[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Notices]
[Pages 31648-31650]
[FR Doc No: 2019-14054]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-86198; File No. SR-NYSEArca-2019-45]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Extend the Pilot
Period for the Exchange Retail Liquidity Program Until September 30,
2019

June 26, 2019.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on June 19, 2019, NYSE Arca, Inc. (the ``Exchange'' or ``NYSE Arca'')
filed with the Securities and Exchange Commission (``SEC'' or
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to extend the pilot period for the Exchange's
Retail Liquidity Program (the ``Retail Liquidity Program'' or the
``Program''), which is currently scheduled to expire on June 30, 2019,
until September 30, 2019. 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

    The Exchange proposes to extend the pilot period for the Exchange's
Retail Liquidity Program (the ``Retail Liquidity Program'' or the
``Program''), which is currently scheduled to expire on June 30, 2019,
until September 30, 2019. 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.

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

1. Purpose
    The Exchange proposes to extend the pilot period of the Retail
Liquidity Program, currently scheduled to expire on June 30, 2019,\3\
until September 30, 2019.
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    \3\ See Securities Exchange Act Release No. 84773 (December 10,
2018), 83 FR 64419 (December 14, 2018) (SR-NYSEArca-2018-89).
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Background
    In December 2013, the Commission approved the Retail Liquidity
Program on a pilot basis.\4\ The Program is designed to attract retail
order flow to the Exchange, and allows such order flow to receive
potential price improvement. The Program is currently limited to trades
occurring at prices equal to or greater than $1.00 per share. Under the
Program, Retail Liquidity Providers (``RLPs'') are able to provide
potential price improvement in the form of a non-displayed order that
is priced better than the Exchange's best protected bid or offer
(``PBBO''), called a Retail Price Improvement Order (``RPI''). When
there is an RPI in a particular security, the Exchange disseminates an
indicator, known as the Retail Liquidity Identifier, indicating that
such interest exists. Retail Member Organizations (``RMOs'') can submit
a Retail Order to the Exchange, which would interact, to the extent
possible, with available contra-side RPIs.
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    \4\ See Securities Exchange Act Release No. 71176 (December 23,
2013), 78 FR 79524 (December 30, 2013) (SR-NYSEArca-2013-107) (``RLP
Approval Order'').

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    The Retail Liquidity Program was approved by the Commission on a
pilot basis. Pursuant to NYSE Arca Rule 7.44-E(m), the pilot period for
the Program is scheduled to end on June 30, 2019.
Proposal To Extend the Operation of the Program
    The Exchange established the Retail Liquidity Program in an attempt
to attract retail order flow to the Exchange by potentially providing
price improvement to such order flow. The Exchange believes that the
Program promotes competition for retail order flow by allowing Exchange
members to submit RPIs to interact with Retail Orders. Such competition
has the ability to promote efficiency by facilitating the price
discovery process and generating additional investor interest in
trading securities, thereby promoting capital formation. The Exchange
believes that extending the pilot is appropriate because it will allow
the Exchange and the Commission additional time to analyze data
regarding the Program that the Exchange has committed to provide.\5\ As
such, the Exchange believes that it is appropriate to extend the
current operation of the Program.\6\ Through this filing, the Exchange
seeks to amend NYSE Arca Rule 7.44-E(m) and extend the current pilot
period of the Program until September 30, 2019.
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    \5\ See id., 78 FR at 79529.
    \6\ Concurrently with this filing, the Exchange has submitted a
request for an extension of the exemption under Regulation NMS Rule
612 previously granted by the Commission that permits it to accept
and rank the undisplayed RPIs. See Letter from Martha Redding, Asst.
Corporate Secretary, NYSE Group, Inc. to Secretary, Securities and
Exchange Commission, dated June 19, 2019.
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Act,\7\ in general, and furthers the objectives of Section 6(b)(5),\8\
in particular, in that it is designed to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest.
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    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that extending the pilot period for the
Retail Liquidity Program is consistent with these principles because
the Program is reasonably designed to attract retail order flow to the
exchange environment, while helping to ensure that retail investors
benefit from the better price that liquidity providers are willing to
give their orders. Additionally, as previously stated, the competition
promoted by the Program may facilitate the price discovery process and
potentially generate additional investor interest in trading
securities. The extension of the pilot period will allow the Commission
and the Exchange to continue to monitor the Program for its potential
effects on public price discovery, and on the broader market structure.

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. The proposed rule change
simply extends an established pilot program for an additional six
months, thus allowing the Retail Liquidity Program to enhance
competition for retail order flow and contribute to the public price
discovery process.

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 \9\ and Rule 19b-4(f)(6) thereunder.\10\
Because the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative for 30
days from the date on which it was filed, or such shorter time as the
Commission may designate, 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 \11\ and Rule 19b-
4(f)(6) thereunder.\12\
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    \9\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's intent to file the proposed rule change, along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
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    A proposed rule change filed under Rule 19b-4(f)(6) \13\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\14\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposed
rule change may become operative immediately. The Commission believes
that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest, because waiver would
allow the pilot period to continue uninterrupted after its current
expiration date of September 30, 2019, thereby avoiding any potential
investor confusion that could result from temporary interruption in the
pilot program. For this reason, the Commission hereby waives the 30-day
operative delay and designates the proposal operative upon filing.\15\
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    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
    \15\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    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 change should be approved or
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2019-45 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-2019-45. 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 offices of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEArca-2019-45, and should be
submitted on or before July 23, 2019.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
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    \16\ 17 CFR 200.30-3(a)(12), (59).
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Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-14054 Filed 7-1-19; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: May 24, 2006 (Volume 71, Number 100)]
[Rules and Regulations]
[Page 29779-29785]
[DOCID:fr24my06-5]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 41, 158, 286 and 349

[Docket No. RM06-2-001; Order No. 675-A]

Procedures for Disposition of Contested Audit Matters

Issued May 18, 2006.
AGENCY: Federal Energy Regulatory Commission; DOE.

ACTION: Final rule, order on rehearing and clarification.

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SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission
(Commission) is amending its regulations to expand due process for
certain audited persons who dispute findings or proposed remedies
contained in draft audit reports.

DATES: Effective Date: This Final Rule will become effective June 23,
2006.

FOR FURTHER INFORMATION CONTACT: John R. Kroeger, Office of
Enforcement, Federal Energy Regulatory Commission, 888 First Street,
NE., Washington, DC 20426.<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead
Brownell, and Suedeen G. Kelly.

Order No. 675-A

Order on Rehearing and Clarification

I. Introduction

    1. On February 17, 2006, the Commission issued a Final Rule, Order
No. 675,\1\ that expands the procedural rights of persons subject to
all audits conducted by the Commission staff under the Federal Power
Act (FPA),\2\ the Natural Gas Act (NGA),\3\ the Natural Gas Policy Act
(NGPA),\4\ and the Interstate Commerce Act (ICA),\5\ except for audits
pertaining to reliability that the Commission authorized in Order No.
672.\6\ Prior to the effective date of Order No. 675, audited persons
who disagreed with non-financial audit matters approved by the
Commission were required to seek rehearing of that order to obtain
further Commission review.
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    \1\ Procedures for Disposition of Contested Audit Matters, Order
No. 675, 71 FR 9698 (Feb. 27, 2006), III FERC Stats. & Regs. ]
31,209 (Feb. 17, 2006).
    \2\ 16 U.S.C. 791a, et seq. (2000).
    \3\ 15 U.S.C. 717, et seq. (2000).
    \4\ 15 U.S.C. 3301, et seq. (2000).
    \5\ 49 U.S.C. App. 1, et seq. (2000).
    \6\ Rules Concerning Certification of the Electric Reliability
Organization; and Procedures for the Establishment, Approval, and
Enforcement of Electric Reliability Standards, 71 FR 8662 (Feb. 17,
2006), III FERC Stats. & Regs. ] 31,204 (Feb. 2, 2006); reh'g
granted in part and denied in part, Order No. 672-A, 71 FR 19814
(Apr. 18, 2006), 114 FERC ] 61,328 (Mar. 30, 2006).
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    2. Pursuant to Order No. 675, audited persons may seek Commission
review of disputed matters contained in an audit report or similar
document in a procedure that provides additional due process to audited
persons subject to non-financial audits. Under this procedure, audited
persons may provide in writing to the audit staff a response to a draft
notice of deficiency, draft audit report or similar document

(collectively, draft audit report) indicating any and all findings or
proposed remedies, or both, in any combination, with which the audited
person disagrees. The audit staff communicates this response to the
Commission along with the draft audit report. The Commission may make
determinations on the merits in a public order with respect to the
findings and proposed remedies contained in the draft audit report that
are not in dispute. The Commission will publicly notice the disputed
items and provide the audited person the opportunity to elect in
writing a shortened procedure, which consists of a submission of
memoranda, or a trial-type hearing, by a date certain. The audited
person may timely respond to the notice in a public filing by electing
in writing the shortened procedure or the trial-type hearing.
    3. The Commission will honor the audited person's timely election
(unless a trial-type hearing is chosen and there are in the
Commission's judgment no disputed issues of material fact requiring a
trial-type hearing) and issue a public notice setting the schedule for
submission of memoranda, in the case of the shortened procedure, or
referring the matter to the Chief Administrative Law Judge, in the case
of the trial-type hearing.
    4. On March 20, 2006, Edison Electric Institute (EEI) timely filed
the only request for rehearing and clarification of Order No. 675.\7\
The Commission grants the request for rehearing and clarification filed
by EEI in four respects. First, the Commission grants EEI's request for
clarification regarding the scope of contested audit matters. Second,
the Commission grants EEI's request for clarification that contested
audit procedures will not be used to amend Final Rules. Third, the
Commission grants EEI's request for clarification by specifying that an
audited person shall have at least 15 days to provide in writing to the
audit staff a response to the draft audit report indicating findings or
proposed remedies with which it disagrees. Fourth, the Commission
grants the substance of EEI's proposal to change the regulatory text
regarding the time within which an audited person must elect either the
shortened procedure or a trial-type hearing. In all other respects, as
explained below, the Commission denies EEI's request for rehearing and
clarification.
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    \7\ See 16 U.S.C. 825l(a) (2000).
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II. Discussion

A. Scope of Contested Audit Matters

    5. In Order No. 675, the Commission stated that entities other than
the audited person and the audit staff may participate in the shortened
procedure or the trial-type hearing.\8\ The Commission explained that
an entity other than the audited person may have an interest in the
outcome of the contested audit proceeding and may have information
about the audited person's operations or proposed remedy that would
inform the Commission's determination regarding the contested issue.\9\
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    \8\ Order No. 675 at P 11, 38.
    \9\ Order No. 675 at P 11.
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1. Request for Rehearing or Clarification
    6. EEI requests clarification, or in the alternative, rehearing,
that the Final Rule is not intended to allow intervenors to raise new
issues in response to a public notice of a contested audit report.\10\
EEI expresses concern that intervenors may seek to intervene in a
contested audit proceeding and raise issues that are beyond the scope
of contested issues raised by the audited person. EEI asserts that
allowing intervenors to expand the scope of audit proceedings in such a
manner would tend to dilute the due process rights afforded by Order
No. 675.\11\ To address this concern, EEI urges that the Final Rule
should be clarified to permit intervenors only to raise arguments or
facts that directly relate to a finding or remedy already at issue in
the contested audit proceeding. EEI contends that, under the FPA and
consistent with due process norms, new issues must be raised in a
section 206 complaint \12\ filed by the interested entity.\13\
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    \10\ EEI Request for Rehearing and Clarification at p. 6.
    \11\ EEI Request for Rehearing and Clarification at pp. 5-7.
    \12\ See 16 U.S.C. 824e (2000).
    \13\ In support of its argument, EEI cites Public Service
Commission of N.Y. v. FERC, 642 F.2d 1335, 1345 (DC Cir. 1980), for
the proposition that section 4(e) of the NGA ``cannot be used by the
Commission to institute any change in a ratemaking component * * *
that does not represent at least partial approval of the change for
which the enterprise had petitioned in its filing. If the Commission
seeks to make such changes, it has no alternative save compliance
with the strictures of section 5(a).'' EEI also cites Public Service
Commission of Kentucky v. FERC, 397 F.3d 1004, 1012 (DC Cir. 2005),
for the proposition that ``[t]he Due Process Clause and the
[Administrative Procedure Act] require that an agency setting a
matter for hearing provide parties `with adequate notice of the
issues that would be considered, and ultimately resolved, at that
hearing.'''
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2. Commission Determination
    7. The Commission grants EEI's request for clarification. An
interested entity that has successfully intervened in a proceeding will
be limited to arguments or facts that directly relate to a finding or
proposed remedy already at issue in the contested audit proceeding that
the audited person has appropriately designated and that is noted in
the Commission's initial order concerning the audit report or similar
document.\14\ Permitting an intervenor to raise extraneous issues could
deflect the focus of the contested proceeding from the designated issue
or issues, could cause unnecessary expense, litigation and delay, and
could require an audited person to litigate issues of which it had no
notice at the time it made its election to challenge a finding or
proposed remedy in the audit report.
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    \14\ This limitation is consistent with Commission practice. For
example, the Commission has rejected the timely-filed or otherwise
accepted pleadings of intervenors where they addressed issues that
were not relevant to the Commission's disposition of a seller's
market-based rates application and where they related to issues that
were otherwise outside the scope of the proceeding. See H.Q. Energy
Services (U.S.) Inc., 81 FERC ] 61,184 at 61,809 n.5 (1997).
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B. Orders in Contested Audit Proceedings

1. Request for Rehearing or Clarification
    8. EEI requests that the Commission clarify that it does not intend
the Final Rule's language regarding the precedential effect of
contested audit orders to create or support the ability to amend, by
individual adjudication, rules adopted through rulemaking
proceedings.\15\ EEI contends that such a result would be contrary to
law. EEI asserts that courts have struck down agencies' attempts to use
clarification and interpretations as a way of imposing more stringent
requirements and setting higher standards on the regulated
community.\16\ EEI also asserts that courts have rejected agencies'
efforts to enforce new policies by gradually imposing more restrictive
standards and higher burdens without allowing the regulated community
to participate or object.\17\
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    \15\ EEI Request for Rehearing and Clarification at p. 9.
    \16\ To support this position, EEI cites Alaska Professional
Hunters Ass'n v. FAA, 177 F.3d 1030, 1034 (DC Cir. 1999) (Alaska
Professional Hunters Ass'n).
    \17\ To support this position, EEI cites Appalachian Power Co.
v. EPA, 208 F.3d 1015, 1024 (DC Cir. 2000) (Appalachian Power).
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2. Commission Determination
    9. The Commission grants EEI's request for clarification. Orders
that the

Commission issues in contested audit proceedings will not amend rules
adopted through rulemaking proceedings.

C. Clarification of Time Frames for Audited Person To Respond

1. Request for Rehearing and Clarification
    10. EEI states that if the Commission intended to require a 30-day
time frame in which the audited person must provide in writing to the
audit staff a response to the draft audit report noting the items with
which it disagrees, then EEI seeks rehearing of that determination. EEI
states that the time frame in which the audited person must provide in
writing to the audit staff a response to the draft audit report
indicating items with which it disagrees should be flexible and that it
should be determined by the Commission audit staff and the audited
person based on the facts of the audit. EEI also asks the Commission to
clarify the regulatory text to make it clear that after the public
issuance of the Commission's initial order concerning an audit report,
the audited person will have 30 days to respond to the Commission with
the selection of a shortened procedure or a trial-type proceeding.\18\
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    \18\ EEI Request for Rehearing and Clarification at pp. 10-11.
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2. Commission Determination
    11. The Commission grants EEI's request for clarification in part.
In Order No. 675, the Commission did not specify a time frame in which
the audited person must provide in writing to the audit staff a
response to the draft audit report noting the items with which it
disagrees. Instead, the pertinent regulation stated that the audited
person's written response must be ``timely.'' The Commission intended
that the audit staff would determine the length of time an audited
person would have to file a written response indicating the findings or
proposed remedies with which it disagrees. The relevant regulatory text
at Sec. Sec.  41.1, 158.1, 286.103 and 349.1 reads as follows:

    Where such findings, with or without proposed remedies, appear
in a notice of deficiency, audit report or similar document, such
document shall be provided to the audited person, and the finding or
findings, and any proposed remedies, shall be noted and explained.
The audited person shall timely indicate in a written response any
and all findings or proposed remedies, or both, in any combination,
with which the audited person disagrees. Any initial order that the
Commission subsequently may issue with respect to the notice of
deficiency, audit report or similar document shall note, but not
address on the merits, the finding or findings, or the proposed
remedy or remedies, or both, in any combination, with which the
audited person disagreed. The Commission shall provide the audited
person 30 days to respond with respect to the finding or findings or
any proposed remedies, or both, in any combination, with which it
disagreed.

    12. The Commission declines to adopt EEI's suggestion that both the
audited person and the audit staff determine the time period in which
the audited person shall provide a written response to the audit staff
indicating findings or proposed remedies with which the audited person
disagrees. If the time period for the audited person's submission of
this response were subject to agreement between the audited person and
the audit staff, there might be instances in which the audited person
and the audit staff would fail to agree, resulting in inappropriate
delay. The Commission recognizes, however, that a certain time period
for the audited person to provide a written response indicating
findings and proposed remedies with which it disagrees, with the
possibility for additional time if deemed necessary by the Commission,
would provide a measure of assurance to the audited person that it will
have sufficient time to make this written response to audit staff. The
Commission determines that 15 days to make this written response will
be sufficient time in the large majority of cases in which the audited
person and audit staff do not disagree regarding the contents of the
draft audit report. Even in the remaining instances in which the
audited person and the audit staff disagree regarding the contents of
the draft audit report, the discussion between them regarding the
contents of the draft audit report preceding the commencement of the
15-day period should render the allotted time sufficient for the
audited person to indicate the areas of disagreement. In instances in
which the audited person may require more than 15 days to provide a
written statement of findings or proposed remedies with which it
disagrees to audit staff, the audit staff may provide in writing to the
audited person additional time at the time the draft audit report is
sent. The audited person may also move the Commission for additional
time. Consequently, the Commission will add two sentences to follow the
second sentence of Sec. Sec.  41.1, 158.1, 286.103, and 349.1 quoted
above to read as follows: ``The audited person shall have 15 days from
the date it is sent the notice of deficiency, audit report or similar
document to provide a written response to the audit staff indicating
any and all findings or proposed remedies, or both, in any combination,
with which the audited person disagrees, and such further time as the
audit staff may provide in writing to the audited person at the time
the document is sent to the audited person. The audited person may move
the Commission for additional time to provide a written response to the
audit staff and such motion shall be granted for good cause shown.''
    13. In Order No. 675, the Commission intended to indicate that an
audited person shall have 30 days to respond to a Commission order with
a selection of a shortened procedure or a trial-type proceeding.\19\
The 30-day provision in the last sentence quoted in paragraph 11 above
is meant to convey this intention. To remove any possible ambiguity,
the Commission will amend the last sentence of Sec. Sec.  41.1, 158.1,
286.103, and 349.1 quoted above, to read as follows: ``The Commission
shall provide the audited person 30 days to respond to the initial
Commission order concerning a notice of deficiency, audit report or
similar document with respect to the finding or findings or any
proposed remedy or remedies, or both, in any combination, with which it
disagreed.''
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    \19\ Order No. 675 at P 24-25.
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D. Precedential Effect of Decisions in Contested Audit Matters

    14. In Order No. 675, the Commission stated that a Commission order
that resolves a contested audit matter would be precedent for non-
parties. The Commission explained that an audited person who challenges
a finding or proposed remedy in an audit report using the procedure in
the Final Rule is participating in a contested, on-the-record
proceeding, and, like any other such proceeding before the Commission,
the legal reasoning and conclusions of the resulting order would apply
to non-parties.\20\
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    \20\ Order No. 675 at P 32.
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1. Request for Clarification
    15. EEI requests clarification that the Commission will not apply
any ruling on a contested audit matter to an entity that was not a
party to the adjudication unless and until the non-party entity has
been afforded an opportunity to challenge the basis of the ruling as it
applies to that entity. EEI states that the language in the Final Rule
regarding the precedential value of the Commission's rulings on a
contested audit may not be clear. According to EEI, judicial precedent
clearly supports its position. EEI relies principally upon Florida Gas
Transmission Co. v. FERC, 876 F.2d 42, 44 (5th Cir. 1989) (FGT). In
that case, the

United States Court of Appeals for the Fifth Circuit held that the
Commission did not sufficiently substantiate its decision to grant
individual NGA section 7(c) certificates for interruptible service for
a one-year term instead of the multi-year terms requested by FGT. The
Commission had relied on a policy of granting one-year terms for such
certificates. The court stated that due process

guarantees that parties who will be affected by the general rule be
given an opportunity to challenge the agency's action. When the rule
is established through formal rulemaking, public notice and hearing
provide the necessary protection. But where, as here, the rule is
established in individual adjudications, due process requires that
affected parties be allowed to challenge the basis of the rule. FERC
must be able to substantiate the general rule.\21\
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    \21\ FGT, 876 F.2d at 44 (citations omitted). EEI also cites PPL
Wallingford Energy LLC v. FERC, 419 F.3d 1194 (DC Cir. 2005). In
that case, the court vacated orders of the Commission on the grounds
that the Commission did not directly respond to or address arguments
the petitioner in that proceeding had made before the Commission.
---------------------------------------------------------------------------

2. Commission Determination
    16. The Commission denies EEI's request for clarification. The
Commission plainly stated in the Final Rule that a Commission order
that resolves a contested matter has precedential effect.\22\ As the
Commission noted in Order No. 675, ``the choice made between proceeding
by general rule or by individual, ad hoc litigation is one that lies
primarily in the informed discretion of the administrative agency.''
\23\ The long-settled principle of Federal administrative law is that
``[a]bsent express congressional direction to the contrary, agencies
are free to choose their procedural mode of administration.'' \24\
---------------------------------------------------------------------------

    \22\ Order No. 675 at P 32.
    \23\ SEC v. Chenery Corp., 332 U.S. 194, 203 (1947).
    \24\ Davis v. EPA, 336 F.3d 965 (9th Cir. 2003).
---------------------------------------------------------------------------

    17. FGT does not require a different conclusion. The issue in that
case was whether the Commission could rely upon its one-year policy for
denying requests for longer term individual certificates or whether the
Commission needed to provide an explanation specific to FGT's
circumstances and failed to do so. On remand, the Commission gave an
explanation \25\ that the court subsequently concluded was
sufficient.\26\ To the extent that the Commission makes a determination
in a contested audit matter and subsequently applies that determination
to an audited person who had not been a party in the prior proceeding,
the Commission will provide a reasoned explanation to comply with
applicable legal standards.
---------------------------------------------------------------------------

    \25\ Florida Gas Transmission Co., 49 FERC ] 61,375 (1989).
    \26\ Monsanto Co. v. FERC, 963 F.2d 827 (5th Cir. 1992).
---------------------------------------------------------------------------

    18. In sum, just like other Commission contested, on-the-record
proceedings that provide third parties an opportunity to intervene and
participate, we find that Commission determinations in contested audit
proceedings are precedent for non-parties in subsequent proceedings.
And, as in such proceedings, the Commission will explain the
application of that precedent on the basis of the record developed in
subsequent proceedings.

E. Codifying the Determination in the Preamble of the Final Rule

1. EEI's Request for Rehearing and Clarification
    19. EEI asks that the Commission include a number of its
determinations contained in the Final Rule in the regulatory text. EEI
states that the types of matters addressed in the Final Rule that were
not included in the regulatory text have been included in the
Commission's regulations on other occasions. As an example, EEI cites
Sec.  1b.16 of the Commission's regulations,\27\ which pertains, in
part, to the right of a person who is compelled to appear, or who
appears in person at the request or permission of the Investigating
Officer, to be accompanied, represented and advised by counsel, subject
to certain additional provisions. EEI notes in this regard that in the
Final Rule, the Commission stated that an attorney may be present
during interviews of an audited person's employees. EEI contends that a
person should not have to refer to the language of the Final Rule, but
instead should be able to consult the Commission's regulations, to
learn this information.\28\
---------------------------------------------------------------------------

    \27\ 18 CFR 1b.16 (2005).
    \28\ EEI Request for Rehearing and Clarification at pp. 11-14.
---------------------------------------------------------------------------

    20. EEI identifies seven matters that it states are discussed in
the Final Rule but not reflected in the regulatory text. These matters
are (1) The right to have counsel present during an audit; (2) use by
the Commission of the standard set forth in Sec.  385.214(b) of its
regulations \29\ to govern interventions in contested audit proceedings
and the disallowances of interested persons to intervene until after
the Commission issues the notice described in Part 41 of the
Commission's regulations; (3) confidential treatment of information
provided in an audit; (4) the absence of discovery in the shortened
procedure and the applicability of Part 385 of the Commission's
regulations \30\ with respect to discovery in a trial-type proceeding;
(5) the precedential value of an audit report and an order approving an
uncontested audit report; (6) the 30-day time frame for an audited
person's response; \31\ and (7) protection of confidential treatment in
trial-type proceedings.
---------------------------------------------------------------------------

    \29\ 18 CFR 85.214(b) (2005).29
    \30\ 18 CFR part 385 (2005).30
    \31\ EEI's request with respect to the 30-day time frame for an
audit person's response is addressed supra P 11-13.31
---------------------------------------------------------------------------

2. Commission Determination

    21. EEI has not provided a compelling reason for the Commission to
include the noted portions of the Final Rule in the regulatory text. In
particular, four of the issues EEI raises are not germane to the
procedural matters addressed in the regulatory text. The right to
counsel, confidential treatment, precedential value of an audit report
and a Commission order approving an uncontested audit report, and
protection of confidential treatment issues do not pertain to the
procedure an audited person may use to challenge findings or proposed
remedies in an audit report. Accordingly, it would not be appropriate
to include them in the regulatory text of the parts of Title 18
involved in this rulemaking. The Commission has exercised its
discretion in past proceedings to clarify matters in final rules and in
orders on rehearing of final rules without inserting those
clarifications in the underlying regulations.\32\
---------------------------------------------------------------------------

    \32\ See, e.g., Regulations Implementing Energy Policy Act of
2005; Pre-filing Procedures for Review of LNG Terminals and Other
Natural Gas Facilities, Order No. 665, 70 FR 60426 (Oct. 18, 2005),
FERC Stats. & Regs., Regulations Preambles 2001-2005 ] 31,195 (Oct.
7, 2005) (``In view of the clarification and regulatory text
revisions discussed above, the Commission does not believe that it
is necessary to include in the final regulations additional criteria
or definitions for the Director's use in reaching a determination
whether prospective modifications to an existing or approved LNG
terminal should be subject to a mandatory pre-filing process.'');
Standards of Conduct for Transmission Providers, Order No. 2004-A,
69 FR 23562 (Apr. 29, 2004), FERC Stats. & Regs., Regulations
Preambles 2001-2005 ] 31,161 (Apr. 16, 2004) (``The Commission
denies National Fuel-Supply's request to revise the regulatory text,
but clarifies that by using the term `relate' in the phrase `if it
relates solely to a Marketing or Energy Affiliate's specific request
for transmission service,' the Commission intended to include the
corresponding transportation service agreements that result from a
`request.' '').
---------------------------------------------------------------------------

    22. The Commission's statements in the Final Rule regarding
interventions likewise do not warrant inclusion in the regulatory text.
The Commission stated that it will use the standard stated in Sec.
385.214(b),\33\ which is in subpart B of Part 385 of the Commission's
regulations, for permitting interested

entities to file memoranda in the shortened procedure as it uses to
permit interventions in other proceedings. Subpart B of Part 385
``applies to any pleading'' \34\ and thus no addition to the regulatory
text is needed to provide certainty.
---------------------------------------------------------------------------

    \33\ 18 CFR 385.214(b) (2005).
    \34\ 18 CFR 385.201 (2005).
---------------------------------------------------------------------------

    23. The Commission's statements in the Final Rule regarding
discovery also do not warrant inclusion in the regulatory text. The
regulatory text accompanying the Final Rule does not authorize
discovery in the shortened procedure. The Final Rule clarified that
discovery is not available in the shortened procedure at EEI's
request.\35\ Again, adding language in the regulatory text will not
provide certainty. As is true for adding regulatory text regarding
interventions, adding regulatory text regarding discovery in trial-type
proceedings would also be redundant, in this case to the rules in Part
385 of the Commission's regulations.
---------------------------------------------------------------------------

    \35\ Order No. 675 at P 9, 12. The Final Rule also clarified
that the applicable standards under Part 385 of the Commission's
regulations will govern if the trial-type procedure is used. Order
No. 675 n.25.
---------------------------------------------------------------------------

    24. The Commission does not agree with EEI's contention that a
provision in Part 1b of the Commission's regulations, which pertains to
a person's right to have counsel present under certain circumstances in
an investigation, suggests that the revised Part 41 should also address
issues relating to counsel, in addition to other issues. Part 1b
contains provisions describing the Commission's policy and procedures
for investigations conducted under the statutes it administers. \36\
Part 41 does not describe the audit process. Instead, Part 41 sets
forth the procedure an audited person can use to challenge audit
findings or proposed remedies with which it disagrees. In sum, by
declining to include in the regulatory text the topics EEI references
the Commission is not acting in a manner inconsistent with its
promulgation of Part 1b.
---------------------------------------------------------------------------

    \36\ Rules Relating to Investigations, Order No. 8, 43 FR 27174
(Jun. 23, 1978), FERC Stats. & Regs., Regulations Preambles 1977-
1981 ] 30,012 (1978).
---------------------------------------------------------------------------

F. Separation of Functions Issues

1. Request for Rehearing and Clarification
    25. In its request for rehearing and clarification, EEI asks the
Commission to issue a policy statement, with an opportunity for public
comment, to consider and determine the appropriate relationship between
the Commission's audit and enforcement staffs during audits, shortened
or trial-type procedures for contested audit matters, and formal and
informal investigations under Part 1b of the Commission's regulations.
EEI asserts that the time is ripe for such a policy statement because
of developments and changes in the roles and functions of the audit and
enforcement staffs since the Commission's issuance of its Policy
Statement on Separation of Functions \37\ in 2002 and the Commission's
new and substantial enforcement and remedial authority under the Energy
Policy Act of 2005 (EPAct 2005).\38\ EEI states that the purpose of the
policy statement it proposes would be for the Commission to examine the
relationship of the audit and enforcement staffs to ensure that their
work is fair and consistent with due process rights and separations of
functions during every possible stage of the audit process and any
subsequent investigatory or enforcement action. EEI states that a
policy statement, with opportunity for public comment, would help build
an appropriate Commission record and basis for balancing separation of
functions and due process requirements.\39\ Finally, EEI asserts that a
case the Commission cited in the Final Rule, Trans Alaska Pipeline
System, 9 FERC ] 61,205 (1979), which states that the Commission's
audit and investigatory staffs may freely share information, is no
longer fully relevant.\40\
---------------------------------------------------------------------------

    \37\ 101 FERC ] 61,340 (2002).
    \38\ P.L. No. 109-58, 119 Stat. 594 (2005).
    \39\ EEI Request for Rehearing and Clarification at pp. 14-15.
According to EEI, the Commission has not established a sufficient
basis and record with respect to this issue to satisfy the reasoned
decision making standard under the Administrative Procedure Act, 5
U.S.C. 706 (2000).
    \40\ EEI Request for Rehearing and Clarification at pp. 15-16.
---------------------------------------------------------------------------

2. Commission Determination
    26. The Commission declines EEI's proposal that the Commission
issue a policy statement concerning the relationship of its audit and
investigations staffs. As an initial matter, EEI's proposal is not
related to the Commission's promulgation of a new procedure for audited
persons seeking to challenge audit findings or proposed remedies, which
is the subject of Order No. 675. Moreover, the Commission already has a
policy statement on Separations of Functions,\41\ which is as
applicable today as it was when it was issued in 2002. Nothing in EPAct
2005 affects the operation of Rule 2202,\42\ which was the focus of
that policy statement.
---------------------------------------------------------------------------

    \41\ 101 FERC ] 61,340 (2002).
    \42\ 18 CFR 385.2202 (2005).
---------------------------------------------------------------------------

    27. For its part, EEI's request is not supported by facts. EEI does
not identify any specific practice or activity that warrants
examination. EEI refers to developments and changes since 2002, but
does not state what material developments and changes have occurred
that compel the public examination of separation of functions issues
that EEI requests. EPAct 2005 provided the Commission with enhanced
authority to assess civil penalties for violations of the FPA, NGA and
NGPA, but EEI does not suggest why this authority should trigger the
policy statement it seeks.\43\
---------------------------------------------------------------------------

    \43\ Since the enactment of EPAct 2005, the Commission has
issued a number of statements and orders to provide guidance to the
regulated community. For example, in October 2005, the Commission
issued a Policy Statement on Enforcement to provide guidance and
regulatory certainty regarding the Commission's enforcement of the
statutes, orders, rules and regulations it administers. Enforcement
of Statutes, Orders, Rules, and Regulations, 113 FERC ] 61,068
(2005). In November 2005, the Commission issued an Interpretive
Order Regarding No-Action Letter Process to clarify that members of
the public may request and obtain no-action letters with respect to
whether staff will recommend that the Commission take no enforcement
action with respect to specific proposed transactions, practices or
situations that may raise issues under certain Commission
regulations. Informal Staff Advice on Regulatory Requirements, 113
FERC ] 61,174 (2005).
---------------------------------------------------------------------------

    28. Trans Alaska Pipeline System remains relevant to the issue of
whether the audit staff and investigative staff may share information.
In that proceeding, the Trans Alaska Pipeline System owners asked that
the Commission forbid communications between the valuation and audit
staff on the one hand and the rate staff on the other. The Commission
determined, among other things, that communications between these two
staffs would not constitute impermissible, ex parte communications and
that the staffs need not be separated to ensure the integrity of the
valuation.\44\ The Commission approvingly quoted from a prior
proceeding in which it endorsed the sharing of information among
different staffs:
---------------------------------------------------------------------------

    \44\ Trans Alaska Pipeline System, 9 FERC at 61,371-372.

    Administrative agencies were brought into being to supply
expertise and to minimize formalism. Walls of separation between
those who litigate and those who investigate do not serve those
ends. Nor does due process require them. All that due process
mandates in situations of this kind is that adjudicative proceedings
be decided solely on the basis of the records developed in them.\45\
---------------------------------------------------------------------------

    \45\ Id. at 61,372, quoting Tenneco, Inc., 7 FERC ] 61,258 at
61,541-542 (1979) (footnotes omitted).

    29. Efficiency and sound administrative practice favors the sharing
of information between the audit staff and investigative staff, and no
entity suffers a cognizable due process harm as a result. We see no
need at this

time to reevaluate the interaction between these staffs.
    The Commission orders: EEI's petition for rehearing and
clarification is granted in part and denied in part as discussed in the
body of this order.

    By the Commission.
Magalie R. Salas,
Secretary.

List of Subjects

18 CFR Part 41

    Administrative practice and procedure, Electronic utilities,
Reporting and recordkeeping requirements, Uniform System of Accounts.

18 CFR Part 158

    Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.

18 CFR Parts 286 and 349

    Administrative practice and procedure, Natural gas, Price Controls.

0
In consideration of the foregoing, the Commission amends parts 41, 158,
286 and 349, Chapter I, Title 18 of the Code of Federal Regulations, as
follows:

PART 41--ACCOUNTS, RECORDS, MEMORANDA AND DISPOSITION OF CONTESTED
AUDIT FINDINGS AND PROPOSED REMEDIES

0
1. The authority citation for part 41 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.

0
2. Section 41.1 is revised to read as follows:

Sec.  41.1  Notice to audited person.

    (a) Applicability. This part applies to all audits conducted by the
Commission or its staff under authority of the Federal Power Act except
for Electric Reliability Organization audits conducted pursuant to the
authority of part 39 of the Commission's regulations.
    (b) Notice. An audit conducted by the Commission's staff under
authority of the Federal Power Act may result in a notice of deficiency
or audit report or similar document containing a finding or findings
that the audited person has not complied with a requirement of the
Commission with respect to, but not limited to, the following: A filed
tariff or tariffs, contracts, data, records, accounts, books,
communications or papers relevant to the audit of the audited person;
matters under the Standards of Conduct or the Code of Conduct; and the
activities or operations of the audited person. The notice of
deficiency, audit report or similar document may also contain one or
more proposed remedies that address findings of noncompliance. Where
such findings, with or without proposed remedies, appear in a notice of
deficiency, audit report or similar document, such document shall be
provided to the audited person, and the finding or findings, and any
proposed remedies, shall be noted and explained. The audited person
shall timely indicate in a written response any and all findings or
proposed remedies, or both, in any combination, with which the audited
person disagrees. The audited person shall have 15 days from the date
it is sent the notice of deficiency, audit report or similar document
to provide a written response to the audit staff indicating any and all
findings or proposed remedies, or both, in any combination, with which
the audited person disagrees, and such further time as the audit staff
may provide in writing to the audited person at the time the document
is sent to the audited person. The audited person may move the
Commission for additional time to provide a written response to the
audit staff and such motion shall be granted for good cause shown. Any
initial order that the Commission subsequently may issue with respect
to the notice of deficiency, audit report or similar document shall
note, but not address on the merits, the finding or findings, or the
proposed remedy or remedies, or both, in any combination, with which
the audited person disagreed. The Commission shall provide the audited
person 30 days to respond to the initial Commission order concerning a
notice of deficiency, audit report or similar document with respect to
the finding or findings or any proposed remedy or remedies, or both, in
any combination, with which it disagreed.

PART 158--ACCOUNTS, RECORDS, MEMORANDA AND DISPOSITION OF CONTESTED
AUDIT FINDINGS AND PROPOSED REMEDIES

0
3. The authority citation for part 158 continues to read as follows:

    Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7102-7352.

0
4. Section 158.1 is revised to read as follows:

Sec.  158.1  Notice to audited person.

    An audit conducted by the Commission's staff under authority of the
Natural Gas Act may result in a notice of deficiency or audit report or
similar document containing a finding or findings that the audited
person has not complied with a requirement of the Commission with
respect to, but not limited to, the following: A filed tariff or
tariffs, contracts, data, records, accounts, books, communications or
papers relevant to the audit of the audited person; matters under the
Standards of Conduct or the Code of Conduct; and the activities or
operations of the audited person. The notice of deficiency, audit
report or similar document may also contain one or more proposed
remedies that address findings of noncompliance. Where such findings,
with or without proposed remedies, appear in a notice of deficiency,
audit report or similar document, such document shall be provided to
the audited person, and the finding or findings, and any proposed
remedies, shall be noted and explained. The audited person shall timely
indicate in a written response any and all findings or proposed
remedies, or both, in any combination, with which the audited person
disagrees. The audited person shall have 15 days from the date it is
sent the notice of deficiency, audit report or similar document to
provide a written response to the audit staff indicating any and all
findings or proposed remedies, or both, in any combination, with which
the audited person disagrees, and such further time as the audit staff
may provide in writing to the audited person at the time the document
is sent to the audited person. The audited person may move the
Commission for additional time to provide a written response to the
audit staff and such motion shall be granted for good cause shown. Any
initial order that the Commission subsequently may issue with respect
to the notice of deficiency, audit report or similar document shall
note, but not address on the merits, the finding or findings, or the
proposed remedy or remedies, or both, in any combination, with which
the audited person disagreed. The Commission shall provide the audited
person 30 days to respond to the initial Commission order concerning a
notice of deficiency, audit report or similar document with respect to
the finding or findings or any proposed remedy or remedies, or both, in
any combination, with which it disagreed.

PART 286--ACCOUNTS, RECORDS, MEMORANDA AND DISPOSITION OF CONTESTED
AUDIT FINDINGS AND PROPOSED REMEDIES

0
5. The authority citation for part 286 is revised to read as follows:

    Authority: 5 U.S.C. 551 et seq.; 15 U.S.C. 717-717w, 3301-3432;
42 U.S.C. 7102-7352.

0
6. Section 286.103 is revised to read as follows:

Sec.  286.103  Notice to audited person.

    An audit conducted by the Commission's staff under authority of the
Natural Gas Policy Act may result in a notice of deficiency or audit
report or similar document containing a finding or findings that the
audited person has not complied with a requirement of the Commission
with respect to, but not limited to, the following: A filed tariff or
tariffs, contracts, data, records, accounts, books, communications or
papers relevant to the audit of the audited person; matters under the
Standards of Conduct or the Code of Conduct; and the activities or
operations of the audited person. The notice of deficiency, audit
report or similar document may also contain one or more proposed
remedies that address findings of noncompliance. Where such findings,
with or without proposed remedies, appear in a notice of deficiency,
audit report or similar document, such document shall be provided to
the audited person, and the finding or findings, and any proposed
remedies, shall be noted and explained. The audited person shall timely
indicate in a written response any and all findings or proposed
remedies, or both, in any combination, with which the audited person
disagrees. The audited person shall have 15 days from the date it is
sent the notice of deficiency, audit report or similar document to
provide a written response to the audit staff indicating any and all
findings or proposed remedies, or both, in any combination, with which
the audited person disagrees, and such further time as the audit staff
may provide in writing to the audited person at the time the document
is sent to the audited person. The audited person may move the
Commission for additional time to provide a written response to the
audit staff and such motion shall be granted for good cause shown. Any
initial order that the Commission subsequently may issue with respect
to the notice of deficiency, audit report or similar document shall
note, but not address on the merits, the finding or findings, or the
proposed remedy or remedies, or both, in any combination, with which
the audited person disagreed. The Commission shall provide the audited
person 30 days to respond to the initial Commission order concerning a
notice of deficiency, audit report or similar document with respect to
the finding or findings or any proposed remedy or remedies, or both, in
any combination, with which it disagreed.

PART 349--DISPOSITION OF CONTESTED AUDIT FINDINGS AND PROPOSED
REMEDIES

0
7. The authority citation for part 349 is revised to read as follows:

    Authority: 42 U.S.C. 7101-7352; 49 U.S.C. 1, et seq.

0
8. Section 349.1 is revised to read as follows:

Sec.  349.1  Notice to audited person.

    An audit conducted by the Commission or its staff under authority
of the Interstate Commerce Act may result in a notice of deficiency or
audit report or similar document containing a finding or findings that
the audited person has not complied with a requirement of the
Commission with respect to, but not limited to, the following: A filed
tariff or tariffs, contracts, data, records, accounts, books,
communications or papers relevant to the audit of the audited person;
and the activities or operations of the audited person. The notice of
deficiency, audit report or similar document may also contain one or
more proposed remedies that address findings of noncompliance. Where
such findings, with or without proposed remedies, appear in a notice of
deficiency, audit report or similar document, such document shall be
provided to the audited person, and the finding or findings, and any
proposed remedies, shall be noted and explained. The audited person
shall timely indicate in a written response any and all findings or
proposed remedies, or both, in any combination, with which the audited
person disagrees. The audited person shall have 15 days from the date
it is sent the notice of deficiency, audit report or similar document
to provide a written response to the audit staff indicating any and all
findings or proposed remedies, or both, in any combination, with which
the audited person disagrees, and such further time as the audit staff
may provide in writing to the audited person at the time the document
is sent to the audited person. The audited person may move the
Commission for additional time to provide a written response to the
audit staff and such motion shall be granted for good cause shown. Any
initial order that the Commission subsequently may issue with respect
to the notice of deficiency, audit report or similar document shall
note, but not address on the merits, the finding or findings, or the
proposed remedy or remedies, or both, in any combination, with which
the audited person disagreed. The Commission shall provide the audited
person 30 days to respond to the initial Commission order concerning a
notice of deficiency, audit report or similar document with respect to
the finding or findings or any proposed remedy or remedies, or both, in
any combination, with which it disagreed.

[FR Doc. 06-4814 Filed 5-23-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 84, Number 242 (Tuesday, December 17, 2019)]
[Notices]
[Pages 68934-68935]
[FR Doc No: 2019-27156]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-10003-22-Region 4]

Public Water System Supervision Program Revision for the State of
Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intended approval.

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

SUMMARY: Notice is hereby given that the State of Tennessee is revising
its approved Public Water System Supervision Program. Tennessee has
adopted drinking water regulations for the Revised Total Coliform Rule.
The Environmental Protection Agency (EPA) has determined that
Tennessee's regulations are no less stringent than the federal rule and
the revision otherwise meets applicable Safe Drinking Water Act
requirements. Therefore, EPA intends to approve this revision to the
State of Tennessee's Public Water System Supervision Program.

DATES: Any interested person may request a public hearing. A request
for a public hearing must be submitted by January 16, 2020, to the
Regional Administrator at the EPA Region 4 street address shown below.
The Regional Administrator may deny frivolous or insubstantial requests
for a hearing. However, if a substantial request for a public hearing
is made by January 16, 2020, a public hearing will be held. If no
timely and appropriate request for a hearing is received and the
Regional Administrator does not elect to hold a hearing on her own
motion, this determination shall become final and effective on January
16, 2020. Any request for a public hearing shall include the following
information: The name, address, and telephone number of the individual,
organization, or other entity requesting a hearing; a brief statement
of the requesting person's interest in the Regional Administrator's
determination and a brief statement of the information that the
requesting person intends to submit at such hearing; and the signature
of the individual making the request, or, if the request is made on
behalf of an organization or other entity, the signature of a
responsible official of the organization or other entity.

ADDRESSES: Documents relating to this determination are available for
inspection between the hours of 9:00 a.m. and 4:00 p.m., Monday through
Friday (excluding legal holidays) at the following locations: The main
office of the Division of Water Resources, Tennessee Department of
Environment

and Conservation, William R. Snodgrass--Tennessee Tower, 11th Floor,
312 Rosa L. Parks Avenue, Nashville, Tennessee 37243; and the Drinking
Water Section, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT: Dale Froneberger, EPA Region 4,
Drinking Water Section, by mail at the Atlanta street address given
above, by telephone at<PHONE_NUMBER>, or by email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The State of Tennessee has submitted a
request that EPA approve a revision to the State's Safe Drinking Water
Act Public Water System Supervision Program to include the authority to
implement and enforce the Revised Total Coliform Rule. For the request
to be approved, EPA must find the state regulations codified at Tenn.
Comp. R. & Regs. 0400-45-01 to be no less stringent than the federal
rule codified at 40 CFR part 141. EPA reviewed Tennessee's application
using the federal statutory provisions (Section 1413 of the Safe
Drinking Water Act), federal regulations (at 40 CFR parts 141 and 142),
state regulations, state policies and procedures for implementing the
rule, regulatory crosswalk, and EPA regulatory guidance to determine
whether the request for revision is approvable. EPA determined that the
Tennessee regulations are no less stringent than the corresponding
federal rule and the revision otherwise meets applicable Safe Drinking
Water Act requirements. Therefore, EPA intends to approve this
revision. If EPA does not receive a timely and appropriate request for
a hearing and the Regional Administrator does not elect to hold a
hearing on her own motion, this approval shall become final and
effective on January 16, 2020.

    Authority: Section 1413 of the Safe Drinking Water Act, as
amended (1996), and 40 CFR part 142.

    Dated: December 2, 2019.
Mary S. Walker,
Regional Administrator, Region 4.
[FR Doc. 2019-27156 Filed 12-16-19; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48744-48747]
[FR Doc No: 2022-17104]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95430; File No. SR-BOX-2022-24)

Self-Regulatory Organizations; BOX Exchange LLC; Notice of Filing
and Immediate Effectiveness of a Proposed Rule Change To Amend the Fee
Schedule on the BOX Options Market LLC Facility To Establish Section
IV.D.2 (``Strategy QCC Transactions'')

August 4, 2022.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on August 1, 2022, BOX Exchange LLC (``Exchange'') 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 Exchange filed the proposed rule
change pursuant to Section 19(b)(3)(A)(ii) of the Act,\3\ and Rule 19b-
4(f)(2) thereunder,\4\ which renders the proposal effective upon filing
with the Commission. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange is filing with the Securities and Exchange Commission
(``Commission'') a proposed rule change to amend the Fee Schedule to
amend the Fee Schedule for trading on BOX to establish Section IV.D.2
(``Strategy QCC Transactions'') on the BOX Options Market LLC (``BOX'')
options facility. While changes to the fee schedule

pursuant to this proposal will be effective upon filing, the changes
will become operative on August 1, 2022. The text of the proposed rule
change is available from the principal office of the Exchange, at the
Commission's Public Reference Room and also on the Exchange's internet
website at http://boxexchange.com.

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

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

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

1. Purpose
    The Exchange proposes to amend the Fee Schedule for trading on BOX
to establish Section IV.D.2 (``Strategy QCC Transactions'').
    Currently, the transaction fees for Qualified Contingent Cross
(``QCC'') Orders, including strategy QCC Orders, are detailed in
Section IV.D. in the Fee Schedule. Broker Dealer and Market Maker QCC
transactions are assessed $0.17 per contract for both the Agency Order
and the Contra Order. Public Customers and Professional Customers are
assessed $0.00 for both the Agency Order and the Contra Order and are
eligible for a rebate if at least one side of the QCC transaction is a
Broker Dealer or Market Maker.\5\
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    \5\ See BOX Fee Schedule, Section IV.D, ``Qualified Contingent
Cross (``QCC'') Transactions.''
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    To further incentivize Participants to execute strategy \6\ QCC
transactions on BOX, the Exchange now proposes to establish Section
IV.D.2 that will detail the fees assessed for these transactions.\7\
Specifically, the Exchange proposes to assess no fees for strategy QCC
transactions which are comprised of an originating order to buy or sell
at least 1,000 contracts, or 10,000 mini-option contracts, that is
identified as being part of a qualified contingent trade, as that term
is defined in IM-7110-2 below, coupled with a contra-side order or
orders totaling an equal number of contracts. IM-7110-2 provides a
``qualified contingent trade'' is a transaction consisting of two or
more component orders, executed as agent or principal, where: (1) At
least one component is an NMS Stock, as defined in Rule 600 of
Regulation NMS under the Exchange Act; (2) all components are effected
with a product or price contingency that either has been agreed to by
all the respective counterparties or arranged for by a broker dealer as
principal or agent; (3) the execution of one component is contingent
upon the execution of all other components at or near the same time;
(4) the specific relationship between the component orders (e.g., the
spread between the prices of the component orders) is determined by the
time the contingent order is placed; (5) the component orders bear a
derivative relationship to one another, represent different classes of
shares of the same issuer, or involve the securities of participants in
mergers or with intentions to merge that have been announced or
cancelled; and (6) the transaction is fully hedged (without regard to
any prior existing position) as a result of other components of the
contingent trade.\8\ Because these transactions will not be assessed a
fee, the Exchange proposes that strategy QCC transactions will not be
eligible for a QCC Rebate and will not count toward QCC Agency Order
volume detailed in Section IV.D.1. The Exchange notes that strategy QCC
transactions will continue to count toward Market Maker and Public
Customer monthly executed volume on BOX detailed in Section IV.A.1 of
the BOX Fee Schedule but will not be eligible for the QCC Rebate in
Section IV.D.1 and will not be counted towards the QCC Rebate Tiers.
---------------------------------------------------------------------------

    \6\ Strategy orders are defined as one of the following: A
``short stock interest strategy'' is defined as a transaction done
to achieve a short stock interest arbitrage involving the purchase,
sale, and exercise of in-the-money options of the same class. A
``long stock interest strategy'' is defined as a transaction done to
achieve long stock involving the purchase, sale, and exercise of in-
the-money options of the same class. A ``merger strategy'' is
defined as transactions done to achieve a merger arbitrage involving
the purchase, sale and exercise of options of the same class and
expiration date, each executed prior to the date on which
shareholders of record are required to elect their respective form
of consideration, i.e., cash or stock. A ``reversal strategy'' is
established by combining a short security position with a short put
and a long call position that shares the same strike and expiration.
A ``conversion strategy'' is established by combining a long
position in the underlying security with a long put and a short call
position that shares the same strike and expiration. A ``jelly roll
strategy'' is created by entering into two separate positions
simultaneously. One position involves buying a put and selling a
call with the same strike price and expiration. The second position
involves selling a put and buying a call, with the same strike
price, but with a different expiration from the first position. A
``box spread strategy'' is a strategy that synthesizes long and
short stock positions to create a profit. Specifically, a long call
and short put at one strike is combined with a short call and long
put at a different strike to create synthetic long and synthetic
short stock positions, respectively. A ``dividend strategy'' is
defined as a transaction done to achieve a dividend arbitrage
involving the purchase, sale and exercise of in-the-money options of
the same class, executed the first business day prior to the date on
which the underlying stock goes ex-dividend. See BOX Fee Schedule,
notes 29 and 35.
    \7\ The Exchange notes that Public Customers and Professional
Customers are not charged a fee for QCC Orders. Therefore, the
Exchange believes that Public Customers and Professional Customers
will not be as incentivized as other Participants by the proposed
fees.
    \8\ BOX Rule 7110(c)(6).
---------------------------------------------------------------------------

    The proposed change is designed to compete with open outcry fee
caps for strategy orders.\9\ The Exchange believes that Participants
may choose to execute strategy orders that would qualify as strategy
QCC Orders either in open outcry or as electronic QCC transactions
depending on convenience, fees, and access to Floor Brokers. The
Exchange believes that Participants are otherwise indifferent to
whether a strategy order is executed in open outcry or electronically.
Therefore, the proposed change is designed to further incentivize
certain Participants to direct strategy order volume to BOX's
electronic QCC mechanism rather than to another exchange's trading
floor.
---------------------------------------------------------------------------

    \9\ The Exchange's proposal to not assess fees on strategy QCC
transactions is similar to Cboe Exchange, Inc. (``CBOE''), which
caps open outcry strategy transactions at $0.00. See CBOE Fee
Schedule, ``QCC Rate Table''; footnote 13. CBOE's fee cap applies to
open outcry strategy transactions. Although, the proposed strategy
QCC Orders are executed electronically, the Exchange believes that
executing strategy orders as QCC orders is an alternative for
trading strategy orders in open outcry. As such, the proposed change
will allow BOX to compete with other exchanges who offer strategy
orders at no cost. BOX notes that other exchanges offer fee caps on
open outcry strategy transactions as well. See generally NYSE
American Options Fee Schedule, Section I(J), ``Options Transaction
Fees and Credits'' (Strategy transactions in open outcry and QCC
reversal and conversion strategies are capped at $1,000 on the same
trading day. The cap is reduced to $200 per trading day for ATP
Holders that trade at least 25,000 billable contract sides in
qualifying strategy executions) and Nasdaq PHLX LLC Rules Options 7,
Section 4 (reversal and conversion strategies capped at $200 per
day; merger, short stock interest, and box spread strategies capped
at $1,000 per day if more than one class of options or $700 per day
if in a single class of options; dividend strategies capped at
$1,100 per day; all strategies capped at $65,000 per month per
member organization).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposal is consistent with the
requirements of Section 6(b) of the Act, in general, and Section
6(b)(4) and 6(b)(5) of the Act,\10\ in particular, in that it provides
for the equitable allocation of reasonable dues, fees, and other

charges among BOX Participants and other persons using its facilities
and does not unfairly discriminate between customers, issuers, brokers
or dealers.
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Exchange notes that it operates in a highly competitive
environment. Indeed, there are currently 16 registered options
exchanges that trade options. Based on publicly available information,
no single options exchange has more than 16% of the market share and
currently the Exchange represents only approximately 6% of the market
share.\11\ The Commission has repeatedly expressed its preference for
competition over regulatory intervention in determining prices,
products, and services in the securities markets. Particularly, in
Regulation NMS, the Commission highlighted the importance of market
forces in determining prices and SRO revenues and, also, recognized
that current regulation of the market system ``has been remarkably
successful in promoting market competition in its broader forms that
are most important to investors and listed companies.'' \12\ As stated
above, the Exchange operates in a highly competitive market in which
market participants can readily direct order flow to competing venues
if they deem fee levels at a particular venue to be excessive or
incentives to be insufficient. The proposed fee changes reflect a
competitive pricing structure designed to incentivize market
participants to direct their order flow to the Exchange.
---------------------------------------------------------------------------

    \11\ See Cboe Global Markets U.S. Options Market Month-to-Date
Volume Summary (June 16, 2022), available at https://markets.cboe.com/us/options/market_statistics/.
    \12\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting
Release'').
---------------------------------------------------------------------------

    The Exchange believes the proposed change is reasonable, equitable,
and not unfairly discriminatory as there are other exchanges with
similar fees or fee caps for strategy orders \13\ and the proposed fees
are uniformly applicable to all Participants. The Exchange also
believes the proposed change would further incentivize certain
Participants to execute strategy QCC Orders on BOX and may encourage
Participants to aggregate all types of strategy orders (i.e. QCC Orders
and Qualified Open Outcry (``QOO'') Orders) at BOX as a primary
execution venue. The Exchange believes that Participants may
consolidate different order types for execution on a single exchange
because it increases the volume counted towards volume-based fee
incentives, in particular, the Tiered Volume Rebate for Non-Auction
Transactions in Section IV.A.1., of BOX's Fee Schedule, which provides
Participants with incentives to achieve certain volume thresholds on
BOX. To the extent that the proposed change attracts more strategy
orders to BOX, some of which may be executed as QCC Orders and others
as QOO Orders, this increased order flow may make BOX a more
competitive venue for order execution.
---------------------------------------------------------------------------

    \13\ See supra note 9.
---------------------------------------------------------------------------

    The Exchange also believes that the ever-shifting market share
among the exchanges from month to month demonstrates that market
participants can shift order flow or discontinue or reduce use of
certain categories of products, in response to fee changes.
Accordingly, competitive forces constrain options exchange transaction
fees. Stated otherwise, changes to exchange transaction fees can have a
direct effect on the ability of an exchange to compete for order flow.
The Exchange believes the proposed change is a reasonable attempt to
further incentivize certain Participants to execute strategy orders on
BOX and in turn to increase the depth of its market to the benefit of
all market participants. The Exchange also notes that Participants may
avail themselves to the proposed strategy order pricing or they can opt
for similar offerings at several other exchanges.\14\
---------------------------------------------------------------------------

    \14\ See supra note 9.
---------------------------------------------------------------------------

    The Exchange believes that not allowing strategy QCC transactions
to be eligible for a rebate is reasonable, equitable and not unfairly
discriminatory because, as proposed, a fee is not assessed for these
transactions. As such, the Exchange believes that Participants do not
require additional incentives to execute these transactions on BOX. The
QCC Rebate and Tiers detailed in Section IV.D.1 of the BOX Fee Schedule
were designed to reduce the QCC fees assessed to Participants in
Section IV.D. The proposal discussed herein is to assess no fee on
strategy QCC Orders therefore there is no fee to reduce. Further, the
Exchange believes that it is reasonable, equitable and not unfairly
discriminatory to not count strategy QCC Order volume towards QCC Tiers
because the Exchange does not believe that Participants need additional
incentives to transact strategy QCC Orders on BOX.
    The Exchange believes that it is reasonable, equitable and not
unfairly discriminatory to continue to count strategy QCC transactions
toward the Tiered Volume Rebate for Non-Auction Transactions in Section
IV.A.1., which provides Participants with incentives to achieve certain
volume thresholds on BOX. These volume tiers are designed to reflect a
reasonable and competitive pricing structure, to incentivize market
participants to direct their order flow to BOX, and to enhance market
quality. The Exchange believes that allowing strategy QCC orders to
count toward customer volume tiers is equitable and not unfairly
discriminatory because BOX has historically aimed to improve markets
for investors and develop various features within the market structure
for public customer benefit. The Exchange believes further that
allowing strategy QCC orders to count toward Market Maker volume tiers
is equitable and not unfairly discriminatory because of the significant
contribution to overall market quality that Market Makers provide.
Specifically, Market Makers provide higher volumes of liquidity which
ultimately benefits all Participants trading on BOX.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act.
    The proposed change is designed to attract additional order flow to
BOX. The Exchange believes that the proposed change could further
incentivize certain market participants to direct their strategy QCC
Orders to BOX. As noted herein, the proposed strategy QCC Order fees
would be applicable to all similarly situated market participants, and,
as such, the proposed change would not impose a disparate burden on
competition among Participants on BOX.
    Further, the Exchange also does not believe that the proposed fees
will impose any burden on intermarket competition that is not necessary
or appropriate in furtherance of the Act because, as noted above,
competing options exchanges currently have similar fees in place in
connection with strategy orders.\15\ Because competitors are free to
modify their own fees or fee caps in response to competing exchanges,
BOX believes that the degree to which changes in this market may impose
any burden on competition is limited. Further, the Exchange believes
that the proposed change could promote competition between BOX and
other execution venues, including those that currently offer similar
strategy order fees or fee caps. Finally, the Exchange notes that it
operates in a highly competitive market in which market participants
can readily favor competing venues. In such an environment, the

Exchange must continually review, and consider adjusting, its fees and
credits to remain competitive with other exchanges. For the reasons
described above, the Exchange believes that the proposed rule change
reflects this competitive environment.
---------------------------------------------------------------------------

    \15\ Id.
---------------------------------------------------------------------------

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Exchange Act \16\ and Rule 19b-4(f)(2)
thereunder,\17\ because it establishes or changes a due, or fee.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \17\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend the rule
change if it appears to the Commission that the action is necessary or
appropriate in the public interest, for the protection of investors, or
would otherwise further the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-BOX-2022-24 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-BOX-2022-24. 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 such filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-BOX-2022-24, and should be submitted on
or before August 31, 2022.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\18\
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2022-17104 Filed 8-9-22; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 83, Number 121 (Friday, June 22, 2018)]
[Notices]
[Pages 29110-29111]
[FR Doc No: 2018-13365]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2618-032]

Woodland Pulp, LLC; Notice of Application Accepted for Filing,
Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been
filed with the Federal Energy Regulatory Commission and is available
for public inspection:
    a. Type of Application: American Eel Study Plan and Proposed Design
Plans for American Eel Passage (both under P-2618-032).
    b. Project No: 2618-032.

    c. Date Filed: September 26, 2017.
    d. Applicant: Woodland Pulp, LLC (licensee).
    e. Name of Project: West Branch Hydroelectric Project.
    f. Location: The project is located on the West Branch of the St.
Croix River in Washington County, Maine.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: C. Scott Beal, Woodland Pulp, LLC, 144 Main
Street, Baileyville, ME 04619.
    i. FERC Contact: Michael Calloway at<PHONE_NUMBER>, or
[email protected].
    j. Deadline for filing comments, motions to intervene, and protests
is 45 days from the issuance of this notice by the Commission. The
Commission strongly encourages electronic filing. Please file motions
to intervene, protests, and comments using the Commission's eFiling
system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can
submit brief comments up to 6,000 characters, without prior
registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information
at the end of your comments. For assistance, please contact FERC Online
Support at [email protected],<PHONE_NUMBER> (toll free), or
(202) 502-8659 (TTY). In lieu of electronic filing, please send a paper
copy to: Secretary, Federal Energy Regulatory Commission, 888 First
Street NE, Washington, DC 20426. The first page of any filing should
include docket number P-2618-032.
    k. Description of Request: The licensee filed an American Eel
Migration Study Plan and Proposed Design Plans for American Eel Passage
pursuant to Article 401 of the project license and U.S. Fish and
Wildlife and Service Fishway Prescription Nos. a(ii), b(ii), a(iii),
and b(vii) contained in Appendix A of the license. Both proposals only
address American eel passage and effectiveness evaluation at the
project's West Branch development; these proposals do not address
passage and evaluation at the Sysladobsis development--because of the
licensee's pending amendment application (filed January 31, 2017) to
remove the Sysladobsis development from the project license. The
Proposed Design Plans for American Eel Passage provides a draft design
for eel passage, but proposes to suspend passage until after the eel
migration studies provide data to inform the design and siting of the
eel passage measure. The American Eel Migration Study Plan provides a
plan to evaluate eel abundance at various locations, inform design of
eel passage facilities, and evaluate effectiveness of the facilities
for up to 3 years.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street NE, Room 2A, Washington, DC
20426, or by calling<PHONE_NUMBER>. This filing may also be viewed on
the Commission's website at http://www.ferc.gov using the ``eLibrary''
link. Enter the docket number excluding the last three digits in the
docket number field to access the document. You may also register
online at http://www.ferc.gov/docs-filing/esubscription.asp to be
notified via email of new filings and issuances related to this or
other pending projects. For assistance, call<PHONE_NUMBER> or email
[email protected], for TTY, call<PHONE_NUMBER>. A copy is also
available for inspection and reproduction at the address in item (h)
above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Filing and Service of Responsive Documents: Any filing must (1)
bear in all capital letters the title COMMENTS; PROTEST, or MOTION TO
INTERVENE as applicable; (2) set forth in the heading the name of the
applicant and the project number of the application to which the filing
responds; (3) furnish the name, address, and telephone number of the
person protesting or intervening; and (4) otherwise comply with the
requirements of 18 CFR 385.2001 through 385.2005. All comments, motions
to intervene, or protests must set forth their evidentiary basis and
otherwise comply with the requirements of 18 CFR 4.34(b). All comments,
motions to intervene, or protests should relate to the American Eel
Migration Study Plan and the Final Design Plans for American Eel
Passage. Agencies may obtain copies of plans directly from the
applicant. A copy of any protest or motion to intervene must be served
upon each representative of the applicant specified in the particular
application. If an intervener files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency. A copy of all other
filings in reference to this application must be accompanied by proof
of service on all persons listed in the service list prepared by the
Commission in this proceeding, in accordance with 18 CFR 4.34(b) and
385.2010.

    Dated: June 15, 2018.
Kimberly D. Bose,
Secretary.
[FR Doc. 2018-13365 Filed 6-21-18; 8:45 am]
BILLING CODE 6717-01-P