[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Notices]
[Pages 22367-22372]
[FR Doc No: 2012-8878]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66772; File No. SR-MSRB-2012-05]

Self-Regulatory Organizations; Municipal Securities Rulemaking
Board; Notice of Filing of a Proposed Rule Change Consisting of a
Restatement of an Interpretive Notice Concerning the Application of
MSRB Rule G-17 to Sophisticated Municipal Market Professionals

April 9, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``the Exchange Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is
hereby given that on March 26, 2012, the Municipal Securities
Rulemaking Board (``Board'' or ``MSRB'') filed with the Securities and
Exchange Commission (``SEC'' or ``Commission'') the proposed rule
change as described in Items I, II, and III below, which Items have
been prepared by the MSRB. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \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

    The MSRB is filing with the SEC a proposed rule change consisting
of a restatement of an interpretive notice (the ``Existing SMMP
Notice'' and the ``Restated SMMP Notice,'' respectively) concerning the
application of MSRB Rule G-17 (on conduct of municipal securities and
municipal advisory activities) to sophisticated municipal market
professionals (``SMMPs''). Because of the relationship between the
proposed rule change and FINRA Rule 2111 (on suitability), the MSRB
requests that the proposed rule change be made effective on July 9,
2012, which is the date on which FINRA Rule 2111 will become effective.
    The text of the proposed rule change is available on the MSRB's Web
site at www.msrb.org/Rules-and-Interpretations/SEC-Filings/2012-Filings.aspx, at the MSRB's principal office, 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 MSRB 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 MSRB 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
    Existing Definition of SMMP
    Under the Existing SMMP Notice, a dealer is permitted to treat an
institutional customer \3\ as an SMMP if the dealer has reasonable
grounds for concluding the following and other known facts do not
contradict such a conclusion:
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    \3\ For purposes of the Existing SMMP Notice, an institutional
customer is defined as ``an entity, other than a natural person
(corporation, partnership, trust, or otherwise), with total assets
of at least $100 million invested in municipal securities in the
aggregate in its portfolio and/or under management.''
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     The customer has timely access to the publicly available
material facts concerning a municipal securities transaction;
     The customer is capable of independently evaluating the
investment risk and market value of the municipal securities at issue;
and
     The customer is making independent decisions about its
investments in municipal securities.
    Although the Existing SMMP Notice permits a dealer to have an
investor attest to SMMP status ``as a means of streamlining the
dealers' process for determining that the customer is an SMMP,'' it
also provides that a dealer may not rely on such an attestation if the
dealer knows or has reason to know that the investor lacks
sophistication concerning a municipal securities transaction based on a
number of factors set forth in the notice.
    Access to Material Facts. As to the first part of the definition of
SMMP, access to material facts, the Existing SMMP Notice provides that
a dealer's analysis may depend on the customer's resources to
investigate the transaction (e.g., research analysts) and the
customer's ready access to established industry sources for
disseminating material information concerning the transaction (e.g.,
the predecessors of the MSRB's Electronic Municipal Market Access
(``EMMA'') System and the MSRB's Real-Time Trade Reporting System
(``RTRS''), rating agency data, and other indicative data sources).
    Independent Evaluation of Investment Risk and Market Value. As to
the second part of the definition of SMMP, independent evaluation of
risk and market value, the Existing SMMP Notice identifies the
following relevant factors:
     The customer's use of one or more consultants, investment
advisers, research analysts or bank trust departments;
     The customer's general level of experience in municipal
securities markets and specific experience with the type of municipal
securities under consideration;
     The customer's ability to understand the economic features
of the municipal security;
     The customer's ability to independently evaluate how
market developments would affect the municipal security under
consideration; and
     The complexity of the municipal security or securities
involved.
    Independent Investment Decisions. As to the third part of the
definition, independent investment decisions, the Existing SMMP Notice
provides that such a determination will depend on the nature of the
relationship between the dealer and the institutional customer and
provides that the following considerations may be relevant:
     Any written or oral understanding that exists between the
dealer and the institutional customer regarding the nature of the
relationship between the dealer and the institutional customer and the
services to be rendered by the dealer;
     The presence or absence of a pattern of acceptance of the
dealer's recommendations;
     The use by the institutional customer of ideas,
suggestions, market views, and information relating to municipal
securities obtained from sources other than the dealer; and
     The extent to which the dealer has received from the
institutional customer current comprehensive portfolio information in
connection with discussing potential municipal securities transactions
or has not been provided important information regarding the
institutional customer's portfolio or investment objectives.
    Application of Existing SMMP Definition
    The Existing SMMP Notice addresses a dealer's obligations to an
SMMP under Rule G-17 (on fair dealing), Rule G-18 (on execution of
transactions), Rule G-19 (on suitability), and Rule G-13 (on
quotations).
    Rule G-17. Just prior to the adoption of the Existing SMMP Notice,
the SEC approved another MSRB notice \4\ in which the MSRB interpreted
Rule G-17 to require brokers, dealers, and municipal securities dealers
(``dealers'') to disclose to customers at or before the time of trade
all material facts about a transaction known by the dealer, as well as
all material facts about a security reasonably accessible to the market
from established industry sources.\5\ The Existing SMMP Notice provides
that, when a dealer effects a non-recommended secondary market
transaction with an SMMP, its affirmative Rule G-17 disclosure duty
concerning material facts available from established industry sources
will be deemed satisfied. The Existing SMMP Notice does not alter a
dealer's duty not to engage in deceptive, dishonest, or unfair
practices under Rule G-17 or under the federal securities laws. In
essence, it puts the dealer's disclosure obligations to SMMPs when
effecting non-recommended secondary market transactions on a par with
inter-dealer disclosure obligations. The Existing SMMP Notice provides
that, as in the case of an inter-dealer transaction, in a transaction
with an SMMP, a dealer's intentional withholding of a material fact
about a security, when the information is not accessible through
established industry sources, may constitute an unfair practice that
violates Rule G-17.
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    \4\ MSRB Interpretive Notice Regarding Rule G-17, On Disclosure
of Material Facts (March 20, 2002) (the ``2002 Rule G-17 Notice'').
    \5\ The 2002 Rule G-17 Notice was updated in 2009 to reflect,
among other things, the addition of EMMA as an established industry
source. See MSRB Guidance On Disclosure and Other Sales Practice
Obligations to Individual and Other Retail Investors in Municipal
Securities (July 14, 2009). The 2009 Notice also extended the Rule
G-17 affirmative disclosure obligation to ``material information.''
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    Rule G-18. Rule G-18 provides that each dealer, when executing a
transaction in municipal securities for or on behalf of a customer as
agent, must make a reasonable effort to obtain a price for the customer
that is fair and reasonable in relation to prevailing market
conditions. The Existing SMMP Notice provides that a dealer effecting a
non-recommended secondary market agency transaction to an SMMP is not
required to take further actions to ensure that the transaction is
effected at a fair and reasonable price, if its services have been
explicitly limited to providing anonymity, communication, order
matching, and/or clearance functions and the dealer does not exercise
discretion as to how or when a transaction is executed. The Existing
SMMP Notice then states that this interpretation of Rule G-18 is

particularly relevant to dealers operating alternative trading systems,
stating that dealers operating such systems may be merely aggregating
the buy and sell interest of other dealers or SMMPs. A footnote to the
Existing SMMP Notice says that the same interpretation would apply to a
broker's broker when executing an agency transaction for another
dealer.
    Rule G-19. Under Rule G-19, in the case of a recommended
transaction, a dealer must have a reasonable basis for recommending a
particular security (``reasonable-basis suitability''), as well as
reasonable grounds for believing the recommendation is suitable for the
customer to whom it is made, based upon information available from the
issuer of the security or otherwise and based upon the facts disclosed
by the customer or otherwise known about the customer (``customer-
specific suitability''). The Existing SMMP Notice provides that, when a
dealer has reasonable grounds for concluding that an institutional
customer is an SMMP, the dealer's customer-specific suitability
obligation is fulfilled.
    Rule G-13. Under Rule G-13, no dealer may distribute or publish, or
cause to be distributed or published, any quotation relating to
municipal securities, unless the quotation is bona fide (i.e., the
dealer making the quotation is prepared to execute at the quoted price)
and the price stated in the quotation is based on the best judgment of
the dealer of the fair market value of the securities that are the
subject of the quotation at the time the quotation is made. In general,
any quotation disseminated by a dealer (including the quotation of an
investor) is presumed to be a quotation made by the dealer and the
dealer is responsible for ensuring compliance with the bona fide and
fair market value requirements with respect to the quotation. However,
if a dealer disseminates a quotation that is actually made by another
dealer and the quotation is labeled as such, then the quotation is
presumed to be a quotation made by such other dealer and not by the
disseminating dealer. In such a case, the disseminating dealer is only
required to have no reason to believe that either: (i) The quotation
does not represent a bona fide bid for, or offer of, municipal
securities by the maker of the quotation or (ii) the price stated in
the quotation is not based on the best judgment of the maker of the
quotation of the fair market value of the securities.
    The Existing SMMP Notice provides that, if a dealer disseminates
the quotation of an SMMP and it is labeled as such, the disseminating
dealer will be held to the same standard as if it were disseminating a
quotation made by another dealer. The notice says that the following
factors are relevant to the dealer's assessment of whether
dissemination of the SMMP's quotation may be considered to be a
violation of Rule G-13 by the dealer: (i) Complaints received from
dealers and investors seeking to execute against such quotations, (ii)
a pattern of an SMMP failing to update, confirm or withdraw its
outstanding quotations so as to raise an inference that such quotations
may be stale or invalid, or (iii) a pattern of an SMMP effecting
transactions at prices that depart materially from the prices listed in
the quotations in a manner that consistently is favorable to the SMMP
making the quotation.

Considerations for Change

    Increased Availability of Information about Municipal Securities.
In 2002, the MSRB decided to adopt a definition of SMMP that differed
from certain other regulatory definitions of investors considered
sophisticated enough to receive special treatment under the federal
securities law. The SMMP definition was closely modeled on an NASD
interpretation of its suitability rule,\6\ which contained a comparable
list of factors found relevant to an investor's independent evaluation
of risk and independent investment decisions. A notable difference was
that the definition of SMMP also looked to whether the investor had
access to material facts. A key factor in the MSRB's decision was the
lack of information available about municipal securities at that time.
Since the adoption of the existing definition of SMMP, there has been a
vast increase in the availability of information about municipal
securities reasonably accessible by institutional investors regardless
of the amount of their holdings of municipal securities (e.g., on EMMA,
from rating agencies, and from other information vendors).
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    \6\ See IM-2310-3. Suitability Obligations to Institutional
Customers.
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    New FINRA Institutional Suitability Rule. Effective July 9, 2012,
the NASD guidance on institutional suitability will no longer be in
effect. It will be replaced by FINRA Rule 2111, which adopts a
different approach to a FINRA member's customer-specific duty of
suitability to an ``institutional account.'' \7\ Under FINRA Rule 2111,
a dealer's customer-specific suitability obligation to an institutional
customer will be considered satisfied if (1) the dealer has a
reasonable basis to believe that the institutional customer is capable
of evaluating investment risks independently, both in general and with
regard to particular transactions and investment strategies involving a
security or securities and (2) the institutional customer affirmatively
indicates that it is exercising independent judgment in evaluating the
dealer's recommendations. There will no longer be a detailed listing of
factors, such as that found in the Existing SMMP Notice. The MSRB
generally considers it desirable from the standpoint of reducing the
cost of dealer compliance to maintain consistency with FINRA rules,
absent clear reasons for treating transactions in municipal securities
differently.
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    \7\ The term ``institutional account'' will be defined in the
same manner as under MSRB Rule G-8(a)(xi). MSRB Rule G-8(a)(xi)
defines ``institutional account'' as: the account of (i) a bank,
savings and loan association, insurance company, or registered
investment company; (ii) an investment adviser registered either
with the Commission under Section 203 of the Investment Advisers Act
of 1940 or with a state securities commission (or any agency or
office performing like functions); or (iii) any other entity
(whether a natural person, corporation, partnership, trust, or
otherwise) with total assets of at least $50 million.
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    Proposal to Restate SMMP Notice
    Revised Definition of SMMP. Because the quality and availability of
information concerning municipal securities has improved substantially
since 2002, and to maintain consistency with the revised FINRA
suitability rule for institutional customers, the MSRB proposes to
retain the concept of an SMMP, but revise its definition so that it is
consistent with the new FINRA suitability rule for institutional
customers. Specifically, the MSRB proposes that an ``SMMP'' be defined
as an ``institutional customer \8\ of a dealer that: (1) The dealer has
a reasonable basis to believe is capable of evaluating investment risks
and market value independently, both in general and with regard to
particular transactions in municipal securities, and (2) affirmatively
indicates that it is exercising independent judgment in evaluating the
recommendations of the dealer.''
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    \8\ ``Institutional customer'' would be defined as a customer
with an institutional account (as defined under MSRB Rule G-
8(a)(xi).
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    The MSRB also proposes to include the following statement in the
Restated SMMP Notice's discussion of the definition of SMMP: ``As part
of the reasonable basis analysis required by clause (1), the dealer
should consider the amount and type of municipal securities owned or
under management by the institutional customer.''
    The key to the revised definition of SMMP is the requirement that a
dealer have a reasonable basis to believe that an investor is capable
of evaluating

investment risks and market value independently, both in general and
with regard to particular transactions in municipal securities
(sometimes referred to in this filing as the ``reasonable basis
analysis''). When the MSRB created the existing definition of SMMP,
alternative trading systems for municipal securities were new and
access to material facts about municipal securities was in large part
limited to very large institutional investors. The high threshold for
determining whether an investor would be considered an institutional
customer under the Existing SMMP Notice ($100 million of municipal
securities owned and/or under management) was considered necessary to
make sure that only the most sophisticated institutions and dealers
were likely to use alternative trading systems. The Restated SMMP
Notice would provide that, as part of its reasonable basis analysis, a
dealer should consider the amount and type of municipal securities
owned or under management by the institutional customer. However, there
would no longer be a threshold requirement that a customer own or
manage a certain amount of municipal securities in order to be
considered an SMMP.
    The MSRB also proposes that, in the case of the affirmation
described in clause (2) of the revised definition of SMMP (i.e.,
``capable of evaluating investment risks and market value
independently''), customers be allowed to make the affirmation orally
or in writing and to provide the affirmation on a trade-by-trade basis,
on a type-of-municipal-security basis (e.g., general obligation,
revenue, VRDO, etc.), or for all potential transactions for the
customer's account. This would be consistent with the affirmation
requirement of FINRA Rule 2111, so receipt by a dealer of the FINRA
2111 affirmation would also satisfy this requirement.
    Application of Revised SMMP Definition. The Restated SMMP Notice
would not change the application of Rules G-18, G-19, and G-13 to
SMMPs. However, it would change the application of Rule G-17 to SMMPs,
under the assumption that institutional customers now have substantial
access to material information about municipal securities. The Existing
SMMP Notice limits the exclusion from the duty to disclose all material
facts to SMMPs to non-recommended transactions. The Restated SMMP
Notice would apply the exclusion to all transactions with SMMPs,
whether recommended or self-directed. The Restated SMMP Notice would
also remove the lists of factors that were deemed by the Board in 2002
to be relevant to the components of the original definition of SMMP. It
would also update the Existing SMMP Notice to reflect developments in
the MSRB's interpretations of Rule G-17 since 2002 and remove endnote 9
to the Existing SMMP Notice, which has been construed by some to lessen
the duty of a broker's broker under Rule G-18 in a manner that is
inconsistent with the Board's proposed Rule G-43 (on broker's
brokers).\9\ Furthermore, it would remove the language that suggests
that transactions on alternative trading systems are done on an agency
basis, because at least one major alternative trading system engages
only in principal transactions.
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    \9\ File No. SR-MSRB-2012-04 (March 5, 2012). The MSRB notes
that, under proposed Rule G-43(d)(iii)(A), an alternative trading
system that had any customers (as defined in MSRB Rule D-9) that
were not SMMPs would not be excepted from the definition of
``broker's broker.''
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2. Statutory Basis
    The MSRB believes that the proposed rule change is consistent with
Section 15B(b)(2) of the Securities Exchange Act (``Exchange Act''),
which provides that:

    The Board shall propose and adopt rules to effect the purposes
of this title with respect to transactions in municipal securities
effected by brokers, dealers, and municipal securities dealers and
advice provided to or on behalf of municipal entities or obligated
persons by brokers, dealers, municipal securities dealers, and
municipal advisors with respect to municipal financial products, the
issuance of municipal securities, and solicitations of municipal
entities or obligated persons undertaken by brokers, dealers,
municipal securities dealers, and municipal advisors.

    Section 15B(b)(2)(C) of the Exchange Act, provides that the rules
of the MSRB shall:

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 municipal securities and
municipal financial products, to remove impediments to and perfect
the mechanism of a free and open market in municipal securities and
municipal financial products, and, in general, to protect investors,
municipal entities, obligated persons, and the public interest.

    The proposed rule change is consistent with Sections 15B(b)(2) and
15B(b)(2)(C) of the Exchange Act. Its principal purpose is to remove
impediments to and perfect the mechanism of a free and open market in
municipal securities, particularly in the case of the alternative
trading systems that have been an increasingly important venue for the
provision of secondary market liquidity for municipal securities. New
municipal securities products, such as Build America Bonds, and
decreasing spreads between interest rates on Treasury bonds and
municipal securities, have attracted investors that were not previously
invested in municipal securities to the municipal securities market. At
the same time, the amount of available information about municipal
securities has vastly increased since the Existing SMMP Notice was
approved. While the Restated SMMP Notice would provide that a dealer
should consider the amount and type of municipal securities owned or
under management by the institutional customer, the MSRB no longer
considers it essential that an institutional customer own or manage
municipal securities in order to engage in informed decisionmaking
about municipal securities investments. The MSRB believes it is
appropriate to allow sophisticated investors to trade in municipal
securities on alternative trading systems even though they do not meet
the $100 million threshold of municipal securities owned and/or managed
found in the Existing SMMP Notice. This change would not come at the
expense of investor protection. While the application of the proposed
rule change would not be limited to transactions on alternative trading
systems, the application of certain MSRB rules to such systems has
proven difficult in practice, especially with the increasing use of
computerized algorithmic trading. The MSRB notes that such systems, if
monitored closely and subjected to appropriate rulemaking,\10\ have the
potential to increase pre-trade transparency in the municipal
marketplace, which should eventually improve prices for all investors.
The MSRB also generally considers it desirable from the standpoint of
reducing the cost of dealer compliance to maintain consistency with
FINRA rules, absent clear reasons for treating transactions in
municipal securities differently.
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    \10\ The MSRB notes that proposed MSRB Rule G-43 would provide
for additional regulation of such alternative trading systems.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The MSRB does not believe that the proposed rule change would
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Exchange Act, since it would apply
equally to all dealers that have SMMP customers, whether alternative
trading systems or not.

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

    On November 8, 2011, the MSRB requested comment on the original
version of the proposed rule change.\11\ The MSRB received comment
letters from (1) Alternative Regulatory Solutions, LLC (``ARS''); (2)
Bond Dealers of America (``BDA''); (3) Securities Industry and
Financial Markets Association (``SIFMA''); and (4) TMC Bonds L.L.C.
(``TMC''), formerly The MuniCenter.
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    \11\ See MSRB Notice 2011-63 (November 8, 2011).
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    Safe Harbor. The original version of the Restated SMMP Notice on
which comment was requested proposed a safe harbor for satisfaction of
the dealer's reasonable basis analysis. Most of the comments concerned
that safe harbor. The reasonable basis analysis portion of the
definition of SMMP is referred to in this discussion of comments as the
``general rule.'' SIFMA said that the safe harbor was too restrictive.
It requested that: (1) The types of assets owned or under management
required by the safe harbor not be limited to municipal securities, and
(2) the attestation requirement of the safe harbor \12\ either be
eliminated entirely or eliminated for certain types of institutional
customers (i.e., banks, savings and loan associations, insurance
companies, registered investment companies, and federally- or state-
registered investment advisers). SIFMA said that, if the assets
required for the safe harbor were required to be municipal securities,
the dollar threshold should be reduced from $50 million to $25 million
of municipal securities owned or under management. TMC said that the
safe harbor should require ownership and/or management of at least $50
million of direct fixed income securities. BDA advocated that an
institutional investor with at least $25 million of fixed income
securities should qualify for the safe harbor without the need for an
attestation. ARS recommended that the attestations of the general rule
and the safe harbor be combined and that all attestations be required
to be in writing. ARS also recommended that the safe harbor requirement
of $50 million of municipal securities be determined on an average
annual basis and asked how often a dealer would be required to verify
this asset concentration.
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    \12\ Both the general rule and the safe harbor contained
``attestation'' requirements, unlike the version of the SMMP
definition in the proposed rule change.
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    The MSRB has determined to eliminate the safe harbor from the
proposed rule due to a concern that the amount of municipal securities
owned or managed by a customer does not necessarily equate to
sophistication. Nevertheless, the Restated SMMP Notice would provide
that, as part of its reasonable basis analysis, a dealer should
consider the amount and type of municipal securities owned or under
management by an institutional customer.
    As to ARS's comment concerning the frequency with which the $50
million threshold of the safe harbor would need to be measured, while
the safe harbor has been eliminated, the question is still relevant to
the frequency with which dealers would need to take steps to reassess
their reasonable basis determinations with respect to their
institutional customers. Dealers should monitor their reasonable basis
determinations as frequently as they consider prudent, just as they
would need to do so if they planned to treat natural persons with total
assets of at least $50 million as institutional customers under either
FINRA Rule 2111 or the Restated SMMP Notice.\13\
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    \13\ The following statement from FINRA Regulatory Notice 11-02
(January 2011) is useful: a broker-dealer must know its customers
not only at account opening but also throughout the life of its
relationship with customers in order to, among other things,
effectively service and supervise the customers' accounts. Since a
broker-dealer's relationship with its customers is dynamic, FINRA
does not believe that it can prescribe a period within which broker-
dealers must attempt to update this information. As with a
customer's investment profile under the suitability rule, a firm
should verify the ``essential facts'' about a customer under the
know-your-customer rule at intervals reasonably calculated to
prevent and detect any mishandling of a customer's account that
might result from the customer's change in circumstances. The
reasonableness of a broker-dealer's efforts in this regard will
depend on the facts and circumstances of the particular case. Firms
should note, however, that SEA Rule 17a-3 requires broker-dealers
to, among other things, attempt to update certain account
information every 36 months regarding accounts for which the broker-
dealers were required to make suitability determinations.
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    As to ARS's suggestion that the affirmation be required to be in
writing, although it appears that many dealers plan to rely on written
affirmations, the MSRB is not requiring that the affirmations be in
writing in view of the goal to be consistent with FINRA Rule 2111
unless a different rule is justified.
    General Rule. SIFMA noted that the original version of the Restated
SMMP Notice would have required an attestation from each institutional
customer, while FINRA Rule 2111 requires an affirmation. It asked that
the MSRB language track the FINRA rule precisely and requested
clarification that the FINRA Rule 2111 affirmation would suffice for
the SMMP affirmation. BDA questioned how a dealer could satisfy the
reasonable basis requirement of the general rule absent use of the safe
harbor and suggested that the list of factors set forth in the Existing
SMMP Notice be retained. It said that, at a minimum, the MSRB should
make it clear that there is no negative implication to the deletion of
the list and that the deletion of the list is not an indication that
the considerations are no longer considered relevant by the MSRB. BDA
objected to the need for attestations from investors even under the
general rule and suggested that a dealer should be able to inform its
customer that the dealer considers the customer to be an SMMP, capable
of exercising independent judgment and evaluating market risks and
market value. As to customers that qualify as SMMPs under the current
notice, BDA requested that the MSRB provide a transition rule that
would permit dealers six months within which to obtain the required
attestations from customers that meet the current definition of SMMP.
TMC questioned whether attestations from customers that meet the
current definition of SMMP would be required.
    The MSRB has changed the words ``affirmatively attest'' in the
definition of SMMP to ``affirmatively indicate'' to track precisely the
affirmation language of FINRA Rule 2111 and wishes to clarify that the
FINRA Rule 2111 customer affirmation would satisfy the SMMP affirmation
requirement. The MSRB has also determined to recommend that the
proposed effective date of the restated SMMP notice be the same as that
of FINRA Rule 2111, which is July 9, 2012. No exception from the
affirmation requirement would be provided, because under FINRA Rule
2111 affirmations must be received from all institutional customers as
to which dealers plan to avail themselves of the institutional
customer-specific suitability exception. Companies that already provide
qualified institutional buyer (QIB) lists for dealers are already in
the process of obtaining the required FINRA Rule 2111 affirmations from
institutional customers.
    As to BDA's comment on the list of factors that the restated notice
would eliminate, the factors in the existing SMMP notice may actually
have the practical effect of serving as a constraint on a dealer's
ability to conclude that a customer is an SMMP. The text of the
existing SMMP notice that precedes the list of factors follows:

    The MSRB has identified certain factors for evaluating an
institutional investor's sophistication concerning a municipal
securities transaction and these factors are discussed in detail
below. Moreover, dealers

are advised that they have the option of having investors attest to
SMMP status as a means of streamlining the dealers' process for
determining that the customer is an SMMP. However, a dealer would
not be able to rely upon a customer's SMMP attestation if the dealer
knows or has reason to know that an investor lacks sophistication
concerning a municipal securities transaction, as discussed in
detail below.

    Because the list of factors may actually serve as a constraint on
the dealer's reasonable basis determination, when FINRA Rule 2111
eliminated a very similar list of factors, the MSRB decided to
eliminate the list from the restated SMMP notice as well. This provides
more flexibility to a dealer as to how it will satisfy the reasonable
basis requirement of the general rule. The MSRB wishes to clarify that
dealers might find those factors useful but would not be required to
consider them.

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

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve or disapprove such proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be disapproved.

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 Exchange 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_ADDRESS>Please include
File Number SR-MSRB-2012-05 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-MSRB-2012-05. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site 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 such filing also will be available for
inspection and copying at the MSRB's offices. 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-MSRB-2012-05 and should be submitted on
or before May 4, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-8878 Filed 4-12-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 88, Number 223 (Tuesday, November 21, 2023)]
[Notices]
[Pages 81122-81125]
[FR Doc No: 2023-25665]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98952; File No. SR-ISE-2023-27]

Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Adopt Pricing
for Index Options on the Nasdaq 100 Micro Index

November 15, 2023.
    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 November 7, 2023, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``Commission'')
the proposed rule change as described in Items I, and II, 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.
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    \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

    The Exchange proposes to amend the Exchange's Pricing Schedule at
Options 7 to adopt pricing for index options on the Nasdaq 100 Micro
Index.\3\
---------------------------------------------------------------------------

    \3\ The Exchange withdrew SR-ISE-2023-25 on November 7, 2023 and
replaced it with the instant filing.
---------------------------------------------------------------------------

    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/ise/rules, at the
principal office of the Exchange, 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 recently filed an immediately effective rule change to
list index options on the Nasdaq 100 Micro Index (``XND'') on ISE.\4\
XND will be same in all respects as the current Nasdaq 100 Index
options contract (``NDX'') listed on the Exchange, except it will be
based on 1/100th of the value of Nasdaq 100 Index, and will be P.M.-
settled with an exercise settlement value based on the closing index
value of Nasdaq 100 Index on the day of expiration.\5\
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    \4\ See ISE-2023-24 (not yet noticed). Currently, XND Options
trade on Phlx.
    \5\ Id. The Exchange notes that similar features are available
with other index options contracts listed on the Exchange, including
P.M. settled options on the full value of the Nasdaq-100 Index
(``NDXP'').
---------------------------------------------------------------------------

    The Exchange now proposes to amend its Pricing Schedule to adopt
pricing for XND. By way of background, certain proprietary products
such as NDX, NDXP and the Nasdaq 100 Reduced Value Index (``NQX'') are
commonly excluded from a variety of fee programs.\6\ The Exchange notes
that the reason for such exclusion is because the Exchange has expended
considerable resources developing and maintaining its proprietary
products. Similar to NDX, NDXP, and NQX, XND is a

proprietary product. As such, the Exchange proposes to establish
transaction fees for XND that are similarly structured to the
transaction fees for NDX, NDXP, and NQX with some differences as noted
below. The Exchange also proposes to exclude XND from several pricing
programs in the same manner as which NDX, NDXP, and NQX are excluded
today.
---------------------------------------------------------------------------

    \6\ Nasdaq Phlx LLC (``Phlx'') lists XND today and excludes XND
from a variety of its pricing programs. See Phlx's Pricing Schedule
at Options 7.
---------------------------------------------------------------------------

Fee Programs
    Today, Options 7, Section 3, Regular Order Fees and Rebates,
reflects the regular order fees and rebates applicable to ISE. Today,
the Exchange specifies in note 7 of Options 7, Section 3 that for all
executions in regular NDX and NQX orders, the applicable index options
fees in Section 5 will apply. The Exchange proposes to add pricing for
XND options in note 7 of Options 7, Section 5 so it will also apply to
XND.
    Similarly, today, Options 7, Section 4, Complex Order Fees and
Rebates, reflects complex order fees and rebates applicable to ISE.
Today, the Exchange specifies in note 5 of Options 7, Section 4 that
for all executions in complex NQX orders, the NQX index options fees in
Section 5 will apply. The Exchange proposes to add XND in note 5 of
Options 7, Section 4 so it will also apply to XND. Additionally, note 4
of Options 7, Section 4 provides that no Priority Customer complex
order rebates will be paid for orders in NDX, NQX or MNX. The Exchange
proposes to add XND in note 4 of Options 7, Section 4 so it will also
apply to XND.
    As set forth in Options 7, Section 6.H, the Exchange currently caps
Crossing Order \7\ fees at $200,000 per month, per Member on all Firm
Proprietary transactions that are part of the originating or contra
side of a Crossing Order. Once a Member exceeds the fee cap level the
Member will be subject to a reduced transaction fee of $0.02 per capped
contract, unless the Member also qualifies for free executions. Today,
fees charged by the Exchange for Responses to Crossing Orders,
surcharge fees charged by the Exchange for licensed products, and fees
for index options as set forth in Options 7, Section 5 are not included
in the calculation of the monthly Crossing Fee Cap. At this time, the
Exchange proposes to similarly exclude fees charged for Responses to
Crossing Orders, surcharge fees for licensed products, and fees for
index options as set forth in Options 7, Section 5 from the calculation
of the monthly Crossing Fee Cap.
---------------------------------------------------------------------------

    \7\ Crossing Orders are contracts that are submitted as part of
a Facilitation, Solicitation, PIM, Block or QCC order. All eligible
volume from affiliated Members will be aggregated for purposes of
the Crossing Fee Cap, provided there is at least 75% common
ownership between the Members as reflected on each Member's Form BD,
Schedule A. Fees charged by the Exchange for Responses to Crossing
Orders are not included in the calculation of the monthly fee cap.
For purposes of the Crossing Fee Cap the Exchange attributes
eligible volume to the ISE Member on whose behalf the Crossing Order
was executed.
---------------------------------------------------------------------------

    Today, Options 7, Section 5, Index Options Fees and Rebates,
reflects the pricing for various proprietary products including NDXP,
NDX and NQX. At this time, the Exchange proposes to establish a similar
pricing structure for XND that was adopted for XND on Phlx,\8\ where
all Non-Priority Customers \9\ will be assessed a uniform fee of $0.10
per contract, and Priority Customers \10\ will not be assessed a fee.
The Exchange also proposes to assess Non-Priority Customers a surcharge
of $0.10 per contract in XND in Options 7, Section 5D, similar to Phlx
Options 7, Section 5A.\11\ The Exchange is proposing to assess lower
Non-Priority Customer fees and a lower surcharge for XND as compared to
NDX and NDXP because XND is based on 1/100 of the value of the Nasdaq
100 Index whereas both NDX and NDXP are based on the full value of the
Nasdaq 100 Index. The Exchange's proposal seeks to assess identical
fees for XND as are currently assessed on Phlx for XND options.\12\
---------------------------------------------------------------------------

    \8\ See Phlx Options 7, Section 5A.
    \9\ ``Non-Priority Customers'' include Market Makers, Non-Nasdaq
ISE Market Makers (FarMMs), Firm Proprietary/Broker-Dealers, and
Professional Customers. See Options 7, Section 1(c).
    \10\ A ``Priority Customer'' is a person or entity that is not a
broker/dealer in securities, and does not place more than 390 orders
in listed options per day on average during a calendar month for its
own beneficial account(s), as defined in Nasdaq ISE Options 1,
Section 1(a)(37). Unless otherwise noted, when used in this Pricing
Schedule the term ``Priority Customer'' includes ``Retail'' as
defined below. See Options 7, Section 1(c).
    \11\ The Exchange proposes to re-letter current ``C'' as ``D''
in Options 7, Section 5.
    \12\ See Phlx Options 7, Section 5A.
---------------------------------------------------------------------------

    Today, NDX, NDXP, NQX and the Mini-Nasdaq-100 Index (``MNX'') are
excluded from the Marketing Fee in Options 7, Section 6E. The Exchange
proposes to update Options 7, Section 6E to similarly exclude XND from
the Marketing Fee. The Exchange notes that the Marketing Fee is
currently set to $0.00 per contract.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\13\ in general, and furthers the objectives of
Sections 6(b)(4) and 6(b)(5) of the Act,\14\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Exchange believes it is reasonable to assess the proposed Non-
Priority Customer $0.10 per contract fee and the $0.10 per contract
surcharge as discussed above for XND because the proposed pricing
reflects the exclusive and proprietary nature of this product. Similar
to NDX, NDXP, and NQX, the Exchange seeks to recoup the operational
costs for listing proprietary products.\15\ Also, pricing by symbol is
a common practice on many U.S. options exchanges as a means to
incentivize order flow to be sent to an exchange for execution in
particular products. Other options exchanges price by symbol.\16\
Further, the Exchange notes that with its products, market participants
are offered an opportunity to transact in NDX, NDXP, NQX, or XND, or
separately execute options overlying PowerShares QQQ Trust
(``QQQ'').\17\ Offering such proprietary products provides market
participants with a variety of choices in selecting the product they
desire to utilize in order to transact in the Nasdaq 100 Index. When
exchanges are able to recoup costs associated with offering proprietary
products, it incentivizes growth and competition for the innovation of
additional products.
---------------------------------------------------------------------------

    \15\ By way of example, in analyzing an obvious error, the
Exchange would have additional data points available in establishing
a theoretical price for a multiply listed option as compared to a
proprietary product, which requires additional analysis and
administrative time to comply with Exchange rules to resolve an
obvious error.
    \16\ See pricing for the Mini-RUT Index options (``MRUT'') on
Cboe Exchange, Inc.'s Fees Schedule.
    \17\ QQQ is an exchange-traded fund based on the same Nasdaq 100
Index as NDX, NDXP, and XND.
---------------------------------------------------------------------------

    Further, the Exchange believes that the proposed rates for XND are
reasonable because they mirror the fees assessed by Phlx for XND \18\
and the fees are well within the range of fees assessed for the
Exchange's other proprietary products, namely NDX and NDXP.\19\ The
Exchange believes it is reasonable to charge lower rates for XND
compared to NDX and NDXP because XND is based on 1/100 of the

value of the Nasdaq 100 Index while both NDX and NDXP are based on the
full value of the Nasdaq 100 Index. The Exchange's proposal seeks to
assess identical fees for XND as are currently assessed on Phlx for XND
options.\20\
---------------------------------------------------------------------------

    \18\ See Phlx Options 7, Section 5A.
    \19\ Specifically, the Exchange is proposing to assess Non-
Priority Customers a $0.10 per contract fee in XND while Priority
Customers will receive free executions. Today, the Exchange assesses
Non-Priority Customers a $0.75 per contract fee for both NDX and
NDXP, and does not assess Priority Customers a fee. Additionally,
the Exchange is proposing to assess Non-Priority Customers a
surcharge of $0.10 per contract for XND whereas today, Non-Priority
Customers are assessed a surcharge of $0.25 per contract for NDX and
NDXP.
    \20\ See Phlx Options 7, Section 5A.
---------------------------------------------------------------------------

    The Exchange's proposal to assess the proposed Non-Priority
Customer $0.10 per contract fee and the $0.10 per contract surcharge is
equitable and not unfairly discriminatory because the Exchange will
assess these fees uniformly to all Non-Priority Customers. The Exchange
similarly believes that the proposed $0.10 per contract XND surcharge
is equitable and not unfairly discriminatory because it will apply
uniformly to all Non-Priority Customers. The Exchange believes it is
equitable and not unfairly discriminatory to assess no XND fees to
Priority Customers because Priority Customer orders bring valuable
liquidity to the market, which liquidity benefits other market
participants. Priority Customer liquidity benefits all market
participants by providing more trading opportunities, which attracts
Primary Market Makers and Market Makers. An increase in the activity of
these market participants in turn facilitates tighter spreads, which
may cause an additional corresponding increase in order flow from other
market participants.
Fee Programs
    The proposed amendments to note 7 in Options 7, Section 3 and notes
4 and 5 in Options 7, Section 4, in connection with the application of
the adopted pricing in Options 7, Section 5, are reasonable as the
Exchange will apply the proposed Options 7, Section 5 pricing for
options transacted in XND as opposed to the pricing in Options 7,
Sections 3 and 4. The Exchange believes that the proposed amendments to
note 7 in Options 7, Section 3 and notes 4 and 5 in Options 7, Section
4, in connection with the application of the adopted pricing in Options
7, Section 5, are equitable and not unfairly discriminatory because the
Exchange will uniformly apply the pricing in Options 7, Section 5 for
options transacted in XND.
    The Exchange believes that its proposal to eliminate the Priority
Customer complex order rebates for XND is reasonable because even after
the elimination of the rebate, Priority Customer complex orders in XND
will not be assessed any complex order transaction fees. As noted
above, the Priority Customer complex order rebates are likewise
currently eliminated for NDX, NDXP and NQX. The Exchange's proposal to
eliminate the Priority Customer complex order rebates for XND is
equitable and not unfairly discriminatory because all transactions in
XND will uniformly not be eligible for the rebates.
    The Exchange believes that its proposal to exclude fees charged for
Responses to Crossing Orders, surcharge fees for licensed products, and
fees for index options as set forth in Options 7, Section 5 from the
calculation of the monthly Crossing Fee Cap is reasonable because XND
will be an exclusively listed product. Similar to NDX, NDXP and NQX,
which are also excluded from the Crossing Fee Cap, the Exchange seeks
to recoup the operational costs for listing proprietary products. The
Exchange further believes that its proposal to exclude fees charged for
Responses to Crossing Orders, surcharge fees for licensed products, and
fees for index options as set forth in Options 7, Section 5 from the
calculation of the monthly Crossing Fee Cap is equitable and not
unfairly discriminatory because all fees charged for Responses to
Crossing Orders, surcharge fees for licensed products, and fees for
index options will uniformly be excluded from the Crossing Fee Cap.
    The Exchange believes it is reasonable to not apply the Marketing
Fee to XND as other proprietary products, namely NDX, NQX, and MNX, are
currently excluded from the Marketing Fee and are all based on the
Nasdaq 100 Index. Also, the Exchange believes it is reasonable to
exclude XND from the Marketing Fee because the purpose of the Marketing
Fee is to generate more Priority Customer order flow to the Exchange.
Because XND will be an exclusively listed product on Phlx, the Exchange
does not believe that applying a Marketing Fee is necessary for this
product. Also, of note the Marketing Fee is currently set to $0.00 per
contract. The Exchange believes it is equitable and not unfairly
discriminatory to not apply the Marketing Fee to XND because all
transactions in XND will uniformly not be subject to the Marketing Fee.

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 not necessary or appropriate in
furtherance of the purposes of the Act. In terms of inter-market
competition, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive, or rebate opportunities available at other venues to be more
favorable. The Exchange notes that with its products, market
participants are offered an opportunity to transact in NDX, NDXP, NQX,
or XND, or separately execute options overlying QQQ. Offering these
products provides market participants with a variety of choices in
selecting the product they desire to utilize to transact in the Nasdaq
100 Index.
    Further, the Exchange does not believe that the proposed rule
change will impose any burden on intra-market competition that is not
necessary or appropriate in furtherance of the purposes of the Act
because the proposed XND pricing will apply uniformly to all similarly
situated market participants. Specifically, all Non-Priority Customers
will be assessed a uniform fee of $0.10 per contract and an options
surcharge of $0.10 per contract while Priority Customers receive free
executions. As discussed above, Priority Customer liquidity benefits
all market participants by providing more trading opportunities, which
attracts other market participants, thus facilitating tighter spreads
and increased order flow.

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

    No written comments were either solicited or received.

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)(ii) of the Act \21\ and Rule 19b-4(f)(2) \22\ 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: (i) necessary or
appropriate in the public interest; (ii) for the protection of
investors; or (iii) otherwise in furtherance of the purposes of the
Act. If the Commission takes such action, the Commission shall
institute proceedings to determine whether the proposed rule should be
approved or disapproved.
---------------------------------------------------------------------------

    \21\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \22\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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-ISE-2023-27 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-ISE-2023-27. 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-ISE-2023-27 and should be
submitted on or before December 12, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-25665 Filed 11-20-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: May 1, 2008 (Volume 73, Number 85)]
[Notices]
[Page 24079]
[DOCID:fr01my08-60]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[FEMA-3286-EM]

Ohio; Emergency and Related Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: This is a notice of the Presidential declaration of an
emergency for the State of Ohio (FEMA-3286-EM), dated April 24, 2008,
and related determinations.

DATES: Effective Date: April 24, 2008.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that, in a letter
dated April 24, 2008, the President declared an emergency declaration
under the authority of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121-5206 (the Stafford Act), as
follows:

    I have determined that the impact in certain areas of the State
of Ohio resulting from the record snow and near record snow during
the period of March 7-9, 2008, is of sufficient severity and
magnitude to warrant an emergency declaration under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C.
5121-5206 (the Stafford Act). Therefore, I declare that such an
emergency exists in the State of Ohio.
    In order to provide Federal assistance, you are hereby
authorized to allocate from funds available for these purposes such
amounts as you find necessary for Federal disaster assistance and
administrative expenses.
    You are authorized to provide emergency protective measures,
including snow removal, under the Public Assistance program to save
lives and to protect property and public health and safety. Other
forms of assistance under Title V of the Stafford Act may be added
at a later date, as you deem appropriate. This emergency assistance
will be provided for any continuous 48-hour period during or
proximate to the incident period. You may extend the period of
assistance, as warranted. This assistance excludes regular time
costs for the sub-grantees' regular employees. Consistent with the
requirement that Federal assistance be supplemental, any Federal
funds provided under the Stafford Act for Public Assistance will be
limited to 75 percent of the total eligible costs in the designated
areas. Further, you are authorized to make changes to this
declaration to the extent allowable under the Stafford Act.

    The Federal Emergency Management Agency (FEMA) hereby gives notice
that pursuant to the authority vested in the Administrator, Department
of Homeland Security, under Executive Order 12148, as amended, Michael
H. Smith, of FEMA is appointed to act as the Federal Coordinating
Officer for this declared emergency.
    I do hereby determine the following areas of the State of Ohio to
have been affected adversely by this declared emergency:

    Ashtabula, Brown, Clermont, Clinton, Crawford, Delaware,
Fairfield, Franklin, Geauga, Greene, Hardin, Huron, Lake, Morrow,
Richland, Union, and Wyandot Counties for emergency protective
measures (Category B), including snow removal, under the Public
Assistance program for any continuous 48-hour period during or
proximate to the incident period.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund Program; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services Program; 97.034,
Disaster Unemployment Assistance (DUA); 97.046, Fire Management
Assistance; 97.048, Individuals and Households Housing; 97.049,
Individuals and Households Disaster Housing Operations; 97.050
Individuals and Households Program--Other Needs, 97.036, Public
Assistance Grants; 97.039, Hazard Mitigation Grant Program.)

R. David Paulison,
Administrator, Federal Emergency Management Agency.
 [FR Doc. E8-9531 Filed 4-30-08; 8:45 am]

BILLING CODE 9110-10-P


[Federal Register Volume 83, Number 61 (Thursday, March 29, 2018)]
[Notices]
[Pages 13493-13494]
[FR Doc No: 2018-06309]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2018-N-1015]

Joint Meeting of the Arthritis Advisory Committee and the Drug
Safety and Risk Management Advisory Committee; Notice of Meeting;
Establishment of a Public Docket; Request for Comments

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice; establishment of a public docket; request for comments.

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SUMMARY: The Food and Drug Administration (FDA) announces a forthcoming
public advisory committee meeting of the Arthritis Advisory Committee
and the Drug Safety and Risk Management Advisory Committee. The general
function of the committees is to provide advice and recommendations to
FDA on regulatory issues. The meeting will be open to the public. FDA
is establishing a docket for public comment on this document.

DATES: The meeting will be held on April 24 and 25, 2018, from 8 a.m.
to 5 p.m.

ADDRESSES: FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31
Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-
0002. Answers to commonly asked questions including information
regarding special accommodations due to a disability, visitor parking,
and transportation may be accessed at: https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm408555.htm.
    FDA is establishing a docket for public comment on this meeting.
The docket number is FDA-2018-N-1015. The docket will close on April
23, 2018. Submit either electronic or written comments on this public
meeting by April 23, 2018. Please note that late, untimely filed
comments will not be considered. Electronic comments must be submitted
on or before April 23, 2018. The https://www.regulations.gov electronic
filing system will accept comments until midnight Eastern Time at the
end of April 23, 2018. Comments received by mail/hand delivery/courier
(for written/paper submissions) will be considered timely if they are
postmarked or the delivery service acceptance receipt is on or before
that date.
    Comments received on or before April 10, 2018, will be provided to
the committees. Comments received after that date will be taken into
consideration by FDA.
    You may submit comments as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2018-N-1015 for ``Joint Meeting of the Arthritis Advisory Committee
and the Drug Safety and Risk Management Advisory Committee; Notice of
Meeting; Establishment of a Public Docket; Request for Comments.''
Received comments, those filed in a timely manner (see the ADDRESSES
section), will be placed in the docket and, except for those submitted
as ``Confidential Submissions,'' publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m.
and 4 p.m., Monday through Friday.
     Confidential Submissions--To submit a comment with
confidential

information that you do not wish to be made publicly available, submit
your comments only as a written/paper submission. You should submit two
copies total. One copy will include the information you claim to be
confidential with a heading or cover note that states ``THIS DOCUMENT
CONTAINS CONFIDENTIAL INFORMATION.'' FDA will review this copy,
including the claimed confidential information, in its consideration of
comments. The second copy, which will have the claimed confidential
information redacted/blacked out, will be available for public viewing
and posted on https://www.regulations.gov. Submit both copies to the
Dockets Management Staff. If you do not wish your name and contact
information to be made publicly available, you can provide this
information on the cover sheet and not in the body of your comments and
you must identify this information as ``confidential.'' Any information
marked as ``confidential'' will not be disclosed except in accordance
with 21 CFR 10.20 and other applicable disclosure law. For more
information about FDA's posting of comments to public dockets, see 80
FR 56469, September 18, 2015, or access the information at: https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Jennifer Shepherd, Center for Drug
Evaluation and Research, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-
796-9001, Fax:<PHONE_NUMBER>, email: [email protected], or FDA Advisory
Committee Information Line, 1-800-741-8138<PHONE_NUMBER> in the
Washington, DC area). A notice in the Federal Register about last
minute modifications that impact a previously announced advisory
committee meeting cannot always be published quickly enough to provide
timely notice. Therefore, you should always check FDA's website at
https://www.fda.gov/AdvisoryCommittees/default.htm and scroll down to
the appropriate advisory committee meeting link, or call the advisory
committee information line to learn about possible modifications before
coming to the meeting.

SUPPLEMENTARY INFORMATION:
    Agenda: The committees will be asked to discuss supplemental new
drug application (sNDA) 20998, for CELEBREX (celecoxib) capsules
submitted by Pfizer, Inc., which includes the results from the
PRECISION (Prospective Randomized Evaluation of Celecoxib Integrated
Safety vs. Ibuprofen Or Naproxen) trial, a cardiovascular outcomes
randomized controlled trial that compared celecoxib to ibuprofen and
naproxen, and determine whether the findings of the trial change FDA's
current understanding of the safety of these three NSAIDs. In order to
interpret some of the PRECISION findings, the committees will also
consider the clinical implications of the drug interactions between
each of these three NSAIDs and aspirin in patients taking aspirin for
secondary prevention of cardiovascular disease.
    FDA intends to make background material available to the public no
later than 2 business days before the meeting. If FDA is unable to post
the background material on its website prior to the meeting, the
background material will be made publicly available at the location of
the advisory committee meeting, and the background material will be
posted on FDA's website after the meeting. Background material is
available at https://www.fda.gov/AdvisoryCommittees/Calendar/default.htm. Scroll down to the appropriate advisory committee meeting
link.
    Procedure: Interested persons may present data, information, or
views, orally or in writing, on issues pending before the committees.
All electronic and written submissions submitted to the Docket (see
ADDRESSES) on or before April 10, 2018, will be provided to the
committees. Oral presentations from the public will be scheduled
between approximately 8:30 a.m. and 9:30 a.m. on April 25, 2018. Those
individuals interested in making formal oral presentations should
notify the contact person and submit a brief statement of the general
nature of the evidence or arguments they wish to present, the names and
addresses of proposed participants, and an indication of the
approximate time requested to make their presentation on or before
April 2, 2018. Time allotted for each presentation may be limited. If
the number of registrants requesting to speak is greater than can be
reasonably accommodated during the scheduled open public hearing
session, FDA may conduct a lottery to determine the speakers for the
scheduled open public hearing session. The contact person will notify
interested persons regarding their request to speak by April 3, 2018.
    Persons attending FDA's advisory committee meetings are advised
that FDA is not responsible for providing access to electrical outlets.
    For press inquiries, please contact the Office of Media Affairs at
[email protected] or<PHONE_NUMBER>.
    FDA welcomes the attendance of the public at its advisory committee
meetings and will make every effort to accommodate persons with
disabilities. If you require special accommodations due to a
disability, please contact Jennifer Shepherd (see FOR FURTHER
INFORMATION CONTACT) at least 7 days in advance of the meeting.
    FDA is committed to the orderly conduct of its advisory committee
meetings. Please visit our website at https://www.fda.gov/AdvisoryCommittees/AboutAdvisoryCommittees/ucm111462.htm for procedures
on public conduct during advisory committee meetings.
    Notice of this meeting is given under the Federal Advisory
Committee Act (5 U.S.C. app. 2).

    Dated: March 21, 2018.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2018-06309 Filed 3-28-18; 8:45 am]
 BILLING CODE 4164-01-P