires. See Exchange Act Release No. 52066
(July 20, 2005), 70 FR 43479 (July 27, 2005) (SR-ISE-2005-35). The
Exchange notes that allowing a preferenced CMM to administer the
PFOF fees collected by the Exchange with respect to preferenced
orders is similar to the Philadelphia Stock Exchange's PFOF program.
See Exchange Act Release No. 52568 (October 6, 2005), 70 FR 60120
(October 14, 2005) (SR-Phlx-2005-58).
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2. Statutory Basis
    The Exchange believes that its proposal, as amended, is consistent
with Section 6(b) of the Act \14\ in general, and furthers the
objectives of Section 6(b)(4) of the Act \15\ in particular, in that it
is an equitable allocation of reasonable dues, fees, and other charges
among ISE members and other persons using its facilities.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(4).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change, as
amended, 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 not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

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

    The foregoing proposed rule change, as amended, has been designated
as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act \16\ and
Rule 19b-4(f)(2) \17\ thereunder, because it establishes or changes a
due, fee, or other charge imposed by the Exchange. Accordingly, the
proposal will take effect upon filing with the Commission. At any time
within 60 days of the filing of such proposed rule change, as amended,
the Commission may summarily abrogate 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.\18\
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    \16\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \17\ 17 CFR 240.19b-4(f)(2).
    \18\ The effective date of the original proposed rule change is
December 1, 2005, and the effective date of Amendment No. 1 is
December 23, 2005. For purposes of calculating the 60-day period
within which the Commission may summarily abrogate the proposal, the
Commission considers the period to commence on December 23, 2005,
the date on which the Exchange submitted Amendment No. 1.
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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, as amended, 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-ISE-2005-57 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE,,
Washington, DC 20549-9303.

All submissions should refer to File Number SR-ISE-2005-57. 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, as amended, 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 such filing also will be available for inspection and copying
at the principal office of the ISE. 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-ISE-2005-57 and should be submitted on
or before February 13, 2006.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-666 Filed 1-20-06; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 88, Number 122 (Tuesday, June 27, 2023)]
[Notices]
[Pages 41701-41703]
[FR Doc No: 2023-13559]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97783; File No. SR-CboeEDGX-2023-041]

Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Automated Price Improvement Auction Rules

June 21, 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 June 13, 2023, Cboe EDGX Exchange, Inc. (the ``Exchange'' or
````EDGX'''') 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
Exchange filed the proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule
19b-4(f)(6) thereunder.\4\ 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe EDGX Exchange, Inc. (the ``Exchange'' or ``EDGX'') proposes to
amend its automated price improvement auction rules. 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://markets.cboe.com/us/options/regulation/rule_filings/edgx/), 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 Rule 21.19 (Automated Price
Improvement Mechanism (``AIM'' or ``AIM Auction'')) and Rule 21.22
(Complex Automated Improvement Mechanism (``C-AIM'' or ``C-AIM
Auction'')) to modify the stop price requirements for auto-match orders
submitted to AIM and C-AIM, respectively.
    By way of background, Rules 21.19 and 21.22 contain the
requirements applicable to the execution of orders using AIM and C-AIM,
respectively. The AIM and C-AIM auctions are electronic auctions
intended to provide an Agency Order with the opportunity to receive
price improvement (over the National Best Bid or Offer (``NBBO'') in
AIM, or the synthetic best bid or offer (``SBBO'') on the Exchange in
C-AIM. Upon submitting an Agency Order into an AIM or C-AIM auction,
the initiating Member (``Initiating Member'') must also submit a
contra-side second order (``Initiating Order'') for the same size as
the Agency Order. The Initiating Order guarantees that the Agency Order
will receive an execution at no worse than the auction price (i.e.,
acts as a stop). During an AIM or C-AIM Auction, market participants
submit responses to trade against the Agency Order. At the end of an
auction, depending on the contra-side interest available, the contra
order may be allocated a certain percentage of the Agency Order.\5\
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    \5\ See generally Rules 21.19(e) and 21.22(e).
---------------------------------------------------------------------------

    An Initiating Member may initiate an AIM or C-AIM auction provided
that the Agency Order is in a class and of sufficient size as
determined by the Exchange. Further, there are requirements regarding
the price at which the Initiating Order must stop the entire Agency
Order, set forth in Rule 21.19(b) for AIM Auctions and Rule 21.22(b)
for C-AIM Auctions. Requirements for the stop price depend on the order
submitted, but in general, the stop price must be either better than
the then-current NBBO (SBBO) or, in some cases, at or better than the
NBBO (SBBO).\6\
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    \6\ See generally Rules 21.19(b) and 21.22(b).
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    Further, under Rules 21.19(b)(4) and 21.22(b)(4), an Initiating
Member, in entering the contra-side order, must either (1) specify a
single price at which

it seeks to execute the Agency Order against the Initiating Order, or
(2) specify an initial stop price and instruction to automatically
match the price and size of all AIM or C-AIM responses and other
contra-side trading interest (``auto-match'') at each price up to a
designated limit price or at all prices that improve the stop price.
Currently, the System will reject or cancel both an Agency Order and
Initiating Order submitted to an AIM or C-AIM Auction that does meet
the eligibility requirements set forth in Rules 21.19(a) and 21.22(a),
and the stop price requirements set forth in Rules 21.19(b) and
21.22(b).
    The Exchange now proposes to amend Rule 21.19(b)(4) to state that,
notwithstanding Rule 21.19(b)(1) through (3), if the initial stop price
is worse than the then-current NBO (NBB) and auto-match was selected,
the System changes the initial stop price for the Agency Order to be
the then-current NBO (NBB) (or one minimum increment better than the
then-current NBO (NBB) if the Agency Order is subject to the
requirements set forth in Rules 21.19(b)(1)(A) or (b)(2). Similarly,
the Exchange proposes to amend Rule 21.22(b)(4) to state that,
notwithstanding Rule 21.22(b)(1) through (3), if the initial stop price
is worse than the then-current SBO (SBB) and auto-match was selected,
the System changes the initial stop price for the Agency Order to be
the then-current SBO (SBB) (or one minimum increment better than the
then-current SBO (SBB) if the Agency Order is subject to the
requirements set forth in Rules 21.22(b)(1)(A), (b)(2), or (b)(3)(A).
Under the proposed changes, the starting price (i.e., stop price) of
the auction would match the NBBO (for AIM Auctions) or SBBO (for C-AIM
Auctions) at the time of auction commencement. The proposed changes
would apply to all AIM and C-AIM users that select auto-match.
    This change is designed to address situations where the NBBO or
SBBO changes within the time that the User sends the order to the
Exchange and the Exchange receives it, which may cause AIM and C-AIM
orders to be cancelled. For example, assume a Member submits to AIM
Auction an Agency Order to buy and an Initiating Order with a starting
price of 1.25 and an auto-match limit of 1.10, and the then-current
NBBO is 1.00-1.25. While in transit, the NBBO changes to 0.90-1.10.
Under the current rules, the orders would be rejected, as the starting
price (initial stop price) of 1.25 is now outside the current NBBO
(even though the firm has designated an auto-match limit of 1.10, which
is equal to the NBBO at the time the Exchange receives the order).
Under the proposed rule, the orders would be accepted, and the auction
starting price will be 1.10 (due to the NBBO change), and the auction
would proceed pursuant to the remainder of the Rule.
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.\7\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \8\ 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) \9\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
    \9\ Id.
---------------------------------------------------------------------------

    The Exchange believes the proposed rule change will promote just
and equitable principles of trade and protect investors. In particular,
the Exchange believes that its proposal to allow an order with an
initial stop price inferior to the then-current NBBO or SBBO to be
submitted to AIM or C-AIM Auction if auto-match is selected will
provide Agency Orders with additional opportunities for price
improvement and execution. Specifically, the changes are designed to
stop orders from being rejected from AIM and C-AIM Auctions in
situations where an order may have an initial stop price that is
inferior to the then-current NBBO or SBBO, despite the fact that the
Initiating Member has, through its auto-match selection, demonstrated a
willingness to execute against the Agency Order at a price that matches
or improves upon the then-current NBBO or SBBO, as applicable. The
Exchange believes the changes are consistent with the intended result
of the stop price requirement, as the Initiating Member is effectively
guaranteeing that the Agency Order will receive an execution at no
worse than the auction price, which is at or better than the NBBO at
the time the auction begins, via the auto-match mechanism.\10\ As such,
the Exchange believes the changes will preserve the quality of the
auctions, while providing increased execution and price improvement
opportunities for Agency Orders, which helps to perfect the mechanism
of a free and open market and, in general, helps to protect investors
and the public interest.\11\
---------------------------------------------------------------------------

    \10\ Note, the proposed rule change continues to provide price
improvement assurances for those for buy (sell) Agency Orders
submitted for AIM Auction processing with less than 50 standard
option contracts (or 500 mini-option contracts) and NBBO width of
$0.01, pursuant to Rule 21.19(b)(1)(A), which remains unchanged.
    \11\ See supra note 10.
---------------------------------------------------------------------------

    The Exchange notes that the AIM and C-AIM Auctions generally
deliver meaningful opportunities for price improvement to orders and
provide an efficient manner of access to liquidity for customers. The
Exchange believes that the proposed changes to these auctions will
permit more Agency Orders to receive such meaningful opportunities, as
intended, and ensure they are not inadvertently penalized by being
rejected rather than auctioned if markets move during the order
submission process, which ultimately benefits investors.

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 the proposed rule change will impose any burden on intramarket
competition because it will apply uniformly to all Agency Orders
submitted into AIM and C-AIM Auctions and to all Members. Additionally,
the Exchange notes that participation in the AIM and C-AIM auctions is
completely voluntary. The Exchange believes all market participants may
benefit from any additional liquidity, execution opportunities, and
price improvement in the AIM and C-AIM Auctions that may result from
the proposed rule change.
    The Exchange does not believe 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, as the proposed
rule change relates to price requirements for an Exchange-specific
auction mechanism and will continue to require auctions to start at

prices at or better than the NBBO at the start of the auction.\12\
---------------------------------------------------------------------------

    \12\ See supra note 10.
---------------------------------------------------------------------------

    Finally, the Exchange notes that it operates in a highly
competitive market, and members have numerous alternative venues they
may participate on and direct their order flow, including other options
exchanges that have implemented similar electronic price improvement
mechanisms with auto-match pricing. Participants can readily choose to
send their orders to other exchanges if they deem those other venues to
be more favorable.

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

    Because the foregoing proposed rule change does not:
    A. significantly affect the protection of investors or the public
interest;
    B. impose any significant burden on competition; and
    C. become operative for 30 days from the date on which it was
filed, or such shorter time as the Commission may designate, it has
become effective pursuant to Section 19(b)(3)(A) of the Act \13\ and
Rule 19b-4(f)(6) \14\ 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.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(3)(A).
    \14\ 17 CFR 240.19b-4(f)(6).
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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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-CboeEDGX-2023-041 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-CboeEDGX-2023-041. 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 (https://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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-CboeEDGX-2023-041 and should
be submitted on or before July 18, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2023-13559 Filed 6-26-23; 8:45 am]
BILLING CODE 8011-01-P


6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51 and 52

[EPA-HQ-OAR-2004-0014: FRL-       ]

RIN 2060-AP73

Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Inclusion of Fugitive Emissions; Interim Final
Rule; Stay

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Interim final rule; stay.

SUMMARY:  EPA is making an interim final determination to provide an
additional stay of the regulations concerning the inclusion of fugitive
emissions.

DATES:  This interim final determination is effective on December 31,
2009, and will expire on March 31, 2010.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2004-0014.  All documents in the docket are listed in the
Federal Docket Management System index at   HYPERLINK
"http://www.regulations.gov"  http://www.regulations.gov .  Although
listed in the index, some information is not publicly available, e.g.,
confidential business information or other information whose disclosure
is restricted by statute.  Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through   HYPERLINK
"http://www.regulations.gov"  http://www.regulations.gov  or in hard
copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301
Constitution Ave., NW, Washington, DC. The Public Reading room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air and Radiation Docket is
(202) 566-1742.

FOR FURTHER INFORMATION CONTACT:  Ms. Carrie Wheeler, Air Quality Policy
Division, (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC, 27711; telephone number<PHONE_NUMBER>; fax number
(919) 541-5509; or e-mail address:   HYPERLINK
<EMAIL_ADDRESS><EMAIL_ADDRESS>.

SUPPLEMENTARY INFORMATION:

Regulated entities.  Entities potentially affected by this action
include sources in all industry groups. The majority of sources
potentially affected are expected to be in the following groups.

Industry Group

SICa

NAICSb

Electric Services

491

221111, 221112, 221113, 221119, 221121, 221122

Petroleum Refining

291

324110

Industrial Inorganic Chemicals

281

325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188

Industrial Organic Chemicals

286

325110, 325132, 325192, 325188, 325193, 325120, 325199

Miscellaneous Chemical Products

289

325520, 325920, 325910, 325182, 325510

Natural Gas Liquids

132

211112

Natural Gas Transport

492

486210, 221210

Pulp and Paper Mills

261

322110, 322121, 322122, 322130

Paper Mills

262

322121, 322122

Automobile Manufacturing

371

336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350,
336399, 336212, 336213

Pharmaceuticals

283

325411, 325412, 325413, 325414

Mining	211, 212, 213	21

Agriculture, Fishing and Hunting	111, 112, 113,  115	11

	a	Standard Industrial Classification

b	North American Industry Classification System.

Entities potentially affected by this action also include state, local,
and tribal governments.

World Wide Web.  In addition to being available in the docket, an
electronic copy of this final rule will also be available on the World
Wide Web.  Following signature by the EPA Administrator, a copy of this
final rule will be posted in the regulations and standards section of
our New Source Review (NSR) home page located at   HYPERLINK
"http://www.epa.gov/nsr"  http://www.epa.gov/nsr .

Organization of this Document.  The following outline is provided to aid
in locating information in this preamble.

I.  Background Information

II. What action is EPA taking?

III. Statutory and Executive Order Reviews

A.  Executive Order 12866: Regulatory Planning and Review

B.  Paperwork Reduction Act

C.  Regulatory Flexibility Act

D.  Unfunded Mandates Reform Act

E.  Executive Order 13132:  Federalism

F.  Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments

G.  Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks

H.  Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

I.  National Technology Transfer and Advancement Act

J.  Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

	K.  Congressional Review Act

IV.  Statutory Authority

I.  Background Information

On December 19, 2008, the EPA (“we”) issued a final rule revising
our requirements of the major NSR programs regarding the treatment of
fugitive emissions (“Fugitive Emissions Rule”). 73 FR 77882.  The
final rule required fugitive emissions to be included in determining
whether a physical or operational change results in a major modification
only for sources in industries that have been designated through
rulemaking under section 302(j) of the Clean Air Act (CAA).  The final
rule amended all portions of the major NSR program regulations: permit
requirements, the PSD program, and the emission offset interpretive
ruling.

On February 17, 2009, the Natural Resources Defense Council submitted a
petition for reconsideration of the December 2008 final rule as provided
for in CAA 307(d)(7)(B).

On April 24, 2009, we responded to the February 17, 2009 petition by
letter indicating that we were convening a reconsideration proceeding
for the inclusion of fugitive emissions challenged in the petition and
granting a 3-month administrative stay of the rule contained in the
federal Prevention of Significant Deterioration (PSD) program at 40 CFR
Parts 51 and 52.  The letter also indicated that we would publish a
notice of proposed rulemaking “in the near future” to address the
specific issues for which we are granting reconsideration.

The administrative stay of the Fugitive Emissions Rule became effective
on September 30, 2009.  See 74 FR 50115, FR Doc. E9-23503.  As noted
above, our authority under section 307(d)(7)(B) to stay a rule or
portion thereof solely under the Administrator’s discretion is limited
to 3 months.

II. What action is EPA taking?

	We are making an interim final determination to provide an additional
stay for 3 months. The 3-month stay that began on September 30, 2009
expires on December 30, 2009.  At that time, facilities will be required
to comply with the final rule as published [73 FR 77882] unless an
additional stay is set in place.  EPA intends to publish a notice in the
near future that will propose an additional stay of the Fugitive
Emissions during the time period while EPA reconsiders the rule.  Since
that proposed rule has not yet published, any resulting final action
that EPA takes will likely occur after December 30, 2009.  EPA is
invoking the good cause exception under the Administrative Procedure Act
(APA) in not providing an opportunity to comment before this action
takes effect (5 U.S.C. 553(b)(3)).

	EPA believes that notice-and-comment rulemaking before the effective
date of this action is impracticable and contrary to the public
interest.  EPA has stated in the reconsideration and stay notices (74 FR
188) the reason for granting the 3-month stay. As this reason remains
valid, we believe it is still appropriate for a stay to be in effect
until we have reached a final decision on the reconsideration.  The
initial stay expires on December 30, 2009, and EPA does not believe it
can complete notice and comment rulemaking to provide an additional stay
before that date.  It is not in the public’s best interest to require
compliance with the rules as published during the gap between the two
dates.  Therefore, EPA believes that it is necessary to use the interim
final rulemaking process to provide an additional stay while the public
has an opportunity to comment on the upcoming proposed action.  EPA
anticipates completing that action by March 31, 2010.

III.  Statutory and Executive Order Reviews

A.  Executive Order 12866: Regulatory Planning and Review

	Under Executive Order 12866   SEQ CHAPTER \h \r 1 (58 FR 51735, October
4, 1993), this action is not a "significant regulatory action” under
the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and
is, therefore, not subject to review under the Executive Order.

B.  Paperwork Reduction Act

This action does not impose an information collection burden under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).  This action only provides an
additional stay of the regulations at 40 CFR parts 51 and 52 concerning
the inclusion of fugitive emissions.

However, the Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and has assigned OMB control number
2060-0003.  The OMB control numbers for EPA's regulations in 40 CFR are
listed in 40 CFR part 9.

C.  Regulatory Flexibility Act

This interim final rule is not subject to the Regulatory Flexibility Act
(RFA), which generally requires an agency to prepare a regulatory
flexibility analysis for any rule that will have a significant economic
impact on a substantial number of small entities.  The RFA applies only
to rules subject to notice and comment rulemaking requirements under the
APA or any other statute.  This rule is not subject to notice and
comment requirements under the APA or any other statute because,
although the rule is subject to the APA, the Agency has invoked the
“good cause” exemption under 5 U.S.C. 553(b); therefore, it is not
subject to the notice and comment requirement.

D.  Unfunded Mandates Reform Act

This action does not contain a federal mandate under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, and tribal governments, in the aggregate, or
the private sector.  This action only provides for an additional stay of
the regulations at 40 CFR parts 51 and 52 concerning the inclusion of
fugitive emissions.  Thus, this rule is not subject to the requirements
of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.  This action only
provides an additional stay of the regulations at 40 CFR parts 51 and 52
concerning the inclusion of fugitive emissions and does not impose any
additional enforceable duty.

E.  Executive Order 13132:  Federalism

This action does not have federalism implications.  It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in EO 13132.  This action only provides an additional stay of
the regulations at 40 CFR parts 51 and 52 concerning the inclusion of
fugitive emissions. Thus, EO 13132 does not apply to this rule.

F.  Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments

	This action does not have tribal implications, as specified in EO 13175
(65 FR 67249, November 9, 2000).  This action will not impose any new
obligations or enforceable duties on tribal governments.  Thus, EO 13175
does not apply to this action.

G.  Executive Order 13045: Protection of Children from Environmental
Health and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as
applying only to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the
Executive Order has the potential to influence the regulation.  This
action is not subject to Executive Order 13045 because this action only
provides an additional stay of the regulations at 40 CFR parts 51 and 52
concerning the inclusion of fugitive emissions.

H.  Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply, distribution,
or use of energy.  This action only provides an additional stay of the
regulations at 40 CFR parts 51 and 52 concerning the inclusion of
fugitive emissions.

I.  National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of
1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies.  NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.

This action does not involve technical standards.  Therefore, EPA is not
considering the use of any voluntary consensus standards.

J.  Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal
executive policy on environmental justice.  Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.

EPA has determined that this action will not have a disproportionately
high and adverse human health or environmental effects on minority or
low income populations because it only provides an additional stay of
the regulations at 40 CFR parts 51 and 52 concerning the inclusion of
fugitive emissions.

K.  Congressional Review Act

	The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States. Section 808 allows the issuing agency to make a rule effective
sooner than otherwise provided by the CRA if the agency makes a good
cause finding that notice and public procedure is impracticable,
unnecessary, or contrary to the public interest. This determination must
be supported by a brief statement, 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefore, and established an effective date of December 31,
2009. EPA will submit a report containing this rule and other required
information to the United States Senate, the United States House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This action is not a
“major rule” as defined by 5 U.S.C. 804(2).

IV.  Statutory Authority

The statutory authority for this action is provided by section 301(a) of
the CAA as amended (42 U.S.C. 7601(a)).

Page 13 of 23 - Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Inclusion of Fugitive Emissions;
Proposal to Extend Administrative Stay

List of Subjects

40 CFR Part 51

	Administrative practices and procedures, Air pollution control, Carbon
Monoxide, Fugitive Emissions, Intergovernmental relation, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Transportation, Volatile Organic compounds.

40 CFR Part 52

	Administrative practices and procedures, Air pollution control, Carbon
Monoxide, Fugitive Emissions, Intergovernmental relation, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Transportation, Volatile Organic compounds.

_______________________________

Dated:

_______________________________

Lisa P. Jackson,

Administrator.

For the reasons discussed in the preamble, the EPA amends 40 CFR parts
51 and 52 as follows:

PART 51 - [Amended]

1. The authority citation for part 51 continues to read as follows:

Authority:   23 U.S.C. 101; 42 U.S.C. 7401–7671q.

§ 51.165 [Amended]

2. Effective December 31, 2009, 40 CFR 51.165
(a)(1)(v)(G),(a)(1)(vi)(C)(3),(a)(1)(ix),(a)(1)(xxviii)(B)(2),
(a)(1)(xxviii)(B)(4),(a)(1)(xxxv)(A)(1),(a)(1)(xxxv)(B)(1),
(a)(1)(xxxv)(C),(a)(1)(xxxv)(D),(a)(2)(ii)(B), (a)(6)(iii),(a)(6)(iv),
and (f)(4)(i)(D) are stayed until   March 31, 2010.

3. Effective December 31, 2009 through March 31, 2010, amend 40 CFR
51.165 to add paragraph (a)(4) to read as follows:

§ 51.165 Permit requirements.

(a)***

(4) Each plan may provide that the provisions of this paragraph do not
apply to a source or modification that would be a major stationary
source or major modification only if fugitive emission to the extent
quantifiable are considered in calculating the potential to emit of the
stationary source or modification and the source does not belong to any
of the following categories:

Coal cleaning plants (with thermal dryers);

    (ii) Kraft pulp mills;

    (iii) Portland cement plants;

    (iv) Primary zinc smelters;

    (v) Iron and steel mills;

    (vi) Primary aluminum ore reduction plants;

    (vii) Primary copper smelters;

    (viii) Municipal incinerators capable of charging more than 250 tons
of refuse per day;

    (ix) Hydrofluoric, sulfuric, or citric acid plants;

    (x) Petroleum refineries;

    (xi) Lime plants;

    (xii) Phosphate rock processing plants;

    (xiii) Coke oven batteries;

    (xiv) Sulfur recovery plants;

    (xv) Carbon black plants (furnace process);

    (xvi) Primary lead smelters;

    (xvii) Fuel conversion plants;

    (xviii) Sintering plants;

    (xix) Secondary metal production plants;

    (xx) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;

    (xxi) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;

    (xxii) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;

    (xxiii) Taconite ore processing plants;

    (xxiv) Glass fiber processing plants;

    (xxv) Charcoal production plants;

    (xxvi) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;

    (xxvii) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.

* * * * *

§ 51.166 [Amended]

4. Effective December 31, 2009, 40 CFR 51.166 (a)(7)(iv)(b), (b)(2)(v),
b)(3)(iii)(c), (b)(3)(iii)(d),(b)(20),(b)(40)(ii)(b), (b)(40)(ii)(d),
(b)(47)(i)(a), (b)(47)(ii)(a),(b)(47)(iii),  (b)(47)(iv), (r)(6)(iii)
and (r)(6)(iv), and (w)(4)(i)(d) are stayed until March 31, 2010.

5. Effective December 31, 2009 through March 31, 2010, amend 40 CFR
51.166 to add paragraph (i)(l)(ii) to read as follows:

§ 51.166 Prevention of significant deterioration of air quality.

* * * * *

(i)***

(1)***

(ii) The source or modification would be a major stationary source or
major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of the
stationary source or modification and such source does not belong to any
following categories:

    (a) Coal cleaning plants (with thermal dryers);

    (b) Kraft pulp mills;

    (c) Portland cement plants;

    (d) Primary zinc smelters;

    (e) Iron and steel mills;

    (f) Primary aluminum ore reduction plants;

    (g) Primary copper smelters;

    (h) Municipal incinerators capable of charging more than 250 tons of
refuse per day;

    (i) Hydrofluoric, sulfuric, or nitric acid plants;

    (j) Petroleum refineries;

    (k) Lime plants;

    (l) Phosphate rock processing plants;

    (m) Coke oven batteries;

    (n) Sulfur recovery plants;

    (o) Carbon black plants (furnace process);

    (p) Primary lead smelters;

    (q) Fuel conversion plants;

    (r) Sintering plants;

    (s) Secondary metal production plants;

    (t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;

    (u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;

    (v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;

    (w) Taconite ore processing plants;

    (x) Glass fiber processing plants;

    (y) Charcoal production plants;

    (z) Fossil fuel-fired steam electric plants of more than 250 million
British thermal units per hour heat input;

    (aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act; or

* * * * *

Appendix S to 40 CFR Part 51 [Amended]

6. Effective December 31, 2009, 40 CFR part 51, Appendix S, paragraphs
SEQ CHAPTER \h \r 1  II.A.5(vii),  II.A.6(iii), II.A.9, II.A.24(ii)(b),
II.A.24(ii)(d), II.A.30(i)(a), II.A.30(ii)(a), II.A.30(iii),
II.A.30(iv), IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) are stayed
until March 31, 2010.

	7. Effective December 31, 2009 through March 31, 2010, amend Appendix S
to part 51 to add II.F to read as follows:

Appendix S to Part 51- Emission Offset Interpretative Ruling

* * * * *

II.***

F. Fugitive emission sources.  Section IV. A. of this Ruling shall not
apply to a source or modification that would be a major stationary
source or major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of the
stationary source or modification and such source does not belong to any

following categories:

    (1) Coal cleaning plants (with thermal dryers);

    (2) Kraft pulp mills;

    (3) Portland cement plants;

    (4) Primary zinc smelters;

    (5) Iron and steel mills;

    (6) Primary aluminum ore reduction plants;

    (7) Primary copper smelters;

    (8) Municipal incinerators capable of charging more than 250 tons of
refuse per day;

    (9) Hydrofluoric, sulfuric, or nitric acid plants;

    (10) Petroleum refineries;

    (11) Lime plants;

    (12) Phosphate rock processing plants;

    (13) Coke oven batteries;

    (14) Sulfur recovery plants;

    (15) Carbon black plants (furnace process);

    (16) Primary lead smelters;

    (17) Fuel conversion plants;

    (18) Sintering plants;

    (19) Secondary metal production plants;

    (20) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;

    (21) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;

    (22) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;

    (23) Taconite ore processing plants;

    (24) Glass fiber processing plants;

    (25) Charcoal production plants;

    (26) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;

    (27) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.

* * * * *

Part 52 – [Amended]

8. The authority citation for part 52 continues to read as follows:

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

§52.21 [Amended]

9.  Effective December 31, 2009, 40 CFR 52.21, (a)(2)(iv)(b), (b)(2)(v),
(b)(3)(iii)(b), (b)(3)(iii)(c), (b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d),
(b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), (b)(48)(iv), (r)(6)(iii),
(r)(6)(iv), and (aa)(4)(i)(d) are stayed until March 31, 2010.

10. Effective December 31, 2009 through March 31, 2010, amend 40 CFR
52.21 to add (i)(l)(vii) to read as follows:

§ 52.21 Prevention of significant deterioration of air quality.

* * * * *

(i) ***

(1) ***

(vii) The source or modification would be a major stationary source or
major modification only if fugitive emissions, to the extent
quantifiable, are considered in calculating the potential to emit of the
stationary source or modification and the source does not belong to any
of the following categories:

    (a) Coal cleaning plants (with thermal dryers);

    (b) Kraft pulp mills;

    (c) Portland cement plants;

    (d) Primary zinc smelters;

    (e) Iron and steel mills;

    (f) Primary aluminum ore reduction plants;

    (g) Primary copper smelters;

    (h) Municipal incinerators capable of charging more than 250 tons of
refuse per day;

    (i) Hydrofluoric, sulfuric, or nitric acid plants;

    (j) Petroleum refineries;

    (k) Lime plants;

    (l) Phosphate rock processing plants;

    (m) Coke oven batteries;

    (n) Sulfur recovery plants;

    (o) Carbon black plants (furnace process);

    (p) Primary lead smelters;

    (q) Fuel conversion plants;

    (r) Sintering plants;

    (s) Secondary metal production plants;

    (t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;

    (u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;

    (v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;

    (w) Taconite ore processing plants;

    (x) Glass fiber processing plants;

    (y) Charcoal production plants;

    (z) Fossil fuel-fired steam electric plants of more than 250 million
British thermal units per hour heat input;

    (aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act; or

* * * * *

  John Walke, NRDC, EPA-HQ-OAR-2004-0014-0060.

  Lisa Jackson, US EPA, EPA-HQ-OAR-2004-0014-0062

 PAGE

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