[Federal Register Volume 85, Number 204 (Wednesday, October 21, 2020)]
[Notices]
[Pages 67064-67069]
[FR Doc No: 2020-23256]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90196; File No. SR-EMERALD-2020-11]

Self-Regulatory Organizations; MIAX Emerald, LLC; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To Amend
Its Fee Schedule To Adopt One-Time Membership Application Fees and
Monthly Trading Permit Fees

October 15, 2020.
    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 October 1, 2020, MIAX Emerald, LLC (``MIAX Emerald'' or
``Exchange''), filed with the Securities and Exchange Commission
(``Commission'') a proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is filing a proposal to amend the MIAX Emerald Fee
Schedule (the ``Fee Schedule'') to adopt certain membership fees for
MIAX Emerald Members,\3\ including: (1) One-time membership application
fees and (2) monthly Trading Permit \4\ fees.
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    \3\ The term ``Member'' means an individual or organization
approved to exercise the trading rights associated with a Trading
Permit. Members are deemed ``members'' under the Exchange Act. See
Exchange Rule 100.
    \4\ The term ``Trading Permit'' means a permit issued by the
Exchange that confers the ability to transact on the Exchange. See
Exchange Rule 100.
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    The text of the proposed rule change is available on the Exchange's
website at http://www.miaxoptions.com/rule-filings/emerald, at MIAX's
principal office, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend the Fee Schedule to adopt certain
membership fees, including: (1) Establishing one-time membership
application fees based upon the applicant's status as either an
Electronic Exchange Member (``EEM'') \5\ or as a Market Maker; \6\ and
(2) adopting monthly Trading Permit fees for EEMs and Market Makers.
MIAX Emerald commenced operations as a national securities exchange
registered under Section 6 of the Act \7\ on March 1, 2019.\8\ The
Exchange adopted its transaction fees and certain of its non-
transaction fees in its filing SR-EMERALD-2019-15.\9\ In that filing,
the Exchange expressly waived, among other fees, its membership fees,
including its one-time membership application fees and monthly Trading
Permit fees, to provide an incentive to prospective EEMs and Market
Makers to become Members of the Exchange. Accordingly, since the launch
of the Exchange, all such membership fees have been waived for the
Waiver Period.\10\ When the Exchange adopted the framework for the
membership fees, it stated that it would provide notice to market
participants when the Exchange intended to terminate the Waiver Period
for those fees. Accordingly, on September 15, 2020, the Exchange issued
a Regulatory Circular which announced that the Exchange would be ending
the Waiver Period for its membership fees, including the one-time
membership application fees and monthly Trading Permit fees, among
other non-transaction fees, beginning October 1, 2020.\11\
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    \5\ ``Electronic Exchange Member'' or ``EEM'' means the holder
of a Trading Permit who is not a Market Maker. Electronic Exchange
Members are deemed ``members'' under the Exchange Act. See Exchange
Rule 100 and the Definitions section of the Fee Schedule.
    \6\ The term ``Market Makers'' refers to ``Lead Market Makers'',
``Primary Lead Market Makers'' and ``Registered Market Makers''
collectively. See Exchange Rule 100 and the Definitions section of
the Fee Schedule.
    \7\ 15 U.S.C. 78f.
    \8\ See Securities Exchange Act Release No. 84891 (December 20,
2018), 83 FR 67421 (December 28, 2018) (File No. 10-233) (order
approving application of MIAX Emerald, LLC for registration as a
national securities exchange).
    \9\ See Securities Exchange Act Release No. 85393 (March 21,
2019), 84 FR 11599 (March 27, 2019) (SR-EMERALD-2019-15) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To
Establish the MIAX Emerald Fee Schedule).
    \10\ ``Waiver Period'' means, for each applicable fee, the
period of time from the initial effective date of the MIAX Emerald
Fee Schedule until such time that the Exchange has an effective fee
filing establishing the applicable fee. The Exchange will issue a
Regulatory Circular announcing the establishment of an applicable
fee that was subject to a Waiver Period at least fifteen (15) days
prior to the termination of the Waiver Period and effective date of
any such applicable fee. See the Definitions Section of the Fee
Schedule.
    \11\ See MIAX Emerald Regulatory Circular 2020-41 available at
https://www.miaxoptions.com/sites/default/files/circular-files/MIAX_Emerald_RC_2020_41.pdf.
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One-Time MIAX Emerald Membership Application Fee
    The Exchange proposes to assess a one-time membership application
fee based upon the applicant's status as either an EEM or as a Market
Maker. The Exchange proposes that applicants for MIAX Emerald
Membership as an EEM will be assessed a one-time application fee of
$2,500. The Exchange proposes that applicants for MIAX Emerald
Membership as a Market Maker will be assessed a one-time application
fee of $3,000. The difference in the proposed membership application
fee to be charged to EEMs and Market Makers is because of the
additional review and resources involved in processing a Market Maker's
application, as Market Makers have greater and more complex obligations
with respect to doing business on the Exchange.\12\ MIAX Emerald's
proposed one-time membership application fees are the same as the one-
time application fees in place at the Exchange's affiliate, Miami
International Securities Exchange, LLC (``MIAX'') ($2,500 for an EEM
and $3,000 for a MIAX Market Maker),\13\ and similar to or less than
application fees for the Cboe Exchange, Inc. (``Cboe'') ($3,000 for an
individual applicant and $5,000 for an applicant organization) \14\ and
Nasdaq ISE, LLC (``Nasdaq ISE'') ($7,500 per firm for a primary market
maker, $5,500 per firm for a competitive market maker, and $3,500 per
firm for an electronic access member).\15\ Below is the table showing
the proposed one-time MIAX Emerald membership application fees for EEMs
and Market Makers:
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    \12\ See Chapter VI of the Exchange's rules, generally.
    \13\ See MIAX Fee Schedule, Section 3)a).
    \14\ See Cboe Fees Schedule, p. 9, Cboe Trading Permit Holder
Application Fees.
    \15\ See Nasdaq ISE, Options Rules, Options 7, Pricing Schedule,
Section 9. Legal and Regulatory A. Application.

------------------------------------------------------------------------
                                                             Application
                    Type of membership                           fee
------------------------------------------------------------------------
Electronic Exchange Member................................     $2,500.00
Market Maker..............................................      3,000.00
------------------------------------------------------------------------

Monthly Trading Permit Fees
    The Exchange previously introduced the structure of Trading Permit
fees (without proposing the actual fee amounts), but also explicitly
waived the assessment of any such fees for the Waiver Period. Trading
Permits are issued to Members who are either EEMs or Market Makers. The
Exchange proposes to assess monthly fees for Trading Permits depending
upon the category of Member that is issued a Trading Permit. Members
issued Trading Permits during a calendar month will be assessed monthly
Trading Permit Fees. The Exchange notes that the Exchange's affiliate,
Miami International Securities Exchange, LLC (``MIAX''), charges a
similar, fixed trading permit fee to its EEMs, and a similar, varying
trading permit fee to its Market Makers, based upon the number of
assignments of option classes or the percentage of volume in option
classes.\16\
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    \16\ See the MIAX Fee Schedule, Section 3)b).
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    The Exchange proposes that monthly Trading Permit fees will be
assessed, with respect to the calculation of such fee to EEMs (other
than clearing firms), in any month the EEM is certified in the
membership system and is credentialed to use one or more Financial
Information Exchange (``FIX'') \17\ ports in the production
environment. Further, the Exchange proposes that monthly Trading Permit
fees will be assessed with respect to EEM clearing firms in any month
the clearing firm is certified in the membership system to clear
transactions on the Exchange.
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    \17\ ``FIX Port'' means an interface with MIAX Emerald systems
that enables the Port user to submit simple and complex orders
electronically to MIAX Emerald. See the Definitions Section of the
Fee Schedule.
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    The Exchange proposes to assess EEMs a monthly fee of $1,000 for
each Trading Permit. Below is the proposed table showing the Trading
Permit fees for EEMs:

------------------------------------------------------------------------
                                                           Monthly MIAX
                 Type of trading permit                  emerald trading
                                                            permit fee
------------------------------------------------------------------------
Electronic Exchange Member.............................       $1,000.00
------------------------------------------------------------------------

    The Exchange proposes to assess monthly Trading Permit fees for
Market Makers in any month the Market Maker (including a Registered
Market Maker, Lead Market Maker, and Primary Lead Market Maker) is
certified in the membership system, is credentialed to use one or more
MIAX Emerald Express Interface (``MEI'') \18\ ports in the production
environment and is assigned to quote in one or more classes.
Specifically, the Exchange proposes to adopt the following Trading
Permit fees for Market Makers: (i) $7,000 for Market Maker Assignments
in up to 10 option classes or up to 20% of option classes by national
average daily volume (``ADV''); (ii) $12,000 for Market Maker
Assignments in up to 40 option classes or up to 35% of option classes
by ADV; (iii) $17,000 for Market Maker Assignments in up to 100 option
classes or up to 50% of option classes by ADV; and (iv) $22,000 for
Market Maker Assignments in over 100 option classes or over 50% of
option classes by ADV up to all option classes listed on MIAX Emerald.
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    \18\ The MEI is a connection to the MIAX Emerald System that
enables Market Makers to submit simple and complex electronic quotes
to MIAX Emerald. The Exchange offers Full Service MEI Ports, which
provide Market Makers with the ability to send Market Maker simple
and complex quotes, eQuotes, and quote purge messages to the MIAX
Emerald System. Full Service MEI Ports are also capable of receiving
administrative information. Market Makers are limited to two Full
Service MEI Ports per Matching Engine. The Exchange also offers
Limited Service MEI Ports, which provide Market Makers with the
ability to send simple and complex eQuotes and quote purge messages
only, but not Market Maker Quotes, to the MIAX Emerald System.
Limited Service MEI Ports are also capable of receiving
administrative information. Market Makers initially receive two
Limited Service MEI Ports per Matching Engine. See the Definitions
Section of the Fee Schedule.
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    The Exchange also proposes to adopt an alternative lower Trading
Permit fee for Market Makers who fall within the following Trading
Permit fee levels, which represent the 3rd and 4th levels of the Market
Maker Trading Permit fee table: (i) Market Maker Assignments in up to
100 option classes or up to 50% of option classes by volume; and (ii)
Market Maker Assignments in over 100 option classes or over 50% of
option classes by volume up to all option classes listed on MIAX
Emerald. Specifically, the Exchange proposes to adopt footnote
``[squf]'' following the Market Maker Trading Permit fee table for
these Monthly Trading Permit tier levels, if the Market Maker's total
monthly executed volume during the relevant month is less than 0.025%
of the total monthly executed volume reported by OCC in the customer
account type for MIAX Emerald-listed option classes for that month,
then the fee will be $15,500 instead of the fee otherwise applicable to
such level.
    Below is the proposed table showing the Trading Permit fees for
Market Makers:

----------------------------------------------------------------------------------------------------------------
                                                        Market Maker assignments (the lesser of the applicable
                                       Monthly MIAX                       measurements below)
       Type of trading permit             emerald    -----------------------------------------------------------
                                      trading permit                                        Percent of national
                                            fee                    Per class               average daily volume
----------------------------------------------------------------------------------------------------------------
Market Maker (includes RMM, LMM,           $7,000.00  Up to 10 Classes..................  Up to 20% of Classes
 PLMM).                                                                                by volume.
                                           12,000.00  Up to 40 Classes..................  Up to 35% of Classes
                                                                                by volume.
                                              [squf]  Up to 100 Classes.................  Up to 50% of Classes
                                           17,000.00                                       by volume.
                                              [squf]  Over 100 Classes..................  Over 50% of Classes by
                                           22,000.00                                       volume up to all
                                                                                Classes listed on
                                                                                MIAX Emerald.
----------------------------------------------------------------------------------------------------------------
[squf] For these Monthly MIAX Emerald Trading Permit tier levels, if the Market Maker's total monthly executed
  volume during the relevant month is less than 0.025% of the total monthly executed volume reported by OCC in
  the customer account type for MIAX Emerald-listed option classes for that month, then the fee will be $15,500
  instead of the fee otherwise applicable to such level.

    For the calculation of the monthly Market Maker Trading Permit
fees, the number of classes is defined as the greatest number of
classes the Market Maker was assigned to quote in on any given day
within the calendar month and the class volume percentage is based on
the total national ADV in classes listed on MIAX Emerald in the prior
calendar quarter. Newly listed option classes are excluded from the
calculation of the monthly Market Maker Trading Permit fee until the
calendar quarter following their listing, at which time the newly
listed option classes will be included in both the per class count and
the percentage of total national average daily volume. The

Exchange proposes to assess MIAX Emerald Market Makers the monthly
Market Maker Trading Permit fee based on the greatest number of classes
listed on MIAX Emerald that the Market Maker was assigned to quote in
on any given day within a calendar month and the applicable fee rate
that is the lesser of either the per class basis or percentage of total
national ADV measurement. The purpose of the alternative lower fee
designated in proposed footnote ``[squf]'' is to provide a lower fixed
cost to those Market Makers who are willing to quote the entire
Exchange market (or substantial amount of the Exchange market), as
objectively measured by either number of classes assigned or national
ADV, but who do not otherwise execute a significant amount of volume on
the Exchange. The Exchange believes that, by offering lower fixed costs
to Market Makers that execute less volume, the Exchange will retain and
attract smaller-scale Market Makers, which are an integral component of
the option marketplace, but have been decreasing in number in recent
years, due to industry consolidation and lower market maker
profitability. Since these smaller-scale Market Makers utilize less
Exchange capacity due to lower overall volume executed, the Exchange
believes it is reasonable and equitable to offer such Market Makers a
lower fixed cost. The Exchange notes that the Exchange's affiliate,
MIAX, provides a similar alternative lower Trading Permit fee for
Market Makers who quote the entire MIAX market (or substantial amount
of the MIAX market), as objectively measured by either number of
classes assigned or national ADV, but who do not otherwise execute a
significant amount of volume on MIAX.\19\ The Exchange also notes that
other options exchanges assess certain of their membership fees at
different rates, based upon a member's participation on that
exchange,\20\ and, as such, this concept is not new or novel. The
proposed changes to the Trading Permit fees for Market Makers who fall
within the 3rd and 4th levels of the fee table are based upon a
business determination of current Market Maker assignments and trading
volume.
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    \19\ See supra note 16.
    \20\ See e.g., NYSE Arca Options Fees and Charges, p.1
(assessing market makers $6,000 for up to 175 option issues, an
additional $5,000 for up to 350 option issues, an additional $4,000
for up to 1,000 option issues, an additional $3,000 for all option
issues on the exchange, and an additional $1,000 for the fifth
trading permit and for each trading permit thereafter); NYSE
American Options Fee Schedule, p. 23 (assessing market makers $8,000
for up to 60 plus the bottom 45% of option issues, an additional
$6,000 for up to 150 plus the bottom 45% of option issues, an
additional $5,000 for up to 500 plus the bottom 45% of option
issues, and additional $4,000 for up to 1,100 plus the bottom 45% of
option issues, an additional $3,000 for all issues traded on the
exchange, and an additional $2,000 for 6th to 9th ATPs; plus an
addition fee for premium products). See also Cboe BZX Options
Exchange (``BZX Options'') assesses the Participant Fee, which is a
membership fee, according to a member's ADV. See Cboe BZX Options
Exchange Fee Schedule under ``Membership Fees''. The Participant Fee
is $500 if the member ADV is less than 5,000 contracts and $1,000 if
the member ADV is equal to or greater than 5,000 contracts. Id.
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Applicability to and Impact on Participants
    The Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. In Regulation NMS,
the Commission highlighted the importance of market forces in
determining prices and SRO revenues and, also, recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \21\
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    \21\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496 (June 29, 2005).
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    There are currently 16 registered options exchanges competing for
order flow. Based on publicly-available information, and excluding
index-based options, no single exchange has more than approximately 16%
market share.\22\ Therefore, no exchange possesses significant pricing
power. More specifically, for the month of August 2020, the Exchange
had an approximately 3.24% market share of executed volume of multiply-
listed equity options.\23\
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    \22\ The Options Clearing Corporation (``OCC'') publishes
options and futures volume in a variety of formats, including daily
and monthly volume by exchange, available here: https://www.theocc.com/market-data/volume/default.jsp.
    \23\ See id.
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    The Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
discontinue or reduce use of certain categories of products, or shift
order flow, in response to non-transaction and transaction fee changes.
For example, on February 28, 2019, the Exchange's affiliate, MIAX
PEARL, LLC (``MIAX PEARL'') filed with the Commission a proposal to
increase Taker fees in certain Tiers for options transactions in
certain Penny classes for Priority Customers and decrease Maker rebates
in certain Tiers for options transactions in Penny classes for Priority
Customers (which fee was to be effective March 1, 2019).\24\ MIAX PEARL
experienced a decrease in total market share for the month of March
2019, after the proposal went into effect. Accordingly, the Exchange
believes that the MIAX PEARL March 1, 2019 fee change, to increase
certain transaction fees and decrease certain transaction rebates, may
have contributed to the decrease in MIAX PEARL's market share and, as
such, the Exchange believes competitive forces constrain the
Exchange's, and other options exchanges, ability to set transaction
fees and market participants can shift order flow based on fee changes
instituted by the exchanges.
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    \24\ See Securities Exchange Act Release No. 85304 (March 13,
2019), 84 FR 10144 (March 19, 2019) (SR-PEARL-2019-07).
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    The proposed adoption of a one-time membership application fee and
monthly Trading Permit fees applicable to EEMs and Market Markers would
be applied uniformly to each of these market participants. Further, as
there are currently 16 registered options exchanges competing for order
flow with no single exchange accounting for more than approximately 16%
of market share, the Exchange cannot predict with certainty whether any
participant is planning to become a Member and thus would be subject to
the proposed fees.
2. Statutory Basis
    The Exchange believes that its proposal to amend its Fee Schedule
is consistent with Section 6(b) of the Act \25\ in general, and
furthers the objectives of Section 6(b)(4) of the Act \26\ in
particular, in that it is an equitable allocation of reasonable dues,
fees and other charges among its members and issuers and other persons
using its facilities. The Exchange also believes the proposal furthers
the objectives of Section 6(b)(5) of the Act in that it is designed to
promote just and equitable principles of trade, 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 and is not designed to permit unfair discrimination between
customers, issuers, brokers and dealers.
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    \25\ 15 U.S.C. 78f(b).
    \26\ 15 U.S.C. 78f(b)(4) and (5).
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    The Exchange believes that the proposal to adopt a one-time
membership application fee and Trading Permit fees applicable to EEMs
and Market Markers, as described above, is reasonable in several
respects. First, the Exchange is subject to significant competitive
forces in the market for options transaction and non-transaction
services that constrain its pricing

determinations in that market. The Commission has repeatedly expressed
its preference for competition over regulatory intervention in
determining prices, products, and services in the securities markets.
In Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \27\
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    \27\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496 (June 29, 2005).
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    Numerous indicia demonstrate the competitive nature of this market.
For example, clear substitutes to the Exchange exist in the market for
options transaction services. The Exchange is one of several options
venues to which market participants may direct their order flow, and it
represents a small percentage of the overall market. Within this
environment, market participants can freely and often do shift their
order flow among the Exchange and competing venues in response to
changes in their respective pricing schedules. There are currently 16
registered options exchanges competing for order flow. Based on
publicly-available information, and excluding index-based options, no
single exchange has more than approximately 16% of the market share of
executed volume of multiply-listed equity and ETF options.\28\
Therefore, no exchange possesses significant pricing power. More
specifically, for the month of August 2020, the Exchange had an
approximately 3.24% market share of executed volume of multiply-listed
equity options.\29\
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    \28\ See supra note 22.
    \29\ See id.
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    The Exchange also believes that the ever-shifting market share
among the exchanges from month to month demonstrates that market
participants can discontinue or reduce use of certain categories of
products, or shift order flow, in response to non-transaction and
transaction fee changes. For example, on February 28, 2019, the
Exchange's affiliate, MIAX PEARL, filed with the Commission a proposal
to increase Taker fees in certain Tiers for options transactions in
certain Penny classes for Priority Customers and decrease Maker rebates
in certain Tiers for options transactions in Penny classes for Priority
Customers (which fee was to be effective March 1, 2019).\30\ MIAX PEARL
experienced a decrease in total market share for the month of March
2019, after the proposal went into effect. Accordingly, the Exchange
believes that the MIAX PEARL March 1, 2019 fee change, to increase
certain transaction fees and decrease certain transaction rebates, may
have contributed to the decrease in MIAX PEARL's market share and, as
such, the Exchange believes competitive forces constrain the
Exchange's, and other options exchanges, ability to set transaction
fees and market participants can shift order flow based on fee changes
instituted by the exchanges.
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    \30\ See supra note 24.
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    Further, the Exchange no longer believes it is necessary to waive
these fees to attract market participants to the MIAX Emerald market
since this market is now established and MIAX Emerald no longer needs
to rely on such waivers to attract market participants. The Exchange
believes that the proposal is equitable and not unfairly discriminatory
because the elimination of the fee waiver for one-time membership
application fees and monthly Trading Permit fees will uniformly apply
to all EEMs and Market Makers seeking to become Members of the
Exchange. Additionally, the Exchange believes its proposal for a one-
time membership application fees applicable to EEMs and Market Markers
is reasonable and well within the range of fees assessed among other
exchanges, including the Exchange's affiliate, MIAX.\31\ The Exchange
also notes that the Exchange's affiliate, MIAX, charges a similar,
fixed trading permit fee to its EEMs, and a similar, varying trading
permit fee to its Market Makers, based upon the number of assignments
of option classes or the percentage of volume in option classes.\32\
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    \31\ See supra notes 13, 14 and 15.
    \32\ See supra note 16.
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    The Exchange believes its one-time membership application fees are
reasonable, equitable and not unfairly discriminatory. As described
above, the one-time application fees are similar to the application
fees in place at other options exchanges,\33\ and are associated with
the time and resources of processing of such applications. The Exchange
believes that it is reasonable, equitable, and not unfairly
discriminatory that Market Maker applicants are charged slightly more
than EEM applicants because of the additional review and resources
involved in processing a Market Maker's application, as Market Makers
have greater and more complex obligations with respect to doing
business on the Exchange.\34\
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    \33\ See supra notes 14 and 15.
    \34\ See supra note 12.
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    The Exchange believes that the proposed monthly Trading Permit fees
are reasonable, equitable and not unfairly discriminatory because they
are within the range of comparable fees at other competing options
exchanges.\35\ As such, the proposal is reasonably designed to continue
to compete with other options exchange by incentivizing market
participants to register as Market Makers on the Exchange in a manner
that enables the Exchange to improve its overall competitiveness and
strengthen its market quality for all market participants. The proposed
fees are fair and equitable and not unreasonably discriminatory because
they apply equally to all Market Makers regardless of type and access
to the Exchange is offered on terms that are not unfairly
discriminatory. The Exchange designed the fee rates in order to provide
objective criteria for Market Makers of different sizes and business
models to be assessed a Trading Permit Fee that best matches their
quoting activity on the Exchange. The Exchange notes that trading
volume and quoting activity in the options market tends to be
concentrated in the top ranked options classes; with the vast majority
of options classes being thinly quoted and traded. The Exchange
believes that the proposed fee rates and criteria provide an objective
and flexible framework that will encourage Market Makers to be assigned
and quote in option classes with lower total national average daily
volume while also equitably allocating the fees in a reasonable manner
amongst Market Maker assignments to account for quoting and trading
activity.
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    \35\ See supra note 20.
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    Finally, the Exchange notes that it operates in a highly
competitive market in which market participants can readily favor
competing venues if they deem fee levels at a particular venue to be
excessive. In such an environment, the Exchange must continually adjust
its fees for services and products, in addition to order flow, to
remain competitive with other exchanges. The Exchange believes that the
proposed changes reflect this competitive environment.

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

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

Intra-Market Competition
    The Exchange does not believe that the proposed rule change would
place certain market participants at the Exchange at a relative
disadvantage compared to other market participants or affect the
ability of such market participants to compete. Unilateral action by
MIAX Emerald in the assessment of certain non-transaction fees for
services provided to its Members and others using its facilities will
not have an impact on competition. As a more recent entrant in the
already highly competitive environment for equity options trading, MIAX
Emerald does not have the market power necessary to set prices for
services that are unreasonable or unfairly discriminatory in violation
of the Act. MIAX Emerald's proposed one-time membership application
fees and monthly Trading Permit fees, as described herein, are
comparable to fees charged by other options exchanges for the same or
similar services, including those fees assessed by the Exchange's
affiliate, MIAX.\36\
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    \36\ See supra notes 13, 14 and 15.
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    The Exchange believes that the proposed one-time membership
application fees and monthly Trading Permit fees do not place certain
market participants at a relative disadvantage to other market
participants because the pricing is associated with the Exchange's time
and resources to process such applications. The proposed one-time
membership application fees do not apply unequally to different size
market participants, but instead would allow the Exchange to charge for
reviewing and processing Market Maker and EEM membership applications.
Accordingly, the proposed one-time membership application fees do not
favor certain categories of market participants in a manner that would
impose a burden on competition.
    Further, the Exchange believes that the proposed rule change will
promote transparency by making it clear to EEMs and Market Makers the
fees that MIAX Emerald will assess for Membership application to MIAX
Emerald. This will permit EEMs and Market Makers to more accurately
anticipate and account for the costs of one-time membership application
in order to become Members of the Exchange, which promotes consistency.
    The Exchange believes that the proposal increases intra-market
competition by enabling Market Makers to qualify for lower Trading
Permit fee rates on the Exchange in a manner that is designed to
provide objective criteria for Market Makers of different sizes and
business models to be assessed a Trading Permit fee that best matches
their quoting activity on the Exchange yet still be in the range of
comparable fees on other exchanges. The Exchange believes that the
proposal will increase competition amongst Market Makers of different
sizes and business models by encouraging Market Makers to be assigned
and quote in option classes with lower total national average daily
volume.
Inter-Market Competition
    The Exchange believes the proposed one-time membership application
fees and monthly Trading Permit fees do not place an undue burden on
competition on other SROs that is not necessary or appropriate. The
Exchange operates in a highly competitive market in which market
participants can readily favor one of the 16 competing options venues
if they deem fee levels at a particular venue to be excessive. Based on
publicly-available information, and excluding index-based options, no
single exchange has more than 16% market share. Therefore, no exchange
possesses significant pricing power in the execution of multiply-listed
equity and ETF options order flow. For the month of August 2020, the
Exchange had an approximately 3.24% market share of executed volume of
multiply-listed equity options,\37\ and the Exchange believes that the
ever-shifting market share among exchanges from month to month
demonstrates that market participants can discontinue or reduce use of
certain categories of products, or shift order flow, in response to fee
changes. In such an environment, the Exchange must continually adjust
its fees and fee waivers to remain competitive with other exchanges and
to attract order flow to the Exchange. The Exchange believes that the
proposal reflects this competitive environment because it modify the
Exchange's fees in a manner that continues to encourage market
participants to register as Market Makers on the Exchange, to provide
liquidity, and to attract order flow. To the extent that this purpose
is achieved, all the Exchange's market participants should benefit from
the improved market liquidity.
---------------------------------------------------------------------------

    \37\ See supra note 22.
---------------------------------------------------------------------------

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act,\38\ and Rule 19b-4(f)(2) \39\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \39\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-EMERALD-2020-11 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-EMERALD-2020-11. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public

Reference Room, 100 F Street NE, Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change. Persons submitting comments are cautioned that we do
not redact or edit personal identifying information from comment
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-
EMERALD-2020-11 and should be submitted on or before November 12, 2020.
---------------------------------------------------------------------------

    \40\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\40\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-23256 Filed 10-20-20; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: August 24, 2010 (Volume 75, Number 163)]
[Notices]
[Page 52003-52004]
[DOCID:fr24au10-58]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2009-0983; FRL-9192-4; EPA ICR No. 0116.09; OMB Control No.
2060-0060]

Agency Information Collection Activities; Submission to OMB for
Review and Approval; Comment Request; Emission Control System
Performance Warranty Regulations and Voluntary Aftermarket Part
Certification Program (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: In compliance with the Paperwork Reduction Act (PRA) (44
U.S.C. 3501 et seq.), this document announces that an Information
Collection Request (ICR) has been forwarded to the Office of Management
and Budget (OMB) for review and approval. This is a request to renew an
existing approved collection. The ICR, which is abstracted below,
describes the nature of the information collection and its estimated
burden and cost.

DATES: Additional comments may be submitted on or before September 23,
2010.

ADDRESSES: Submit your comments, referencing Docket ID No. EPA-HQ-OAR-
2009-0983, to (1) EPA online using http://www.regulations.gov (our
preferred method), or by mail to: EPA Docket Center, Environmental
Protection Agency, Air and Radiation Docket, Mailcode 28221T, 1200
Pennsylvania Ave., NW., Washington, DC 20460, and (2) OMB by mail to:
Office of Information and Regulatory Affairs, Office of Management and
Budget (OMB), Attention: Desk Officer for EPA, 725 17th Street, NW.,
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Lynn Sohacki, Compliance and
Innovative Strategies Division, Office of Transportation and Air
Quality, Environmental Protection Agency, 2000 Traverwood, Ann Arbor,
Michigan 48105; telephone number:<PHONE_NUMBER>; fax number: 734-214-
4869; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: EPA has submitted the following ICR to OMB
for review and approval according to the procedures prescribed in 5 CFR
1320.12. On January 22, 2010 (75 FR 3723), EPA sought comments on this
ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the
comment period. Any additional comments on this ICR should be submitted
to EPA and OMB within 30 days of this notice.
    EPA has established a public docket for this ICR under Docket ID
No. EPA-HQ-OAR-2009-0983 which is available for online viewing at
http://www.regulations.gov, or in person viewing at the Air Docket in
the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Reading Room is<PHONE_NUMBER>,
and the telephone number for the Air Docket is<PHONE_NUMBER>.
    Use EPA's electronic docket and comment system at http://
www.regulations.gov, to submit or view public comments, access the
index listing of the contents of the docket, and to access those
documents in the docket that are available electronically. Once in the
system, select ``docket search,'' then key in the docket ID number
identified above. Please note that EPA's policy is that public
comments, whether submitted electronically or in paper, will be made
available for public viewing at http://www.regulations.gov as EPA
receives them and without change, unless the comment contains
copyrighted material, confidential business information (CBI), or other
information whose public disclosure is restricted by statute. For
further information about the electronic docket, go to http://
www.regulations.gov.
    Title: Emission Control System Performance Warranty Regulations and
Voluntary Aftermarket Part Certification Program (Renewal).
    ICR numbers: EPA ICR No. 0116.09, OMB Control No. 2060-0060.
    ICR Status: This ICR is scheduled to expire on August 31, 2010.
Under OMB regulations, the Agency may continue to conduct or sponsor
the collection of information while this submission is pending at OMB.
An Agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information, unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's regulations
in title 40 of the CFR, after appearing in the Federal Register when
approved, are listed in 40 CFR part 9, and are displayed either by
publication in the Federal Register or by other appropriate means, such
as on the related collection instrument or form, if applicable. The
display of OMB control numbers in certain EPA regulations is
consolidated in 40 CFR part 9.
    Abstract: Under Section 206(a) of the Clean Air Act (42 U.S.C.
7521), on-highway engine and vehicle manufacturers may not legally
introduce their products into U.S. commerce unless EPA has certified
that their production complies with applicable emission standards. Per
section 207(a), original vehicle manufacturers must warrant that
vehicles are free from defects in materials and workmanship that would
cause the vehicle not to comply with emission regulations during its
useful life. Section 207(a) directs EPA to provide certification to
those manufacturers or builders of automotive aftermarket parts that
demonstrate that the installation and use of their products will not
cause failure of the engine or vehicle to comply with emission
standards. An aftermarket part is any part offered for sale for
installation in or on a motor vehicle after such vehicle has left the
vehicle manufacturer's production line (40 CFR 85.2113(b)).
Participation in the aftermarket certification program is voluntary.
Aftermarket part manufacturers or builders electing to participate
conduct emission and durability testing as described in 40 CFR part 85,
subpart V, and submit data about their products and testing procedures.
    Burden Statement: The annual public reporting and recordkeeping
burden for this collection of information is estimated to average 547
hours per response. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements which have subsequently changed; train
personnel to be able to respond to a collection of information; search
data sources; complete and review the collection of information; and
transmit or otherwise disclose the information.
    Respondents/Affected Entities: Importers (including Independent
Commercial Importers) of light duty vehicles or engines, light duty
trucks or engines, and highway motorcycles or engines.

    Estimated Number of Respondents: 1.
    Frequency of Response: On occasion.
    Estimated Total Annual Hour Burden: 547.
    Estimated Total Annual Cost: $19,063, including $1,955 annualized
capital and O&M costs.
    Changes in the Estimates: There is an increase of $420 in the
annual cost burden currently identified in the OMB Inventory of
Approved ICR Burdens. This reflects the most recent estimates for
similar O&M and capital cost elements in ICRs developed since the last
renewal. There is no change in the hour burden.

    Dated: August 18, 2010.
Joseph A. Sierra,
Acting Director, Collection Strategies Division.
[FR Doc. 2010-20996 Filed 8-23-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: December 27, 2005 (Volume 70, Number 247)]
[Notices]
[Page 76485-76487]
[DOCID:fr27de05-76]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-52976; File No. SR-NSCC-2005-15]

Self-Regulatory Organizations; National Securities Clearing
Corporation; Notice of Filing of Proposed Rule Change Relating to Buy-
Ins in Its Continuous Net Settlement System

December 19, 2005.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ notice is hereby given that on December 1, 2005, the
National Securities Clearing Corporation (``NSCC'') filed with the
Securities and Exchange Commission (``Commission'') the proposed rule
change described in Items I, II, and III below, which items have been
prepared primarily by NSCC. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested parties.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

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

    The purpose of this proposed rule change is to modify NSCC's Rules
with regard to CNS Buy-Ins in an effort to harmonize the buy-in rules
of the industry and to assist NSCC members in reducing their exposure
related to buy-ins.

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

    In its filing with the Commission, NSCC 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. NSCC has prepared summaries, set forth in sections (A),
(B), and (C) below, of the most significant aspects of these
statements.\2\
---------------------------------------------------------------------------

    \2\ The Commission has modified the text of the summaries
prepared by NSCC.

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

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

    The purpose of this filing is to modify NSCC's Rules with regard to
CNS Buy-Ins in an effort to harmonize the buy-in rules of the industry
and to assist NSCC members in reducing their exposure related to buy-
ins. At the request of participants and after consultation with the
Buy-In Subcommittee of the Securities Industry Association, NSCC
proposes to modify its Rules to create a new buy-in retransmittal
procedure that may be utilized by NSCC Members receiving buy-in notices
initiated outside of the CNS System (``Buy-In Retransmittal
Notice'').\3\ Existing NSCC fees related to CNS Buy-Ins will remain
unchanged.
---------------------------------------------------------------------------

    \3\ The specific rules being amended are Rule 11, ``CNS
System,'' and Procedures VII, ``CNS Accounting Operation,'' and X,
``Execution of CNS Buy-Ins.''
---------------------------------------------------------------------------

Current Process for CNS Buy-Ins
    Currently under NSCC's Rules (except with respect to securities
subject to a voluntary corporate reorganization), a member having a
long position at the end of any day (``Originator'') may submit to NSCC
a Notice of Intention to Buy-In (``Buy-In Notice'') specifying the
quantity of securities which it intends to buy-in (``Buy-In
Position''). The Buy-In Position is given high priority for allocation
from the night cycle on N+1 through completion of the CNS day cycle at
approximately 3 p.m. eastern standard time on N+2.\4\
---------------------------------------------------------------------------

    \4\ The day the Buy-In Notice is submitted to NSCC is referred
to as N, with N+1 and N+2 referring to the succeeding days. Each CNS
day begins in the evening and includes an evening allocation of
securities and a daytime allocation of securities.
---------------------------------------------------------------------------

    If the Buy-In Position (or a portion thereof) remains unfilled
after the evening allocation on N+1, NSCC issues CNS Retransmittal
Notices on the following morning (N+1) to a sufficient number of
members with short positions. NSCC issues CNS Retransmittal Notices in
an aggregate quantity at least equal to the Buy-In Position. In no case
will the Buy-In liability of a member exceed the Buy-In Position or the
total short position of the member. If several members have short
positions with the same age, all such members are issued CNS
Retransmittal Notices even if the total of their short position exceeds
the Buy-In Position. If the Buy-In Position is not satisfied by 3 p.m.
on N+2, the buy-in may be executed.
    This current process will remain in effect. Buy-In Notices
transmitted by a member which is the original submitter will be
referred to as ``Original Buy-In Notices.''
Proposed Procedure for CNS Buy-In Retransmittals
    At times, an NSCC member will be in receipt of a buy-in notice
initiated outside of the CNS system while at the same time be failing
to receive shares from CNS in the same security. Recognizing that such
externally initiated buy-ins may expire before the time the expiration
period that NSCC's Rules currently provide as the expiration for CNS
buy-ins (i.e., the current N+2 expiration), NSCC is proposing a new
procedure to permit retransmittals of such buy-ins with an
appropriately shortened execution time frame.
    Accordingly, the new procedure would provide that an NSCC member
which has a long position in CNS at the end of any day (i.e., a fail to
receive) and which is in receipt of a buy-in notice for securities of
the same CUSIP that was initiated outside of the CNS System may submit
a ``Buy-In Retransmittal Notice'' to NSCC. If the Buy-In Position (or a
portion thereof) that was the subject of the Buy-In Retransmittal
Notice was not satisfied by 3 p.m. on N+1, the buy-in could be
executed. The Buy-In Retransmittal Notice would identify the entity
that initiated the buy-in against the member.
    The differences between a Buy-In Retransmittal Notice and an
Original Buy-In Notice would be as follows:
     An Original Buy-In Notice will refer to a Buy-In Notice
transmitted by a member for which the member is the original submitter.
A Buy-In Retransmittal Notice will refer to a Buy-In Notice submitted
by a member where the member has received a buy-in notice outside of
the CNS system with respect to securities of the same CUSIP.
     The member submitting a Buy-In Retransmittal Notice will
receive an elevated priority for CNS allocations upon NSCC's receipt of
the notice. The member submitting an Original Buy-In Notice will
continue to receive elevated priority on the morning of N+1.
     The member submitting a Buy-In Retransmittal Notice will
be provided with five additional fields to be used to identify the
entity or entities that initiated the buy-in against the member. At
least one such entity other than the member must be identified or NSCC
will reject the Buy-In Retransmittal Notice.
     For Buy-In Retransmittal Notices, NSCC will transmit CNS
Retransmittal Notices to CNS short members upon receipt of the Buy-In
Retransmittal Notice on N. The CNS Retransmittal Notice will identify
both the submitting member and the entity or entities that initiated
the buy-in against the member. For Original Buy-In Notices, NSCC will
continue to transmit CNS Retransmittal Notices to short members on the
morning of N+1.
     A buy-in based on a Buy-In Retransmittal Notice may be
executed on N+1 if the Buy-In Position (or a portion thereof) is not
satisfied by 3:00 p.m. on N+1. The execution of a buy-in based on an
Original Buy-In Notice will continue to be at 3 p.m. on N+2.
Technical Correction
    In addition to modifying NSCC's Rules and Procedures to reflect the
above changes, NSCC will also make a technical correction to Procedure
X, ``Execution of Buy-Ins--CNS System.'' The procedure states that
members who receive CNS Retransmittal Notices and do not satisfy them
assume liability for the loss, if any, which occurs as a result of the
buy-in and that those members with the oldest short positions after the
evening cycle on N+2 will first be held liable for an executed buy-in.
Procedure X should reflect that it is the oldest short positions after
the day cycle on N+2 that will first be held liable for an executed
buy-in.
Implementation
    If approved by the Commission, NSCC plans to implement these
changes on a pilot basis open to all members on the later to occur of
January 13, 2006, or within one week of the Commission's approval of
the proposed rule filing. The pilot will be limited to buy-ins of CNS
eligible NYSE listed securities. NSCC anticipates that the pilot phase
will be completed within thirty calendar days of implementation at
which time buy-ins of all other CNS eligible securities will be
permitted under these proposed changes. At that time the pilot will
cease. NSCC will notify its members by an Important Notice of the
specific date on which the pilot will expire and the proposed buy-in
procedures are available for use with all CNS eligible securities.
    NSCC believes that the proposed rule change is consistent with the
requirements of Section 17A of the Act \5\ and the rules and
regulations thereunder applicable to NSCC because it will assist NSCC
members in reducing their buy-in related exposure, thereby promoting
the prompt and accurate clearance and settlement of securities
transactions.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78q-1.

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

(B) Self-Regulatory Organization's Statement on Burden on Competition

    NSCC does not believe that the proposed rule change will have any
impact or impose any burden on competition.

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

    The proposed rule change was prepared after consultation with the
Buy-In Committee of the Securities Industry Association. Written
comments relating to the proposed rule change have not yet been
solicited or received. NSCC will notify the Commission of any written
comments received by NSCC.

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

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

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the 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-NSCC-2005-15 in the subject line.

Paper Comments

     Send paper comments in triplicate to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-9303.
    All submissions should refer to File Number SR-NSCC-2005-15. 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 Section, 100 F Street,
NE., Washington, DC 20549. Copies of such filings also will be
available for inspection and copying at the principal office of NSCC
and on NSCC's Web site, http://www.nscc.com\legal. 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-NSCC-2005-15 and should be
submitted on or before January 17, 2005.

    For the Commission by the Division of Market Regulation,
pursuant to delegated authority.\6\
---------------------------------------------------------------------------

    \6\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jonathan G. Katz,
Secretary.
[FR Doc. E5-7855 Filed 12-23-05; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Proposed Rules]
[Pages 57026-57029]
[FR Doc No: 2023-18050]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2023-0409; FRL-11232-01-OCSPP]
RIN 2070-ZA16

Phenol; Revoking Exemption From the Requirement of a Pesticide
Tolerance

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to revoke the tolerance exemption for
residues of the antimicrobial pesticide ingredient phenol when used as
an inert ingredient (solvent/cosolvent) in pesticide formulations
applied to growing crops. This rulemaking is proposed on the Agency's
own initiative under the Federal Food, Drug, and Cosmetic Act (FFDCA)
to implement a tolerance action the Agency determined was appropriate
during the registration review conducted under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) for phenol. EPA is proposing to
revoke this tolerance exemption because it corresponds to a use no
longer current or registered under FIFRA in the United States.

DATES: Comments must be received on or before October 23, 2023.

ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OPP-2023-0409, is available at
https://www.regulations.gov or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket) in the Environmental Protection
Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg.,
Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room and the OPP Docket is<PHONE_NUMBER>. Please review the
visitor instructions and additional information about the docket
available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Anita Pease, Antimicrobials Division
(7508P), Office of Pesticide Programs, Environmental Protection Agency,
1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number:
202-566-0736; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
     Crop production (NAICS code 111), e.g., agricultural
workers; greenhouse, nursery, and floriculture workers; farmers.
     Animal production (NAICS code 112), e.g., cattle ranchers
and farmers, dairy cattle farmers, livestock farmers.
     Food manufacturing (NAICS code 311), e.g., agricultural
workers; farmers; greenhouse, nursery, and floriculture workers;
ranchers; pesticide applicators.
     Pesticide manufacturing (NAICS code 32532), e.g.,
agricultural workers; commercial applicators; farmers; greenhouse,
nursery, and floriculture workers; residential users.

B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR
part 180 through the Office of the Federal Register's e-CFR site at
https://www.ecfr.gov/current/title-40.

C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
objection to any aspect of this regulation and may also request a
hearing on those objections. You must file your objection or request a
hearing on this regulation in accordance with the instructions provided
in 40 CFR part 178. To ensure proper receipt by EPA, you must identify
docket ID number EPA-HQ-OPP-2023-0409, in the subject line on the first
page of your submission. All objections and requests for a hearing must
be in writing and must be received by the Hearing Clerk on or before
October 23, 2023. Addresses for mail and hand delivery of objections
and hearing requests are provided in 40 CFR 178.25(b).
    In addition to filing an objection or hearing request with the
Hearing Clerk as described in 40 CFR part 178, please submit a copy of
the filing (excluding any Confidential Business Information (CBI)) for
inclusion in the public docket. Information not marked confidential
pursuant to 40 CFR part 2 may be disclosed publicly by EPA without
prior notice. Submit the non-CBI copy of your objection or hearing
request, identified by docket ID number EPA-HQ-OPP-2023-0409, by one of
the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be CBI or other
information whose disclosure is restricted by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC
20460-0001.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.
    Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at https://www.epa.gov/dockets.

II. Background

A. What action is the Agency taking?

    EPA is proposing to revoke the tolerance exemption in 40 CFR
180.920 for residues of the antimicrobial pesticide ingredient phenol
when used as an inert ingredient (solvent/cosolvent) in pesticide
formulations applied to growing crops, because this tolerance exemption
corresponds to a use no longer current or registered under FIFRA in the
United States.

B. What is the Agency's authority for taking this action?

    EPA is proposing this action pursuant to its authority under
section 408 of the FFDCA, 21 U.S.C. 346a. The Agency previously
determined this action was appropriate during the registration review
of phenol conducted under FIFRA, 7 U.S.C. 136 et seq.
    Under FIFRA section 3(g), 7 U.S.C. 136a(g), EPA is required to
periodically review all registered pesticides and determine if those
pesticides continue to meet the standard for registration under FIFRA.
See also 40 CFR 155.40(a). As part of registration review, EPA
evaluates whether existing tolerances are safe, whether any changes to
existing tolerances are necessary or appropriate, and whether any new
tolerances are necessary. A ``tolerance'' represents the maximum level
for residues of pesticide chemicals legally allowed in or on raw
agricultural commodities and processed foods. Section 408 of FFDCA, 21
U.S.C. 346a, authorizes the establishment, modification, and revocation
of tolerances or exemptions from the requirement of a tolerance for
residues of pesticide chemicals in or on raw agricultural commodities
and processed foods. Residues of pesticides in or on food that are not
covered by a tolerance or exemption are deemed unsafe, 21 U.S.C.
346a(a)(1). Any food containing unsafe residues is considered
adulterated and may not be distributed in interstate commerce, 21
U.S.C. 331(a), 342(a)(2)(B). For a food-use pesticide to be sold and
distributed, the pesticide must not only have appropriate tolerances
under the FFDCA but also must be registered under FIFRA, 7 U.S.C. 136
et seq. Moreover, residues of food-use pesticides not registered in the
United States must also be covered by a tolerance or exemption in order
for commodities treated with those pesticides to be imported into the
United States.
    Section 408(c)(2)(A)(i) of the FFDCA allows EPA to establish an
exemption from the requirement of a tolerance only if EPA determines
that the tolerance is ``safe.'' Section 408(c)(2)(A)(ii) of the FFDCA
defines ``safe'' to mean that ``there is a reasonable certainty that no
harm will result from aggregate exposure to the pesticide chemical
residue, including all anticipated dietary exposures and all other
exposures for which there is reliable information.'' This includes
exposure through drinking water and in residential settings but does
not include occupational exposure. Section 408(c)(2)(B) of the FFDCA
requires EPA, when making a safety determination concerning an
exemption, to take into account, among other relevant considerations,
the considerations listed in section 408(b)(2)(C) and (D). Section
408(b)(2)(C) requires EPA to give special consideration to exposure of
infants and children to the pesticide chemical residue and to ``ensure
that there is a reasonable certainty that no harm will result to
infants and children from aggregate exposure to the pesticide chemical
residue. . . .'' Section 408(b)(2)(D) identifies various factors,
including available information on aggregate and cumulative exposure,
for EPA's consideration in making a safety determination.
    Section 408(e) of the FFDCA, 21 U.S.C. 346a(e), authorizes EPA to
initiate a rulemaking to establish, modify, or revoke tolerances or
exemptions from the requirement of a tolerance on its own initiative.
Prior to issuing the final regulation, section 408(e)(2) requires EPA
to issue a notice of proposed rulemaking for a 60-day public comment
period, unless the

Administrator for good cause finds that it would be in the public
interest to have a shorter period and states the reasons in the
rulemaking.
    Consistent with its obligations under FIFRA section 3(g) and FFDCA
section 408, EPA has reviewed the available scientific data and other
relevant information and determined it is appropriate to take the
action being proposed in this rulemaking.

C. When does this action become effective?

    EPA is proposing that this action become effective six months after
the date of publication of the final rule in the Federal Register. EPA
is proposing this effective date for this action to allow a reasonable
interval for producers in exporting members of the World Trade
Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures
Agreement to adapt to the requirements of the final rule.
    Any commodities treated with phenol in the channels of trade
following the tolerance exemption revocation shall be subject to FFDCA
section 408(l)(5), 21 U.S.C. 346a(l)(5). Under this section, any
residues of this pesticide in or on such food shall not render the food
adulterated so long as it is shown to the satisfaction of the Food and
Drug Administration that the residue is present as the result of an
application or use of the pesticide at a time and in a manner that was
lawful under FIFRA and the residue does not exceed the level that was
authorized at the time of the application or use to be present on the
food under a tolerance or exemption, unless EPA determines that
consumption of legally treated food during the period of its likely
availability in commerce will pose unreasonable dietary risk. Evidence
to show that food was lawfully treated may include records that verify
the dates when the pesticide was applied to such food.

III. Proposed Rule

    EPA is proposing to revoke the tolerance exemption in 40 CFR
180.920 for residues of phenol when used as an inert ingredient
(solvent/cosolvent) in pesticide formulations applied to growing crops.
In the August 2020 Phenol and Salt Interim Registration Review Decision
(available at https://www.regulations.gov in docket ID number EPA-HQ-
OPP-2012-0810), EPA determined that there are no current registrations
for pesticide products containing phenol as an inert ingredient
(solvent/cosolvent) for use on growing crops, and therefore the
tolerance exemption for phenol under 40 CFR 180.920 is not necessary
and should be revoked. Moreover, there have been no registrations for
use associated with this tolerance exemption for many years. The Agency
therefore believes that existing stocks of pesticide products
containing phenol for the use associated with this tolerance exemption
have been exhausted and that treated commodities have cleared the
channels of trade.

IV. Conclusion

    Therefore, EPA is proposing to revoke the exemption from the
requirement of a tolerance for residues of phenol when used as an inert
ingredient (solvent/cosolvent) in pesticide products used on growing
crops.

V. Statutory and Executive Order Reviews

    In this proposed rule, EPA is proposing to revoke a specific
tolerance exemption under its authority in FFDCA section 408(e). The
Office of Management and Budget (OMB) has exempted this type of action
(e.g., tolerance exemption revocation for which extraordinary
circumstances do not exist) from review under Executive Order 12866,
entitled ``Regulatory Planning and Review'' (58 FR 51735, October 4,
1993). Because this proposed rule has been exempted from review under
Executive Order 12866, due to its lack of significance, this proposed
rule is not subject to Executive Order 13211, entitled ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001). This proposed rule
does not contain any information collections subject to OMB approval
under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) or
impose any enforceable duty or contain any unfunded mandate as
described under Title II of the Unfunded Mandates Reform Act (UMRA) (2
U.S.C. 1501 et seq.). Nor does it require any special considerations as
required by Executive Order 12898, entitled ``Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994); or OMB review or any
other Agency action under Executive Order 13045, entitled ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997). This proposed rule does not involve any
technical standards that would require Agency consideration of
voluntary consensus standards pursuant to section 12(d) of the National
Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
    Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), the Agency previously assessed whether revocations of tolerances
might significantly impact a substantial number of small entities and
concluded that, as a general matter, these actions do not impose a
significant economic impact on a substantial number of small entities.
This analysis was published in the Federal Register of December 17,
1997 (62 FR 66020) (FRL-5753-1) and was provided to the Chief Counsel
for Advocacy of the Small Business Administration. Taking into account
this analysis, and available information concerning the pesticide named
in this proposed rule, the Agency hereby certifies that this proposed
rule will not have a significant negative economic impact on a
substantial number of small entities. In a memorandum dated May 25,
2001, EPA determined that eight conditions must all be satisfied in
order for an import tolerance or tolerance exemption revocation to
adversely affect a significant number of small entity importers, and
that there is a negligible joint probability of all eight conditions
holding simultaneously with respect to any particular revocation. (This
Agency document titled ``RFA/SBREFA Certification for Import Tolerance
Revocation'' is available in the docket of this proposed rule.)
Furthermore, for the pesticide named in this proposed rule, the Agency
knows of no extraordinary circumstances that exist as to the present
proposed rule that would change EPA's previous analysis. Any comments
about the Agency's determination should be submitted to the EPA along
with comments on the proposed rule and will be addressed prior to
issuing a final rule.
    In addition, the Agency has determined that this proposed rule will
not have a substantial direct effect on States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, entitled ``Federalism'' (64 FR
43255, August 10, 1999). Executive Order 13132, requires EPA to develop
an accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and

responsibilities among the various levels of government.'' This
proposed rule directly regulates growers, food processors, food
handlers, and food retailers, not States. This proposed rule does not
alter the relationships or distribution of power and responsibilities
established by Congress in the preemption provisions of FFDCA section
408(n)(4). For these same reasons, the Agency has determined that this
proposed rule does not have any ``tribal implications'' as described in
Executive Order 13175, entitled ``Consultation and Coordination with
Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Executive
Order 13175, requires EPA to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' ``Policies that
have tribal implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.'' This proposed rule
will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175.
Thus, Executive Order 13175, does not apply to this proposed rule.

List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.

    Dated: August 14, 2023.
Edward Messina,
Director, Office of Pesticide Programs.

    Therefore, it is proposed that 40 CFR chapter I be amended as
follows:

PART 180--TOLERANCES AND EXEMPTIONS FOR PESTICIDE CHEMICAL RESIDUES
IN FOOD

0
1. The authority citation for part 180 continues to read as follows:

    Authority: 21 U.S.C. 321(q), 346a and 371.

Sec.  180.920  [Amended]

0
2. In Sec.  180.920, amend table 1 by removing the inert ingredient
``Phenol''.

[FR Doc. 2023-18050 Filed 8-21-23; 8:45 am]
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MEMORANDUM

DATE:		November 24, 2014

TO:		Clean Power Plan for Existing Power Plants; Docket Id: OAR - 2013-0602

FROM:	Gavin Lau, EPA Region 2/CASD-APB

SUBJECT:	November 21, 2014 Meeting Regarding the Mercury and Air Toxics                        Standards and Proposed Clean Power Plan for Existing Power Plants  --------------------------------------------------------------------------------

SUMMARY

      A meeting was held between EPA and the organization listed below on November 21, 2014, in San Juan, Puerto Rico, to discuss the Mercury and Air Toxics Standards and Proposed Clean Power Plan for Existing Power Plants.  The Clean Power Plan for Existing Power Plants was proposed on June 2, 2014.  The Clean Power Plan Supplemental Proposal Notice was proposed on October 28, 2014.        ATTENDEES

Interamerican Association of Sanitary Engineering


[Federal Register Volume 78, Number 214 (Tuesday, November 5, 2013)]
[Rules and Regulations]
[Page 66266]
[FR Doc No: 2013-26534]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2013-0909]

Drawbridge Operation Regulation; Atlantic Intracoastal Waterway
(AIWW), Chesapeake, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of deviation from drawbridge regulations.

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

SUMMARY: The Coast Guard has issued a temporary deviation from the
operating schedule that governs the I64 Bridge across the Atlantic
Intracoastal Waterway, South Branch of the Elizabeth River, mile 7.1,
at Chesapeake, VA. This deviation is necessary to facilitate
maintenance work on the rotary span limit switches. This temporary
deviation allows the drawbridge to remain in the closed to navigation
position.

DATES: This deviation is effective from 7 a.m. on November 15, 2013 to
12 p.m. November 17, 2013.

ADDRESSES: The docket for this deviation, [USCG-2013-0909] is available
at http://www.regulations.gov. Type the docket number in the ``SEARCH''
box and click ``SEARCH.'' Click on Open Docket Folder on the line
associated with this deviation. You may also visit the Docket
Management Facility in Room W12-140 on the ground floor of the
Department of Transportation 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 FURTHER INFORMATION CONTACT: If you have questions on this
temporary deviation, call or email Mrs. Kashanda Booker, Bridge
Administration Branch Fifth District, Coast Guard; telephone (757) 398-
6227, email<EMAIL_ADDRESS>If you have questions on
reviewing the docket, call Barbara Hairston, Program Manager, Docket
Operations,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Virginia Department of Transportation,
who owns and operates this drawbridge, has requested a temporary
deviation from the current operating regulation set out in 33 CFR
117.997(e), to facilitate maintenance of the moveable spans on the
structure.
    The current operating schedule for the drawbridge is set out in 33
CFR 117.997(e) which requires the drawbridge open on signal if at least
24 hours notice is given. The I64 Bridge has a vertical clearance in
the closed position of 65 feet above mean high water.
    Under this temporary deviation, the drawbridge will be closed to
navigation from 7 a.m., on Friday, November 15, 2013 to 12 p.m., on
Sunday, November 17, 2013.
    Vessels able to pass under the drawbridge in the closed position
may do so at anytime and are advised to proceed with caution. The
drawbridge will not be able to open for emergencies. The Coast Guard
will also inform additional waterway users through our Local and
Broadcast Notices to Mariners of the closure periods for the drawbridge
so that vessels can arrange their transits to minimize any impacts
caused by the temporary deviation.
    In accordance with 33 CFR 117.35(e), the drawbridge must return to
its regular operating schedule immediately at the end of the effective
period of this temporary deviation. This deviation from the operating
regulations is authorized under 33 CFR 117.35.

    Dated: October 21, 2013.
Waverly W. Gregory, Jr.,
Bridge Program Manager, Fifth Coast Guard District.
[FR Doc. 2013-26534 Filed 11-4-13; 8:45 am]
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