[Federal Register Volume 83, Number 31 (Wednesday, February 14, 2018)]
[Proposed Rules]
[Pages 6493-6496]
[FR Doc No: 2018-02894]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2016-0716; FRL-9973-42--Region 6]

Approval and Promulgation of Implementation Plans; Texas;
Interstate Transport Requirements for the 1997 and 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or Act), the
Environmental Protection Agency (EPA) is proposing to approve portions
of three Texas State Implementation Plan (SIP) submittals pertaining to
CAA requirements to prohibit emissions which will significantly
contribute to nonattainment or interfere with maintenance of the 1997
and 2006 fine particulate matter (PM2.5) National Ambient
Air Quality Standards (NAAQS) in other states.

DATES: Written comments must be received on or before March 16, 2018.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2016-0716, at http://www.regulations.gov or via email to
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system). For
additional submission methods, please contact Carl Young,<PHONE_NUMBER>,
[email protected]. For the full EPA public comment policy, information
about CBI or multimedia submissions, and general guidance on making
effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at the EPA
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g., copyrighted
material), and some may not be publicly available at either location
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Carl Young,<PHONE_NUMBER>,
[email protected]. To inspect the hard copy materials, please schedule
an appointment with Mr. Young or Mr. Bill Deese at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.

I. Background

A. The PM2.5 NAAQS and Interstate Transport of Air Pollution

    Under section 109 of the CAA, we establish NAAQS to protect human
health and public welfare. In 1997, we established a new annual NAAQS
for PM2.5 of 15 micrograms per cubic meter ([mu]g/m\3\), and
a new 24-hour NAAQS for PM2.5 of 65 [mu]g/m\3\ (62 FR 38652,
July 18, 1997). In 2006, we revised the 24-hour PM2.5 NAAQS
to 35 [mu]g/m\3\ (71 FR 61144, October 17, 2006).\1\ The CAA requires
states to submit, within three years after promulgation of a new or
revised standard, SIPs meeting the applicable ``infrastructure''
elements of sections 110(a)(1) and (2). One of these applicable
infrastructure elements, CAA section 110(a)(2)(D)(i), requires SIPs to

contain ``good neighbor'' provisions to prohibit certain adverse air
quality effects on neighboring states due to interstate transport of
pollution. There are four sub-elements within CAA section
110(a)(2)(D)(i). This action reviews how the first two sub-elements of
the good neighbor provisions at CAA section 110(a)(2)(D)(i)(I) were
addressed in an infrastructure SIP submission from Texas for the 1997
and 2006 PM2.5 NAAQS. These sub-elements require that each
SIP for a new or revised NAAQS contain adequate provisions to prohibit
any emissions activity within the state from emitting air pollutants
that will ``contribute significantly to nonattainment'' or ``interfere
with maintenance'' of the applicable air quality standard in any other
state.
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    \1\ In 2012, we revised the annual PM2.5 NAAQS to 12
[mu]g/m\3\ (78 FR 3086, January 15, 2013). This proposal pertains to
the 1997 and 2006 PM2.5 NAAQS only.
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    The EPA has addressed the interstate transport requirements of CAA
section 110(a)(2)(D)(i)(I) with respect to PM2.5 in several
past regulatory actions. Most recently, in 2011 we promulgated the
Cross-State Air Pollution Rule (CSAPR) in order to address the
obligations of states--and of the EPA when states have not met their
obligations--under CAA section 110(a)(2)(D)(i)(I) to prohibit air
pollution contributing significantly to nonattainment in, or
interfering with maintenance by, any other state with regard to several
NAAQS, including the 1997 annual and 2006 24-hour PM2.5
NAAQS.\2\
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    \2\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and 40 CFR part 97).
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    CSAPR replaced the Clean Air Interstate Rule (CAIR) which was
promulgated in 2005 for the 1997 PM2.5 and 1997 ozone NAAQS
(May 12, 2005, 70 FR 25172). CAIR was remanded to the EPA by the D.C.
Circuit in North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008),
modified on reh'g, 550 F.3d 1176. For more discussion on CSAPR and
CAIR, please see EPA's August 8, 2011 CSAPR final rulemaking action (76
FR 48208).
    To address Texas' transport obligation under CAA section
110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5
NAAQS, CSAPR established Federal Implementation Plan (FIP) requirements
for affected electric generating units (EGUs) in Texas, including
emissions budgets that apply to the EGUs' collective annual emissions
of sulfur dioxide (SO2) and nitrogen oxides
(NOX).\3\ In July 2015, the D.C. Circuit issued a decision
on a range of challenges to CSAPR in EME Homer City Generation, L.P. v.
EPA (EME Homer City II) denying most claims but remanding several CSAPR
emissions budgets to the EPA for reconsideration, including the Phase 2
SO2 budget for Texas.\4\ To address the Phase 2
SO2 budget remand we issued a final rule withdrawing the FIP
provisions that required affected EGUs in Texas to participate in Phase
2 of the CSAPR trading programs for annual emissions of SO2
and NOX (82 FR 45481, September 29, 2017). In that final
rule we also determined that emissions \5\ from sources in Texas will
not contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with regard to the 1997
PM2.5 NAAQS and that we therefore have no obligation to
issue new FIP requirements for Texas sources to address transported
PM2.5 pollution under CAA section 110(a)(2)(D)(i)(I) with
regard to that NAAQS.
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    \3\ With regard to the 2006 24-hour PM2.5 NAAQS, we
noted in the CSAPR final rule that (1) analysis shows that Texas
would significantly contribute to nonattainment of the 24-hour
PM2.5 NAAQS in another state, but we did not promulgate a
CSAPR FIP for Texas EGUs with respect to that standard; and (2) the
CSAPR FIP requirements for Texas with regard to the 1997 annual
standard would address the emissions in Texas that significantly
contribute to nonattainment and interfere with maintenance of the
24-hour PM2.5 NAAQS in another state (76 FR at 48243,
48214, August 8, 2011).
    \4\ EME Homer City Generation, L.P. v. EPA (EME Homer City II),
795 F.3d 118, 138 (D.C. Cir. 2015). The court also remanded the
Phase 2 SO2 budgets for three other states and the Phase
2 ozone-season NOX budgets for eleven states, including
Texas. Id.
    \5\ The term ``emissions'' refers to all anthropogenic emissions
originating from the state, including EGU emissions.
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B. Texas SIP Submittals Pertaining to the PM2.5 NAAQS and
Interstate Transport of Air Pollution

    Relevant to this proposed action, Texas made the following SIP
submittals to address CAA requirements to prohibit emissions which will
significantly contribute to nonattainment or interfere with maintenance
of the 1997 and 2006 PM2.5 NAAQS in other states: (1) An
April 4, 2008 submittal stating that the State had addressed any
potential CAA section 110(a)(2) infrastructure issues associated with
the 1997 PM2.5 NAAQS, including the four sub-elements for
interstate transport (CAA section 110(a)(2)(D)(i)), (2) a separate but
similar May 1, 2008 submittal which discussed how the four sub-elements
of the good neighbor provision were addressed with respect to the 1997
PM2.5 NAAQS, and (3) a November 23, 2009 submittal which
addressed all the CAA section 110(a)(2) infrastructure elements,
including the four sub-elements of the good neighbor provision, for the
2006 PM2.5 NAAQS. The SIP submittals may be accessed through
the www.regulations.gov website (Docket EPA-R06-OAR-2016-0716). In
these SIP revisions, Texas relied on its participation in the CAIR
program to conclude that the State had addressed its obligation to
prohibit emissions which will significantly contribute to nonattainment
or interfere with maintenance of the 1997 and 2006 PM2.5
NAAQS in other states.
    For the reasons described below, this action proposes to approve
the state's three SIP submittals with respect to the state's
conclusions regarding the first two sub-elements of the good neighbor
provisions at CAA section 110(a)(2)(D)(i)(I) for the 1997 and 2006
PM2.5 NAAQS. In 2011, we originally proposed to disapprove
the portion of the November 23, 2009 submittal that intended to
demonstrate that the SIP met the requirements of CAA section
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS (71 FR 20602,
April 13, 2011). However, in a separate Federal Register action
published in conjunction with this current proposal we are withdrawing
that original proposal and in this notice we now are proposing to
approve the same portion of the submittal. See Docket No. EPA-R06-OAR-
2011-0335 in www.regulations.gov.

II. The EPA's Evaluation

    Each of the above-referenced Texas SIP submittals relied on the
State's participation in the CAIR allowance trading programs to support
a conclusion that the Texas SIP had adequate provisions to prohibit
emissions which will significantly contribute to nonattainment or
interfere with maintenance of the 1997 and 2006 PM2.5 NAAQS
in any other state. While CAIR was still in place at the time the State
submitted its SIPs, the CAIR rule had been remanded by the D.C. Circuit
in 2008 based on the Court's conclusion that the rule was
``fundamentally flawed'' and must be replaced ``from the ground up.''
North Carolina, 531 F.3d 929-30, modified, 550 F.3d 1176 (2008).
Moreover, we began implementation of CSAPR in 2015, and therefore
neither the states nor EPA are currently implementing the annual
SO2 and NOX trading program promulgated in CAIR.
Accordingly, we cannot approve the State's SIP submissions based on the
implementation of CAIR that sought to address the provisions of the
good neighbor provision for any NAAQS. However, more recent information
discussed in detail below, provides support for our proposed approval
of the conclusions in the SIP submittals that the State will not
significantly

contribute to nonattainment or interfere with maintenance of these
NAAQS in any other state.
    Air quality modeling conducted for the 2011 CSAPR rulemaking
projected the effect of emissions on ambient air quality monitors
(receptors). The modeling projected that a receptor located in Madison
County, Illinois (monitor ID 171191007) would have difficulty attaining
and maintaining both the 1997 and 2006 PM2.5 NAAQS in 2012
(76 FR 48208, 48233 and 48235). The modeling also showed that Texas
emissions were projected to contribute more than the threshold amount
of PM2.5 pollution necessary in order to be considered
``linked'' to the Madison County receptor for the 1997 and 2006
PM2.5 NAAQS (76 FR 48208, 48239-43). This was the only
PM2.5 receptor with projected air quality problems to which
Texas was found to be linked.
    In CSAPR we used air quality projections for the year 2012, which
was also the intended start year for implementation of the CSAPR Phase
1 EGU emission budgets, to identify receptors projected to have air
quality problems. The CSAPR final rule record also contained air
quality projections for 2014, which was the intended start year for
implementation of the CSAPR Phase 2 EGU emission budgets. The 2014
modeling results projected that the Madison County receptor would have
maximum ``design values'' of 15.02 [mu]g/m\3\ for annual
PM2.5 of and 35.3 [mu]g/m\3\ for 24-hour PM2.5
before considering the emissions reductions anticipated from
implementation of CSAPR.\6\ These values are below the values of 15.05
and 35.5 [mu]g/m\3\ that we used to determine whether a particular
PM2.5 receptor should be identified as having air quality
problems that may trigger transport obligations in upwind states with
regard to the 1997 annual or 2006 24-hour PM2.5 NAAQS,
respectively (82 FR 45481, 45485-86, September 29, 2017).
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    \6\ Design values are used to determine whether a NAAQS is being
met. See projected 2014 base case maximum design values for Madison
County, Illinois receptor 171191007 at pages B-41 and B-70 of the
June 2011 Air Quality Modeling Final Rule Technical Support Document
for CSAPR, Document ID No. EPA-HQ-OAR-2009-0491-4140, available in
the docket for this proposed action.
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    As noted above, in our September 29, 2017 final rule addressing the
remand for the annual SO2 and NOX emissions
budgets we determined that emissions from Texas sources will not
contribute significantly to nonattainment in, or interfere with
maintenance by, any other state with regard to the 1997
PM2.5 NAAQS (82 FR 45481, September 29, 2017). As explained
in the separate September 29, 2017 action, our 2014 base case modeling
in the CSAPR final rule also showed that (1) the Madison County
receptor was projected to no longer have air quality problems
sufficient to trigger transport obligations with regard to the 2006 24-
hour PM2.5 NAAQS and (2) no other 24-hour PM2.5
receptors with projected air quality problems were linked to Texas. Due
to those findings, we now propose to determine that emissions from
Texas sources will not contribute significantly to nonattainment in, or
interfere with maintenance by, any other state with regard to the 2006
24-hour PM2.5 NAAQS. Given the determination for the 1997
annual PM2.5 NAAQS made in the September 29, 2017 final rule
and our proposed determination for the 2006 24 PM2.5 NAAQS,
we are now proposing to approve the portions of three Texas SIP
submittals to the extent they conclude that the state has addressed
interstate transport of air pollution which will significantly
contribute to nonattainment or interfere with maintenance of the 1997
and 2006 PM2.5 NAAQS in other states.
    Based on our analysis of the modeling data from the 2011 CSAPR
rulemaking provided above, we are proposing to approve the relevant
portions of the Texas SIP submittals that Texas emissions will not
significantly contribute to nonattainment or interfere with maintenance
of the 1997 and 2006 PM2.5 NAAQS in other states. It should
be noted, as discussed above, that we are not proposing to approve the
State's analyses to the extent they rely on the State's prior
participation in the CAIR allowance trading program, nor are we are
proposing to approve any Texas SIP revisions that pertain to
implementation of CAIR.

III. Proposed Action

    We are proposing to approve portions of three Texas SIP submittals
pertaining to the CAA section 110(a)(2)(D)(i)(I) requirements based on
our conclusion, which is consistent with the state's ultimate
conclusion, that emissions from Texas will not significantly contribute
to nonattainment or interfere with maintenance of the 1997 and 2006
PM2.5 NAAQS in other states. Specifically, we propose to
approve (1) the portions of the April 4, 2008 and May 1, 2008 SIP
submittals for the 1997 PM2.5 NAAQS and (2) the portion of
the November 23, 2009 submittal for the 2006 PM2.5 NAAQS, as
they pertain to CAA section 110(a)(2)(D)(i)(I).

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a

tribe has jurisdiction. In those areas of Indian country, the proposed
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter.

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

    Dated: February 7, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-02894 Filed 2-13-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 91 (Wednesday, May 11, 2016)]
[Notices]
[Page 29259]
[FR Doc No: 2016-11111]

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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: ER16-1021-001.
    Applicants: Arizona Public Service Company.
    Description: Compliance filing: Service Agreement Nos. 338 and 339
to be effective 2/10/2016.
    Filed Date: 5/5/16.
    Accession Number: 20160505-5190.
    Comments Due: 5 p.m. ET 5/26/16.

    Docket Numbers: ER16-1397-001.
    Applicants: Southern California Edison Company.
    Description: Tariff Amendment: Resubmit Two Amended DSA's w/
SunEdison Utility Solutions, LLC to be effective 1/1/2016.
    Filed Date: 5/5/16.
    Accession Number: 20160505-5158.
    Comments Due: 5 p.m. ET 5/26/16.

    Docket Numbers: ER16-1454-001.
    Applicants: Southern California Edison Company.
    Description: Tariff Amendment: Resubmit Amended DSA w/SCE's Power
Production Department to be effective 1/1/2016.
    Filed Date: 5/5/16.
    Accession Number: 20160505-5162.
    Comments Due: 5 p.m. ET 5/26/16.

    Docket Numbers: ER16-1625-000.
    Applicants: AEP Texas Central Company.
    Description: Section 205(d) Rate Filing: TCC-Rio Grande EC IA First
Amended and Restated to be effective 4/13/2016.
    Filed Date: 5/5/16.
    Accession Number: 20160505-5141.
    Comments Due: 5 p.m. ET 5/26/16.

    Docket Numbers: ER16-1626-000.
    Applicants: PJM Interconnection, L.L.C.
    Description: Section 205(d) Rate Filing: Service Agreement Nos.
4451, Queue Position AA1-063A to be effective 4/5/2016.
    Filed Date: 5/5/16.
    Accession Number: 20160505-5171.
    Comments Due: 5 p.m. ET 5/26/16.

    Docket Numbers: ER16-1627-000.
    Applicants: New York Independent System Operator, Inc.
    Description: Section 205(d) Rate Filing: 205--Rules to Allocate
Responsibility for the Cost of New Interconnection to be effective 7/5/
2016.
    Filed Date: 5/5/16.
    Accession Number: 20160505-5189.
    Comments Due: 5 p.m. ET 5/26/16.

    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 5:00
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: May 5, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2016-11111 Filed 5-10-16; 8:45 am]
 BILLING CODE 6717-01-P


utilized 1,028 Limited Service MEI Ports. When compared to Full Service
Port (Bulk and Single) usage, for March 2023, MIAX Pearl Options
Members utilized only 432 Full Service MEO Ports (Bulk and Single), far
fewer than number of Limited Service MEI Ports utilized by Market
Makers on MIAX and MIAX Emerald, thus resulting in a smaller cost
allocation. There is increased cost associated with supporting a higher
number of ports (requiring more hardware and other technical
infrastructure), thus the Exchange allocates a higher percentage

of expense than MIAX Pearl Options, which has a lower port count.
Depreciation
    The vast majority of the software the Exchange uses to provide
Limited Service MEI Ports has been developed in-house and the cost of
such development, which takes place over an extended period of time and
includes not just development work, but also quality assurance and
testing to ensure the software works as intended, is depreciated over
time once the software is activated in the production environment.
Hardware used to provide Limited Service MEI Ports includes equipment
used for testing and monitoring of order entry infrastructure and other
physical equipment the Exchange purchased and is also depreciated over
time. All hardware and software were valued at cost, depreciated or
leased over periods ranging from three to five years. Thus, the
depreciation cost primarily relates to servers necessary to operate the
Exchange, some of which is owned by the Exchange and some of which is
leased by the Exchange in order to allow efficient periodic technology
refreshes. The Exchange allocated 3.7% of all depreciation costs to
providing Limited Service MEI Ports. The Exchange allocated
depreciation costs for depreciated software necessary to operate the
Exchange because such software is related to the provision of Limited
Service MEI Ports. As with the other allocated costs in the Exchange's
updated Cost Analysis, the Depreciation cost driver was therefore
narrowly tailored to depreciation related to Limited Service MEI Ports.
    The Exchange notes that this allocation differs from its affiliated
markets due to a number of factors, such as the age of physical assets
and software (e.g., older physical assets and software were previously
depreciated and removed from the allocation), or certain system
enhancements that required new physical assets and software, thus
providing a higher contribution to the depreciated cost. For example,
the Exchange notes that the percentages it and its affiliate, MIAX,
allocated to the depreciation cost driver for Limited Service MEI Ports
differ by only 2.6%. However, MIAX's approximate dollar amount is
greater than that of MIAX Emerald by approximately $10,000 per month.
This is due to two primary factors. First, MIAX has under gone a
technology refresh since the time MIAX Emerald launched in February
2019, leading to it having more hardware that software that is subject
to depreciation. Second, MIAX maintains 24 matching engines while MIAX
Emerald maintains only 12 matching engines. This also results in more
of MIAX's hardware and software being subject to depreciation than MIAX
Emerald's hardware and software due to the greater amount of equipment
and software necessary to support the greater number of matching
engines on the Exchange.
Allocated Shared Expenses
    Finally, a limited portion of general shared expenses was allocated
to overall Limited Service MEI Ports costs as without these general
shared costs the Exchange would not be able to operate in the manner
that it does and provide Limited Service MEI Ports. The costs included
in general shared expenses include general expenses of the Exchange,
including office space and office expenses (e.g., occupancy and
overhead expenses), utilities, recruiting and training, marketing and
advertising costs, professional fees for legal, tax and accounting
services (including external and internal audit expenses), and
telecommunications costs. The Exchange again notes that the cost of
paying directors to serve on its Board of Directors is included in the
calculation of Allocated Shared Expenses, and thus a portion of such
overall cost amounting to less than 11% of the overall cost for
directors was allocated to providing Limited Service MEI Ports. The
Exchange notes that the 10.3% allocation of general shared expenses for
Limited Service MEI Ports is lower than that allocated to general
shared expenses for physical connectivity based on its allocation
methodology that weighted costs attributable to each Core Service based
on an understanding of each area. While Limited Service MEI Ports have
several areas where certain tangible costs are heavily weighted towards
providing such service (e.g., Data Center, as described above), 10Gb
ULL connectivity requires a broader level of support from Exchange
personnel in different areas, which in turn leads to a broader general
level of cost to the Exchange.
    Lastly, the Exchange notes that this allocation is greater than its
affiliate, MIAX Pearl Options, as MIAX Emerald allocated 10.3% of its
Allocated Shared Expense towards Limited Service MEI Ports, while MIAX
Pearl Options allocated 3.6% to its Full Service MEO Ports (Bulk and
Single) for the same category of expense. The allocation percentages
set forth above differ because they correspond with the number of
applicable ports utilized on each exchange. For March 2023, MIAX Market
Makers utilized 1,782 Limited Service MEI ports and MIAX Emerald Market
Makers utilized 1,028 Limited Service MEI Ports. When compared to Full
Service Port (Bulk and Single) usage, for March 2023, MIAX Pearl
Options Members utilized only 432 Full Service MEO Ports (Bulk and
Single), far fewer than number of Limited Service MEI Ports utilized by
Market Makers on MIAX Emerald, thus resulting in a smaller cost
allocation. There is increased cost associated with supporting a higher
number of ports (requiring more hardware and other technical
infrastructure), thus the Exchange allocates a higher percentage of
expense than MIAX Pearl Options which has a lower port count.\120\
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    \120\ MIAX allocated a slightly lower amount (9.8%) of this cost
as compared to MIAX Emerald (10.3%). This is not a significant
difference. However, both allocations resulted in an identical cost
amount of $0.8 million, despite MIAX having a higher number of
Limited Service MEI Ports. MIAX Emerald was allocated a higher cost
per Limited Service MEI Port due to the additional resources and
expenditures associated with maintaining its recently enhanced low
latency network.
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* * * * *
Approximate Cost per Limited Service MEI Port per Month
    The total monthly cost of $148,255 was divided by the number of
chargeable Limited Service MEI Ports (excluding the two free Limited
Service MEI Ports per matching engine that each Member receives) the
Exchange maintained at the time that proposed pricing was determined
(706), to arrive at a cost of approximately $210 per month, per charged
Limited Service MEI Port.
* * * * *
Cost Analysis--Additional Discussion
    In conducting its Cost Analysis, the Exchange did not allocate any
of its expenses in full to any core services (including physical
connectivity or Limited Service MEI Ports) and did not double-count any
expenses. Instead, as described above, the Exchange allocated
applicable cost drivers across its core services and used the same Cost
Analysis to form the basis of this proposal and the filings the
Exchange submitted proposing fees for proprietary data feeds offered by
the Exchange. For instance, in calculating the Human Resources expenses
to be allocated to physical connections based upon the above described
methodology, the Exchange has a team of employees dedicated to network
infrastructure and with respect to such employees the Exchange
allocated network infrastructure personnel with a high percentage of
the cost of such personnel

(42.4%) given their focus on functions necessary to provide physical
connections. The salaries of those same personnel were allocated only
8.0% to Limited Service MEI Ports and the remaining 49.6% was allocated
to 1Gb connectivity, other port services, transaction services,
membership services and market data. The Exchange did not allocate any
other Human Resources expense for providing physical connections to any
other employee group, outside of a smaller allocation of 19.8% for 10Gb
ULL connectivity or 19.9% for the entire network, of the cost
associated with certain specified personnel who work closely with and
support network infrastructure personnel. In contrast, the Exchange
allocated much smaller percentages of costs (5% or less) across a wider
range of personnel groups in order to allocate Human Resources costs to
providing Limited Service MEI Ports. This is because a much wider range
of personnel are involved in functions necessary to offer, monitor and
maintain Limited Service MEI Ports but the tasks necessary to do so are
not a primary or full-time function.
    In total, the Exchange allocated 28.1% of its personnel costs to
providing 10Gb ULL and 1Gb connectivity and 5.9% of its personnel costs
to providing Limited Service MEI Ports, for a total allocation of 34%
Human Resources expense to provide these specific connectivity and port
services. In turn, the Exchange allocated the remaining 66% of its
Human Resources expense to membership services, transaction services,
other port services and market data. Thus, again, the Exchange's
allocations of cost across core services were based on real costs of
operating the Exchange and were not double-counted across the core
services or their associated revenue streams.
    As another example, the Exchange allocated depreciation expense to
all core services, including physical connections and Limited Service
MEI Ports, but in different amounts. The Exchange believes it is
reasonable to allocate the identified portion of such expense because
such expense includes the actual cost of the computer equipment, such
as dedicated servers, computers, laptops, monitors, information
security appliances and storage, and network switching infrastructure
equipment, including switches and taps that were purchased to operate
and support the network. Without this equipment, the Exchange would not
be able to operate the network and provide connectivity services to its
Members and non-Members and their customers. However, the Exchange did
not allocate all of the depreciation and amortization expense toward
the cost of providing connectivity services, but instead allocated
approximately 67.5% of the Exchange's overall depreciation and
amortization expense to connectivity services (63.8% attributed to 10Gb
ULL physical connections and 3.7% to Limited Service MEI Ports). The
Exchange allocated the remaining depreciation and amortization expense
(approximately 32.5%) toward the cost of providing transaction
services, membership services, other port services and market data.
    The Exchange notes that its revenue estimates are based on
projections across all potential revenue streams and will only be
realized to the extent such revenue streams actually produce the
revenue estimated. The Exchange does not yet know whether such
expectations will be realized. For instance, in order to generate the
revenue expected from connectivity, the Exchange will have to be
successful in retaining existing clients that wish to maintain physical
connectivity and/or Limited Service MEI Ports or in obtaining new
clients that will purchase such services. Similarly, the Exchange will
have to be successful in retaining a positive net capture on
transaction fees in order to realize the anticipated revenue from
transaction pricing. The Exchange notes that the Cost Analysis is based
on the Exchange's 2023 fiscal year of operations and projections. It is
possible, however, that actual costs may be higher or lower. To the
extent the Exchange sees growth in use of connectivity services it will
receive additional revenue to offset future cost increases.
    However, if use of connectivity services is static or decreases,
the Exchange might not realize the revenue that it anticipates or needs
in order to cover applicable costs. Accordingly, the Exchange is
committing to conduct a one-year review after implementation of these
fees. The Exchange expects that it may propose to adjust fees at that
time, to increase fees in the event that revenues fail to cover costs
and a reasonable mark-up of such costs. Similarly, the Exchange may
propose to decrease fees in the event that revenue materially exceeds
our current projections. In addition, the Exchange will periodically
conduct a review to inform its decision making on whether a fee change
is appropriate (e.g., to monitor for costs increasing/decreasing or
subscribers increasing/decreasing, etc. in ways that suggest the then-
current fees are becoming dislocated from the prior cost-based
analysis) and would propose to increase fees in the event that revenues
fail to cover its costs and a reasonable mark-up, or decrease fees in
the event that revenue or the mark-up materially exceeds our current
projections. In the event that the Exchange determines to propose a fee
change, the results of a timely review, including an updated cost
estimate, will be included in the rule filing proposing the fee change.
More generally, the Exchange believes that it is appropriate for an
exchange to refresh and update information about its relevant costs and
revenues in seeking any future changes to fees, and the Exchange
commits to do so.
Projected Revenue
    The proposed fees will allow the Exchange to cover certain costs
incurred by the Exchange associated with providing and maintaining
necessary hardware and other network infrastructure as well as network
monitoring and support services; without such hardware, infrastructure,
monitoring and support the Exchange would be unable to provide the
connectivity and port services. Much of the cost relates to monitoring
and analysis of data and performance of the network via the
subscriber's connection(s). The above cost, namely those associated
with hardware, software, and human capital, enable the Exchange to
measure network performance with nanosecond granularity. These same
costs are also associated with time and money spent seeking to
continuously improve the network performance, improving the
subscriber's experience, based on monitoring and analysis activity. The
Exchange routinely works to improve the performance of the network's
hardware and software. The costs associated with maintaining and
enhancing a state-of-the-art exchange network is a significant expense
for the Exchange, and thus the Exchange believes that it is reasonable
and appropriate to help offset those costs by amending fees for
connectivity services. Subscribers, particularly those of 10Gb ULL
connectivity, expect the Exchange to provide this level of support to
connectivity so they continue to receive the performance they expect.
This differentiates the Exchange from its competitors. As detailed
above, the Exchange has five primary sources of revenue that it can
potentially use to fund its operations: transaction fees, fees for
connectivity services, membership and regulatory fees, and market data
fees. Accordingly, the Exchange must cover its expenses from these five
primary sources of revenue.

    The Exchange's Cost Analysis estimates the annual cost to provide
10Gb ULL connectivity services will equal $11,361,586. Based on current
10Gb ULL connectivity services usage, the Exchange would generate
annual revenue of approximately $16,524,000. The Exchange believes this
represents a modest profit of 31% when compared to the cost of
providing 10Gb ULL connectivity services which could decrease over
time.\121\
---------------------------------------------------------------------------

    \121\ Assuming the U.S. inflation rate continues at its current
rate, the Exchange believes that the projected profit margins in
this proposal will decrease; however, the Exchange cannot predict
with any certainty whether the U.S. inflation rate will continue at
its current rate or its impact on the Exchange's future profits or
losses. See, e.g., https://www.usinflationcalculator.com/inflation/current-inflation-rates/ (last visited June 14, 2023).
---------------------------------------------------------------------------

    The Exchange's Cost Analysis estimates the annual cost to provide
Limited Service MEI Port services will equal $1,779,066. Based on
current Limited Service MEI Port services usage, the Exchange would
generate annual revenue of approximately $2,809,200. The Exchange
believes this would result in an estimated profit margin of 37% after
calculating the cost of providing Limited Service MEI Port services,
which profit margin could decrease over time.\122\ The Exchange notes
that the cost to provide Limited Service MEI Ports is higher than the
cost for the Exchange's affiliate, MIAX Pearl Options, to provide Full
Service MEO Ports due to the substantially higher number of Limited
Service MEI Ports used by Exchange Members. For example, the Exchange's
Members are currently allocated 1,028 Limited Service MEI Ports
compared to only 432 Full Service MEO Ports (Bulk and Single combined)
allocated to MIAX Pearl Options members.
---------------------------------------------------------------------------

    \122\ Id.
---------------------------------------------------------------------------

    Based on the above discussion, the Exchange believes that even if
the Exchange earns the above revenue or incrementally more or less, the
proposed fees are fair and reasonable because they will not result in
pricing that deviates from that of other exchanges or a supra-
competitive profit, when comparing the total expense of the Exchange
associated with providing 10Gb ULL connectivity and Limited Service MEI
Port services versus the total projected revenue of the Exchange
associated with network 10Gb ULL connectivity and Limited Service MEI
Port services.
    The Exchange also notes that this the resultant profit margin
differs slightly from the profit margins set forth in similar fee
filings by its affiliated markets. This is not atypical among exchanges
and is due to a number of factors that differ between these four
markets, including: different market models, market structures, and
product offerings (equities, options, price-time, pro-rata, simple, and
complex); different pricing models; different number of market
participants and connectivity subscribers; different maintenance and
operations costs, as described in the cost allocation methodology
above; different technical architecture (e.g., the number of matching
engines per exchange, i.e., the Exchange maintains only 12 matching
engines while MIAX maintains 24 matching engines); and different
maturity phase of the Exchange and its affiliated markets (i.e., start-
up versus growth versus more mature). All of these factors contribute
to a unique and differing level of profit margin per exchange.
    Further, the Exchange proposes to charge rates that are comparable
to, or lower than, similar fees for similar products charged by
competing exchanges. For example, for 10Gb ULL connectivity, the
Exchange proposes a lower fee than the fee charged by Nasdaq for its
comparable 10Gb Ultra fiber connection ($13,500 per month for the
Exchange vs. $15,000 per month for Nasdaq).\123\ NYSE American charges
even higher fees for its comparable 10GB LX LCN connection than the
Exchange's proposed fees ($13,500 per month for the Exchange vs.
$22,000 per month for NYSE American).\124\ Accordingly, the Exchange
believes that comparable and competitive pricing are key factors in
determining whether a proposed fee meets the requirements of the Act,
regardless of whether that same fee across the Exchange's affiliated
markets leads to slightly different profit margins due to factors
outside of the Exchange's control (i.e., more subscribers to 10Gb ULL
connectivity on the Exchange than its affiliated markets or vice
versa).
---------------------------------------------------------------------------

    \123\ See NASDAQ Pricing Schedule, Options 7, Section 3, Ports
and Other Services and NASDAQ Rules, General 8: Connectivity,
Section 1. Co-Location Services.
    \124\ See NYSE American Options Fee Schedule, Section V.A. Port
Fees and Section V.B. Co-Location Fees.
---------------------------------------------------------------------------

* * * * *
    The Exchange has operated at a cumulative net annual loss since it
launched operations in 2019.\125\ This is due to a number of factors,
one of which is choosing to forgo revenue by offering certain products,
such as low latency connectivity, at lower rates than other options
exchanges to attract order flow and encourage market participants to
experience the high determinism, low latency, and resiliency of the
Exchange's trading systems. The Exchange does not believe that it
should now be penalized for seeking to raise its fees as it now needs
to upgrades its technology and absorb increased costs. Therefore, the
Exchange believes the proposed fees are reasonable because they are
based on both relative costs to the Exchange to provide dedicated 10Gb
ULL connectivity and Limited Service MEI Ports, the extent to which the
product drives the Exchange's overall costs and the relative value of
the product, as well as the Exchange's objective to make access to its
Systems broadly available to market participants. The Exchange also
believes the proposed fees are reasonable because they are designed to
generate annual revenue to recoup the Exchange's costs of providing
dedicated 10Gb ULL connectivity and Limited Service MEI Ports.
---------------------------------------------------------------------------

    \125\ The Exchange has incurred a cumulative loss of $9 million
since its inception in 2019. See Exchange's Form 1/A, Application
for Registration or Exemption from Registration as a National
Securities Exchange, filed June 29, 2022, available at https://www.sec.gov/Archives/edgar/vprr/2200/22001164.pdf.
---------------------------------------------------------------------------

    The Exchange notes that its revenue estimate is based on
projections and will only be realized to the extent customer activity
produces the revenue estimated. As a competitor in the hyper-
competitive exchange environment, and an exchange focused on driving
competition, the Exchange does not yet know whether such projections
will be realized. For instance, in order to generate the revenue
expected from 10Gb ULL connectivity and Limited Service MEI Ports, the
Exchange will have to be successful in retaining existing clients that
wish to utilize 10Gb ULL connectivity and Limited Service MEI Ports
and/or obtaining new clients that will purchase such access. To the
extent the Exchange is successful in encouraging new clients to utilize
10Gb ULL connectivity and Limited Service MEI Ports, the Exchange does
not believe it should be penalized for such success. To the extent the
Exchange has mispriced and experiences a net loss in connectivity
clients or in transaction activity, the Exchange could experience a net
reduction in revenue. While the Exchange is supportive of transparency
around costs and potential margins (applied across all exchanges), as
well as periodic review of revenues and applicable costs (as discussed
below), the Exchange does not believe that these estimates should form
the sole basis of whether or not a proposed fee is reasonable or can be
adopted. Instead, the Exchange believes that the information should be
used solely to confirm that an Exchange is not

earning--or seeking to earn--supra-competitive profits. The Exchange
believes the Cost Analysis and related projections in this filing
demonstrate this fact.
    The Exchange is owned by a holding company that is the parent
company of four Exchange markets and, therefore, the Exchange and its
affiliated markets must allocate shared costs across all of those
markets accordingly, pursuant to the above-described allocation
methodology. In contrast, the Investors Exchange LLC (``IEX'') and
MEMX, which are currently each operating only one exchange, in their
recent non-transaction fee filings allocate the entire amount of that
same cost to a single exchange. This can result in lower profit margins
for the non-transaction fees proposed by IEX and MEMX because the
single allocated cost does not experience the efficiencies and
synergies that result from sharing costs across multiple platforms. The
Exchange and its affiliated markets often share a single cost, which
results in cost efficiencies that can cause a broader gap between the
allocated cost amount and projected revenue, even though the fee levels
being proposed are lower or competitive with competing markets (as
described above). To the extent that the application of a cost-based
standard results in Commission Staff making determinations as to the
appropriateness of certain profit margins, the Exchange believes that
Commission Staff should also consider whether the proposed fee level is
comparable to, or competitive with, the same fee charged by competing
exchanges and how different cost allocation methodologies (such as
across multiple markets) may result in different profit margins for
comparable fee levels. Further, if Commission Staff is making
determinations as to appropriate profit margins in their approval of
exchange fees, the Exchange believes that the Commission should be
clear to all market participants as to what they have determined is an
appropriate profit margin and should apply such determinations
consistently and, in the case of certain legacy exchanges,
retroactively, if such standards are to avoid having a discriminatory
effect.
    Further, as is reflected in the proposal, the Exchange continuously
and aggressively works to control its costs as a matter of good
business practice. A potential profit margin should not be evaluated
solely on its size; that assessment should also consider cost
management and whether the ultimate fee reflects the value of the
services provided. For example, a profit margin on one exchange should
not be deemed excessive where that exchange has been successful in
controlling its costs, but not excessive on another exchange where that
exchange is charging comparable fees but has a lower profit margin due
to higher costs. Doing so could have the perverse effect of not
incentivizing cost control where higher costs alone could be used to
justify fees increases.
The Proposed Pricing Is Not Unfairly Discriminatory and Provides for
the Equitable Allocation of Fees, Dues, and Other Charges
    The Exchange believes that the proposed fees are reasonable, fair,
equitable, and not unfairly discriminatory because they are designed to
align fees with services provided and will apply equally to all
subscribers.
10Gb ULL Connectivity
    The Exchange believes that the proposed fees are equitably
allocated among users of the network connectivity and port
alternatives, as the users of 10Gb ULL connections consume
substantially more bandwidth and network resources than users of 1Gb
ULL connection. Specifically, the Exchange notes that 10Gb ULL
connection users account for more than 99% of message traffic over the
network, driving other costs that are linked to capacity utilization,
as described above, while the users of the 1Gb ULL connections account
for less than 1% of message traffic over the network. In the Exchange's
experience, users of the 1Gb connections do not have the same business
needs for the high-performance network as 10Gb ULL users.
    The Exchange's high-performance network and supporting
infrastructure (including employee support), provides unparalleled
system throughput with the network ability to support access to several
distinct options markets. To achieve a consistent, premium network
performance, the Exchange must build out and maintain a network that
has the capacity to handle the message rate requirements of its most
heavy network consumers. These billions of messages per day consume the
Exchange's resources and significantly contribute to the overall
network connectivity expense for storage and network transport
capabilities. The Exchange must also purchase additional storage
capacity on an ongoing basis to ensure it has sufficient capacity to
store these messages to satisfy its record keeping requirements under
the Exchange Act.\126\ Thus, as the number of messages an entity
increases, certain other costs incurred by the Exchange that are
correlated to, though not directly affected by, connection costs (e.g.,
storage costs, surveillance costs, service expenses) also increase.
Given this difference in network utilization rate, the Exchange
believes that it is reasonable, equitable, and not unfairly
discriminatory that the 10Gb ULL users pay for the vast majority of the
shared network resources from which all market participants' benefit.
---------------------------------------------------------------------------

    \126\ 17 CFR 240.17a-1 (recordkeeping rule for national
securities exchanges, national securities associations, registered
clearing agencies and the Municipal Securities Rulemaking Board).
---------------------------------------------------------------------------

Limited Service MEI Ports
    The Exchange believes that the proposed fees are equitably
allocated among users of the network connectivity alternatives, as the
users of the Limited Service MEI Ports consume the most bandwidth and
resources of the network. Specifically, as noted above for 10Gb ULL
connectivity, Market Makers who take the maximum amount of Limited
Service MEI Ports account for greater than 99% of message traffic over
the network, while Market Makers with fewer Limited Service MEI Ports
account for less than 1% of message traffic over the network. In the
Exchange's experience, Market Makers who only utilize the two free
Limited Service MEI Ports do not have a business need for the high
performance network solutions required by Market Makers who take the
maximum amount of Limited Service MEI Ports.
    The Exchange's high performance network solutions and supporting
infrastructure (including employee support), provides unparalleled
system throughput and the capacity to handle approximately 18 million
quote messages per second. Based on May 2023 trading results, the
Exchange handles over approximately 8.6 billion quotes on an average
day, and more than 189 billion quotes over the entire month. Of that
total, Market Makers with the maximum amount of Limited Service MEI
Ports generated more than 111 billion quotes (and more than 5 billion
quotes on an average day), and Market Makers who utilized only the two
free Limited Service MEI Ports generated approximately 40 billion
quotes (and approximately 1.8 billion quotes on an average day). Also
for May 2023, Market Makers who utilized 7 to 9 Limited Service MEI
ports submitted an average of 936 million quotes per day; Market Makers
who utilized 5-6 Limited Service MEI Ports submitted an

average of 578 million quotes on an average day; and Market Makers who
utilized 3-4 Limited Service MEI Ports submitted an average of 176
million quotes on an average day.
    To achieve a consistent, premium network performance, the Exchange
must build out and maintain a network that has the capacity to handle
the message rate requirements of its most heavy network consumers
during anticipated peak market conditions. The need to support billions
of messages per day consume the Exchange's resources and significantly
contribute to the overall network connectivity expense for storage and
network transport capabilities. The Exchange must also purchase
additional storage capacity on an ongoing basis to ensure it has
sufficient capacity to store these messages as part of it surveillance
program and to satisfy its record keeping requirements under the
Exchange Act.\127\ Thus, as the number of connections a Market Maker
has increases, certain other costs incurred by the Exchange that are
correlated to, though not directly affected by, connection costs (e.g.,
storage costs, surveillance costs, service expenses) also increase. The
Exchange sought to design the proposed tiered-pricing structure to set
the amount of the fees to relate to the number of connections a firm
purchases. The more connections purchased by a Market Maker likely
results in greater expenditure of Exchange resources and increased cost
to the Exchange. With this in mind, the Exchange proposes no fee or
lower fees for those Market Makers who receive fewer Limited Service
MEI Ports since those Market Makers generally tend to send the least
amount of orders and messages over those connections.
---------------------------------------------------------------------------

    \127\ 17 CFR 240.17a-1 (recordkeeping rule for national
securities exchanges, national securities associations, registered
clearing agencies and the Municipal Securities Rulemaking Board).
---------------------------------------------------------------------------

    Meanwhile, the Exchange proposes incrementally higher fees for
those that purchase additional Limited Service MEI Ports because those
with the greatest number of Limited Service MEI Ports generate a
disproportionate amount of messages and order traffic, usually billions
per day across the Exchange. The firms that purchase numerous Limited
Service MEI Ports do so for competitive reasons and based on their
business needs, which include a desire to access the market more
quickly using the lowest latency connections. These firms are generally
engaged in sending liquidity removing orders to the Exchange and may
require more connections as they compete to access resting liquidity.
Consider the following example: a Member has just sent numerous
messages and/or orders over one of their Limited Service MEI Ports that
are now in queue to be processed. That same Member then seeks to enter
an order to remove liquidity from the Exchange's Book. That Member may
choose to send that order over another Limited Service MEI Port it
maintains with less message traffic to help ensure that their liquidity
taking order accesses the Exchange more quickly because that
connection's queue is shorter.
    In addition, Members frequently add and drop connections mid-month
to determine which connections have the least latency (and engage in
the same practice with Limited Service MEI Ports). This results in
increased costs to the Exchange to frequently make changes in the data
center (or its network) and provide the additional technical and
personnel support necessary to satisfy these requests. Given the
difference in network utilization and technical support provided, the
Exchange believes that it is reasonable, equitable, and not unfairly
discriminatory that Market Makers who utilize the most Limited Service
MEI Ports pay for the vast majority of the shared network resources
from which all Member and non-Member users benefit, because the network
is largely designed and maintained to specifically handle the message
rate, capacity and performance requirements of those Market Makers.
    To achieve a consistent, premium network performance, the Exchange
must build out and maintain a network that has the capacity to handle
the message rate requirements of its most heavy network consumers.
Billions of messages per day consume the Exchange's resources and
significantly contribute to the overall network connectivity expense
for storage and network transport capabilities. The Exchange must also
purchase and maintain additional storage capacity on an ongoing basis
to ensure it has sufficient capacity to store these messages as part of
it surveillance program and to satisfy its record keeping requirements
under the Exchange Act.\128\ Thus, as the number of connections a
Market Maker has increases, the related demand on Exchange resources
also increases. The Exchange sought to design the proposed tiered-
pricing structure to set the amount of the fees to relate to the number
of connections a firm purchases. The more connections purchased by a
Market Maker likely results in greater expenditure of Exchange
resources and increased cost to the Exchange.
---------------------------------------------------------------------------

    \128\ 17 CFR 240.17a-1 (recordkeeping rule for national
securities exchanges, national securities associations, registered
clearing agencies and the Municipal Securities Rulemaking Board).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act.
Intra-Market Competition
    The Exchange believes the proposed fees will not result in any
burden on intra-market competition that is not necessary or appropriate
in furtherance of the purposes of the Act because the proposed fees
will allow the Exchange to recoup some of its costs in providing 10Gb
ULL connectivity and Limited Service MEI Ports at below market rates to
market participants since the Exchange launched operations. As
described above, the Exchange operated at a cumulative net annual loss
since its launch in 2019 \129\ due to providing a low-cost alternative
to attract order flow and encourage market participants to experience
the high determinism and resiliency of the Exchange's trading Systems.
To do so, the Exchange chose to waive the fees for some non-transaction
related services and Exchange products or provide them at a very lower
fee, which was not profitable to the Exchange. This resulted in the
Exchange forgoing revenue it could have generated from assessing any
fees or higher fees. The Exchange could have sought to charge higher
fees at the outset, but that could have served to discourage
participation on the Exchange. Instead, the Exchange chose to provide a
low-cost exchange alternative to the options industry, which resulted
in lower initial revenues. Examples of this are 10Gb ULL connectivity
and Limited Service MEI Ports, for which the Exchange only now seeks to
adopt fees at a level similar to or lower than those of other options
exchanges.
---------------------------------------------------------------------------

    \129\ See supra note 125.
---------------------------------------------------------------------------

    Further, the Exchange does not believe that the proposed fee
increase for the 10Gb ULL connection 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. As is the case with the current proposed flat
fee, the proposed fee would apply uniformly to all market participants

regardless of the number of connections they choose to purchase. The
proposed fee does not favor certain categories of market participants
in a manner that would impose an undue burden on 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. In particular, Exchange personnel has
been informally discussing potential fees for connectivity services
with a diverse group of market participants that are connected to the
Exchange (including large and small firms, firms with large
connectivity service footprints and small connectivity service
footprints, as well as extranets and service bureaus) for several
months leading up to that time. The Exchange does not believe the
proposed fees for connectivity services would negatively impact the
ability of Members, non-Members (extranets or service bureaus), third-
parties that purchase the Exchange's connectivity and resell it, and
customers of those resellers to compete with other market participants
or that they are placed at a disadvantage.
    The Exchange does anticipate, however, that some market
participants may reduce or discontinue use of connectivity services
provided directly by the Exchange in response to the proposed fees. In
fact, as mentioned above, one MIAX Pearl Market Maker terminated their
MIAX Pearl membership on January 1, 2023 as a direct result of the
similar proposed fee changes by MIAX Pearl.\130\ The Exchange does not
believe that the proposed fees for connectivity services place certain
market participants at a relative disadvantage to other market
participants because the proposed connectivity pricing is associated
with relative usage of the Exchange by each market participant and does
not impose a barrier to entry to smaller participants. The Exchange
believes its proposed pricing is reasonable and, when coupled with the
availability of third-party providers that also offer connectivity
solutions, that participation on the Exchange is affordable for all
market participants, including smaller trading firms. As described
above, the connectivity services purchased by market participants
typically increase based on their additional message traffic and/or the
complexity of their operations. The market participants that utilize
more connectivity services typically utilize the most bandwidth, and
those are the participants that consume the most resources from the
network. Accordingly, the proposed fees for connectivity services do
not favor certain categories of market participants in a manner that
would impose a burden on competition; rather, the allocation of the
proposed connectivity fees reflects the network resources consumed by
the various size of market participants and the costs to the Exchange
of providing such connectivity services.
---------------------------------------------------------------------------

    \130\ The Exchange acknowledges that IEX included in its
proposal to adopt market data fees after offering market data for
free an analysis of what its projected revenue would be if all of
its existing customers continued to subscribe versus what its
projected revenue would be if a limited number of customers
subscribed due to the new fees. See Securities Exchange Act Release
No. 94630 (April 7, 2022), 87 FR 21945 (April 13, 2022) (SR-IEX-
2022-02). MEMX did not include a similar analysis in either of its
recent non-transaction fee proposals. See, e.g., supra note 71. The
Exchange does not believe a similar analysis would be useful here
because it is amending existing fees, not proposing to charge a new
fee where existing subscribers may terminate connections because
they are no longer enjoying the service at no cost.
---------------------------------------------------------------------------

    Lastly, the Exchange does not believe its proposal to implement
incrementally higher fees for those that purchase more Limited Service
MEI Ports will place certain market participants at a relative
disadvantage to other market participants because those with the
greatest number of Limited Service MEI Ports tend generate a
disproportionate amount of messages and order traffic, usually billions
per day across the Exchange, resulting in greater demands and
additional burdens on Exchange resources (as described above). The
firms that purchase numerous Limited Service MEI Ports do so for
competitive reasons and choose to utilize numerous connections based on
their business needs, which include a desire to attempt to access the
market quicker using the lowest latency connections. These firms are
generally engaged in sending liquidity removing orders to the Exchange
and seek to add more connections to competitively access resting
liquidity. All firms purchase the amount of Limited Service MEI Ports
they require based on their own business decisions and similarly
situated firms are subject to the same fees.
Inter-Market Competition
    The Exchange also does not believe that the proposed rule change
and price increase will result in any burden on inter-market
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. As this is a fee increase, arguably if set too
high, this fee would make it easier for other exchanges to compete with
the Exchange. Only if this were a substantial fee decrease could this
be considered a form of predatory pricing. In contrast, the Exchange
believes that, without this fee increase, we are potentially at a
competitive disadvantage to certain other exchanges that have in place
higher fees for similar services. As we have noted, the Exchange
believes that connectivity fees can be used to foster more competitive
transaction pricing and additional infrastructure investment and there
are other options markets of which market participants may connect to
trade options at higher rates than the Exchange's. Accordingly, the
Exchange does not believe its proposed fee changes impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act.
* * * * *
    In conclusion, as discussed thoroughly above, the Exchange
regrettably believes that the application of the Revised Review Process
and Staff Guidance has adversely affected inter-market competition
among legacy and non-legacy exchanges by impeding the ability of non-
legacy exchanges to adopt or increase fees for their market data and
access services (including connectivity and port products and services)
that are on parity or commensurate with fee levels previously
established by legacy exchanges. Since the adoption of the Revised
Review Process and Staff Guidance, and even more so recently, it has
become extraordinarily difficult to adopt or increase fees to generate
revenue necessary to invest in systems, provide innovative trading
products and solutions, and improve competitive standing to the benefit
of non-legacy exchanges' market participants. Although the Staff
Guidance served an important policy goal of improving disclosures and
requiring exchanges to justify that their market data and access fee
proposals are fair and reasonable, it has also negatively impacted non-
legacy exchanges in particular in their efforts to adopt or increase
fees that would enable them to more fairly compete with legacy
exchanges, despite providing enhanced disclosures and rationale under
both competitive and cost basis approaches provided for by the Revised
Review Process and Staff Guidance to support their proposed fee
changes.

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

    The Exchange received one comment letter on the Initial Proposal,
one

comment letter on the Second Proposal, and on comment letter on the
Third Proposal, all from the same commenter.\131\ In their letters, the
sole commenter seeks to incorporate comments submitted on previous
Exchange proposals to which the Exchange has previously responded. To
the extent the sole commenter has attempted to raise new issues in its
letters, the Exchange believes those issues are not germane to this
proposal in particular, but rather raise larger issues with the current
environment surrounding exchange non-transaction fee proposals that
should be addressed by the Commission through rule making, or Congress,
more holistically and not through an individual exchange fee filing.
Among other things, the commenter is requesting additional data and
information that is both opaque and a moving target and would
constitute a level of disclosure materially over and above that
provided by any competitor exchanges.
---------------------------------------------------------------------------

    \131\ See letter from Brian Sopinsky, General Counsel,
Susquehanna International Group, LLP (``SIG''), to Vanessa
Countryman, Secretary, Commission, dated February 7, 2023, and
letters from Gerald D. O'Connell, SIG, to Vanessa Countryman,
Secretary, Commission, dated March 21, 2023 and May 24, 2023.
---------------------------------------------------------------------------

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,\132\ and Rule 19b-4(f)(2) \133\ 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.
---------------------------------------------------------------------------

    \132\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \133\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-EMERALD-2023-14 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-2023-14. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-EMERALD-2023-14 and should
be submitted on or before July 24, 2023.
---------------------------------------------------------------------------

    \134\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\134\
Vanessa A. Countryman,
Secretary.
[FR Doc. 2023-13997 Filed 6-30-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: September 11, 2008 (Volume 73, Number 177)]
[Notices]
[Page 52870]
[DOCID:fr11se08-80]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2008-0010]

National Fire Academy Board of Visitors

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Committee Management; Notice of Open Federal Advisory Committee
Meeting.

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SUMMARY: The National Fire Academy Board of Visitors will meet on
October 2-4, 2008.

DATES: The meeting will take place Thursday, October 2, 2008, from 8:30
a.m. to 4 p.m., e.s.t.; Friday, October 3, 2008, from 9 a.m. to 5 p.m.,
e.s.t.; and Saturday, October 4, 2008, from 9 a.m. to 11:30 a.m.,
e.s.t. Comments must be submitted by Thursday, October 9, 2008.

ADDRESSES: Members of the public who wish to obtain information for the
public meeting may contact Teressa Kaas as listed in the FOR FURTHER
INFORMATION CONTACT section by September 30, 2008. Members of the
public may participate by coming to the National Emergency Training
Center, Building H, Room 300, Emmitsburg, Maryland. Members of the
general public who plan to participate in the meeting should contact
Teressa Kaas as listed in the FOR FURTHER INFORMATION CONTACT section,
on or before September 30, 2008. Requests to have written material
distributed to each member of the committee prior to the meeting should
reach the contact person at the address below by September 30, 2008.
Send written material to Teressa Kaas, 16825 South Seton Avenue,
Emmitsburg, Maryland 21727. Comments must be identified by Docket ID
FEMA-2008-0010 and may be submitted by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>Include Docket ID in the
subject line of the message.
     Fax:<PHONE_NUMBER>.
     Mail: Teressa Kaas, 16825 South Seton Avenue, Emmitsburg,
Maryland 21727.
    Instructions: All submissions received must include the Docket ID
for this action. Comments received will be posted without alteration at
www.regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or
comments received by the National Fire Academy Board of Visitors, go to
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Teressa Kaas, 16825 South Seton
Avenue, Emmitsburg, Maryland 21727, telephone<PHONE_NUMBER>, fax (301)
447-1173, and e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Notice of this meeting is given under the
Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The
National Fire Academy Board of Visitors will be holding a meeting for
purposes of reviewing U.S. Fire Administration/National Fire Academy
Program activities, including the status of campus maintenance and
capital improvements, the budget update, the annual Ethics Briefing,
the Learning Management System update, the National Fire Programs
update, the Education, Training and Partnerships update, the Academy
update, and Board discussions and new items. This meeting is open to
the public.
    The Chairperson of the National Fire Academy Board of Visitors
shall conduct the meeting in a way that will, in his judgment,
facilitate the orderly conduct of business. During its meeting, the
committee welcomes public comment; however, comments will be permitted
only during the public comment period. The Chairperson will make every
effort to hear the views of all interested parties. Please note that
the meeting may end early if all business is completed.

Information on Services for Individuals With Disabilities

    For information on facilities or services for individuals with
disabilities or to request special assistance at the meeting, contact
Teressa Kaas as soon as possible.

    Dated: September 5, 2008.
Denis G. Onieal,
Superintendent, National Fire Academy, U.S. Fire Administration,
Federal Emergency Management Agency.
[FR Doc. E8-21127 Filed 9-10-08; 8:45 am]

BILLING CODE 9110-17-P


[Federal Register Volume 76, Number 209 (Friday, October 28, 2011)]
[Notices]
[Pages 67019-67020]
[FR Doc No: 2011-27924]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Tenth Meeting: RTCA Special Committee 224, Airport Security
Access Control

AGENCY: Federal Aviation Administration (FAA), U.S. Department of
Transportation (DOT).

ACTION: Notice of RTCA Special Committee 224, Airport Security Access
Control.

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

SUMMARY: The FAA is issuing this notice to advise the public of a
meeting of RTCA Special Committee 224, Airport Security Access Control.

DATES: The meeting will be held November 17, 2011, from 9:30 a.m.- 5
p.m.

ADDRESSES: The meeting will be held at RTCA, Inc., 1150 18th Street,
NW., Suite 910, Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: The RTCA Secretariat, 1150 18th
Street, NW., Suite 910, Washington, DC 20036, or by telephone at (202)
833-9339, fax at<PHONE_NUMBER>, or Web site at http://www.rtca.org.

SUPPLEMENTARY INFORMATION: Pursuant to section 10(a)(2) of the Federal
Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App.), notice is
hereby given for a Special Committee 224, Airport Security Access
Control. The agenda will include the following:

November 17, 2011

     Welcome, Introductions and Administrative Remarks
     Review and Approve Summary of Ninth Meeting
     Propose Structure Overview
     Sub Section Workgroup Reports
     Document Structure Finalization
     Adjourn
    Attendance is open to the interested public but limited to space
availability. With the approval of the chairman, members of the public
may present oral statements at the meeting. Persons wishing to present
statements or obtain information should contact the person listed in
the ``FOR FURTHER INFORMATION CONTACT'' section. Members of the public
may present a written statement to the committee at any time.

    Issued in Washington, DC, on October 24, 2011.
Robert L. Bostiga,
Manager, RTCA Advisory Committee.
[FR Doc. 2011-27924 Filed 10-27-11; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: January 18, 2011 (Volume 76, Number 11)]
[Notices]
[Page 2895]
[DOCID:fr18ja11-46]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings

January 5, 2011.
    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:
    Docket Numbers: RP04-274-025. RP00-157-026.
    Applicants: Kern River Gas Transmission Company.
    Description: Kern River Gas Transmission Company submits Rate
Refund Report on Refunds paid to customers on December 9, 2010.
    Filed Date: 12/17/2010.
    Accession Number: 20101217-5174.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 11, 2011.

    Docket Numbers: RP11-1584-001.
    Applicants: Portland Natural Gas Transmission System.
    Description: Portland Natural Gas Transmission System submits
tariff filing per 154.203: Order No. 587-U--Second Compliance Filing to
be effective 11/1/2010.
    Filed Date: 12/17/2010.
    Accession Number: 20101217-5065.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 11, 2011.

    Docket Numbers: RP10-860-001.
    Applicants: Tennessee Gas Pipeline Company.
    Description: Tennessee Gas Pipeline Company submits tariff filing
per 154.203: Compliance to Baseline Filing Volume No. 2 to be effective
6/18/2010.
    Filed Date: 12/16/2010.
    Accession Number: 20101216-5137.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 11, 2011.

    Any person desiring to protest this filing must file in accordance
with Rule 211 of the Commission's Rules of Practice and Procedure (18
CFR 385.211). Protests to this filing 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. Such protests
must be filed on or before 5 p.m. Eastern time on the specified comment
date. Anyone filing a protest must serve a copy of that document on all
the parties to the proceeding.
    The Commission encourages electronic submission of protests in lieu
of paper using the ``eFiling'' link at http://www.ferc.gov. Persons
unable to file electronically should submit an original and 14 copies
of the protest 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 e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011-849 Filed 1-14-11; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 84, Number 217 (Friday, November 8, 2019)]
[Rules and Regulations]
[Pages 60337-60339]
[FR Doc No: 2019-24411]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0530]
RIN 1625-AA00

Safety Zone; Ohio River, Miles 103.0 to 105.0, Moundsville, WV

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all navigable waters of the Ohio River from Mile 103.0 to Mile 105.0.
This action is necessary to protect persons, vessels, and the marine
environment from potential hazards associated with power line work
across the river. Entry of persons or vessels into this zone is
prohibited unless authorized by the Captain of the Port Marine Safety
Unit Pittsburgh or a designated representative.

DATES: This rule is effective from November 11, 2019 through December
11, 2019.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2019-0530 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Petty Officer Trevor VanNatta, Marine Safety Unit
Pittsburgh, U.S. Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Marine Safety Unit Pittsburgh
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that
good cause exists for not publishing a notice of proposed rulemaking
(NPRM) with respect to this rule because it is impracticable. This
safety zone must be established by November 11, 2019 and we lack
sufficient time to provide a reasonable comment period and then
consider those comments before issuing this rule. The NPRM process
would delay the establishment of the safety zone until after the date
of the power line work and compromise public safety.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying this rule would be
contrary to the public interest because immediate action is necessary
to respond to the potential safety hazards associated with power line
work, which could pose a risk to the operation and waterways users if
the normal vessel traffic were to interfere with the work. Possible
hazards include risks of injury or death from near or actual contact
among working vessels and mariners traversing through the safety zone.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231). The Captain of the Port Marine
Safety Unit Pittsburgh (COTP) has determined that potential hazards
associated with power line pulls across the Ohio River will be a safety
hazard for anyone within a two mile stretch of the Ohio River. The rule
is needed to protect people from power line work which could pose a
risk to the operation and waterways users if the normal vessel traffic
were to interfere with the work. Possible hazards include risks of
injury or death from near or actual contact among working vessels and
mariners traversing through the safety zone.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone that will be enforced
from 7 a.m. through 5:30 p.m. from November 11, 2019 through December
11, 2019. The safety zone will cover all navigable waters of the Ohio
River, from mile 103.0 to mile 105.0. The duration of the zone is
intended to protect persons, vessels, and the marine environment on
these navigable waters before, during, and after the power line pulls.
No vessel or person will be permitted to enter the safety zone without
obtaining permission from the COTP or a designated representative. A
designated representative is a commissioned, warrant, or petty officer
of the U.S. Coast Guard assigned to units under the operational control
of USCG Marine Safety Unit Pittsburgh. Persons and vessels seeking
entry into this safety zone must request permission from the COTP or a
designated representative. They may be contacted on VHF-FM Channel 16
or by telephone at<PHONE_NUMBER>. Persons and vessels permitted to
enter this safety zone must transit at their slowest safe speed and
comply with all lawful instructions of the COTP or a designated
representative. Breaks in the power line work will occur during the
enforcement periods, which will allow vessels to pass through the
safety zone. The COTP or a designated representative will inform the
public of the enforcement period for the safety zone as well as any
changes in the schedule through Broadcast Notices to Mariners (BNMs),
Local Notices to Mariners (LNMs), and/or Marine Safety Information
Bulletins (MSIBs) as appropriate.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the size,
duration, and location of the safety zone. This rule will impact a two
mile stretch of the Ohio River from 7 a.m. through 5:30 p.m. daily from
November 11, 2019

through December 11, 2019. Breaks in the power line work will occur
during the enforcement periods, which will allow for vessels to pass
through the safety zone. Moreover, the Coast Guard will issue Local
Notices to Mariners (LNMs), Marine Safety Information Bulletins
(MSIBs), and BNMs via VHF-FM marine channel 16 about the zones and the
rule allows vessels to seek permission from the COTP or a designated
representative to enter the zones.

B. Impact on Small Entities

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

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. Unfunded Mandates Reform Act

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

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series),
which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have
determined that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. This rule involves a temporary safety zone lasting ten and
a half hours on each day that will prohibit entry on a two mile stretch
of the Ohio River. It is categorically excluded from further review
under paragraph L60 (a) in Table 3-1 of U.S. Coast Guard Environmental
Planning Implementing Procedures 5090.1. A Record of Environmental
Consideration supporting this determination is available in the docket
where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

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

0
2. Add Sec.  165.T08-0530 to read as follows:

Sec.  165.T08-0530  Safety Zone; Ohio River, miles 103.0 to 105.0,
Moundsville, WV.

    (a) Location. The following area is a temporary safety zone: All
navigable waters of the Ohio River from mile 103.0 to mile 105.0.
    (b) Effective period. This section is effective from November 11,
2019 through December 11, 2019.
    (c) Enforcement period. This section will be enforced from 7 a.m.
through 5:30 p.m. daily. Breaks in the power line work will occur
during the enforcement periods, which will allow vessels to pass
through the safety zone. The Captain of the Port Marine Safety Unit
Pittsburgh (COTP) or a designated representative will provide notice of
breaks as appropriate under paragraph (e) of this section.
    (d) Regulations. (1) In accordance with the general regulations in
Sec.  165.23, entry into this zone is prohibited unless authorized by
the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a
designated representative. A

``designated representative'' is a commissioned, warrant, or petty
officer of the U.S. Coast Guard assigned to units under the operational
control of USCG Marine Safety Unit Pittsburgh.
    (2) Persons and vessels seeking entry into this safety zone must
request permission from the COTP or a designated representative. They
may be contacted on VHF-FM Channel 16 or by telephone at (412) 221-
0807.
    (3) Persons and vessels permitted to enter this safety zone must
transit at their slowest safe speed and comply with all lawful
instructions of the COTP or a designated representative.
    (e) Informational broadcasts. The COTP or a designated
representative will inform the public of the enforcement period for the
safety zone as well as any changes in the schedule through Broadcast
Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or
Marine Safety Information Bulletins (MSIBs) as appropriate.

A.W. Demo,
Commander, U.S. Coast Guard, Captain of the Port Marine Safety Unit
Pittsburgh.
[FR Doc. 2019-24411 Filed 11-7-19; 8:45 am]
BILLING CODE 9110-04-P