[Federal Register Volume 86, Number 92 (Friday, May 14, 2021)]
[Rules and Regulations]
[Pages 26386-26388]
[FR Doc No: 2021-10256]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2021-0230]
RIN 1625-AA00

Safety Zone; Lower Mississippi River, Mile Marker 365, Natchez,
MS

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all navigable waters of the Lower Mississippi River (LMR), Mile Markers
364.5 through 365.5. The safety zone is needed to protect persons,
property, and the marine environment from the potential safety hazards
associated with a fireworks display in the vicinity of Natchez, MS.
Entry of persons or vessels into this zone is prohibited unless
authorized by the Captain of the Port Sector Lower Mississippi River or
a designated representative.

DATES: This rule is effective from 4 p.m. through 7 p.m. on May 15,
2021.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0230 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email MSTC Lindsey Swindle, U.S. Coast Guard; telephone 901-
521-4813, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Lower Mississippi River
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable. Immediate action
is needed to protect persons and property from the potential safety
hazards associated with a fireworks display in the vicinity of Natchez,
MS. The NPRM process would delay the establishment of the safety zone
until after the date of the event and compromise public safety. We must
establish this temporary safety zone immediately and lack sufficient
time to provide a reasonable comment period and then consider those
comments before issuing the rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be contrary to the public interest because immediate
action is needed to respond to the potential safety hazards associated
with the firework display in the vicinity of Natchez, MS.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Lower
Mississippi River (COTP) has determined that potential hazards

associated with the firework display, would be a safety concern for all
persons and vessels on the Lower Mississippi River between Mile Marker
(MM) 364.5 and MM 365.5 in the vicinity of Natchez, MS. This rule is
needed to protect persons, property, infrastructure, and the marine
environment in all waters of the LMR within the safety zone during the
firework display.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone on May 15, 2021. The
safety zone will cover all navigable waters of the LMR from MM 364.5
through MM 365.5 in the vicinity of Natchez, MS. The duration of this
safety zone is intended to ensure the safety of waterway users on these
navigable waters during the firework display.
    Entry of persons or vessels into this safety zone is prohibited
unless authorized by the COTP or a designated representative. A
designated representative is a commissioned, warrant, or petty officer
of the U.S. Coast Guard assigned to units under the operational control
of USCG Sector Lower Mississippi River. Persons or vessels seeking to
enter the safety zones must request permission from the COTP or a
designated representative on VHF-FM channel 16 or by telephone at 901-
521-4822. If permission is granted, all persons and vessels shall
comply with the instructions of the COTP or designated representative.
The COTP or a designated representative will inform the public of the
enforcement times and date for this safety zone through Broadcast
Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or
Marine Safety Information Bulletins (MSIBs), as appropriate.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, this
rule has not been reviewed by the Office of Management and Budget
(OMB).
    This regulatory action determination is based on the size,
location, and duration of the safety zone. This emergency safety zone
will temporarily restrict navigation on the LMR at MM 762 through 782
in the vicinity of Natchez, MS on May 15, 2021. Moreover, The Coast
Guard will issue Broadcast Notices to Mariners (BNMs), Local Notices to
Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as
appropriate. The rule allows vessels to seek permission to enter the
zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
temporary safety zone may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant economic
impact on any vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves a
temporary safety zone on the LMR at MM 364.5 through 365.5 in the
vicinity of Natchez, MS that will prohibit entry into this zone.. It is
categorically excluded from further review under paragraph L60 of
Appendix A, Table 1

of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of
Environmental Consideration supporting this determination is available
in the docket. For instructions on locating the docket, see the
ADDRESSES section of this preamble.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section to coordinate protest activities so
that your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

0
2. Add Sec.  165.T08-0230 to read as follows:

Sec.  165.T08-0230  Safety Zone; Lower Mississippi River, Mile Marker
365, Natchez, MS.

    (a) Location. The following area is a safety zone: All navigable
waters of the Lower Mississippi River from Mile Marker (MM) 364.5
through 365.5 in the vicinity of Natchez, MS.
    (b) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the Captain of the
Port Sector Lower Mississippi River (COTP) or the COTP's designated
representative. A designated representative is a commissioned, warrant,
or petty officer of the U.S. Coast Guard assigned to units under the
operational control of USCG Sector Lower Mississippi River.
    (2) To seek permission to enter, contact the COTP or the COTP's
representative via VHF-FM channel 16 or by telephone at<PHONE_NUMBER>.
Those in the safety zone must comply with all lawful orders or
directions given to them by the COTP or the COTP's designated
representative.
    (3) Persons or vessels seeking to enter the safety zones must
request permission from the COTP or a designated representative on VHF-
FM channel 16 or by telephone at<PHONE_NUMBER>. If permission is
granted, all persons and vessels shall comply with the instructions of
the COTP or designated representative.
    (c) Effective period. This section is effective from 4 p.m. through
7 p.m. on May 15, 2021.
    (d) Information broadcasts. The COTP or a designated representative
will inform the public of the enforcement times and date for this
safety zone through Broadcast Notices to Mariners, Local Notices to
Mariners, and/or Safety Marine Information Broadcasts, as appropriate.

    Dated: May 5, 2021.
R.S. Rhodes,
Captain, U.S. Coast Guard, Captain of the Port Sector Lower Mississippi
River.
[FR Doc. 2021-10256 Filed 5-13-21; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 74, Number 133 (Tuesday, July 14, 2009)]
[Notices]
[Pages 34057-34059]
[FR Doc No: E9-16553]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60246; File No. SR-BX-2009-031]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Provide
an Optional Anti-Internalization Functionality

July 6, 2009.
    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 June 24, 2009, NASDAQ OMX BX, Inc. (``NASDAQ OMX BX'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by NASDAQ OMX BX. NASDAQ OMX
BX filed the proposed rule change as a ``non-controversial'' proposed
rule change pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule
19b-4(f)(6) thereunder,\4\ which renders the proposal effective upon
filing with the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \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

    NASDAQ OMX BX is filing with the Commission a proposed rule change
to provide an optional anti-internalization functionality.
    The text of the proposed rule change is below. Proposed new
language is underlined and proposed deletions are in brackets.
* * * * *

4757. Book Processing

    System orders shall be executed through the Book Process set forth
below:
    (a) Execution Algorithm-Price/Time--The System shall execute
equally priced or better priced trading interest within the System in
price/time priority in the following order:
    (1)-(2) No Change.
    (3) Exception: Anti-Internalization--Market participants may direct
that quotes/orders entered into the System not execute against quotes/
orders entered under the same MPID. In such a case, the later entered
of the quote/orders will be cancelled back to the entering party.
    (b)-(c) No Change.
* * * * *

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. NASDAQ OMX BX 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
    NASDAQ OMX BX is proposing to provide a voluntary anti-
internalization function. Under the proposal, market participants
entering quotes/orders under a specific market participant identifier
(``MPID'') may voluntarily direct that they not execute against other
quotes/orders entered into the System under the same MPID.
    Under the proposal, the System, if requested, will not execute
quote/orders entered under the same MPID against each other. Instead,
the System will execute against all eligible trading interest of other
market participants, in time-priority, up to the point where it would
interact with a resting order having the MPID and thereupon immediately
cancel any remaining portion of the most recently entered of the two
same-MPID quote/orders to its entering party.
    Anti-internalization functionality is designed to assist market
participants in complying with certain rules and regulations of the
Employee Retirement Income Security Act (``ERISA'') that preclude and/
or limit managing broker-dealers of such accounts from trading as
principal with orders generated for those accounts. It can also assist
market participants in reducing execution fees potentially resulting
from the interaction of executable buy and sell trading interest from
the same firm. Nasdaq OMX BX notes that use of the functionality does
not relieve or otherwise modify the duty of best execution owed to
orders received from public customers. As such, market participants
using anti-internalization functionality will need to take appropriate
steps to ensure that public customer orders that do not execute because
of the use of anti-internalization functionality ultimately receive the
same execution price (or better) they would have originally obtained if
execution of the order was not inhibited by the functionality.
2. Statutory Basis
    Nasdaq OMX BX believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\5\ in general, and with
Sections [sic] 6(b)(5) of the Act,\6\ in particular, in that the
proposal is 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.
Nasdaq OMX BX notes that similar functionality has previously [sic]
approved for other trading systems.\7\
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(5).
    \7\ See SR-NASD-2003-039.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    NASDAQ OMX BX does not believe that the proposed rule change will
result in 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

    Written comments on the proposed rule change were neither solicited
nor received.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days after 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 \8\ and Rule 19b-
4(f)(6) thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to provide the Commission
with written notice of its intent to file the proposed rule change,
along with a brief description and text of the proposed rule change,
at least five business days prior to the date of filing of the
proposed rule change, or such shorter time as designated by the
Commission. The Exchange has fulfilled this requirement.
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    At any time within 60 days of the filing of the proposed rule
change, 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.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-BX-2009-031 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-BX-2009-031. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 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 principal office of the NASDAQ OMX BX.
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-BX-2009-031
and should be submitted on or before August 4, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\10\
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    \10\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. E9-16553 Filed 7-13-09; 8:45 am]
BILLING CODE 8010-01-P


[Federal Register: January 26, 2007 (Volume 72, Number 17)]
[Notices]
[Page 3894-3896]
[DOCID:fr26ja07-159]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55129; File No. SR-NASD-2006-137]

Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing and Immediate Effectiveness of Proposed
Rule Change To Modify Pricing for NASD Members Using ITS/CAES System
and Inet Facility

January 18, 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 29, 2006, the National Association of Securities Dealers,
Inc. (``NASD'') 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 substantially by NASD.
NASD submitted the proposed rule change under Section 19(b)(3)(A) of
the Act \3\ and Rule 19b-4(f)(2) thereunder,\4\ which renders the
proposal effective upon filing with the Commission.\5\ 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.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(2).
    \5\ NASD stipulated the implementation date to be January 2,
2007.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    NASD proposes to amend NASD Rule 7010 to modify the pricing for its
members using the ITS/CAES System and the Inet facility (the ``Nasdaq
Facilities''), which are currently operated by The Nasdaq Stock Market,
Inc. and its subsidiaries (``Nasdaq'') as facilities of NASD. The text
of the proposed rule change is available on the NASD's Web site at
http://www.nasd.com, at NASD 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, NASD 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. NASD 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

Purpose
    This proposed rule change adopts a simplified pricing schedule for
the systems for trading non-Nasdaq exchange-listed securities that are
currently operated as NASD facilities by Nasdaq. The fees apply to the
Nasdaq Facilities, but as is currently the case with respect to fees
for these systems, the fee schedule reflects the volume of a member's
use of ITS/CAES, Inet, and the Nasdaq Market Center (a facility of The
NASDAQ Stock Market LLC (the ``Nasdaq Exchange'')) in determining
applicable fees.\6\ The order execution fees in the Nasdaq Facilities,
fees for routing to venues other than the New York Stock Exchange (the
``NYSE''), and fees for routing orders in exchange-traded funds to the
NYSE will be as follows:
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    \6\ The consideration of volumes through the Nasdaq Exchange is
a function of the phased transition of Nasdaq from an operator of
NASD facilities to a separate national securities exchange. As such,
NASD fee schedules will be amended to remove all references to
Nasdaq at or shortly after the time when the Nasdaq Exchange begins
to trade non-Nasdaq exchange-listed securities. The Nasdaq Exchange
has submitted a comparable filing to establish the same fees for
Nasdaq-listed securities, which likewise considers trading volumes
through ITS/CAES and Inet. See SR-NASDAQ-2006-068.
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     $0.0027 per share executed for market participants that
(i) add more than 30 million shares of liquidity per day during the
month and route or remove more than 50 million shares of liquidity per
day during the month, or (ii) add more than 20 million shares of
liquidity per day during the month and route or remove more than 60
million shares of liquidity per day during the month;
     $0.0028 per share executed for market participants that
add more than 20 million shares of liquidity per day during the month
and route or remove more than 35 million shares of liquidity during the
month;
     $0.003 per share executed for other market participants.
    The order execution fee for routed orders that do not attempt to
execute in the Nasdaq Facilities prior to routing will be $0.003 per
share executed and the credits to members providing liquidity through
the Nasdaq Facilities will be as follows:
     $0.0025 per share executed for market participants adding
more than 30 million shares of liquidity per day during the month;
     $0.002 for other market participants.
    As is currently the case, for orders in securities other than
exchange-traded funds routed to the NYSE, the fee will be $0.000225 per
share executed if the order attempts to execute in the Nasdaq
Facilities prior to routing and $0.000275 per share executed if the
order does not attempt to execute prior to routing. The new fee
schedule will also retain the current surcharge of $0.01 per share
executed for orders charged a fee by an American Stock Exchange
specialist.
2. Statutory Basis
    NASD believes that the proposed rule change is consistent with
Section 15A of the Act,\7\ in general, and furthers the objectives of
Section 15A(b)(5) of the Act,\8\ 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 or
system which the NASD operates or controls.
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    \7\ 15 U.S.C. 78o-3.
    \8\ 15 U.S.C. 78o-3(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

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

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

    NASD has neither solicited nor received comments on the proposed
rule change.

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

    The proposed rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act \9\ and paragraph (f)(2) of Rule 19b-4
thereunder,\10\ because it establishes or changes a due, fee, or other
charge imposed by the NASD. At any time within 60 days of the filing of
the proposed rule change, 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.
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    \9\ 15 U.S.C. 78s(b)(3)(a)(ii).
    \10\ 17 CFR 240.19b-4(f)(2).
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IV. Solicitation of Comments

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

Electronic Comments

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

File Number SR-NASD-2006-137 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 20549-1090.

All submissions should refer to File Number SR-NASD-2006-137. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal offices of NASD.
    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-NASD-2006-137
and should be submitted on or before February 16, 2007.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-1229 Filed 1-25-07; 8:45 am]

BILLING CODE 8011-01-P


                   Decision Ex.I/4. Conditions for granting and
reporting critical-use exemptions for methyl

Bromide

Mindful of the principles set forth in the report4 by the chair of the
informal consultation on methyl bromide held in Buenos Aires on 4 and 5
March 2004, namely, fairness, certainty and confidence, practicality and
flexibility, and transparency,

Recognizing that technically and economically feasible alternatives
exist for most uses of methyl bromide,

Noting that those alternatives are not always technically and
economically feasible in the circumstances of nominations,

Noting that Article 5 and non-Article 5 Parties have made substantial
progress in the adoption of effective alternatives,

Mindful that exemptions must comply fully with decision IX/6 and are
intended to be limited, temporary derogations from the phase-out of
methyl bromide,

Recognizing the desirability of a transparent presentation of data on
alternatives to methyl bromide to assist the Parties to understand
better the critical-use volumes and to gauge progress on and impediments
to the transition from methyl bromide,

Resolved that each Party should aim at significantly and progressively
decreasing its production and consumption of methyl bromide for critical
uses with the intention of completely phasing out methyl bromide as soon
as technically and economically feasible alternatives are available,

Recognizing that Parties should revert to methyl bromide only as a last
resort, in the event that a technically and economically feasible
alternative to methyl bromide which is in use ceases to be available as
a result of de-registration or for other reasons,

1. That each Party which has an agreed critical use under the present
decision should submit available information to the Ozone Secretariat
before 1 February 2005 on the alternatives available, listed according
to their pre-harvest or post-harvest uses and the possible date of
registration, if required, for each alternative; and on the alternatives
which the Parties can disclose to be under development, listed according
to their pre-harvest or post-harvest uses and the likely date of
registration, if required and known, for those alternatives, and that
the Ozone Secretariat shall be requested to provide a template for that
information and to post the said information in a database entitled
“Methyl Bromide Alternatives” on its web site;

2. That each Party which submits a nomination for the production and
consumption of methyl bromide for years after 2005 should also submit
information listed in paragraph 1 to the Ozone Secretariat to include in
its Methyl Bromide Alternatives database and that any other Party which
no longer consumes methyl bromide should also submit information on
alternatives to the Secretariat for inclusion in that database;

3. To request each Party which makes a critical-use nomination after
2005 to submit a national management strategy for phase-out of critical
uses of methyl bromide to the Ozone Secretariat before 1 February 2006.
The management strategy should aim, among other things:

(a) To avoid any increase in methyl bromide consumption except for
unforeseen circumstances;

(b) To encourage the use of alternatives through the use of expedited
procedures, where possible, to develop, register and deploy technically
and economically feasible alternatives;

(c) To provide information, for each current pre-harvest and
post-harvest use for which a nomination is planned, on the potential
market penetration of newly deployed alternatives and alternatives which
may be used in the near future, to bring forward the time when it is
estimated that methyl bromide consumption for such uses can be reduced
and/or ultimately eliminated;

(d) To promote the implementation of measures which ensure that any
emissions of methyl bromide are minimized;

(e) To show how the management strategy will be implemented to promote
the phase-out of uses of methyl bromide as soon as technically and
economically feasible alternatives are available, in particular
describing the steps which the Party is taking in regard to subparagraph
(b) (iii) of paragraph 1 of decision IX/6 in respect of research
programmes in non-Article 5 Parties and the adoption of alternatives by
Article 5 Parties;

4. To request the Meeting of the Parties to take into account
information submitted pursuant to paragraphs 1 and 3 of the present
decision when it considers permitting a Party to produce or consume
methyl bromide for critical uses after 2006;

5. To request a Party that has submitted a request for a critical use
exemption to consider and implement, if feasible, Technology and
Economic Assessment Panel and Methyl Bromide Technical Options Committee
recommendations on actions which a Party may take to reduce critical
uses of methyl bromide;

6. To request any Party submitting a critical-use nomination after 2004
to describe in its nomination the methodology used to determine economic
feasibility in the event that economic feasibility is used as a
criterion to justify the requirement for the critical use of methyl
bromide, using as a guide the economic criteria contained in section 4
of annex I to the present report;

7. To request each Party from 1 January 2005 to provide to the Ozone
Secretariat a summary of each crop or post-harvest nomination containing
the following information:

(a) Name of the nominating Party;

(b) Descriptive title of the nomination;

(c) Crop name (open field or protected) or post-harvest use;

(d) Quantity of methyl bromide requested in each year;

(e) Reason or reasons why alternatives to methyl bromide are not
technically and economically feasible;

8. To request the Ozone Secretariat to post the information submitted
pursuant to paragraph 7 above, categorized according to the year in
which it was received, on its web site within 10 days of receiving the
nomination;

9. To request the Technology and Economic Assessment Panel:

(a) To identify options which Parties may consider for preventing
potential harmful trade of methyl bromide stocks to Article 5 Parties as
consumption is reduced in non-Article 5 Parties and to publish its
evaluation in 2005 to enable the Seventeenth Meeting of the Parties to
decide if suitable mitigating steps are necessary;

(b) To identify factors which Article 5 Parties may wish to take into
account in evaluating whether they should either undertake new
accelerated phase-out commitments through the Multilateral Fund for the
Implementation of the Montreal Protocol or seek changes to already
agreed accelerated phase-outs of methyl bromide under the Multilateral
Fund;

(c) To assess economic infeasibility, based on the methodology submitted
by the nominating Party under paragraph 6 above, in making its
recommendations on each critical-use nomination. The report by the
Technology and Economic Assessment Panel should be made with a view to
encouraging nominating Parties to adopt a common approach in assessing
the economic feasibility of alternatives;

(d) To submit a report to the Open-ended Working Group at its
twenty-sixth session on the possible need for methyl bromide critical
uses over the next few years, based on a review of the management
strategies submitted by Parties pursuant to paragraph 3 of the present
decision;

(e) To review critical-use nominations on an annual basis and apply the
criteria set forth in decision IX/6 and of other relevant criteria
agreed by the Parties;

(f) To recommend an accounting framework for adoption by the Sixteenth
Meeting of the Parties which can be used for reporting quantities of
methyl bromide produced, imported and exported by Parties under the
terms of critical-use exemptions, and after the end of 2005 to request
each Party which has been granted a critical-use exemption to submit
information together with its nomination using the agreed format;

(g) To provide, in consultation with interested Parties, a format for a
critical-use exemption report, based on the content of annex I to the
present report, for adoption by the Sixteenth Meeting of the Parties,
and to request each Party which reapplies for a methyl bromide
critical-use exemption after the end of 2005 to submit a critical-use
exemption report in the agreed format;

(h) To assess, annually where appropriate, any critical-use nomination
made after the end of 2006 in the light of the Methyl Bromide
Alternatives database information submitted pursuant to paragraph 1 of
the present decision, and to compare, annually where appropriate, the
quantity, in the nomination, of methyl bromide requested and recommended
for each pre-harvest and post-harvest use with the management strategy
submitted by the Party pursuant to paragraph 3 of the present decision;

(i) To report annually on the status of re-registration and review of
methyl bromide uses for the applications reflected in the critical-use
exemptions, including any information on health effects and
environmental acceptability;

(j) To report annually on the status of registration of alternatives and
substitutes for methyl bromide, with particular emphasis on possible
regulatory actions that will increase or decrease dependence on methyl
bromide;

(k) To modify the handbook on critical-use nominations for methyl
bromide to take the present decision and other relevant information into
account, for submission to the Sixteenth Meeting of the Parties.


This new ruling brings about the possible bureaucratic abuse that has been prevalent in this and other federal agencies. I'm not as concerned about malicious activity, but am concerned about the potential of wrong name, gossip, and or just stupidity of some one in authority to end the career of an airman without some kind of peer review and or the need to prove any allegation. It has and is still happening in the FAA. Once in place very difficult if not impossible to disprove or stop. Security is important, as is the constitutional freedoms of a USA citizen. respectfully, L. G. Arthur


[Federal Register Volume 79, Number 148 (Friday, August 1, 2014)]
[Notices]
[Pages 44889-44891]
[FR Doc No: 2014-18120]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-72685; File No. SR-BATS-2014-029]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify
for Members and Non-Members the Use of Certain Data Feeds for Order
Handling and Execution, Order Routing and Regulatory Compliance of BATS
Exchange, Inc.

July 28, 2014.
    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 July 15, 2014, BATS Exchange, Inc. (the ``Exchange'' or
``BATS'') filed with the Securities and Exchange Commission
(``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.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to clarify for Members \3\ and non-Members
the Exchange's use of certain data feeds for order handling and
execution, order routing, and regulatory compliance. The Exchange has
designated this proposal as non-controversial and provided the
Commission with the notice required by Rule 19b-4(f)(6)(iii) under the
Act.\4\
---------------------------------------------------------------------------

    \3\ The term ``Member'' is defined as ``any registered broker or
dealer that has been admitted to membership in the Exchange. A
Member will have the status of a ``member'' of the Exchange as that
term is defined in Section 3(a)(3) of the Act.'' See Exchange Rule
1.5(n).
    \4\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.com, 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 parts 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 submits this filing to clarify for Members and non-
Members the Exchange's use of certain data feeds for order handling and
execution, order routing, and regulatory compliance.
Order Handling and Execution
    In order to calculate the national best bid and offer (``NBBO'') in
its Matching Engine (the ``ME''), the Exchange uses quotes disseminated
by market centers through proprietary data feeds (generally referred to
as ``Direct Feeds'') as well as by the Securities Information
Processors (``SIP''). The ME uses quotes disseminated from SIP feeds
for the Chicago Stock Exchange, Inc. and NYSE MKT LLC. The Exchange
notes that the ME receives Direct Feeds from the Exchange's affiliates,
BATS Y-Exchange Inc., EDGA Exchange, Inc., and EDGX Exchange, Inc.
    In addition to receiving Direct Feeds and SIP feeds, the ME's
calculation of the NBBO may be adjusted based on orders sent to other
venues with protected quotations, execution reports received from those
venues, and certain orders received by the Exchange (collectively
``Feedback''). The Exchange does not include its quotes in the
calculation of the Exchange's NBBO because the system is designed such
that all incoming orders are separately compared to the Exchange's Best
Bid or Offer and the Exchange calculated NBBO, which together create a
complete view of the NBBO, prior to display, execution, or routing.
    Feedback from the receipt of Intermarket Sweep Orders (``ISOs'')
with a time-in-force of Day (``Day ISOs'') and feedback from the
Exchange's routing broker/dealer, BATS Trading, Inc., (``BATS
Trading''), as described below, are used to augment the market data
received by Direct Feeds and the SIP feeds. The Exchange's ME will
update the NBBO upon receipt of a Day ISO. When a Day ISO is posted on
the BATS Book,\5\ the ME uses the receipt of a Day ISO as evidence that
the protected quotes have been cleared, and the ME does not check away
markets for equal or better-priced protected quotes.\6\ The ME will
then display and execute non-ISO orders at the same price as the Day
ISO.
---------------------------------------------------------------------------

    \5\ See Exchange Rule 1.5(e).
    \6\ Pursuant to Regulation NMS, a broker-dealer routing a Day
ISO is required to simultaneously route one or more additional ISOs,
as necessary, to execute against the full displayed size of any
protected quote priced equal to or better than the Day ISO. See also
Question 5.02 in the ``Division of Trading and Markets, Responses to
Frequently Asked Questions Concerning Rule 611 and Rule 610 of
Regulation NMS'' (last updated April 4, 2008) available at http://www.sec.gov/divisions/marketreg/nmsfaq610-11.htm.
---------------------------------------------------------------------------

    All Feedback expires as soon as: (i) One (1) second passes; (ii)
the Exchange receives new quote information; or (iii) the Exchange
receives updated Feedback information. With the exception of Day ISO
Feedback, the Exchange only generates Feedback where the order was
routed using one of the following routing strategies: Parallel D,
Parallel 2D, Parallel T, SLIM, and TRIM (collectively ``Smart Order
Routing'').\7\
---------------------------------------------------------------------------

    \7\ See Exchange Rule 11.13(a)(3). Thus, the Exchange does not
generate Feedback from routing options where the User directs the
Exchange to route an order to a particular venue, such as
Destination Specific Orders and Directed ISOs, as defined in Rules
11.9(c)(12) and 11.9(d)(2), respectively, nor does the Exchange
generate Feedback from the DRT routing option defined in Rule
11.13(a)(3)(E), which routes to alternative trading systems.

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

    The Pegged NBBO (``PBBO'') comprises the Exchange's calculation of
the NBBO for purposes of determining the price at which a Pegged
Order,\8\ Mid-Point Peg Order,\9\ or Market Maker Peg Order \10\ is to
be pegged. The PBBO includes the Exchange's quotes from the SIP feeds
in the calculation but is otherwise derived using the same Direct
Feeds, SIP feeds, and Feedback used for the NBBO calculation.
---------------------------------------------------------------------------

    \8\ See Exchange Rule 11.9(c)(8).
    \9\ See Exchange Rule 11.9(c)(9).
    \10\ See Exchange Rule 11.9(c)(16).
---------------------------------------------------------------------------

Order Routing
    When the Exchange has a marketable order with instructions from the
sender that the order is eligible to be routed, and the ME identifies
that there is no matching price available on the Exchange, but there is
a matching price represented at another venue that displays protected
quotes, then the ME will send the order to the Routing Engine (``RE'')
of BATS Trading.
    In determining whether to route an order, the RE makes its own
calculation of the NBBO using the Direct Feeds, SIP feeds, and Router
Feedback, as described below.\11\ The RE does not utilize Day ISO
Feedback in constructing the NBBO; however, because all orders
initially flow through the ME, to the extent Day ISO Feedback has
updated the ME's calculation of the NBBO, all orders processed by the
RE do take Day ISO Feedback into account. The RE receives Feedback from
all Smart Order Routing strategies.
---------------------------------------------------------------------------

    \11\ The Exchange uses the same Direct Feeds and quotes from the
SIP feeds in the RE as is described above with respect to the ME.
---------------------------------------------------------------------------

    There are three types of Router Feedback that contribute to the
Exchange's calculation of the NBBO:
     Immediate Feedback. Where BATS Trading routes an order to
a venue with a protected quotation using Smart Order Routing (a
``Feedback Order''), the number of shares available at that venue is
immediately decreased by the number of shares routed to the venue at
the applicable price level.
     Execution Feedback. Where BATS Trading receives an
execution report associated with a Feedback Order that indicates that
the order has fully executed with no remaining shares associated with
the order, all opposite side quotes on the venue's order book that are
priced more aggressively than the price at which the order was executed
will be ignored.
     Cancellation Feedback. Where BATS Trading receives an
execution report associated with a Feedback Order that indicates that
the order has not fully executed (either a partial execution or a
cancellation), all opposite side quotes on the venue's order book that
are priced equal to or more aggressively than the limit price for the
order will be ignored.
    All Feedback expires as soon as: (i) One (1) second passes; (ii)
the Exchange receives new quote information; or (iii) the Exchange
receives updated Feedback information.
Regulatory Compliance
    Locked or Crossed Markets. The ME determines whether the display of
an order would lock or cross the market. At the time an order is
entered into the ME, the ME will establish, based upon its calculation
of the NBBO from Direct Feeds, SIP feeds and Feedback, whether the
order will lock or cross the prevailing NBBO for a security. In the
event that the order would produce a locking or crossing condition, the
ME will cancel the order, re-price \12\ the order, or route the order
based on the Member's instructions. Two exceptions to this logic are
Day ISOs and declarations of self-help.
---------------------------------------------------------------------------

    \12\ See Rule 11.9(g).
---------------------------------------------------------------------------

    Pursuant to Regulation NMS, when an Exchange receives a Day ISO,
the sender of the ISO retains the responsibility to comply with
applicable rules relating to locked and crossed markets.\13\ In such
case, the Exchange is obligated only to display a Day ISO order at the
Member's price, even if such price would lock or cross the market.\14\
---------------------------------------------------------------------------

    \13\ See supra note 6.
    \14\ See supra note 6.
---------------------------------------------------------------------------

    Declarations of self-help occur when the RE detects that an
exchange displaying protected quotes is slow, as defined in Regulation
NMS, or non-responsive to the Exchange's routed orders. In this
circumstance, according to Rule 611(b) of Regulation NMS, the Exchange
may display a quotation that may lock or cross the market where the
quotation that it may lock or cross is displayed by the market that the
Exchange invoked self-help against.\15\ The Exchange may also declare
self-help where another exchange's SIP quotes are slow or non-
responsive resulting in a locked or crossed market. Once the Exchange
declares self-help, the ME and RE will ignore the quotes generated from
the self-helped market in their calculations of the NBBO for execution
and routing determinations in compliance with Regulation NMS. The
Exchange will also disable all routing to the self-helped market. The
ME and RE will continue to consume the self-helped market center's
quotes; however, in order to immediately include the quote in the NBBO
calculation and enable routing once self-help is revoked.
---------------------------------------------------------------------------

    \15\ See also Question 5.03 in the ``Division of Trading and
Markets, Responses to Frequently Asked Questions Concerning Rule 611
and Rule 610 of Regulation NMS'' (last updated April 4, 2008)
available at http://www.sec.gov/divisions/marketreg/nmsfaq610-11.htm.
---------------------------------------------------------------------------

    Trade-Through Rule. Pursuant to Rule 611 of Regulation NMS, the
Exchange shall establish, maintain, and enforce written policies and
procedures that are reasonably designed to prevent trade-throughs on
trading centers of protected quotations in NMS stocks that do not fall
within a valid exception and, if relying on such an exception, that are
reasonably designed to ensure compliance with the terms of the
exception. The ME will not permit an execution on the Exchange if there
are better-priced protected quotations displayed in the market unless
the order is an ISO. At the time an order is entered into the ME, the
ME uses the view of the NBBO as described above. If the NBBO is priced
better than what is resident on the Exchange, the Exchange will not
match such order on the BATS Book, and based on the Member's
instructions, the ME will cancel the order, re-price the order or route
the order.
    Regulation SHO. The Exchange cannot execute a Short Sale Order \16\
equal to or below the current National Best Bid (``NBB'') when a short
sale price restriction is in effect pursuant to Rule 201 of Regulation
SHO (``Short Sale Circuit Breaker'').\17\ When a Short Sale Circuit
Breaker is in effect, the Exchange utilizes information received from
Direct Feeds, SIP feeds, and Feedback, and a view of the BATS Book to
assess its compliance with Rule 201 of Regulation SHO. The primary
difference between the NBBO used for compliance with Rule 201 of
Regulation

SHO and other constructions of the NBBO, however, is that the Exchange
includes market centers against which it has declared self-help in its
view of the NBBO.
---------------------------------------------------------------------------

    \16\ See Exchange Rule 11.19.
    \17\ 17 CFR 242.200(g); 17 CFR 242.201. On February 26, 2010,
the Commission adopted amendments to Regulation SHO under the Act in
the form of Rule 201, pursuant to which, among other things, short
sale orders in covered securities generally cannot be executed or
displayed by a trading center, such as the Exchange, at a price that
is at or below the current NBB when a Short Sale Circuit Breaker is
in effect for the covered security. See Securities Exchange Act
Release No. 61595 (February 26, 2010), 75 FR 11232 (March 10, 2010).
In connection with the adoption of Rule 201, Rule 200(g) of
Regulation SHO was also amended to include a ``short exempt''
marking requirement. See also Securities Exchange Act Release No.
63247 (November 4, 2010), 75 FR 68702 (November 9, 2010) (extending
the compliance date for Rules 201 and 200(g) to February 28, 2011).
See also Division of Trading & Markets: Responses to Frequently
Asked Questions Concerning Rule 201 of Regulation SHO, www.sec.gov/divisions/marketreg/rule201faq.htm.
---------------------------------------------------------------------------

    Latent or Inaccurate Direct Feeds. Where the Exchange's systems
detect problems with one or more Direct Feeds, the Exchange will
immediately fail over to the SIP feed to calculate the NBBO for the
market center(s) where the applicable Direct Feed is experiencing
issues. Problems that lead to immediate failover to the SIP feed may
include a significant loss of information (i.e., packet loss) or
identifiable latency, among other things. The Exchange can also
manually failover to the SIP feed in lieu of Direct Feed data upon
identification by a market center of an issue with its Direct Feed(s).
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act \18\ in general, and furthers the objectives of Section
6(b)(5) of the Act \19\ in particular, in that it is designed to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in 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. The Exchange does not
believe that this proposal will permit unfair discrimination among
customers, brokers, or dealers because it will be available to all
Users.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that its proposal to describe the Exchange's
use of data feeds removes impediments to and perfects the mechanism of
a free and open market and protects investors and the public interest
because it provides additional specificity and transparency. The
Exchange's proposal will enable investors to better assess the quality
of the Exchange's execution and routing services. The proposal does not
change the operation of the Exchange or its use of data feeds; rather
it describes how, and for what purposes, the Exchange uses the quotes
disseminated from data feeds to calculate the NBBO for a security for
purposes of Regulation NMS, Regulation SHO and various order types that
update based on changes to the applicable NBBO. The Exchange believes
the additional transparency into the operation of the Exchange as
described in the proposal will remove impediments to and perfect the
mechanism of a free and open market and a national market system, and,
in general, protect investors and the public interest.

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

    The Exchange does not believe that the proposal will impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act. On the contrary, the Exchange believes the
proposal would enhance competition because describing the Exchange's
use of data feeds enhances transparency and enables investors to better
assess the quality of the Exchange's execution and routing services.

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

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

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

    Because the proposed rule change does not (i) significantly affect
the protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative for 30
days from the date on which it was filed, or such shorter time as the
Commission may designate, the proposed rule change has become effective
pursuant to Section 19(b)(3)(A) of the Act \20\ and Rule 19b-4(f)(6)
thereunder.\21\
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(3)(A).
    \21\ 17 CFR 240.19b-4(f)(6). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written
notice of its intent to file the proposed rule change, along with a
brief description and the text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission.
---------------------------------------------------------------------------

    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 shall institute proceedings to
determine whether the proposed rule should be approved or 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 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-BATS-2014-029 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-BATS-2014-029. 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 the filing also will be available for
inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-BATS-2014-029 and should be
submitted on or before August 22, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\22\
---------------------------------------------------------------------------

    \22\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-18120 Filed 7-31-14; 8:45 am]
BILLING CODE 8011-01-P


                         Response to Comments Document
      Amendment to Standards and Practices for All Appropriate Inquiries
Docket: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-SFUND-2014-0474-0001
Total Comments: 5
On June 17, 2014, EPA published a proposed rule (79 FR 34480) to amend the All Appropriate Inquiries Rule to remove the reference to ASTM E1527-05 Phase I Environmental Site Assessment Standard.   EPA received five comments in response to the proposed rule.  This document includes the comments received and EPA's responses to the comments.  The original public comments can be viewed at the URL address provided above and searching using the associated tracking number provided below.  The docket number for the June 17, 2014 proposed rule and the subsequent final rule is EPA-HQ-SFUND-2014-0474.
Comment 1
Tracking No. 1jy-8d5d-hdk9
Author: Steve Anderson
Sirs:
I am opposed to the proposed amendment to remove ASTM E1527-05 from the "All Appropriate Inquiries Rule."
As is well known to those in the environmental consulting industry, apart from some changes to the nomenclature (themselves of arguable practicality), the principal feature of the new E1527-013 standard is the introduction of the consideration of potential vapor intrusion conditions.
The fundamental question we must ask ourselves with regard to the proposed amendment is, do the new adjustments to the ASTM standard for site assessments serve the original mission purpose of site assessments, i.e., do they help identify hazardous waste sites for clean-up under CERCLA and/or do they provide the necessary level of inquiry for an individual to avoid liability under the innocent landowner defense? I would submit that, surprisingly, they do not provide any additional level of necessary inquiry for either of those goals, beyond what ASTM E1527-05 already provided.
The changes of the -013 standard fail to serve the needs that prompted the creation of AAI because, in general, the city, county, and state regulatory agencies that provide oversight to hazardous waste clean-up sites do not require the clean-up of vapors alone. (Yes, one can cite instances involving the need to reduce methane, radon or carbon monoxide levels at the behest of some authority, but these types of vapors are not, to my knowledge, targeted as a CERCLA liability issue and, also to my knowledge, have never been required for consideration by ASTM under any prior E1527 standard).
In the eyes of a regulatory agency, soil vapors are best remediated by addressing the on-site source of the vapors, i.e., the soil or groundwater contamination itself. If the source of intruding vapors is entirely from off-site sources, then, as with the contamination itself, once demonstrated, that becomes the basis for an argument by a landowner that they should not be held as a potentially responsible party. And since no regulatory agency at present compels the clean-up of vapors if the source contamination itself is not present, the investigation for vapor intrusion is irrelevant to the issue of establishing the innocent landowner defense.
While the intrusion of the vapors of various chemicals-of-concern may of interest to a building owner who wishes to avoid the so-called "sick building syndrome" or avoid complaints or potential health-based lawsuits from tenants, it has nothing to do with assigning or avoiding CERCLA liability. In short, `more' inquiry does not necessarily translate into `more appropriate' inquiry.
Finally, we presume that, earlier, the EPA considered carefully what really did constitute "all appropriate" inquiry and that ASTM-05 met that need. It is more fitting that the ASTM organization tailor its standard to what the EPA deems an appropriate level of inquiry rather than the reverse, where the EPA would find itself continually chasing ASTM as it continues to tweak its standard every few years.
So, since nothing essential was removed from the earlier standard to create ASTM-013, it is agreeable that the EPA issue, if they so choose, a statement that the -013 standard meets AAI, but since the new standard also adds nothing of consequence regarding CERCLA issues, I would counter propose and urge that the EPA continue to allow the -05 standard also to meet AAI requirements -- and to say so in so many words. This will allow some level of consumer choice between those who desire the added level of inquiry included in the -013 standard, and those who desire a somewhat simpler (and likely less expensive) report, while still, for each, maintaining AAI compliance.

EPA Response:
EPA disagrees with the commenter and points out that the scope of the AAI Rule and the ASTM E1527-05 standard always included the requirement to identify conditions indicative of releases or threatened releases of hazardous substances, or -- in the case of the ASTM standard -- "recognized environmental conditions (RECs)," including indications of vapor migration or vapor releases.  With the updates included in the 2013 version of the ASTM E1527 standard, ASTM clarified this in a the definition of migrate/migration to specifically include vapor migration and therefore remove any confusion regarding the need to identify all RECs, or all conditions indicative of releases or threatened releases of hazardous substances, when conducting an AAI investigation.  The commenter's discussion of whether a regulatory agency may require a cleanup at a property for vapors alone is not relevant.  The purpose of conducting an AAI investigation is to identify conditions indicative of releases or threatened releases of hazardous substances.  This includes identifying conditions indicative of releases stemming from vapor migration as well as identifying indications of releases to or from groundwater soils, air, and indications of releases of hazardous substances of any other nature.
EPA disagrees with the commenter's assertion that "the new standard also adds nothing of consequence regarding CERCLA issues... ."  EPA and other commenters view the modifications made to the ASTM E1527 Phase I Environmental Assessment Standard as improvements, and in some cases, substantial clarifications that may have consequences regarding CERCLA issues.  For example the updated definition of "historical recognized condition (HREC)" and the added definition of "controlled recognized environmental conditions (CREC)" adds further clarification with regard to the nature of past releases at a property, how they were addressed, and whether waste was left in place at the property.  This information could be essential for a prospective property owner in assessing his or her potential CERCLA liability with regard to any past contamination, as well as informing potential future uses of the property.

Comment 2
Tracking No. 1jy-8d9r-3uhk
Author: Larry Schnapf
I support the removal of the reference to E1527-05 ("05"). The existence of two ASTM standards has caused confusion in the marketplace and undermines the necessary improvements that were included in E1527-13. AAI is supposed to reflect evolving concepts of good customary practice and 05 no longer represents good practice.
It would be helpful, though, for EPA to include language in the final preamble that the removal of the reference to 05 should not be construed and does not in any way mean that parties who relied on phase 1 reports compliant with 05 that were prepared prior to the effective date of the rule removing "05" from AAI did not comply with AAI at the time of the report.
EPA Response:
      EPA thanks the commenter for the stated support of the proposed rule.   In the preamble to the final rule, EPA includes a statement indicating that this final rule amending the AAI rule to remove the reference to ASTM E1527-05 standard does not impact parties who acquired properties between November 1, 2005 and the effective date of the final rule and used the 2005 version of the ASTM E1527 standard to comply with the All Appropriate Inquiries Rule, as it was in effect at the time the property was acquired.

Comment 3 (See attachment for original comment)
Tracking No. 1jy-8d9s-d39o
Author: Utility Solid Waste Activities Group (USWAG)
The Utility Solid Waste Activities Group ("USWAG") submits these comments to the United States Environmental Protection Agency ("EPA" or the "Agency") in support of the Agency's proposal to amend the standards and practices for the All Appropriate Inquiries ("AAI") Rule set forth at 40 C.F.R. Part 312. See 79 Fed. Reg. 34480 (June 17, 2014).
USWAG is an association of over one hundred and ten energy industry operating companies and associations, including the Edison Electric Institute ("EEI"), the American Gas Association ("AGA"), the American Public Power Association ("APPA"), and the National Rural Electric Cooperative Association ("NRECA"). USWAG member companies own and operate hundreds of facilities throughout the country, some of which are or may in the future be the subject of remedial action to address environmental contamination. The landowner liability protections offered under CERCLA are therefore of great importance to USWAG members, as are the standards used to demonstrate eligibility for those protections.

Last September, USWAG submitted comments expressing support for the addition to EPA's AAI Rule of a reference to ASTM International's E1527-13 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" ("E1527-13"), the update of the ASTM E1527-05 standard bearing the same name (referred to herein as "E1527-05"). See Sept. 16, 2013 comments of USWAG to EPA Docket ID No. EPA-HQ-SFUND-2013-0513; see also 78 Fed. Reg. 49690 (Aug. 15, 2013). USWAG agreed with EPA's assessment that E1527-13 is compliant with the requirements of the AAI Rule, and represents a clarification of the previous standard. Since promulgation of the final rule providing that persons conducting AAI may use ASTM E1527-13 to comply with the AAI Rule (78 Fed. Reg. 79319 (Dec. 30, 2013)), this updated standard has proven valuable to persons conducting AAI because E1527-13  -  while similar in spirit and substance to E1527-05  -  offers guidance on certain requirements that were left vague or ambiguous in the older version of the standard.
With today's comments, USWAG supports the Agency's proposal to further amend the AAI Rule by withdrawing from 40 C.F.R. § 312.11(c) the reference to ASTM International's E1527-05 "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process" ("E1527-05"). While USWAG did not object to the retention of the E1527-05 reference in the AAI Rule during the comment period on the addition of a reference to E1527-13 (an issue which was not, in fact, open for comment at that time), USWAG agrees that amending the AAI Rule to reference only the most current of the ASTM E1527 standards will reduce any lingering confusion regarding the requirements of the AAI Rule. USWAG further agrees with EPA that removing the reference to E1527-05 from the AAI Rule will "promote the use of the standard currently recognized by ASTM International as the consensus-based, good customary business standard" (i.e., E1527-13).
USWAG believes that it is important to reiterate the fact that, if promulgated as a final rule, the proposed action will in no way require any party to use the ASTM E1527-13 standard to comply with the AAI Rule; the standard will be merely one option available to parties wishing to demonstrate that they have satisfied the AAI Rule and are eligible for CERCLA landowner liability protection. As EPA pointed out in the preamble to its August 2013 Direct Final Rule to add to the AAI Rule a reference to E1527-13, "[a]ny party conducting all appropriate inquiries to comply with the CERCLA's bona fide prospective purchaser, contiguous property owner, and innocent landowner liability protections may continue to follow the provisions of the All Appropriate Inquiries Final Rule at 40 C.F.R. Part 312 ...." 78 Fed. Reg. at 49692.
USWAG appreciates the opportunity to comment on this rulemaking. If you have questions regarding these comments, please contact Allison Foley at Venable LLP<PHONE_NUMBER>).
EPA Response:
EPA thanks the commenter for the stated support of the proposed rule.

Comment 4
Tracking No. 1jy-8d9s-d39o
Author: David H. Quigley, Akin Gump
To Whom It May Concern:
I am an attorney and a member of the ASTM E50 Committee on Environmental Assessment, Risk Management, and Corrective Action, E1527 Task Group, that developed the E1527-13 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. I submit these comments of support for EPA's amendment of the standards and practices for conducting all appropriate inquiries ("AAI") under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") to remove the reference to ASTM International's E1527-05 standard practice.
Removal of the Reference Avoids Confusion
EPA already "recommends that parties use the newer version of the standard" and the removal of the reference to the older standard will avoid confusion. From the perspective of a member of the ASTM Task Group there is one E1527 standard  -  the 2013 iteration  -  that the committee agreed upon through its consensus development process.
The intent of many serving on the E1527 Task Group was that E1527-13 would supersede E1527-05 as the operating industry standard and that the EPA would reflect this by amending the rule to "retire" the older standard. Otherwise, the risk remains that prior standards receive the same prominence as the current one, leaving environmental professionals to "pick and choose" and, as a result, be subject to second-guessing as to the validity of their choice. Beyond the potential for an unleveled playing field, the potential failure to implement universally the new iteration of the standard risks losing the benefits of that standard with very little reward. Even with the removal of the old standard, EPA is proposing to allow for a one-year implementation period from the final rule's publication date. This implementation period should more than address any concerns regarding in-process assessments and consultants needing time to bring their business up to speed. In fact, due to market demand, many consultants have already begun conducting assessments and preparing reports under the updated E1527-13 standard. There is no valid argument to delay the removal of the E1527-05 standard any longer, and a phase-in period of 6 months or less would be more appropriate and more reflective of the state of the industry.
Benefits of the New Iteration Justify Removal of Reference to the Old
I agree with EPA that the new standard "improves upon the previous version and reflects the evolving best practices and level of rigor...."
      [T]he new ASTM E1527-13 standard enhances the previous standard with regard to the delineation of historical releases or recognized environmental conditions at a property and makes important revisions to the standard practice to clarify that all appropriate inquiries and phase I environmental site assessments must include, within the scope of the investigation, an assessment of the real or potential occurrence of vapor migration and vapor releases on, at, in or to the subject property.
Specifically, the new standard corrects inconsistencies in the industry that members of the committee experienced over the years.
First, the new version clarifies the definition of "migrate/migration" to specifically include vapor migration. Releases of contaminants that migrate via vapor pathways in the subsurface or in soils are confirmed to be recognized environmental conditions. This clarification was necessary to reduce inconsistencies in how consultants assessed vapor concerns in the past and to provide more consistent assessments for users. The inclusion of vapor migration in the assessment process ensures that users have the added assurance of identifying this potential source of environmental impact to a property.
Second, the new version provides a standardized framework for "file reviews" to verify agency information obtained from key databases. The standard provides environmental consultants the flexibility to determine whether to obtain regulatory agency file records, and simply requires that, if they do not, they document why this review was not conducted. Note that this particular revision was included after the Task Group confirmed that many consulting firms nationwide were already following the substantive procedure. There may be good reason why a file review is unnecessary, and the revised standard merely requires that the consultant include that rationale in the report. Concerns have been raised regarding the timing and potential costs associated with the file reviews, but these constraints existed prior to the most recent revision. Phase I firms looking to offer the "lowest bids," led to the past inconsistencies in thoroughness, etc. and this revision aims to reduce the discrepancies and somewhat "level the playing field" for the firms that were already complying with the file review requirements in order to fulfill the AAI requirements.
In the end, the new standard offers incremental improvements over the old, with sufficient time to implement them and with no significant drawbacks, such that it no longer makes sense to continue to reference the old standard. As EPA concluded, E1527-13 and E1527-05 are "essentially congruent," with the new version offering "clarifications and additional guidance." The new standard provides better, more consistent, information for its users, while maintaining the old standard offers only confusion. I strongly support EPA's amendment of the standards and practices for conducting AAI to remove the reference to the E1527-05 standard practice.
If EPA desires any additional information or has any questions, please contact me at<EMAIL_ADDRESS>or<PHONE_NUMBER>.
EPA Response:
EPA thanks the commenter for the stated support of the proposed rule.  Although EPA agrees with the commenters' statements that most environmental professionals are likely already using the updated E1527-13 standard, the Agency believes it is prudent to provide for the one year delay in the effective date.  The All Appropriate Inquiries Rule requires that AAI investigations be conducted within one year prior to the date of acquisition of the subject property (see 40 CFR 312.20(a)).  In addition, the AAI Rule requires that certain aspects of the AAI investigation be conducted or updated within 180 days prior to the date of acquisition of the subject property (40 CFR 312.20(b)).  Given these requirements, EPA determined that delaying the effective date for the final rule by only six months may be burdensome for some parties.  Therefore, EPA is delaying the effective date for final rule, until one year after the rule is published in the Federal Register.  This will allow sufficient time for AAI investigations initiated or on-going at the time of publication of the final rule to be completed or updated prior to the effective date.

Comment 5
Tracking No. 1jy-8d9v-4pyl
Author: William R. Weissman
I am a member of the ASTM task group that developed the ASTM E1527-13 and E1527-05 standards and am submitting these comments in my individual capacity in support of EPA's proposal to remove the reference to the 2005 standard in 40 C.F.R. §312.11. 79 Fed. Reg. 34480 (June 17, 2014). I have to acknowledge that I was initially skeptical about the need or value of deleting the reference to the 2005 standard because in my view there is very little difference between the two versions of the E1527 standard. In my view, compliance with both standards is compliant with EPA's All Appropriate Inquiries ("AAI") rule. 40 C.F.R. Part 312. However, after reading EPA's well-crafted preamble to the pending proposed rule, I have concluded that the public will benefit from the clarifications EPA has provided and therefore I am supporting promulgation of the rule as proposed.
The reason that final adoption of the proposed rule is welcome is that a small minority of environmental professionals who conduct Phase I environmental site assessments using the E1527-05 standard have misread that standard to justify some unintended shortcuts to the site assessment process. Since publication of the E1527-13 standard, there have been a number of misstatements in the public media as well as in comments submitted to EPA about what some believe to be significant changes in the E1527 due diligence process resulting from adoption of the 2013 standard. One such misstatement claims that the 2013 standard adds a new requirement for assessment of potential vapor intrusion conditions. I am advised that EPA has received at least one comment that makes this claim. Those who express this view are mistaken. Vapor intrusion assessment has not been part of E1527-05 and is not part of E1527-13 assessment.
The persons who express this mistaken view may have conflated the terms "vapor intrusion" and "vapor migration." These are quite different concepts, and only the latter has any relevance to E1527 site assessments. The term "vapor" appears in the 2013 standard as an example in the definition of migrate and migration  -  i.e., "`migrate' and `migration' refers to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface." ASTM E1527-13 §3.2.56. "Vapor intrusion," however, is a term specifically associated with "the migration of chemical vapors from contaminated soil and groundwater into buildings." EPA, Brownfields Technology Primer: Vapor Intrusion Considerations for Redevelopment, p.1, EPA 542-R-08-001 (2008) (emphasis added). The E1527-13 standard, like the E1527-05 standard, does not call for evaluation of the likelihood that vapors have migrated into buildings.
Users of the E1527-13 standard need to keep in mind that the purpose of a Phase I site assessment is to determine whether there exists a "recognized environmental condition" on a parcel of property  -  that is, determining "the presence or likely presence of any hazardous substances or petroleum products in, on, or at a property: (1) due to release to the environment; (2) under conditions indicative of a release to the environment; or (3) under conditions that pose a material threat of a future release to the environment." ASTM E1527-13 §3.2.78. This determination is comparable to the objective of EPA's AAI rule. See 40 C.F.R. §312.20(e) ("The standards and practices set forth in this part for All Appropriate Inquiries are intended to result in the identification of conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property."). The Phase I site assessment focuses on whether there is a condition in, on or at the subject property stemming from a release of hazardous substances or petroleum products that would indicate a possible CERCLA liability condition regardless of the exposure pathway of the release. Subsurface vapor migration stemming from a release of hazardous substances is no different from the standpoint of a Phase I assessment than migration of groundwater contamination. As EPA previously stated: "Neither the All Appropriate Inquiries Rule nor the ASTM E 1527 - 05 standard excludes the identification of vapor releases as a possible type of release." 78 Fed. Reg. 79319, 79322 (Dec. 30, 2013). The express clarification of the definition of "release" in the 2013 standard to include vapor migration was not a new requirement but a response to inconsistent interpretations of the 2005 standard among environmental professionals.
The aim of the 2013 revisions was to clarify ambiguous language in the 2005 standard that may have confused some users into believing that a vapor pathway by itself could never constitute a recognized environmental condition. There were other ambiguities in the 2005 standard that led some users of the standard into believing that certain data gathering shortcuts were acceptable. Once the ASTM task group responsible for developing the E1527 standard learned of these misunderstandings, the task group commenced the ASTM consensus development process to gather industry feedback regarding "good commercial and customary practice" (i.e., what were most consultants actually doing) to update the 2005 standard to clarify these unintended ambiguities.
EPA's final rule referencing the 2013 standard clearly recognized that the 2013 standard does not add significant new obligations to the environmental site assessment process but merely clarifies and explains what was intended in the 2005 standard. See 78 Fed. Reg. at 79321-22; EPA, Summary of Updates and Revisions to ASTM E1527 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process  -  How E1527-13 Differs from E1527-05 (Docket EPA - HQ - SFUND - 2013 - 0513). Now that ASTM has clarified in the 2013 standard what was intended in the 2005 standard, users who persist in viewing the 2005 standard as a pathway to a low cost incomplete site assessment face the risk that a post-2013 assessment based on the ambiguities in the 2005 standard may find themselves disqualified from CERCLA liability protection in any future CERCLA litigation. EPA's December 30, 2013 rule referencing E1527-13, together with the current proposal to remove the reference to the 2005 standard, constitute fair notice that going forward the clarifications in the 2013 standard represent "good commercial and customary practice" for any future environmental site assessment intended to be compliant with the AAI rule.
Finally, EPA has invited public comment on a delayed effective date of one year for implementation of the withdrawal of the reference to the 2005 standard. Since EPA announced its intention to propose the pending amendment more than seven months ago (see 78 Fed. Reg. at 79322), a six month lag time should be sufficient. The ASTM task group's experience is that most users of the E1527 standard have already transitioned to the 2013 standard. Except if preexisting contractual obligations require use of the 2005 standard, the only reason anyone would want more time to continue using the 2005 standard is to perpetuate as long as possible the site assessment short-cuts that were never intended in 2005 and would not likely be compliant with the AAI rule. If an environmental professional is under a binding contract executed prior to June 17, 2014 (the date of the proposed rule) for performing a site assessment using the 2005 standard, they should be given the opportunity to request a waiver of the effective date of the final rule from EPA to allow performance in accordance with the terms of the contract and consistent with the clarifications in the 2013 standard. I believe EPA will see few if any such waiver requests.
Thank you for your consideration of these comments.
EPA Response:
EPA thanks the commenter for the stated support of the proposed rule.  Although EPA agrees with the commenters' statements that most environmental professionals are likely already using the updated E1527-13 standard, the Agency believes it is prudent to provide for the one year delay in the effective date.  The All Appropriate Inquiries Rule requires that AAI investigations be conducted within one year prior to the date of acquisition of the subject property (see 40 CFR 312.20(a)).  In addition, the AAI Rule requires that certain aspects of the AAI investigation be conducted or updated within 180 days prior to the date of acquisition of the subject property (40 CFR 312.20(b)).  Given these requirements, EPA determined that delaying the effective date for the final rule by only six months may be burdensome for some parties.  Therefore, EPA is delaying the effective date for the final rule, until one year after the rule is published in the Federal Register.  This will allow sufficient time for AAI investigations initiated or on-going at the time of publication of the final rule to be completed or updated prior to the effective date.