[Federal Register Volume 83, Number 231 (Friday, November 30, 2018)]
[Notices]
[Pages 61692-61699]
[FR Doc No: 2018-25998]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84648; File No. SR-NYSEArca-2018-85]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend Its
Certificate of Incorporation, Bylaws and Rule 3.3

November 26, 2018.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that, on November 20, 2018, NYSE Arca, Inc. (``Exchange'' or ``NYSE
Arca'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the

proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend its certificate of incorporation,
bylaws and Rule 3.3(a)(1)(B) to (1) harmonize certain provisions
thereunder with similar provisions in the governing documents of the
Exchange's national securities exchange affiliates and parent
companies; and (2) make clarifying and updating changes. The proposed
rule change is available on the Exchange's website at www.nyse.com, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend the Certificate of Incorporation of
the Exchange (``Exchange Certificate''), Amended and Restated Bylaws of
the Exchange (``Exchange Bylaws''), and Rule 3.3(a)(1)(B) to (1)
harmonize certain provisions thereunder with similar provisions in the
governing documents of the Exchange's national securities exchange
affiliates \4\ and parent companies; and (2) make clarifying and
updating changes.
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    \4\ The Exchange has four registered national securities
exchange affiliates: NYSE National, Inc. (``NYSE National''), New
York Stock Exchange LLC (``NYSE''), NYSE America [sic] LLC (``NYSE
American''), and Chicago Stock Exchange, Inc. (``CHX'' and together
with the Exchange, NYSE National, NYSE American, and NYSE, the
``NYSE Group Exchanges''). CHX has filed to change its name to NYSE
Chicago, Inc. See Exchange Act Release No. 84494 (October 26, 2018),
83 FR 54953 (November 1, 2018) (SR-CHX-2018-05) (``NYSE Chicago
Release'') (notice of filing and immediate effectiveness of proposal
to reflect name changes of the Exchange and its direct parent
company and to amend certain corporate governance provisions). The
rule changes set forth in the NYSE Chicago Release will become
operative upon the Second Amended and Restated Certificate of
Incorporation of Chicago Stock Exchange, Inc. (``NYSE Chicago
Certificate'') becoming effective pursuant to its filing with the
Secretary of State of the State of Delaware.
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    The Exchange is owned by the Holding Member, which in turn is
indirectly wholly owned by NYSE Holdings LLC (``NYSE Holdings''). NYSE
Holdings is a wholly owned subsidiary of Intercontinental Holdings,
Inc. (``ICE Holdings''), which is in turn wholly owned by the
Intercontinental Exchange, Inc. (``ICE'').\5\
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    \5\ See Exchange Act Release No. 82638 (February 6, 2018), 83 FR
6072 (February 12, 2018) (SR-NYSE Arca-2018-09) (notice of filing
and immediate effectiveness of proposed rule change to amend certain
of the governing documents of the Exchange's intermediate parent
companies).
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    The Exchange operates as a separate self-regulatory organization
and has rules, membership rosters and listings distinct from the rules,
membership rosters and listings of the other NYSE Group Exchanges. At
the same time, however, the Exchange believes it is important for each
of the NYSE Group Exchanges to have a consistent approach to corporate
governance in certain matters, to simplify complexity and create
greater consistency among the NYSE Group Exchanges.\6\
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    \6\ See NYSE Chicago Release, supra note 4, at 54953.
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    Because the Exchange is a Delaware non-stock corporation, most of
the proposed changes are based on the governing documents of CHX and
NYSE National, which are Delaware corporations, as the most comparable
NYSE Group Exchanges.\7\ The proposed Exchange Certificate and Exchange
Bylaws reflect the expectation that the Exchange will continue to be
operated with a governance structure substantially similar to that of
other NYSE Group Exchanges, primarily CHX and NYSE National.
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    \7\ The other NYSE Group Exchanges, NYSE and NYSE American, are
limited liability companies organized under New York and Delaware
limited liability company law, respectively.
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    The changes described herein would become operative upon the
Exchange Certificate becoming effective pursuant to its filing with the
Secretary of State of the State of Delaware.
    The proposed amendments described below are primarily based on the
Second Amended and Restated Certificate of Incorporation of Chicago
Stock Exchange, Inc. (``NYSE Chicago Certificate''); Second Amended and
Restated By-Laws of NYSE Chicago, Inc. (``NYSE Chicago Bylaws'') \8\;
Amended and Restated Certificate of Incorporation of NYSE National,
Inc. (``NYSE National Certificate''); Fifth Amended and Restated Bylaws
of NYSE National, Inc. (``NYSE National Bylaws'') \9\; and Sixth
Amended and Restated Certificate of Incorporation of NYSE Group, Inc.
(``NYSE Group Certificate). In addition, the amendments to the
indemnification provisions are based on the Eighth Amended and Restated
Bylaws of Intercontinental Exchange, Inc. (``ICE Bylaws'') and the
Sixth Amended and Restated Bylaws of Intercontinental Exchange
Holdings, Inc. (``ICE Holdings Bylaws'').
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    \8\ The NYSE Chicago Certificate and NYSE Chicago Bylaws will
become operative when the NYSE Chicago Certificate becomes effective
pursuant to its filing with the Secretary of State of the State of
Delaware. Id.
    \9\ The Exchange notes that, concurrent with this filing, NYSE
National is filing changes to the NYSE National Certificate and
Bylaws. See SR-NYSENat-2018-24. References to such documents in this
filing are to the NYSE National Certificate and Bylaws currently in
effect. The Exchange governing documents use ``member,''
``Exchange'' and ``Board'' instead of ``stockholder,''
``Corporation,'' and ``Board of Directors,'' which are used by CHX
and NYSE National in their governing documents. When comparing a
proposed change to the provision it is based on, the below
descriptions do not note when such terms differ, as they are not
substantive differences.
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Proposed Amendments to the Exchange Certificate
    The Exchange proposes to amend the Exchange Certificate as follows.
Title and Introductory Paragraphs
    The Exchange proposes to amend the title to reflect that the
proposed Exchange Certificate is the ``Amended and Restated Certificate
of Incorporation of NYSE Arca, Inc.'' \10\ In addition, it proposes to
adopt introductory paragraphs stating the Exchange's name and stating
that the Exchange Certificate was adopted and amended in accordance
with specific provisions of the General Corporation Law of the State of
Delaware (``DGCL''). The introductory paragraphs are substantially
similar to the introductory paragraphs of the NYSE Chicago Certificate.
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    \10\ See Exhibit B [sic] to Amendment No. 2, SR-PCX-2006-24
(March 6, 2006); see also Exchange Act Release No. 53615 (April 7,
2006), 71 FR 19226 (April 13, 2006) (SR-PCX-2006-24) (notice of
filing and immediate effectiveness of proposed rule change and
Amendments No. 1 and 2 thereto to change the names of the Pacific
Exchange, Inc., PCX Equities, Inc., PCX Holdings, Inc., and the
Archipelago Exchange, L.L.C.).
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Article 1
    In a non-substantive change, the Exchange proposes to replace
``NYSE ARCA, INC.'' with ``NYSE Arca, Inc.'' in Article 1, to reflect
that the legal name of the Exchange is not entirely in capital letters.
Proposed Article 1 is substantially similar to Article 1 of the NYSE
Chicago Certificate and Article

FIRST of the NYSE National Certificate, provided that the Exchange
Certificate provision defines ``Exchange.''
Article 2 and Certificate of Change of Registered Agent and/or
Registered Office
    In a non-substantive change, the Exchange proposes to update the
address of the registered office and name of the registered agent, as
previously filed. The Exchange also proposes to delete the
``Certificate of Change of Registered Agent and/or Registered Office.''
\11\
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    \11\ See Exchange Act Release No. 82924 (March 22, 2018), 83 FR
13163 (March 27, 2018) (SR-NYSEArca-2018-18).
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Article 9
    Article 9 permits the Exchange to enter into a compromise with its
creditors in certain circumstances. The Exchange proposes to amend
current Article 9 to be consistent with the relevant provision of the
DGCL, including the use of ``corporation'' instead of ``Exchange.''
\12\ The proposed article would be substantially similar to Article
TENTH of the NYSE Chicago Certificate and Article TENTH of the NYSE
National Certificate.
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    \12\ See Del. Code tit. 8, Sec.  102(b)(2)(ii).
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Article 10
    In a non-substantive change, the Exchange proposes to correct a
reference to ``this Article 11'' to reference Article 10.
Article 12
    Article 12 addresses indemnification. The Exchange proposes to
delete Article 12 in its entirety, as the indemnification provision is
set forth in Article VII, Section 7.01 of the Exchange Bylaws, making
this provision redundant. Subsequent articles would be renumbered
accordingly. NYSE Chicago made a similar change, deleting Article
EIGHTH(a) of its Certificate.\13\
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    \13\ See NYSE Chicago Release, supra note 4, at 54956.
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Article 13
    Current Article 13 (proposed Article 12) states that the approval
of a majority of the members of the Board and a majority of the
existing Corporate Members shall be required to amend or repeal any
provision of the Exchange Certificate, and that any change to the
Exchange Certificate or Bylaws that is required to be approved by or
filed with the Commission before it may become effective shall not
become effective until the required Commission procedures have been
satisfied.
    The Exchange proposes to amend the provision to state that the
Exchange reserves the right to amend the Exchange Certificate and to
change or repeal any provision thereof, provided that any amendment
must be approved by a majority of the members of the Board present at
the relevant meeting and by a majority of the existing Corporate
Members. In addition, the Exchange proposes to add a sentence providing
that before any amendment to, alteration or repeal of any provision of
the Exchange Certificate shall be effective, those changes shall be
submitted to the Board and, if required, the proposed changes shall not
become effective until filed with or filed with and approved by the
Commission, as the case may be. The revised provision would read as
follows (deletions bracketed; new text italicized):
    The approval of either a majority of the Board of Directors or the
affirmative vote of a majority of the existing Corporate Members, shall
be required to adopt, amend or repeal any provision of the bylaws of
the Exchange. The [approval of ]Exchange reserves the right to amend
this certificate of incorporation, and to change or repeal any
provision of the certificate of incorporation, and all rights conferred
upon Corporate Members by such certificate of incorporation are granted
subject to this reservation; provided, however, that any amendment to
this certificate of incorporation must be approved by a majority of the
members of the Board of Directors who are present at the meeting at
which the amendment is proposed and by a majority of the existing
Corporate Members [shall be required to amend or repeal any provision
of this Certificate of Incorporation]. Any change to the Certificate of
Incorporation or bylaws that is required to be approved by or filed
with the United States Securities and Exchange Commission (the
``Commission'') before it may become effective shall not become
effective until the procedures of the Commission necessary to make it
effective shall have been satisfied. Before any amendment to, or repeal
of, any provision of this Certificate of Incorporation shall be
effective, those changes shall be submitted to the Board of Directors
of the Exchange and if such amendment or repeal must be filed with or
filed with and approved by the Commission, then the proposed changes to
this Certificate of Incorporation shall not become effective until
filed with or filed with and approved by the Commission, as the case
may be.
    The proposed new text would be substantially similar to Article
ELEVENTH of the NYSE Chicago Certificate. In addition, the proposed
final sentence is consistent with the final sentence of Article
ELEVENTH of the NYSE National Certificate.
Article 14
    Article 14 sets forth the name and mailing address of each of the
incorporators. In a non-substantive change, the Exchange proposes to
delete current Article 14 in its entirety, as it is obsolete.\14\
Neither NYSE Chicago nor NYSE National have a similar provision in
their respective certificates.\15\
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    \14\ See Del. Code tit. 8, Sec.  242(a)(7)(a).
    \15\ The Exchange notes that the certificates of incorporation
of NYSE Group, ICE Holdings and ICE also do not have similar
provisions.
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Proposed Article 13 and Signature Block
    In an administrative change, the Exchange proposes to add a
statement in proposed Article 13 setting forth the date and time that
the Exchange Certificate shall be effective, as well as to add a
signature block with the date of execution. The proposed change would
be consistent with Article XIV and signature block of the NYSE Group
Certificate.
Proposed Amendments to the Exchange Bylaws
    The Exchange proposes to amend the Exchange Bylaws as follows.
Article I (Offices)
    Article I contains a provision stating that the Exchange shall have
a registered office in Delaware as required by law, and elsewhere as
determined by the Board. The Exchange proposes to (a) amend the title
and number to the provision in Article I, and (b) add a sentence that
states that the Exchange's Delaware registered agent shall be such
person or entity determined by the Board. The proposed title and final
sentence would be consistent with the final sentence of Article I,
Section 1 of the NYSE Chicago Bylaws and of Article II, Section 2.1 of
the NYSE National Bylaws.\16\
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    \16\ See NYSE Chicago Release, supra note 4, at 54957.
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Article II (Members)
    The Exchange proposes to delete Sections 2.02, 2.04, and 2.05,
which are marked ``Reserved,'' and renumber the remaining sections of
Article II accordingly.
    Proposed Article 2.03 (Dividends; Regulatory Fees and Penalties:
Current Section 2.06 states that ``revenues received by the Exchange
from regulatory fees or regulatory penalties will be applied to fund
the legal,

regulatory and surveillance operations of the Exchange and will not be
used to pay dividends.''
    The Exchange proposes to maintain the substance of current Section
2.06, renumbering it as Article 2.03, but substantially conforming the
provision to the governing documents of the other NYSE Group
Exchanges.\17\ The proposed language would expand the scope of the
provision to include regulatory assets and fines as well as fees or
penalties collected by the Exchange's regulatory staff, and would add a
prohibition on the payment of distributions to other entities. The
Exchange would also revise the title and add subparagraphs. Proposed
Section 2.03 provides as follows (deletions bracketed; new text
italicized):
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    \17\ See NYSE Chicago Bylaws, Article IX, Section 5; NYSE
National Bylaws, Article X, Section 10.4; NYSE Operating Agreement,
Article IV, Section 4.05; and NYSE American Operating Agreement,
Article IV, Section 4.05.
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    (b) Any [revenues received by the Exchange from]regulatory assets
or any regulatory fees, fines or [regulatory] penalties collected by
the Exchange's regulatory staff will be applied to fund the legal,
regulatory and surveillance operations of the Exchange, and the
Exchange shall not distribute such assets, fees, fines or penalties
[and will not be used] to pay dividends or be distributed to any other
entity. For purposes of this Section, regulatory penalties shall
include restitution and disgorgement of funds intended for customers.
Article III (Board of Directors)
    Section 3.03 (Vacancies): Section 3.03 provides that any vacancy on
the Board may be filled by the Chairman of the Board, subject to the
approval by a majority of the directors.
    In an administrative change, the Exchange proposes to add text
stating that (a) such approval must be made by a majority of the
directors then in office, as opposed to total number of seats on the
Board; and (b) the Holding Member may also fill any vacancy, and those
vacancies resulting from removal from office by a vote of the Holding
Member for cause may be filled by a vote of the Holding Member at the
same meeting at which such removal occurs. The first sentence of the
amended paragraph would be as follows (additions italicized):
    Whenever between meetings of the Exchange any vacancy exists on the
Board of Directors by reason of death, resignation, removal or increase
in the authorized number of directors or otherwise, it may be filled
(i) by the Chairman of the Board, subject to approval by a majority of
the Board of Directors then in office, or (ii) by action taken by the
Holding Member, and those vacancies resulting from removal from office
by a vote of the Holding Member for cause may be filled by a vote of
the Holding Member at the same meeting at which such removal occurs.
    The change would be consistent with clause (ii) of Article II,
Section 5 of the NYSE Chicago Bylaws, which was amended at the time of
its acquisition by ICE.\18\
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    \18\ See Exchange Act Release No. 83635 (July 13, 2018), 83 FR
34182 (July 19, 2018) (SR-CHX-2018-004), and Partial Amendment No. 2
to SR-CHX-2018-004 (June 11, 2018).
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    Section 3.04 (Place of Meetings): Section 3.04 provides that any
meeting of the Board may be held within or without the State of
Delaware.
    In an administrative change, the Exchange proposes to amend the
provision to state that the meeting shall be at the place designated in
the notice of the meeting, but that if no designation is made, the
meeting will be at the principal office of the Exchange. The change
would be consistent with the first sentence of NYSE National Bylaws
Article III, Section 3.8 and NYSE Chicago Bylaws, Article II, Section
7.\19\
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    \19\ The remaining text of the NYSE National and NYSE Chicago
provisions address conference call meetings, which are covered in
Article III, Section 3.10 of the Exchange Bylaws.
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    Sections 3.07 (Quorum): Section 3.07 (Quorum) provides that the
presence of a majority of the number of directors on the Board is
necessary to constitute a quorum, and adds that, if less than a quorum
is present at a Board meeting, the directors present may adjourn the
meeting to another time or place until a quorum is present.
    The Exchange proposes to revise the quorum requirement to state
that ``Except as otherwise required by law, at all meetings of the
Board, the presence of a majority of the number of directors then in
office shall constitute a quorum for the transaction of business.'' In
addition, it proposes to replace the sentence regarding procedures if
less than a quorum is present with the statement that, if a quorum is
not present, ``a majority of the directors present at the meeting may
adjourn the meeting, without notice other than announcement at the
meeting, until a quorum shall be present.''
    Changing the quorum requirement to a majority of the directors then
in office would be consistent with the quorum provisions of the other
NYSE Group Exchanges.\20\ The proposed text is substantially similar to
the second and fourth sentences of NYSE Chicago Bylaws Article II,
Section 10. \21\
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    \20\ See NYSE Chicago Bylaws Article II, Section 10; NYSE
National Bylaws Article III, Section 3.11; NYSE Operating Agreement,
Article II, Section 2.03(d); and NYSE American Operating Agreement,
Article II, Section 2.03(d). See also DCGL Section 141(b).
    \21\ See NYSE Chicago Release, supra note 4, at 54958-54959.
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    Section 3.08 (Vote): Pursuant to Section 3.08, the act of a
majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board, except as may be otherwise
specifically provided by law, the Exchange Certificate, the Exchange
Bylaws or the Rules.
    The Exchange proposes to add a sentence stating that each director
shall be entitled to one vote. The revised provision is substantially
similar to the first and third sentences of NYSE Chicago Bylaws Article
II, Section 10. \22\
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    \22\ See id. See also NYSE National Bylaws Article III, Section
3.11.
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    Section 3.09 (Action in Lieu of a Meeting): Section 3.09 provides
that, unless otherwise restricted by the Exchange Certificate, Exchange
By-Laws, or Exchange Rules, action may be taken without a meeting if
certain procedural requirements are met.
    In an administrative change, the Exchange proposes to replace
``Unless otherwise restricted by'' with ``Unless otherwise provided by
law.'' The proposed change would allow the provision to be consistent
with both applicable law and the Exchange governing documents and
rules, should applicable law set forth specific requirements that
differ from such documents. The change would be consistent with NYSE
Chicago Bylaws Article II, Section 13.
Article V (Officers)
    Section 5.01 (General): Section 5.01 provides that officers of the
Exchange must include a Secretary and may include a President, Chief
Executive Officer (``CEO'') and, upon the CEO's recommendation, any
other officers deemed desirable for the conduct of business. In
addition, it states that any two or more offices may be held by the
same person.
    In an administrative change, the Exchange proposes to amend Section
5.01 to provide that the Board shall elect officers of the Exchange as
it deems appropriate. The statement that two or more offices may be
held by the same person would be revised to exclude the Chief
Regulatory Officer and the Secretary from holding the office of CEO or
President. The revised provision would be substantially similar to
Article VI, Section 6.1 of the NYSE National

Bylaws and Article V, Section 1 of the NYSE Chicago Bylaws.\23\
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    \23\ See NYSE Chicago Release, supra note 4, at 54962.
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    Section 5.02 (Privileges): In a non-substantive change, the
Exchange proposes to revise the name of Section 5.02 to ``Powers and
Duties,'' as it is more indicative of the content of the Section, which
sets forth the powers and duties of officers. The Exchange does not
propose to amend the text of Section 5.02. The revised title would be
the same as the title of Article VI, Section 6.4 of the NYSE National
Bylaws and Article V, Section 3 of the NYSE Chicago Bylaws.
    Section 5.03 (Term of Office; Removal and Vacancy): The first
sentence of Section 5.03 provides that ``[e]ach officer shall hold
office until his or her successor is elected and qualified or until his
or her earlier resignation or removal.''
    The Exchange proposes to add death and retirement as events that
would cause an officer to no longer hold office. The proposed change
would be consistent with Article V, Section 2(a) of the NYSE Chicago
Bylaws.\24\
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    \24\ See id.
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    Section 5.04 (Chief Executive Officer): The second sentence of
Section 5.04 states that ``[s]ubject to the control of the Board of
Directors, the Chief Executive Officer, or such other officer or
officers as may be designated by the Board, shall have general
executive charge, management and control of the properties, business
and operations of the Exchange with all such powers as may be
reasonably incident to such responsibilities; may agree upon and
execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Exchange; and shall have such other
powers and duties as designated in accordance with these Bylaws and as
from time to time may be assigned by the Board of Directors.''
    The Exchange proposes to delete the second sentence of Section
5.04, as Section 5.02 already provides that the any officer of the
Exchange, including the CEO, shall, unless otherwise ordered by the
Board, have such powers and duties as generally pertain to their office
as well as such powers and duties as from time to time may be conferred
by the Board. The Exchange notes that Article VI of the NYSE National
Bylaws similarly does not have a separate provision regarding the
powers of its chief executive officer.\25\
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    \25\ See also NYSE Operating Agreement, Article II, Section
2.04(c); and NYSE American Operating Agreement, Article II, Section
2.04(c);
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Article VI (Miscellaneous)
    Section 6.05 (Affiliate Transaction): Section 6.05 sets forth a
list of transactions that the Exchange may not enter into with any
affiliate of the Exchange unless such transaction shall have been first
approved by a majority vote of the disinterested directors of the
Exchange who are also public directors, and sets our related
definitions and requirements.
    The Exchange proposes to delete Section 6.05 in its entirety.
Section 6.05 of the Exchange Bylaws dates to the demutualization of the
Exchange (then ``Pacific Exchange, Inc.''), when its ownership
structure was materially different.\26\ The Exchange believes that
Section 6.05 is no longer necessary given the corporate structure of
ICE and the Exchange, as reflected by the fact that no other NYSE Group
Exchange has a similar provision in its governing documents.\27\
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    \26\ See Exchange Act Release No. 49718 (May 17, 2004), 69 FR
29611 (May 24, 2004) (SR-PCX-2004-08) (order approving proposed rule
change and notice of filing and order granting accelerated approval
of Amendment No. 1 thereto relating to the demutualization of the
Pacific Exchange, Inc.); see also Article VI, Section 6.05 of
Exhibit E to SR-PCX-2004-08 (February 10, 2004).
    \27\ The Exchange notes that it has not found a similar
provision in the bylaws of other incorporated self-regulatory
organizations. See Tenth Amended and Restated Bylaws of CBOE
Exchange, Inc. [sic]; Ninth Amended and Restated Bylaws of CBOE EDGA
Exchange, Inc.; Ninth Amended and Restated Bylaws of CBOE EDGX
Exchange, Inc.; Eighth Amended And Restated Bylaws of CBOE BYX
Exchange, Inc.; and By-Laws Of Nasdaq BX, Inc. See also By-Laws of
The Nasdaq Stock Market LLC; By-Laws Of Nasdaq ISE, LLC; and the
Second Amended and Restated Operating Agreement of Investors'
Exchange LLC.
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Article VII (Indemnification)
    Section 7.01 (Indemnification): Section 7.01 sets forth provisions
related to indemnification by the Exchange. As a wholly-owned
subsidiary of ICE, the Exchange believes it appropriate to harmonize
the Exchange's indemnification provisions with those of ICE and the
Exchange's intermediate holding company, ICE Holdings.\28\ The same
change was made to Article VI of the NYSE Chicago Bylaws.\29\
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    \28\ See ICE Bylaws, Article X, Section 10.6, and ICE Holdings
Bylaws, Article X, Section 10.6.
    \29\ See NYSE Chicago Release, supra note 4, at 54962-54963. The
Exchange understands that NYSE, NYSE American, and NYSE National
propose to file similar changes to their respective indemnification
provisions.
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    Accordingly, the Exchange proposes to delete the text of Section
7.01 (Indemnification) in its entirety and replace it with proposed
text that is substantially similar to the CHX, ICE and ICE Holdings
provisions, with the exception of changes to be consistent with the
Exchange Bylaws' terminology.\30\ The proposed text follows:
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    \30\ For example, proposed Section 7.01 uses ``officer'' instead
of ``Senior Officers,'' ``Exchange'' instead of ``Corporation,'' and
``Section 7.01'' instead of ``Section 10.6.''
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    (a) The Exchange shall, to the fullest extent permitted by law, as
those laws may be amended and supplemented from time to time, indemnify
any director or officer made, or threatened to be made, a party to any
action, suit or proceeding, whether criminal, civil, administrative or
investigative, by reason of being a director or officer of the Exchange
or a predecessor corporation or, at the Exchange's request, a director,
officer, partner, member, employee or agent of another corporation or
other entity; provided, however, that the Exchange shall indemnify any
director or officer in connection with a proceeding initiated by such
person only if such proceeding was authorized in advance by the Board
of Directors of the Exchange. The indemnification provided for in this
Section 7.01 shall: (i) Not be deemed exclusive of any other rights to
which those indemnified may be entitled under any bylaw, agreement or
vote of stockholders or disinterested directors or otherwise, both as
to action in their official capacities and as to action in another
capacity while holding such office; (ii) continue as to a person who
has ceased to be a director or officer; and (iii) inure to the benefit
of the heirs, executors and administrators of an indemnified person.
    (b) Expenses incurred by any such person in defending a civil or
criminal action, suit or proceeding by reason of the fact that he is or
was a director or officer of the Exchange (or was serving at the
Exchange's request as a director, officer, partner, member, employee or
agent of another corporation or other entity) shall be paid by the
Exchange in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the
Exchange as authorized by law. Notwithstanding the foregoing, the
Exchange shall not be required to advance such expenses to a person who
is a party to an action, suit or proceeding brought by the Exchange and
approved by a majority of the Board of Directors of the Exchange that
alleges willful misappropriation of corporate assets by such person,
disclosure of confidential information in violation of such person's
fiduciary or contractual

obligations to the Exchange or any other willful and deliberate breach
in bad faith of such person's duty to the Exchange or its stockholders.
    (c) The foregoing provisions of this Section 7.01 shall be deemed
to be a contract between the Exchange and each director or officer who
serves in such capacity at any time while this bylaw is in effect, and
any repeal or modification thereof shall not affect any rights or
obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or
thereafter brought based in whole or in part upon any such state of
facts. The rights provided to any person by this bylaw shall be
enforceable against the Exchange by such person, who shall be presumed
to have relied upon it in serving or continuing to serve as a director
or officer or in such other capacity as provided above.
    (d) The Board of Directors in its discretion shall have power on
behalf of the Exchange to indemnify any person, other than a director
or officer, made or threatened to be made a party to any action, suit
or proceeding, whether criminal, civil, administrative or
investigative, by reason of the fact that such person, or his or her
testator or intestate, is or was an officer, employee or agent of the
Exchange or, at the Exchange's request, is or was serving as a
director, officer, partner, member, employee or agent of another
corporation or other entity.
    (e) To assure indemnification under this Section 7.01 of all
directors, officers, employees and agents who are determined by the
Exchange or otherwise to be or to have been ``fiduciaries'' of any
employee benefit plan of the Exchange that may exist from time to time,
Section 145 of the Delaware General Corporation Law shall, for the
purposes of this Section 7.01, be interpreted as follows: An ``other
enterprise'' shall be deemed to include such an employee benefit plan,
including without limitation, any plan of the Exchange that is governed
by the Act of Congress entitled ``Employee Retirement Income Security
Act of 1974,'' as amended from time to time; the Exchange shall be
deemed to have requested a person to serve an employee benefit plan
where the performance by such person of his duties to the Exchange also
imposes duties on, or otherwise involves services by, such person to
the plan or participants or beneficiaries of the plan; excise taxes
assessed on a person with respect to an employee benefit plan pursuant
to such Act of Congress shall be deemed ``fines.''
Article IX (Amendment)
    In a conforming change, the Exchange proposes to add a section
number before the word ``Amendment.''
Proposed Amendments to Rule 3.3(a)(1)(B)
    Rule 3.3(a)(1)(B) establishes the composition of the Exchange
Regulatory Oversight Committee (``ROC''), and is substantially the same
as the related provisions in the governing documents of the other NYSE
Group Exchanges.\31\ Among other things, the provision states that
``[t]he Board may, on affirmative vote of a majority of directors, at
any time remove a member of the ROC for cause.'' The Exchange proposes
to add language clarifying that the majority affirmative vote
requirement is based on the ``directors then in office,'' as opposed to
total number of seats on the Board. The change would be consistent with
Article IV, Section 6 of the NYSE Chicago Bylaws.\32\
---------------------------------------------------------------------------

    \31\ See NYSE National Bylaws, Article V, Section 5.6; NYSE
Operating Agreement, Article II, Section 2.03(h)(ii); NYSE American
Operating Agreement, Article II, Section 2.03(h)(ii); and NYSE
Chicago Bylaws, Article IV, Section 6.
    \32\ See NYSE Chicago Release, supra note 4, at 54961. The
Exchange understands that NYSE, NYSE American, and NYSE National
propose to file similar changes to their respective ROC provisions.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act,\33\ in general, and furthers the
objectives of Section 6(b)(1) \34\ in particular, in that it enables
the Exchange to be so organized as to have the capacity to be able to
carry out the purposes of the Exchange Act and to comply, and to
enforce compliance by its exchange members and persons associated with
its exchange members, with the provisions of the Exchange Act, the
rules and regulations thereunder, and the rules of the Exchange. The
Exchange also believes that the proposed rule change is consistent with
Section 6(b)(5) of the Exchange Act,\35\ in that it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest.
---------------------------------------------------------------------------

    \33\ 15 U.S.C. 78f(b).
    \34\ 15 U.S.C. 78f(b)(1).
    \35\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange believes that the proposed amendments to the Exchange
Bylaws, Certificate and Rule 3.3(a) would enable the Exchange to be so
organized as to have the capacity to be able to carry out the purposes
of the Exchange Act and to comply, and to enforce compliance by its
exchange members and persons associated with its exchange members, with
the provisions of the Exchange Act, the rules and regulations
thereunder, and the rules of the Exchange, because such amendments
would add or expand upon existing provisions to protect and maintain
the independence and integrity of the Exchange and its regulatory
function and reinforce the notion that the Exchange is not solely a
commercial enterprise, but a national securities exchange subject to
the obligations imposed by the Exchange Act. Such provisions include
ensuring that regulatory assets, fees, fines, and penalties may only be
used to fund legal, regulatory and surveillance operations; and
providing that any amendments to the Exchange Certificate must be
submitted to the Board and, as applicable, shall not be effective until
filed with or filed with and approved by the Commission. The Exchange
believes that such provisions are consistent with and will facilitate a
governance structure that will provide the Commission with appropriate
oversight tools to ensure that the Commission will have the ability to
enforce the Exchange Act with respect to the Exchange. The Exchange
also believes that such amendments would act to insulate the Exchange's
regulatory functions from its market and other commercial interests so
that the Exchange can carry out its regulatory obligations and that, in
general, the Exchange is administered in a way that is equitable to all
those who trade on its market or through its facilities. Therefore, the
Exchange believes that the proposed rule change would prevent
fraudulent and manipulative acts and practices, promote just and
equitable principles of trade, foster cooperation and coordination with
persons engaged in facilitating transactions in securities, remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, in general, protect investors and the
public interest.
    The Exchange believes that the proposed amendments to harmonize
certain provisions of the Exchange Bylaws, Certificate and Rule 3.3(a)
with similar provisions of the governing documents of other NYSE Group
Exchanges, ICE and ICE Holdings would contribute to the orderly
operation of the Exchange and would enable the

Exchange to be so organized as to have the capacity to carry out the
purposes of the Exchange Act and comply with the provisions of the
Exchange Act by its members and persons associated with members. For
example, the proposed changes would create greater conformity between
the Exchange's provisions relating to officers, committees, and
indemnification and those of its affiliates, particularly NYSE National
and CHX. The Exchange believes that such conformity would streamline
the NYSE Group Exchanges' corporate processes, create more equivalent
governance processes among them, and also provide clarity to the
Exchange's members, which is beneficial to both investors and the
public interest. At the same time, the Exchange will continue to
operate as a separate self-regulatory organization and to have rules,
membership rosters and listings distinct from the rules, membership
rosters and listings of the other NYSE Group Exchanges.
    The Exchange also believes that the greater consistency among the
governing documents of the NYSE Group Exchanges, ICE and ICE Holdings
would promote the maintenance of a fair and orderly market, the
protection of investors and the protection of the public interest.
Indeed, the proposed amendments would make the corporate requirements
and administrative processes relating to the Board, Board committees,
officers, and other corporate matters more similar to those of the NYSE
Group Exchanges, in particular NYSE National and CHX, which have been
established as fair and designed to protect investors and the public
interest.\36\
---------------------------------------------------------------------------

    \36\ See NYSE Chicago Release, supra note 4; Exchange Act
Release Nos. 83303 (May 22, 2018), 83 FR 24517 (May 29, 2018) (SR-
CHX-2018-004); and 79902 (January 30, 2017), 82 FR 9258 (February 3,
2017) (SR-NSX-2016-16) (order approving proposed rule change in
connection with proposed acquisition of the Exchange by NYSE Group,
Inc.).
---------------------------------------------------------------------------

    The Exchange believes that the deletion of Article VI, Section 6.05
of the Exchange Bylaws would be consistent with the orderly operation
of the Exchange and would enable the Exchange to be so organized as to
have the capacity to carry out the purposes of the Exchange Act and
comply with the provisions of the Exchange Act by its members and
persons associated with members. Section 6.05 does not relate to the
operations of the Exchange's markets, but rather to potential
transactions with affiliates of the Exchange. Section 6.05 dates to the
demutualization of the Exchange, when its ownership structure was
materially different.\37\ The Exchange believes that Section 6.05 is no
longer necessary given the corporate structure of ICE and the Exchange,
as reflected by the fact that no other NYSE Group Exchange has a
similar provision in its governing documents.\38\ For the same reasons,
the Exchange believes that the proposed deletion would be consistent
with the promotion of the maintenance of a fair and orderly market, the
protection of investors and the protection of the public interest.
---------------------------------------------------------------------------

    \37\ See note 26, supra.
    \38\ See note 27, supra.
---------------------------------------------------------------------------

    The proposed amendments to clarify the meaning of certain
provisions of the Exchange Bylaws, Certificate and Rule 3.3(a), to
better comport certain provisions with the DGCL and to effect non-
substantive changes would facilitate the Exchange's continued
compliance with the Exchange Certificate and Bylaws and applicable law,
which would further enable the Exchange to be so organized as to have
the capacity to be able to carry out the purposes of the Exchange Act
and to comply, and to enforce compliance by its exchange members and
persons associated with its exchange members, with the provisions of
the Exchange Act, the rules and regulations thereunder, and the rules
of the Exchange. Such amendments would also remove impediments to and
perfects the mechanism of a free and open market by removing confusion
that may result from corporate governance provisions that are either
unclear or inconsistent with the governing law.
    The Exchange also believes that the proposed amendments would
remove impediments to and perfect the mechanism of a free and open
market by ensuring that persons subject to the Exchange's jurisdiction,
regulators, and the investing public can more easily navigate and
understand the governing documents. The Exchange further believes that
the proposed amendments would not be inconsistent with the public
interest and the protection of investors because investors will not be
harmed and in fact would benefit from increased transparency and
clarity, thereby reducing potential confusion.

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 Exchange Act. The proposed rule
change is not intended to address competitive issues but rather is
concerned solely with the corporate governance and administration of
the Exchange.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \39\ and Rule 19b-4(f)(6) thereunder.\40\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \39\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \40\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such 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 under
Section 19(b)(2)(B) \41\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \41\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NYSEArca-2018-85 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-NYSEArca-2018-85. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All ubmissions
should refer to File Number SR-NYSEArca-2018-85 and should be submitted
on or before December 21, 2018.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\42\
---------------------------------------------------------------------------

    \42\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-25998 Filed 11-29-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 192 (Thursday, October 3, 2019)]
[Rules and Regulations]
[Pages 52763-52765]
[FR Doc No: 2019-21281]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2019-0813]
RIN 1625-AA00

Safety Zones; Humboldt Bay Bar and Entrance Channel, Eureka, CA,
Noyo River Entrance Channel, Ft. Bragg, CA, and Crescent City Harbor
Entrance Channel, Crescent City, CA

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing three temporary safety zones
in the navigable waters of the Humboldt Bay Bar and Entrance Channel,
of Eureka, CA; Noyo River Entrance Channel, of Fort Bragg, CA; and
Crescent City Harbor Entrance Channel, of Crescent City, CA to
safeguard navigation during extreme environmental conditions. These
safety zones are established to protect the safety of vessels
transiting the areas from the dangers associated with extreme breaking
surf and high wind conditions occurring in the Humboldt Bay Bar and
Entrance Channel, Noyo River Entrance Channel, and Crescent City Harbor
Entrance Channel. Unauthorized persons or vessels are prohibited from
entering into, transiting through, or remaining in the safety zones
without permission of the Captain of the Port San Francisco or a
designated representative.

DATES: This rule is effective without actual notice from October 3,
2019 through December 31, 2019. For purposes of enforcement, actual
notice will be used from September 25, 2019 until October 3, 2019.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0813 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 Lieutenant Jennae Cotton, Waterways Management, U.S.
Coast Guard; telephone<PHONE_NUMBER>, email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port San Francisco
DHS Department of Homeland Security
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking with
respect to this rule because it is impracticable.
    On September 21, 2019, the Coast Guard was informed of forecasted
extreme environmental conditions occurring near three respective
locations of California likely to exceed the maximum environmental
limits of the 47-foot Motor Lifeboat employed by the Coast Guard as the
primary rescue asset in each area. These three locations are: The
Humboldt Bay Bar and Entrance Channel, near Eureka, CA; the Noyo River
Entrance Channel, near Fort Bragg, CA; and the Crescent City Harbor
Entrance Channel, near Crescent City, CA. The National Oceanic and
Atmospheric Administration's National Weather Service forecasts up to
19-foot breaking seas in the area from 25 September, 2019 through 26
September, 2019. This area is subject to extreme weather annually, but
this year's forecast of extreme weather starting in September is
earlier than is typical. Last year's comparable forecast of 24-foot
breaking seas occurred in November, which is typically the month when
the Coast Guard has historically established temporary safety zones in
the navigable waters of the Humboldt Bay Bar and Entrance Channel, of
Eureka, CA, Noyo River Entrance Channel, of Fort Bragg, CA, and
Crescent City Harbor Entrance Channel, of Crescent City, CA. Due to the
consistency of extreme environmental conditions typically observed
between the months of November and March each winter, the Coast Guard
is in the process of establishing a permanent regulation to account for
intermittent periods of hazardous conditions, such as high wind or
breaking surf. That regulation is expected to begin the notice and
comment phase of public rulemaking shortly. Between now and the
implementation of the permanent regulation, if enacted, these three
safety zones are necessary to provide for the safety of mariners
transiting the area due to the dangers posed by these extreme
environmental conditions and the resulting limited availability of
rescue assets. The Coast Guard learned of the extreme weather forecast
on 21 September 2019, and must establish the three safety zones before
25 September 2019, and so lacks sufficient time to provide a reasonable
comment period and to consider comments before issuing the rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
also exists for making this rule effective less than 30 days after
publication in the Federal Register. For similar reasons as stated
above, notice and comment procedures would be impracticable in this
instance because the hazardous conditions associated with the extreme
environmental conditions precipitating the rulemaking will occur before
the full rulemaking process could be completed.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 46 U.S.C.
70034 (previously 33 U.S.C. 1231). Notable hazards associated with the
extreme environmental conditions have been observed in the Humboldt Bay
Bar and Entrance Channel near Eureka, CA; the Noyo River Entrance
Channel, near Fort Bragg, CA; and the Crescent City Harbor Entrance
Channel, of Crescent City, CA. These safety zones establish temporary
restricted areas on the navigable waters

of the Humboldt Bay Bar and Entrance Channel near Eureka, CA; the Noyo
River Entrance Channel, near Fort Bragg, CA; and the Crescent City
Harbor Entrance Channel, of Crescent City, CA. Because extreme
environmental conditions are predicted for September 25, 2019 which is
outside of the typical season between November and March when dangerous
sea state conditions have historically been observed, these restricted
areas are necessary to mitigate the risks associated with vessels
transiting the area while extreme environmental conditions exist on
scene.

IV. Discussion of the Rule

    The Coast Guard will enforce, independent of each other, three
respective safety zones in the navigable waters of the Humboldt Bay Bar
and Entrance Channel near Eureka, CA; the Noyo River Entrance Channel,
near Fort Bragg, CA; and the Crescent City Harbor Entrance Channel, of
Crescent City, CA, when the COTP determines that the on scene
conditions are hazardous and unsafe for vessel transits, typically
expected to be 20-foot breaking seas at each location. Enforcement will
be announced via Broadcast Notice to Mariners. These safety zones are
effective from September 25, 2019, through December 31, 2019. These
safety zones will be enforced with actual notice until this rulemaking
is published in the Federal Register, and with constructive notice
thereafter.
    The effect of the temporary safety zones is to restrict navigation
in the vicinity of the Humboldt Bay Bar and Entrance Channel; Noyo
River Entrance Channel; and Crescent City Harbor Entrance Channel while
the hazardous conditions associated with extreme environmental
conditions exist, and until the Coast Guard deems the safety zone is no
longer needed. Except for persons or vessels authorized by the COTP or
the COTP's designated representative, no person or vessel may enter or
remain in the restricted areas during times of enforcement. As used in
the rule, ``designated representative'' means a Coast Guard Patrol
Commander, including a Coast Guard coxswain, petty officer, or other
officer on a Coast Guard vessel or at a Coast Guard unit or a Federal,
State, or local officer designated by or assisting the COTP in the
enforcement of the safety zones. These three regulated areas are needed
to keep vessels away from the immediate vicinity of the hazardous
conditions associated with the forecasted extreme weather to ensure the
safety of transiting vessels in each respective area.

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 limited
duration and narrowly tailored geographic area of the safety zones.
Although this rule restricts access to the waters encompassed by the
safety zones, the effect of this rule will not be significant because
the local waterway users will be notified via public Broadcast Notice
to Mariners to ensure the safety zones will result in minimum impact,
and because the rule will be enforced only during dangerous conditions
caused by extreme weather. The entities most likely to be affected are
waterfront facilities, commercial vessels, and pleasure craft engaged
in recreational activities.

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.
    This rule may affect the following entities, some of which may be
small entities: Owners and operators of waterfront facilities,
commercial vessels, and pleasure craft engaged in recreational
activities and sightseeing, if these facilities or vessels are in the
vicinity of the safety zones at times when the zones are being
enforced. This rule will not have a significant economic impact on a
substantial number of small entities for the following reasons: (i)
This rule will encompass only a small portion of the waterway for a
limited period of time while hazardous conditions exist, and (ii) the
maritime public will be advised in advance of this safety zones via
Broadcast Notice to Mariners.
    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 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 U.S. Coast Guard Environmental Planning Policy,
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 three safety zones
which will be implemented during periods of extreme environmental
conditions in Humboldt Bay Bar and Entrance Channel near Eureka, CA;
the Noyo River Entrance Channel, near Fort Bragg, CA; and the Crescent
City Harbor Entrance Channel, of Crescent City, CA. It is categorically
excluded from further review under paragraph L60(a) in Table 3-1 of
Department of Homeland Security Directive 023-01. 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.T11-998 to read as follows:

Sec.  165.T11-998  Safety zones; Humboldt Bay Bar and Entrance, Noyo
River Entrance, and Crescent City Harbor Entrance Channel Closures,
Humboldt Bay, Eureka, CA.

    (a) Location. The following areas are safety zones:
    (1) All navigable waters, from surface to bottom, of the Humboldt
Bay Bar Channel and the Humboldt Bay Entrance Channel, of Humboldt Bay,
CA;
    (2) All navigable waters, from surface to bottom, of the Noyo River
Entrance Channel as defined by the Area contained seaward of the Line
of Demarcation with northern boundary of the line originating in
approximate position 39[deg]25'41'' N, 123[deg]48'37'' W and extending
1200 yards at bearing 290[deg] T, and southern boundary of the line
originating in approximate position 39[deg]25'38'' N, 123[deg]48'36'' W
and extending 1200 yards at 281[deg] T, in Fort Bragg, CA; and
    (3) All navigable waters, from surface to bottom, of the Crescent
City Harbor Entrance Channel, as defined by the area contained seaward
of the line originating in approximate position 41[deg]44'36'' N,
124[deg]11'18'' W bearing 237[deg] T and extending out to 1 NM from the
Line of Demarcation in Crescent City, CA.
    (b) Definitions. As used in this section, ``designated
representative'' means a Coast Guard Patrol Commander, including a
Coast Guard coxswain, petty officer, or other officer on a Coast Guard
vessel or at a Coast Guard unit or a Federal, State, or local officer
designated by or assisting the Captain of the Port San Francisco (COTP)
in the enforcement of the safety zones.
    (c) Regulations. (1) Under the general regulations in subpart C of
this part, entering into, transiting through, or anchoring within these
safety zones are prohibited unless authorized by the COTP or the COTP's
designated representative.
    (2) The safety zones are closed to all vessel traffic, except as
may be permitted by the COTP or the COTP's designated representative.
    (3) Vessel operators desiring to enter or operate within the
Humboldt Bay Entrance Channel or Crescent City Harbor Entrance Channel
safety zones during times of enforcement shall contact Station Humboldt
Bay on VHF-FM channel 16 or at<PHONE_NUMBER> if contacting between
6:30 a.m. and 10 p.m., or Sector Humboldt Bay on VHF-FM channel 16 or
at<PHONE_NUMBER> if contacting between 10 p.m. and 6:30 a.m. Vessel
operators desiring to enter or operate within the Noyo River Entrance
Channel safety zone during times of enforcement shall contact Station
Noyo River on VHF-FM channel 16 or at<PHONE_NUMBER> if contacting
between 6:30 a.m. and 10 p.m., or Sector Humboldt Bay on VHF-FM channel
16 or at<PHONE_NUMBER> if contacting between 10 p.m. and 6:30 a.m.
Vessel operators given permission to enter or operate in the safety
zones must comply with all directions given to them by the COTP or the
COTP's designated representative.
    (d) Enforcement period. The zones described in paragraph (a) of
this section will be effective without actual notice from October 3,
2019 through December 31, 2019. For purposes of enforcement, actual
notice will be used from September 25, 2019 until October 3, 2019. This
section will be enforced when the COTP determines that the on scene
conditions are hazardous and unsafe for vessel transits due to extreme
weather conditions.
    (e) Information broadcasts. The COTP or the COTP's designated
representative will notify the maritime community of periods during
which this zone will be enforced in accordance with Sec.  165.7.

    Dated: September 24, 2019.
Marie B. Byrd,
Captain, U.S. Coast Guard, Captain of the Port, San Francisco.
[FR Doc. 2019-21281 Filed 10-2-19; 8:45 am]
 BILLING CODE 9110-04-P


	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 81

	[EPA-R03-OAR-2010-0431; FRL-        ]

Approval of One-Year Extension for Attaining the 1997 8-Hour Ozone
Standard in the Baltimore Moderate Nonattainment Area

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

SUMMARY:  EPA is proposing to extend the attainment date from June 15,
2010 to June 15, 2011 for the Baltimore nonattainment area, which is
classified as moderate for the 1997 8-hour ozone national ambient air
quality standard (NAAQS).  This extension is based in part on air
quality data for the 4th highest daily 8-hour monitored value during the
2009 ozone season.  In the Final Rules section of this Federal Register,
EPA is approving the State's request as a direct final rule without
prior proposal because the Agency views this as a noncontroversial
request and anticipates no adverse comments.  A detailed rationale for
the approval is set forth in the direct final rule.  If no adverse
comments are received in response to this action, no further activity is
contemplated.  If EPA receives adverse comments, the direct final rule
will be withdrawn and all public comments received will be addressed in
a subsequent final rule based on this proposed rule.  EPA will not
institute a second comment period.  Any parties interested in commenting
on this action should do so at this time.

DATES:  Comments must be received in writing by [insert date 30 days
from date of

publication.]

ADDRESSES:  Submit your comments, identified by Docket ID Number
EPA-R03-OAR-2010-0431 by one of the following methods:

A.    www.regulations.gov.  Follow the on-line instructions for
submitting comments.

B.    E-mail:    HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>.

C.    Mail:  EPA-R03-OAR-2010-0431, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.

D.   Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket(s normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.

Instructions:  Direct your comments to Docket ID No.
EPA-R03-OAR-2010-0431.  EPA's policy is that all comments received will
be included in the public docket without change, and may be made
available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed to
be Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through www.regulations.gov or
e-mail.  The www.regulations.gov website is an (anonymous access(
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment.  If you
send an e-mail comment directly to EPA without going through
www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet.  If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit.  If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.  Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.

Docket:  All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute.  Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form.  Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103.  Copies of the State submittal
are available at Maryland Department of the Environment, 1800 Washington
Boulevard, Suite 705, Baltimore, Maryland 21230.

FOR FURTHER INFORMATION CONTACT:  Gregory Becoat,<PHONE_NUMBER>, or by
e-mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

For further information, please see the information provided in the
direct final action, with the same title that is located in the (Rules
and Regulations( section of this Federal Register publication.

__July 6, 2010________
___________/s/_____________

Dated:                                				W. C. Early, Acting

                                      				Regional Administrator,

                                      				Region III.

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