[Federal Register Volume 79, Number 140 (Tuesday, July 22, 2014)]
[Proposed Rules]
[Pages 42483-42486]
[FR Doc No: 2014-17031]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Docket No. FAA-2014-0463]

Policy on the Non-aeronautical Use of Airport Hangars

AGENCY: Federal Aviation Administration (FAA).

ACTION:  Notice of Proposed Policy; Request for Comments

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SUMMARY: Under Federal law, airport operators that have accepted
federal grants and/or those that have obligations contained in property
deeds for property transferred under various Federal laws such as the
Surplus Property Act generally may use airport property only for
aviation-related purposes unless otherwise approved by the FAA.
Compliance inspections by FAA staff, as well as audits by the
Government Accountability Office, have found that some hangars intended
for aircraft storage are routinely used to store non-aeronautical items
such as vehicles and large household items. In some cases, this storage
interferes with--or entirely displaces--aeronautical use of the hangar.
Moreover, many airports have a waiting list for hangar space, and a
tenant's use of a hangar for non-aeronautical purposes prevents
aircraft owners from obtaining access to hangar storage on the airport.
At the same time, the FAA realizes that storage of some small
incidental items in a hangar that is otherwise used for aircraft
storage will have no effect on the aeronautical utility of the hangar.
The FAA is proposing a statement of policy on use of airport hangars to
clarify compliance requirements for airport sponsors, airport manager,
airport tenants, state aviation officials, and FAA compliance staff.
This notice solicits public comment on the proposed policy statement.

DATES: Send your comments on or before September 5, 2014. The FAA will
consider comments on the proposed policy statement. Any necessary or
appropriate revisions resulting from the comments received will be
adopted as of the date of a subsequent publication in the Federal
Register.

ADDRESSES: You may send comments [identified by Docket Number FAA-2014-
0463] using any of the following methods:
     Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your
comments electronically.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590.
     Fax: 1-202-493-2251.
     Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    For more information on the notice and comment process, see the
SUPPLEMENTARY INFORMATION section of this document.
    Docket: To read background documents or comments received, go to
http://www.regulations.gov at any time or to Room W12-140 on the ground
floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: Kevin C. Willis, Manager, Airport
Compliance Division, ACO-100, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591, telephone (202) 267-
3085; facsimile:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:
    Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information you
provide. Using the search function of our docket Web site, anyone can
find and read the comments received into any of our dockets, including
the name of the individual sending the comment (or signing the comment
for an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78).

Availability of Documents

    You can get an electronic copy of this Policy and all other
documents in this docket using the Internet by:
    (1) Searching the Federal eRulemaking portal (http://www.faa.gov/regulations/search);
    (2) Visiting FAA's Regulations and Policies Web page at (http://www.faa.gov/regulations_policies; or
    (3) Accessing the Government Printing Office's Web page at (http://www.gpoaccess.gov/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Airport Compliance and Management
Analysis, 800 Independence Avenue SW., Washington, DC 20591, or by
calling<PHONE_NUMBER>. Make sure to identify the docket number, notice
number, or amendment number of this proceeding.

Authority for the Policy

    This notice is published under the authority described in Title 49
of the United States Code, Subtitle VII, part B, chapter 471, section
47122(a).

Background

Airport Sponsor Obligations

    Airport sponsors that have accepted grants under the Airport
Improvement Program (AIP) have agreed to comply with certain Federal
policies included in each AIP grant agreement as sponsor assurances.
The Airport and Airway Improvement Act of 1982 (AAIA), as amended and
recodified at 49 U.S.C. 47107(a)(1), and the contractual sponsor
assurances require that the airport sponsor make the airport available
for aviation use. Grant assurance 22, Economic Nondiscrimination,
requires the sponsor to make the airport available on reasonable terms
without unjust discrimination for aeronautical activities, including
aviation services. Grant assurance 19, Operation and Maintenance,
prohibits an airport sponsor from causing or permitting any activity
that would interfere with use of airport property for airport purposes.
In some cases, sponsors who have received property transfers through
surplus property and nonsurplus property agreements have similar
federal obligations.
    The sponsor may designate some areas of the airport for non-
aviation

use,\1\ with FAA approval, but aeronautical facilities of the airport
must be dedicated to use for aviation purposes. Limiting use of
aeronautical facilities to aeronautical purposes ensures that airport
facilities are available to meet aviation demand at the airport.
Aviation tenants and aircraft sponsors should not be displaced by non-
aviation commercial uses that could be conducted off of airport
property.
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    \1\ The terms ``non-aviation'' and ``non-aeronautical'' are used
interchangeably in this Notice.
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    It is the longstanding policy of the FAA that airport property be
available for aeronautical use and not be available for non-
aeronautical purposes unless that non-aeronautical use is approved by
the FAA. Use of a designated aeronautical facility for a non-aviation
purpose, even on a temporary basis, requires FAA approval. See FAA
Order 5190.6B, Airport Compliance Manual, paragraph 22.6. The
identification of non-aviation use of aeronautical areas receives
special attention in FAA airport compliance inspections. See Order
5190.6B, paragraphs 21.6.e and f(5).
    Areas of the airport designated for non-aeronautical use must be
shown on an airport's Airport Layout Plan (ALP). The AAIA, at 49 U.S.C.
47107(a)(16), requires that AIP grant agreements include an assurance
by the sponsor to maintain an ALP in a manner prescribed by the FAA.
Sponsor assurance 29, Airport Layout Plan, implements Sec.
47107(a)(16) and provides that an ALP must designate non-aviation areas
of the airport. The sponsor may not allow an alteration of the airport
in a manner inconsistent with the ALP unless approved by the FAA. See
FAA Order 5190.6B, Airport Compliance Manual, paragraph 7.18, and
Advisory Circular 150/5070-6B, Airport Master Plans, chapter 10.
    Clearly identifying non-aeronautical facilities not only keeps
aeronautical facilities available for aviation use, but also assures
that the airport sponsor receives at least Fair Market Value (FMV)
revenue from non-aviation uses of the airport. The AAIA requires that
airport revenues be used for airport purposes, and that the airport
maintain a fee structure that makes the airport as self-sustaining as
possible. 49 U.S.C. 47107(a)(13)(A) and (b)(1). The FAA and the
Department of Transportation Office of the Inspector General have
interpreted these statutory provisions to require that non-aviation
activities on an airport be charged a fair market rate for use of
airport facilities rather than the aeronautical rate. See FAA Policies
and Procedures Concerning the Use of Airport Revenue, Sec.  VII.C, 64
FR 7696, 7721(Feb. 16, 1999) (FAA Revenue Use Policy). If an airport
tenant pays an aeronautical rate for a hangar and then uses the hangar
for a non-aeronautical purpose, the tenant may be paying a below-market
rate in violation of the sponsor's obligation for a self-sustaining
rate structure and FAA's Revenue Use Policy. Confining non-aeronautical
activity to designated non-aviation areas of the airport helps to
ensure that the non-aeronautical use of airport property is monitored
and allows the airport sponsor to clearly identify non-aeronautical
fair market value lease rates in order meet their federal obligations.
Identifying non-aeronautical uses and charging appropriate rates for
these uses prevents the sponsor from subsidizing non-aviation
activities with aviation revenues.

FAA Oversight

    The FAA's enforcement of appropriate use of airport property has
been the subject of two audits by the General Accounting Office (now
called Government Accountability Office, or GAO). In August 1980, the
GAO released a report to the Secretary of Transportation entitled
``Misuse of Airport Land Acquired through Federal Assistance.'' This
report highlighted several cases of federally funded land being used
for various non-aeronautical purposes. The report cited a lack of
oversight by FAA and recommended more active involvement in oversight.
In May 1999, the GAO released the report, ``General Aviation Airports:
Unauthorized Land Use Highlights Need for Improved Oversight and
Enforcement''. This report highlighted the need for the FAA to increase
its efforts to monitor airports for unauthorized use of land.
    In response to this second report, the FAA began conducting land
use inspections at 18 selected airports each year, at least two in each
of the nine FAA regions. A frequent finding from these inspections has
been the prevalence of non-aeronautical items stored in aircraft
hangars designated for aeronautical use. In some cases, the aircraft
hangars contained only non-aeronautical items, such as automobiles
(including sponsor-owned police cruisers), boats, large recreational
vehicles, etc. In other cases, non-aeronautical items shared space with
legitimate aeronautical use of hangars. Inspections have frequently
uncovered motorcycles, furniture, tools, and other non-aeronautical
items stored in hangars along with aircraft. Some hangar tenants were
found to be operating non-aviation commercial businesses out of an
airfield hangar.
    In May 2011, The Director of the Office of Airport Compliance and
Management Analysis issued a Director's Determination under 14 CFR Part
16,\2\ finding the City in violation of Grant Assurance 19. Operations
and Maintenance by allowing non-aeronautical use of airport hangars for
storing non-aviation items. The FAA ordered the City to submit a
Corrective Action Plan to bring the airport back into compliance. As
part of the City of Glendale's effort to formulate a Corrective Action
Plan, the City requested the FAA to provide written confirmation on the
status of certain items as aeronautical or non-aeronautical. The
agency's July 12, 2012 response to the letter became widely circulated
in the airport community and has been interpreted by some as general
policy. Insofar as that letter suggested that all non-aeronautical
items stored in a hangar would constitute a violation of the grant
assurances, it applied to a specific situation at a specific airport
and does not represent general agency policy.
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    \2\ Valley Aviation Services, LLP v. City of Glendale, Arizona,
FAA Docket No. 16-09-06 (May 24, 2011) (Director's Determination).
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    A sponsor's grant assurance obligations require that its
aeronautical facilities be used or be available for use for
aeronautical activities. If the presence of non-aeronautical items in a
hangar does not interfere with these obligations, then the FAA will
generally not consider their presence to constitute a violation of the
sponsor's obligation to provide reasonable access to aeronautical users
and tenants. In cases where excess hangar capacity is unused because of
low aviation demand, a sponsor can request FAA approval for interim
non-aeronautical use of a hangar until that hangar is needed again for
an aeronautical purpose. However, aeronautical use must take priority
and be accommodated over non-aeronautical use even if the rental rate
would be higher for the non-aeronautical use (See FAA Order 5190.6B, ]
22.6). The sponsor is required to charge a fair market commercial
rental rate for any hangar rental or use for non-aeronautical purposes.

Use of Hangars for Fabrication and Assembly of Aircraft

    While building an aircraft results in an aeronautical product, the
FAA has not found all stages of the building process to be aeronautical
for purposes of hangar use. A large part of the

construction process can be and often is conducted off-airport. Only
when the various components are assembled into a final functioning
aircraft is access to the airfield necessary.
    In Ashton v. City of Concord, NC,\3\ the complainant objected to
the airport sponsor's prohibition of construction of a homebuilt
aircraft in an airport T-hangar. The decision was based on a FAA
determination that aircraft construction is not per se an aeronautical
activity. While final stages of aircraft construction can be considered
aeronautical, the airport sponsor prohibited this level of maintenance
and repair in T-hangars but provided an alternate location on the
airport. The FAA found that the airport sponsor's rules prohibiting
maintenance and repair in a T-hangar, including construction of a
homebuilt aircraft, did not violate the sponsor's grant assurances.
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    \3\ Ashton v. City of Concord, FAA Docket No. 16-99-09 (January
28, 2000) (Director's Determination and affirmed by Final Agency
Decision).
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    There have been industry objections to the FAA's designation of any
aircraft construction stages as non-aeronautical. While the same
principles apply generally to large aircraft manufacturing, compliance
issues involving aircraft construction have typically been limited to
homebuilt aircraft construction at general aviation airports.
Commercial aircraft manufacturers use dedicated, purpose-built
manufacturing facilities, and questions of aeronautical use for these
facilities are generally resolved at the time of the initial lease. In
contrast, persons constructing homebuilt aircraft sometimes seek to
rent airport hangars designed for storage of operating aircraft and
easy access to a taxiway, even though it may be years before a
homebuilt aircraft kit will be able to take advantage of the convenient
access to the airfield.
    The FAA is not proposing any change to existing policy other than
to clarify that final assembly of an aircraft, leading to the
completion of the aircraft to a point where it can be taxied, will be
considered an aeronautical use.

Proposed Policy and Request for Public Comment

    The FAA intends to produce an agency policy on use of hangars and
related facilities at federally obligated airports in sufficient detail
to provide a clear and standardized guide for airport sponsors and FAA
compliance staff. The FAA is proposing a policy statement for public
comment based on the following general principles:
    1. The primary goal of this policy is to protect federal investment
in federally obligated airports by ensuring aeronautical facilities are
available to aeronautical users. Aeronautical users requesting the use
of a hangar for aircraft storage should not be denied access because
the airport sponsor is permitting tenants to use hangars to store
vehicles or household items, or to operate non-aviation businesses.
    2. A secondary goal of the policy is to ensure that airport
sponsors receive fair market rental for any approved use of airport
property for non-aviation purposes.
    3. The primary purpose of a hangar in an aeronautical area of the
airport is aircraft storage or operation of an aeronautical service
business that requires maintenance or repair work on aircraft. If a
hangar is serving one of these purposes, then incidental storage of
non-aviation items that does not interfere with the primary purpose of
the hangar and occupies an insignificant amount of physical hangar
space will not be considered to constitute a violation of the grant
assurances. In such cases, incidental storage of non-aviation items
will be treated as having de minimis value (for purposes of compliance
with the self-sustaining assurance) and will not require the sponsor to
increase rent as a result of the storage of these incidental non-
aeronautical items.
    4. If an airport's hangar capacity substantially exceeds aviation
demand (e.g., there are multiple vacant hangars and no requests to rent
them for aeronautical purposes), the sponsor may request and FAA may
approve interim non-aeronautical use of vacant hangars under the
provisions found in FAA Order 5190.6B, Chapter 22.6. FMV non-
aeronautical rental rates would apply to any non-aviation use.
    5. Final, active assembly of an aircraft in the manufacturing or
homebuilt construction process, resulting in a completed, operational
aircraft requiring access to the airfield, is considered an
aeronautical activity for the purposes of this policy.
    6. Using hangar space as a residence on a full-time or even
temporary basis is not a compatible land use, no matter where it is
located on the airport, and is not permitted.
    7. Airport sponsors are expected to take measures to ensure that
aeronautical facilities on the airport are reserved for aeronautical
use. These measures should include a periodic inspection program to
ensure that the waiting time for those persons who are legitimately in
need of a hangar for aircraft storage is minimized.
    8. Airport sponsors may adopt more stringent rules for use of
hangars than required by the grant assurances, based on proprietary
concerns for the safe and efficient use of airport property. However,
such rules must be reasonable and not unjustly discriminatory against
any aeronautical user. For example, an airport sponsor may limit
storage of vehicles in hangars if there is concern that vehicular
traffic on taxilanes or taxiways may create a safety hazard.
    9. The sponsor's federal obligations do not protect non-
aeronautical users and/or storage of non-aeronautical items. Non-
aeronautical use is not a protected activity.

Proposed Policy and Request for Comments

    In accordance with the above, the FAA proposes to adopt the
following policy statement on use of hangars at federally obligated
airports. The agency requests public comments on the proposed policy
statement, as described in the ``Address'' and ``Dates'' information in
this notice. Comments received by the due date will be considered in
the development of a final agency policy statement.

Use of Aeronautical Land and Facilities

Applicability

    This policy applies to all aircraft storage areas or facilities on
a federally obligated airport unless designated for non-aviation use on
an approved Airport Layout Plan or otherwise approved for non-aviation
use by the FAA. The policy statement generally refers to the use of
hangars since they are the type of aeronautical facility most often
involved in issues of non-aviation use. The policy applies to all users
of aircraft hangars, regardless of whether a user is an owner or lessee
of the hangar, including airport sponsors, municipalities, and other
public entities.
I. General
    The intent of this policy is to ensure that the Federal investment
in federally obligated airports is protected by making aeronautical
facilities available to aeronautical users, and to ensure that airport
sponsors receive fair market value for rental of approved non-aviation
use of airport property. Sponsors who fail to comply with grant
assurances and this policy may be subject to administrative sanctions
such as the denial of funding from current and future AIP grants.

II. Standards for Aeronautical Use of Hangars
     Hangars located on airport property must be used for an
aeronautical purpose, or be available for use for one, unless otherwise
approved by the FAA.
     Aeronautical uses for hangars include:
[cir] Storage of operational aircraft
[cir] Final assembly of aircraft
[cir] Short-term storage of non-operational aircraft for purposes of
maintenance, repair, or refurbishment

     Provided the hangar is used primarily for aeronautical
purposes, an airport sponsor may permit limited, non-aeronautical items
to be stored in hangars provided the items are incidental to
aeronautical use of the hangar and occupy an insignificant amount of
hangar space (e.g., a small refrigerator). The incidental storage of
non-aeronautical items will be considered to be of de minimis value for
the purpose of assessing rent.
     Generally, items are considered incidental if they:

[cir] Do not interfere with the aeronautical use of the hangar;
[cir] Do not displace the aeronautical contents of the hangar;
[cir] Do not impede access to aircraft or other aeronautical contents
of the hangar;
[cir] Do not require a larger hangar than would otherwise be necessary
if such items were not present;
[cir] Occupy an insignificant amount of hangar space;
[cir] Are owned by the hangar owner or tenant;
[cir] Are not used for non-aeronautical commercial purposes (i.e., the
tenant is not conducting a non-aeronautical business from the hangar
including storing inventory);
[cir] Are not stored in violation of airport rules and regulations.

     Hangars should be leased with consideration of the size
and quantity of aircraft to be stored therein. To maximize the
availability of hangars for all aeronautical users, sponsors should
avoid leasing a hangar that is disproportionately large for the
aircraft to be stored in the hangar (i.e., hangars built to store
multiple aircraft should be used for multiple aircraft storage).
     Hangars must not be used as a residence. The FAA
differentiates between a typical pilot resting facility or aircrew
quarters versus a hangar residence or hangar home. The former are
designed to be used for overnight and/or resting periods for aircrew,
and not as a permanent or even temporary residence. See FAA Order
5190.6B, Paragraph 20.5.b.
     This policy on hangar use applies regardless of whether
the hangar occupant leases the hangar from the airport sponsor or
developer, or the hangar occupant constructed the hangar at their own
expense and holds a ground lease only. When designated aeronautical
land is made available for construction of hangars, the hangars built
on the land will be fully subject to the sponsor's obligations to use
aeronautical facilities for aeronautical use.
III. Approval for Non-Aeronautical Use of Hangars
    Where hangars are unoccupied and there is no current aviation
demand for hangar space, the airport sponsor may request that FAA
approve an interim use of a hangar for non-aeronautical purposes for a
period no more than five years. Interim leases of unused hangars can
generate revenue for the airport and prevent deterioration of
facilities. FAA will review the request in accordance with Order
5190.6B, ] 22.6. Approved interim or concurrent revenue-production uses
must not interfere with safe and efficient airport operations and
sponsors should only agree to lease terms that allow the hangars to be
recovered on short notice for aeronautical purposes.
    The airport sponsor is required to charge non-aeronautical fair
market rental fees for the non-aeronautical use of airport property,
even on an interim basis. (See Policies and Procedures Concerning
Airport Revenue, Sec.  VII.C.)
IV. No Right to Non-Aeronautical Use
    In the context of enforcement of the grant assurances, this policy
allows some incidental storage of non-aeronautical items in hangars.
However, the policy neither creates nor constitutes a right to store
non-aeronautical items in hangars. Airport sponsors may restrict or
prohibit storage of non-aeronautical items. Sponsors should consider
factors such as emergency access, fire codes, security, insurance, and
the impact of vehicular traffic on their surface areas when enacting
rules regarding hangar storage. In some cases, permitting certain
incidental non-aeronautical items in hangars could inhibit the
sponsor's ability to meet obligations associated with grant assurance
19, Operations and Maintenance. Sponsors should ensure that taxiways
and runways are not used for the vehicular transport of such items to
or from the hangars.
V. Sponsor Compliance Actions
    It is expected that aeronautical facilities on an airport will be
available and used for aeronautical purposes in the normal course of
airport business, and that non-aeronautical uses will be the exception.
Sponsors should have a program to routinely monitor use of hangars and
take measures to eliminate and prevent unapproved non-aeronautical use
of hangars. Sponsors should ensure that length of time on a waiting
list of those legitimately in need of a hangar for aircraft storage is
minimized. Sponsors should also consider incorporating provisions in
airport leases, including aeronautical leases, to adjust rental rates
to FMV for any non-incidental non-aeronautical use of the leased
facilities. FAA personnel conducting a land use or compliance
inspection of an airport may request a copy of the sponsor's hangar use
program and evidence that the sponsor has limited hangars to aviation
use.

    Issued in Washington, DC, on July 15, 2014.
Randall S. Fiertz,
Director, Office of Airport Compliance and Management Analysis.
[FR Doc. 2014-17031 Filed 7-21-14; 8:45 am]
BILLING CODE P


United States Environmental Protection Agency Washington, DC 20460 Substantiation to Accompany Claims of Trade Secrecy Under the Emergency Planning and Community Right To Know Act of 1986 Form Approved OMB No. 2050 0078 Approval Expires:

Paperwork Reduction Act Notice Public reporting burden for this collection of information is estimated to vary from 16 hours to 38 hours per response, with an average of 26.7 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information, including suggestions for reducing this burden to Director, Office of Environmental Information, Collection Strategies Division, Mailcode 2822, U. S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office Management and Budget, Washington, DC 20503.

Part 1. Substantiation Category 1.1 Title III Reporting Section ( check only one)

 303  311  312  313 1.2 Reporting Year 19____

1.3 Indicate Whether This Form is ( check only one)

1.3a  Sanitized ( answers 1.3.1a below)

1.3.1a Generic Class or Category 1.3b  Unsanitized ( answer 1.3.1b and 1.3.2b below)

1.3.1b CAS Number            1.3.2b Specific Chemical Identity Part 2. Facility Identification Information 2.1 Name 2.2 Street Address 2.3 City, State, and Zip Code 2.4 Dun and Bradstreet Number            EPA Form 9510 1 ( 3/ 31/ 1997) Page 1 of 5 Part 3 Responses to Substantiation Questions 3.1 Describe the specific measures you have taken to safeguard the confidentiality of the chemical identify claimed as trade secret, and indicate whether these measures will continue in the future.

3.2 Have you disclosed the information claimed as trade secret to any other person ( other than a member of a local emergency planning committee, officer or employee of the United States or a State or local government, or your employee) who is not bound by a confidentiality agreement to refrain from disclosing this trade secret information to others?

 Yes  No 3.3 List all local, State, and Federal government entities to which you have disclosed specific chemical identity. For each, indicate whether you asserted a confidentiality claim for the chemical identity and whether the government entity denied that claim.

Government Entity Confidentiality Claim Asserted Confidentiality Claim Denied Yes No Yes No EPA Form 9510 1 ( 3/ 31/ 1997) Page 2 of 5 3.4 In order to show the validity of a trade secrecy claim, you must identify your specific use of the chemical claimed as trade secret and explain why it is a secret of interest to competitors. Therefore:

( i) Describe the specific use of the chemical claimed as trade secret, identifying the product or process in which it is used. ( If you use the chemical other than as a component of a product or in a manufacturing process, identify the activity where the chemical is used.)

( ii) Has your company or facility identity been linked to the specific chemical identity claimed as trade secret in a patent, or in publications or other information sources available to the public or your competitors ( of which you are aware)?

 Yes  No If so, explain why this knowledge does not eliminate the justification for trade secrecy.

( iii) If this use of the chemical claimed as trade secret is unknown outside your company, explain how your competitors could deduce this use from disclosure of the chemical identity together with other information on the Title III submittal form. EPA Form 9510 1 ( 3/ 31/ 1997) Page 3 of 5 3.4 ( iv) Explain why your use of the chemical claimed as trade secret would be valuable information to your competitors.

3.5 Indicate the nature of the harm to your competitive position that would likely result from disclosure of the specific chemical identity, and indicate why such harm would be substantial.

3.6 ( i) To what extent is the chemical claimed as trade secret available to the public or your competitors in products, articles, or environmental releases?

EPA Form 9510 1 ( 3/ 31/ 1997) Page 4 of 5 3.6 ( ii) Describe the factors which influence the cost of determining the identity of the chemical claimed as trade secret by chemical analysis of the product, article, or waste which contains the chemical ( e. g., whether the chemical is in pure form or is mixed with other substances).

Part 4. Certification ( Read and sign after completing all sections)

I certify under penalty of law that I have personally examined the information submitted in this and all attached documents. Based on my inquiry of those individuals responsible for obtaining the information, I certify that the submitted information is true, accurate, and complete, and that those portions of the substantiation claimed as confidential would, if disclosed, reveal the chemical identity being claimed as a trade secret, or would reveal other confidential business or trade secret information. I acknowledge that I may be asked by the Environmental Protection Agency to provide further detailed factual substantiation relating to this claim of trade secrecy, and certify to the best of my knowledge and belief that such information is available. I understand that if it is determined by the Administrator of EPA that this trade secret claim is frivolous, EPA may assess a penalty of up to $ 25,000 per claim.

I acknowledge that any knowingly false or misleading statement may be punishable by fine or imprisonment or both under applicable law.

4.1 Name and official title of owner or operator or senior management official 4.2 Signature ( All signatures must be original) 4.3 Date Signed EPA Form 9510 1 ( 3/ 31/ 1997) Page 5 of 5


[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Notices]
[Pages 20840-20843]
[FR Doc No: 2018-09689]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2018-0002; Internal Agency Docket No. FEMA-B-1826]

Changes in Flood Hazard Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice lists communities where the addition or
modification of Base Flood Elevations (BFEs), base flood depths,
Special Flood Hazard Area (SFHA) boundaries or zone designations, or
the regulatory floodway (hereinafter referred to as flood hazard
determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and
where applicable, in the supporting Flood Insurance Study (FIS)
reports, prepared by the Federal Emergency Management Agency (FEMA) for
each community, is appropriate because of new scientific or technical
data. The FIRM, and where applicable, portions of the FIS report, have
been revised to reflect these flood hazard determinations through
issuance of a Letter of Map Revision (LOMR), in accordance with
applicable Federal Regulations. The LOMR will be used by insurance
agents and others to calculate appropriate flood insurance premium
rates for new buildings and the contents of those buildings. For rating
purposes, the currently effective community number is shown in the
table below and must be used for all new policies and renewals.

DATES: These flood hazard determinations will be finalized on the dates
listed in the table below and revise the FIRM panels and FIS report in
effect prior to this determination for the listed communities.
    From the date of the second publication of notification of these
changes in a newspaper of local circulation, any person has 90 days in
which to request through the community that the Deputy Associate
Administrator for Insurance and Mitigation reconsider the changes. The
flood hazard determination information may be changed during the 90-day
period.

ADDRESSES: The affected communities are listed in the table below.
Revised flood hazard information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below.

Additionally, the current effective FIRM and FIS report for each
community are accessible online through the FEMA Map Service Center at
https://msc.fema.gov for comparison.
    Submit comments and/or appeals to the Chief Executive Officer of
the community as listed in the table below.

FOR FURTHER INFORMATION CONTACT: Rick Sacbibit, Chief, Engineering
Services Branch, Federal Insurance and Mitigation Administration, FEMA,
400 C Street SW, Washington, DC 20472,<PHONE_NUMBER>, or (email)
[email protected]; or visit the FEMA Map Information
eXchange (FMIX) online at https://www.floodmaps.fema.gov/fhm/fmx_main.html.

SUPPLEMENTARY INFORMATION: The specific flood hazard determinations are
not described for each community in this notice. However, the online
location and local community map repository address where the flood
hazard determination information is available for inspection is
provided.
    Any request for reconsideration of flood hazard determinations must
be submitted to the Chief Executive Officer of the community as listed
in the table below.
    The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
    The FIRM and FIS report are the basis of the floodplain management
measures that the community is required either to adopt or to show
evidence of having in effect in order to qualify or remain qualified
for participation in the National Flood Insurance Program (NFIP).
    These flood hazard determinations, together with the floodplain
management criteria required by 44 CFR 60.3, are the minimum that are
required. They should not be construed to mean that the community must
change any existing ordinances that are more stringent in their
floodplain management requirements. The community may at any time enact
stricter requirements of its own or pursuant to policies established by
other Federal, State, or regional entities. The flood hazard
determinations are in accordance with 44 CFR 65.4.
    The affected communities are listed in the following table. Flood
hazard determination information for each community is available for
inspection at both the online location and the respective community map
repository address listed in the table below. Additionally, the current
effective FIRM and FIS report for each community are accessible online
through the FEMA Map Service Center at https://msc.fema.gov for
comparison.

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: May 1, 2018.
David I. Maurstad,
Deputy Associate Administrator for Insurance and Mitigation (Acting),
Department of Homeland Security, Federal Emergency Management Agency.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Chief executive                       Online location
       State and county         Location and case      officer of       Community map     of letter of map        Date of modification        Community
                                       No.             community          repository          revision                                           No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Arizona:
    Maricopa..................  City of Avondale   The Honorable      Development &      https://           Jul. 27, 2018..................       040038
                                 (17-09-2069P).     Kenneth N.         Engineering        msc.fema.gov /
                                                    Weise, Mayor,      Services           portal/
                                                    City of            Department,        advanceSearch.
                                                    Avondale, 11465    11465 West Civic
                                                    West Civic         Center Drive,
                                                    Center Drive,      Avondale, AZ
                                                    Avondale, AZ       85323.
                                                    85323.
    Maricopa..................  City of Glendale   The Honorable      City Hall, 5850    https://           Aug. 3, 2018...................       040045
                                 (17-09-2330P).     Jerry Weiers,      West Glendale      msc.fema.gov /
                                                    Mayor, City of     Avenue,            portal/
                                                    Glendale, 5850     Glendale, AZ       advanceSearch.
                                                    West Glendale      85301.
                                                    Avenue,
                                                    Glendale, AZ
                                                    85301.
    Maricopa..................  Unincorporated     The Honorable      Flood Control      https://           Jul. 27, 2018..................       040037
                                 Areas of           Steve Chucri,      District of        msc.fema.gov /
                                 Maricopa County    Chairman, Board    Maricopa County,   portal/
                                 (17-09-2069P).     of Supervisors,    2801 West          advanceSearch.
                                                    Maricopa County,   Durango Street,
                                                    301 West           Phoenix, AZ
                                                    Jefferson          85009.
                                                    Street, 10th
                                                    Floor, Phoenix,
                                                    AZ 85003.
    Maricopa..................  Unincorporated     The Honorable      Flood Control      https://           Aug. 3, 2018...................       040037
                                 Areas of           Steve Chucri,      District of        msc.fema.gov /
                                 Maricopa County    Chairman, Board    Maricopa County,   portal/
                                 (17-09-2330P).     of Supervisors,    2801 West          advanceSearch.
                                                    Maricopa County,   Durango Street,
                                                    301 West           Phoenix, AZ
                                                    Jefferson          85009.
                                                    Street, 10th
                                                    Floor, Phoenix,
                                                    AZ 85003.
California:
    Kern......................  City of Delano     The Honorable      Community          https://           Aug. 3, 2018...................       060078
                                 (18-09-0302P).     Grace Vallejo,     Development,       msc.fema.gov /
                                                    Mayor, City of     1015 11th          portal/
                                                    Delano, P.O. Box   Avenue, Delano,    advanceSearch.
                                                    3010, Delano, CA   CA 93215.
                                                    93216.
    Santa Barbara.............  City of            The Honorable      Public Works       https://           Jul. 20, 2018..................       060332
                                 Carpinteria (17-   Fred Shaw,         Department, 5775   msc.fema.gov /
                                 09-1980P).         Mayor, City of     Carpinteria        portal/
                                                    Carpinteria,       Avenue,            advanceSearch.
                                                    5775 Carpinteria   Carpinteria, CA
                                                    Avenue,            93013.
                                                    Carpinteria, CA
                                                    93013.
    Santa Barbara.............  Unincorporated     The Honorable Das  Santa Barbara      https://           Jul. 20, 2018..................       060331
                                 Areas of Santa     Williams,          County Public      msc.fema.gov /
                                 Barbara County     Chairman, Board    Works              portal/
                                 (17-09-1980P).     of Supervisors,    Department,        advanceSearch.
                                                    Santa Barbara      Water Resources
                                                    County, 105 East   Division, 130
                                                    Anapamu Street,    East Victoria
                                                    4th Floor, Santa   Street, Santa
                                                    Barbara, CA        Barbara, CA
                                                    93101.             93101.

    Stanislaus................  City of Patterson  The Honorable      Department of      https://           Aug. 3, 2018...................       060390
                                 (17-09-2636P).     Deborah M.         Public Works, 33   msc.fema.gov /
                                                    Novelli, Mayor,    South Del Puerto   portal/
                                                    City of            Avenue,            advanceSearch.
                                                    Patterson, 1       Patterson, CA
                                                    Plaza, 1st         95363.
                                                    Floor,
                                                    Patterson, CA
                                                    95363.
Illinois:
    Adams.....................  City of Quincy     The Honorable      City Hall, 730     https://           Jul. 24, 2018..................       170003
                                 (17-05-6103P).     Kyle A. Moore,     Maine Street,      msc.fema.gov /
                                                    Mayor, City of     Quincy, IL 62301.  portal/
                                                    Quincy, 730                           advanceSearch.
                                                    Maine Street,
                                                    Quincy, IL 62301.
    Adams.....................  Unincorporated     The Honorable Les  Adams County       https://           Jul. 24, 2018..................       170001
                                 Areas of Adams     Post, Chairman,    Courthouse, 101    msc.fema.gov /
                                 County (17-05-     Adams County       North 54th         portal/
                                 6103P).            Board, Adams       Street, Quincy,    advanceSearch.
                                                    County             IL 62305.
                                                    Courthouse, 101
                                                    North 54th
                                                    Street, Quincy,
                                                    IL 62305.
    Cook......................  Unincorporated     The Honorable      Cook County        https://           Jul. 20, 2018..................       170054
                                 Areas of Cook      Toni               Building and       msc.fema.gov /
                                 County (17-05-     Preckwinkle,       Zoning             portal/
                                 3265P).            President, Cook    Department, 69     advanceSearch.
                                                    County Board,      West Washington
                                                    118 North Clark    Street, 21st
                                                    Street, Room       Floor, Chicago,
                                                    537, Chicago, IL   IL 60602.
                                                    60602.
    Cook......................  Village of         The Honorable      Public Works       https://           Jul. 20, 2018..................       170132
                                 Northbrook (17-    Sandra E. Frum,    Department,        msc.fema.gov /
                                 05-3265P).         Village            Engineering        portal/
                                                    President,         Division, 655      advanceSearch.
                                                    Village of         Huehl Road,
                                                    Northbrook, 1225   Northbrook, IL
                                                    Cedar Lane,        60062.
                                                    Northbrook, IL
                                                    60062.
Indiana:
    Allen.....................  Unincorporated     The Honorable      Allen County       https://           Jul. 27, 2018..................       180302
                                 Areas of Allen     Therese M.         Department of      msc.fema.gov /
                                 County (17-05-     Brown,             Planning           portal/
                                 6157P).            President, Allen   Services, 200      advanceSearch.
                                                    County Board of    East Berry
                                                    Commissioners,     Street, Suite
                                                    Citizens Square,   150, Fort Wayne,
                                                    200 East Berry     IN 46802.
                                                    Street Suite
                                                    410, Fort Wayne,
                                                    IN 46802.
    DeKalb....................  Unincorporated     The Honorable      DeKalb County      https://           Jul. 27, 2018..................       180044
                                 Areas of DeKalb    Donald D. Grogg,   Planning           msc.fema.gov /
                                 County (17-05-     President,         Commission, 301    portal/
                                 6157P).            DeKalb County      South Union        advanceSearch.
                                                    Board of County    Street, Auburn,
                                                    Commissioners,     IN 46706.
                                                    100 South Main
                                                    Street
                                                    Courthouse,
                                                    Auburn, IN 46706.
Nevada:
    Washoe....................  City of Reno (17-  The Honorable      City Hall Annex,   https://           Jul. 31, 2018..................       320020
                                 09-2191P).         Hillary Schieve,   450 Sinclair       msc.fema.gov /
                                                    Mayor, City of     Street, Reno, NV   portal/
                                                    Reno, P.O. Box     89501.             advanceSearch.
                                                    1900, Reno, NV
                                                    89501.
    Washoe....................  Unincorporated     The Honorable      Washoe County      https://           Aug. 1, 2018...................       320019
                                 Areas of Washoe    Marsha             Administration     msc.fema.gov /
                                 County (17-09-     Berkbigler,        Building,          portal/
                                 1858P).            Chair, Board of    Department of      advanceSearch.
                                                    Commissioners,     Public Works,
                                                    Washoe County,     1001 East 9th
                                                    1001 East 9th      Street, Reno, NV
                                                    Street, Reno, NV   89512.
                                                    89512.
    Washoe....................  Unincorporated     The Honorable      Washoe County      https://           Jul. 31, 2018..................       320019
                                 Areas of Washoe    Marsha             Administration     msc.fema.gov /
                                 County (17-09-     Berkbigler,        Building,          portal/
                                 2191P).            Chair, Board of    Department of      advanceSearch.
                                                    Commissioners,     Public Works,
                                                    Washoe County,     1001 East 9th
                                                    1001 East 9th      Street, Reno, NV
                                                    Street, Reno, NV   89512.
                                                    89512.
New Jersey: Ocean.............  Borough of Point   The Honorable      Municipal          https://           Jul. 27, 2018..................       340388
                                 Pleasant Beach     Stephen D. Reid,   Building, 416      msc.fema.gov /
                                 (18-02-0563P).     Mayor, Borough     New Jersey         portal/
                                                    of Point           Avenue, Point      advanceSearch.
                                                    Pleasant Beach,    Pleasant Beach,
                                                    416 New Jersey     NJ 08742.
                                                    Avenue, Point
                                                    Pleasant Beach,
                                                    NJ 08742.
Wisconsin:
    Monroe....................  Unincorporated     The Honorable      Juneau County      https://           Jul. 20, 2018..................       550580
                                 Areas of Juneau    Alan K.            Courthouse, 220    msc.fema.gov /
                                 County (17-05-     Peterson,          East State         portal/
                                 4106P).            Chairman, Juneau   Street, Mauston,   advanceSearch.
                                                    County Board of    WI 53948.
                                                    Supervisors, 220
                                                    East State
                                                    Street, Mauston,
                                                    WI 53948.

    Monroe....................  Unincorporated     The Honorable      Monroe County      https://           Jul. 20, 2018..................       550571
                                 Areas of Monroe    Cedric             Sanitation and     msc.fema.gov /
                                 County (17-05-     Schnitzler,        Zoning Office,     portal/
                                 4106P).            Chair, Monroe      14307 County       advanceSearch.
                                                    County Board       Highway B,
                                                    Committee, 202     Sparta, WI 54656.
                                                    South K Street,
                                                    Room 1, Sparta,
                                                    WI 54656.
    Monroe....................  Village of         The Honorable      Village Hall, 219  https://           Jul. 20, 2018..................       550287
                                 Kendall (17-05-    Richard Martin,    West South         msc.fema.gov /
                                 4106P).            President,         Railroad Street,   portal/
                                                    Village of         Kendall, WI        advanceSearch.
                                                    Kendall, P.O.      54638.
                                                    Box 216,
                                                    Kendall, WI
                                                    54638.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2018-09689 Filed 5-7-18; 8:45 am]
 BILLING CODE 9110-12-P


[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Notices]
[Pages 60014-60015]
[FR Doc No: 2011-24884]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 2

    Take notice that the Commission received the following electric
rate filings:
    Docket Numbers: ER11-2694-002.
    Applicants: Southern California Edison Company.
    Description: Southern California Edison Company Submits Joint
Progress Report and Request for Extension.
    Filed Date: 08/31/2011.
    Accession Number: 20110831-5217.
    Comment Date: 5 p.m. Eastern Time on Thursday, September 22, 2011.

    Docket Numbers: ER11-3572-002.
    Applicants: Midwest Independent Transmission System Operator, Inc.
    Description: Midwest Independent Transmission System Operator, Inc.
submits tariff filing per 35: 09-20-11 Schedule 27 Amendment to be
effective 5/14/2011.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5076.
    Comment Date: 5 p.m. Eastern Time on Monday, September 26, 2011.

    Docket Numbers: ER11-3980-000; ER11-3980-001.
    Applicants: ORNI 14 LLC.
    Description: Attachment A to Petition Amendment of ORNI 14 LLC.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5032.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 04, 2011.

    Docket Numbers: ER11-4569-000.
    Applicants: CBK Group, LTD.
    Description: CBK Group, LTD submits notice of cancellation of its
market-based rate tariff.
    Filed Date: 09/19/2011.
    Accession Number: 20110919-0033.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011.

    Docket Numbers: ER11-4570-000.
    Applicants: PacifiCorp.
    Description: PacifiCorp submits tariff filing per 35.15:
Cancellation of Tariff Volume No. 8 to be effective 10/4/2011.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5035.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011.

    Docket Numbers: ER11-4571-000.
    Applicants: PacifiCorp.
    Description: PacifiCorp submits tariff filing per 35.13(a)(2)(iii:
Bountiful City Amended and Restated Parrish Sub Expansion Construction
Agreement to be effective 11/20/2011.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5049.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011.

    Docket Numbers: ER11-4572-000.
    Applicants: NV Energy, Inc.
    Description: NV Energy, Inc. submits tariff filing per
35.13(a)(2)(iii: Service Agreement No. 09-01804 Copper Mtn
Interconnection to be effective 9/23/2011.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5057.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011.

    Docket Numbers: ER11-4573-000.
    Applicants: Evergreen Community Power LLC.
    Description: Evergreen Community Power LLC submits tariff filing
per 35.1: Baseline Tariff Filing to be effective 9/20/2011.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5062.

    Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011.

    Docket Numbers: ER11-4574-000.
    Applicants: PJM Interconnection, LLC, Trans-Allegheny Interstate
Line Company.
    Description: PJM Interconnection, LLC submits tariff filing per
35.13(a)(2)(iii: TrAILCo submits revisions to PJM Tariff Attachment H-
18 to be effective 11/19/2011.
    Filed Date: 09/20/2011.
    Accession Number: 20110920-5067.
    Comment Date: 5 p.m. Eastern Time on Tuesday, October 11, 2011.
    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: September 20, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011-24884 Filed 9-27-11; 8:45 am]
BILLING CODE 6717-01-P


3M’s response to EPA’s January 7, 2009 letter

This information is classified as Confidential Business Information (CBI).

CBI is located at EPA headquarters 1310 L St NW.

 PAGE

 PAGE   1


[Federal Register Volume 79, Number 133 (Friday, July 11, 2014)]
[Notices]
[Page 40096]
[FR Doc No: 2014-16198]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL14-80-000]

Calpine Construction Finance Company, L.P. v. Tampa Electric
Company; Notice of Complaint

    Take notice that on July 1, 2014, pursuant to Rule 206 of the
Federal Energy Regulatory Commission's (Commission) Rules of Practice
and Procedure, 18 CFR 385.206 and sections 206 and 306 of the Federal
Power Act, 16 U.S.C. 824(e) and 825(e), Calpine Construction Finance
Company, L.P. (Complainant or CCFC) filed a formal complaint against
Tampa Electric Company (Respondent or TECO) requesting that the
Commission order TECO to permit CCFC to defer the commencement of
service under the transmission service agreement between CCFC and TECO
pursuant to section 17.7 of TECO's Open Access Transmission Tariff.
    CCFC certifies that copies of the complaint were served on the
contacts for the TECO as listed on the Commission's list of Corporate
Officials.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. The Respondent's
answer and all interventions, or protests must be filed on or before
the comment date. The Respondent's answer, motions to intervene, and
protests must be served on the Complainants.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 5 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern Time on July 21, 2014.

    Dated: July 2, 2014.
Kimberly D. Bose,
Secretary.
[FR Doc. 2014-16198 Filed 7-10-14; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 61 (Friday, March 29, 2013)]
[Notices]
[Pages 19342-19344]
[FR Doc No: 2013-07317]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-69232; File No. SR-BX-2013-013]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order
Approving a Proposed Rule Change for the Permanent Approval of a Pilot
Program To Receive Inbound Orders Routed by NASDAQ Execution Services
LLC From PSX

March 25, 2013.

I. Introduction

    On February 6, 2013, NASDAQ OMX BX, Inc. (``Exchange'' or ``BX'')
filed with the Securities and Exchange Commission (``Commission''),
pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ a proposed rule change
requesting permanent approval of the Exchange's pilot program that
permits the BX Equities Market (the ``System'') to accept inbound
orders routed by NASDAQ Execution Services LLC (``NES'') from the
NASDAQ OMX PSX facility (``PSX'') of NASDAQ OMX PHLX LLC (``PHLX'').
The proposed rule change was published for comment in the Federal
Register on February 14, 2013.\3\ The Commission received no comment
letters regarding the proposed rule change. This order approves the
proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 68890 (February 8,
2013), 78 FR 10674 (``Notice'').
---------------------------------------------------------------------------

II. Background

    BX Rule 2140(a) prohibits the Exchange or any entity with which it
is affiliated from, directly or indirectly, acquiring or maintaining an
ownership interest in, or engaging in a business venture with, an
Exchange member or an affiliate of an Exchange member in the absence of
an effective filing under Section 19(b) of the Act.\4\ NES is a

registered broker-dealer that is a member of the Exchange, and
currently provides to members of the Exchange optional routing services
to other markets.\5\ NES is owned by NASDAQ OMX Group, Inc. (``NASDAQ
OMX''), which also owns three registered securities exchanges--the
Exchange, the NASDAQ Stock Market LLC (``NASDAQ'') and PHLX.\6\ Thus,
NES is an affiliate of these exchanges.\7\ Absent an effective filing,
BX Rule 2140(a) would prohibit NES from being a member of the Exchange.
The Commission initially approved NES's affiliation with BX in
connection with BX OMX's acquisition of BX,\8\ and NES currently
performs certain limited activities for the Exchange.\9\
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78s(b). BX Rule 2140(a) also prohibits a BX member
from being or becoming an affiliate of BX, or an affiliate of an
entity affiliated with BX, in the absence of an effective filing
under Section 19(b). See BX Rule 2140(a)(2).
    \5\ See BX Rule 4758. See also Notice, supra note 3, at10674.
    \6\ See Securities Exchange Act Release No. 58324 (August 7,
2008), 73 FR 46936 (August 12, 2008) (SR-BSE-2008-02; SR-BSE-2008-
23; SR-BSE-2008-25; SR-BSECC-2008-01) (order approving NASDAQ OMX's
acquisition of BX) (``BX Acquisition Order'');
    \7\ See id. See also Notice, supra note 3, at 10674. See also,
Securities Exchange Act Release No. 65514 (October 7, 2011), 76 FR
63969 (October 14, 2011) (SR-BX-2011-066).
    \8\ See BX Acquisition Order, supra note 6, at 46944.
    \9\ See, e.g., BX Rule 4758 (governing order routing by BX). See
also Securities Exchange Act Release Nos. 65470 (October 3, 2011),
76 FR 62489 (October 7, 2011) (SR-BX-2011-048).
---------------------------------------------------------------------------

    On September 30, 2011, BX filed a proposed rule change for the
System to accept inbound orders routed from PSX on a pilot basis
subject to certain limitations and conditions.\10\ On February 6, 2013,
the Exchange filed the instant proposal to allow the Exchange to accept
such orders routed inbound by NES from PSX on a permanent basis subject
to certain limitations and conditions.\11\
---------------------------------------------------------------------------

    \10\ See Securities Exchange Act Release No. 65514 (October 7,
2011), 76 FR 63969 (October 14, 2011) (SR-BX-2011-066) (notice of
proposed rule change to allow the System to accept inbound orders
from the NASDAQ OMX BX Equities Market of BX on a one-year pilot
basis). See also, Securities Exchange Act Release No. 67995 (October
5, 2012), 77 FR 62292 (October 12, 2012) (extending one-year pilot
for an additional six-month period).
    \11\ See Notice, supra note 3.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities
exchange.\12\ Specifically, the Commission finds that the proposed rule
change is consistent with Section 6(b)(1) of the Act,\13\ which
requires, among other things, that a national securities exchange be so
organized and have the capacity to carry out the purposes of the Act,
and to comply and enforce compliance by its members and persons
associated with its members, with the provisions of the Act, the rules
and regulation thereunder, and the rules of the Exchange. Further, the
Commission finds that the proposed rule change is consistent with
Section 6(b)(5) of the Act,\14\ which requires, among other things,
that the rules of a national securities exchange be designed to prevent
fraudulent and manipulative acts and practices; to promote just and
equitable principles of trade; to foster cooperation and coordination
with persons engaged in regulating, clearing, settling, and 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. Section 6(b)(5) also
requires that the rules of an exchange not be designed to permit unfair
discrimination among customers, issuers, brokers, or dealers.
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    \12\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition and
capital formation. 15 U.S.C. 78c(f).
    \13\ 15 U.S.C. 78f(b)(1).
    \14\ 15 U.S.C. 78f(b)(5).
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    Recognizing that the Commission has previously expressed concern
regarding the potential for conflicts of interest in instances where a
member firm is affiliated with an exchange of which it is a member, the
Exchange previously proposed, and the Commission approved, limitations
and conditions on NES's affiliation with the Exchange.\15\ Also
recognizing that the Commission has expressed concern regarding the
potential for conflicts of interest in instances where a member firm is
affiliated with an exchange to which it is routing orders, the Exchange
previously implemented limitations and conditions to NES's affiliation
with the Exchange to permit the Exchange to accept inbound orders that
NES routes in its capacity as a facility of PSX on a pilot basis.\16\
The Exchange has proposed to permit BX to accept inbound orders that
NES routes in its capacity as a facility of PSX on a permanent basis,
subject to the same limitations and conditions of this pilot:
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    \15\ See supra, note 6, 73 FR at 46944. See also, Notice, supra
note 3, at 10675 n.8 and accompanying text. In addition, the
Exchange has authority to accept inbound orders that NES routes in
its capacity as a facility of NASDAQ, subject to certain limitations
and conditions. See supra note 6, 73 FR at 46944.
    \16\ See Notice, supra note 3, at 10675.
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     First, the Exchange and the Financial Industry Regulatory
Authority (``FINRA'') will maintain a Regulatory Contract, as well as
an agreement pursuant to Rule 17d-2 under the Act (``17d-2
Agreement'').\17\ Pursuant to the Regulatory Contract and the 17d-2
Agreement, FINRA will be allocated regulatory responsibilities to
review NES's compliance with certain BX rules.\18\ Pursuant to the
Regulatory Contract, however, the Exchange retains ultimate
responsibility for enforcing its rules with respect to NES.
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    \17\ 17 CFR 240.17d-2.
    \18\ NES is also subject to independent oversight by FINRA, its
designated examining authority, for compliance with financial
responsibility requirements.
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     Second, FINRA will monitor NES for compliance with BX's
trading rules, and will collect and maintain certain related
information.\19\
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    \19\ Pursuant to the Regulatory Contract, both FINRA and the
Exchange will collect and maintain all alerts, complaints,
investigations and enforcement actions in which NES (in its capacity
as a facility of PSX routing orders to the Exchange) is identified
as a participant that has potentially violated applicable Commission
or Exchange rules. The Exchange and FINRA will retain these records
in an easily accessible manner in order to facilitate any potential
review conducted by the Commission's Office of Compliance
Inspections and Examinations. See Notice, supra note 3, at 10675
n.12.
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     Third, FINRA will provide a report to the Exchange's chief
regulatory officer (``CRO''), on a quarterly basis, that: (i)
Quantifies all alerts (of which the Exchange or FINRA is aware) that
identify NES as a participant that has potentially violated Commission
or Exchange rules, and (ii) lists all investigations that identify NES
as a participant that has potentially violated Commission or BX rules.
     Fourth, the Exchange has in place BX Rule 2140(c), which
requires NASDAQ OMX, as the holding company owning both the Exchange
and NES, to establish and maintain procedures and internal controls
reasonably designed to ensure that NES does not develop or implement
changes to its system, based on non-public information obtained
regarding planned changes to the Exchange's systems as a result of its
affiliation with the Exchange, until such information is available
generally to similarly situated Exchange members, in connection with
the provision of inbound order routing to the Exchange.
    The Exchange stated that it has met all the above-listed
conditions. By meeting such conditions, the Exchange believes that it
has set up mechanisms that protect the independence of the Exchange's
regulatory responsibility with respect to NES, and has

demonstrated that NES cannot use any information advantage it may have
because of its affiliation with the Exchange.\20\
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    \20\ See Notice, supra note 3, at 10675.
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    In the past, the Commission has expressed concern that the
affiliation of an exchange with one of its members raises potential
conflicts of interest, and the potential for unfair competitive
advantage.\21\ Although the Commission continues to be concerned about
potential unfair competition and conflicts of interest between an
exchange's self-regulatory obligations and its commercial interest when
the exchange is affiliated with one of its members, for the reasons
discussed below, the Commission believes that it is consistent with the
Act to permit NES, in its capacity as a facility of PSX, to route
orders inbound to the Exchange on a permanent basis instead of a pilot
basis, subject to the limitations and conditions described above.\22\
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    \21\ See, e.g., Securities Exchange Act Release Nos. 54170 (July
18, 2006), 71 FR 42149 (July 25, 2006) (SR-NASDAQ-2006-006) (order
approving NASDAQ's proposal to adopt NASDAQ Rule 2140, restricting
affiliations between NASDAQ and its members); 53382 (February 27,
2006), 71 FR 11251 (March 6, 2006) (SR-NYSE-2005-77) (order
approving the combination of the New York Stock Exchange, Inc. and
Archipelago Holdings, Inc.); 58673 (September 29, 2008), 73 FR 57707
(October 3, 2008) (SR-Amex-2008-62 and SR-NYSE-2008-60) (order
approving the combination of NYSE Euronext and the American Stock
Exchange LLC); 59135 (December 22, 2008), 73 FR 79954 (December 30,
2008) (SR-ISE-2009-85) (order approving the purchase by ISE Holdings
of an ownership interest in Direct Edge Holdings LLC); 59281
(January 22, 2009), 74 FR 5014 (January 28, 2009) (SR-NYSE-2008-120)
(order approving a joint venture between NYSE and BIDS Holdings
L.P.); 58375 (August 18, 2008), 73 FR 49498 (August 21, 2008) (File
No. 10-182) (order granting the exchange registration of BATS
Exchange, Inc.); 61698 (March 12, 2010), 75 FR 13151 (March 18,
2010) (File Nos. 10-194 and 10-196) (order granting the exchange
registration of EDGX Exchange, Inc. and EDGA Exchange, Inc.); and
62716 (August 13, 2010), 75 FR 51295 (August 19, 2010) (File No. 10-
198) (order granting the exchange registration of BATS-Y Exchange,
Inc.).
    \22\ The Commission notes that these limitations and conditions
are consistent with those previously approved by the Commission for
the Exchange. See, e.g., Securities Exchange Act Release Nos. 67256
(June 26, 2012) 77 FR 39277 (July 2, 2012) (SR-BX-2012-030); and
64090 (March 17, 2011), 76 FR 16462 (March 23, 2011) (SR-BX-2011-
007).
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    The Exchange has proposed four ongoing conditions applicable to
NES's routing activities, which are enumerated above. The Commission
believes that these conditions will mitigate its concerns about
potential conflicts of interest and unfair competitive advantage. In
particular, the Commission believes that FINRA's oversight of NES,\23\
combined with FINRA's monitoring of NES's compliance with the
Exchange's rules and quarterly reporting to the Exchange, will help to
protect the independence of the Exchange's regulatory responsibilities
with respect to NES. The Commission also believes that the Exchange's
Rule 2140(a) is designed to ensure that NES cannot use any information
advantage it may have because of its affiliation with the Exchange.
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    \23\ This oversight will be accomplished through the 17d-2
Agreement between FINRA and the Exchange and the Regulatory
Contract. See Notice, supra note 3, at 10675 n.10 and accompanying
text.
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\24\ that the proposed rule change (SR-BX-2013-013) be, and hereby
is, approved.
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    \24\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\25\
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    \25\ 17 CFR 200.30-3(a)(12).
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Elizabeth M. Murphy,
Secretary.
[FR Doc. 2013-07317 Filed 3-28-13; 8:45 am]
BILLING CODE 8011-01-P