[Federal Register Volume 78, Number 15 (Wednesday, January 23, 2013)]
[Notices]
[Pages 4946-4949]
[FR Doc No: 2013-01221]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-68665; File No. SR-BYX-2013-001]

Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change Related to
Fees for Use of BATS Y-Exchange, Inc.

January 16, 2013.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on January 2, 2013, BATS Y-Exchange, Inc. (the ``Exchange'' or
``BYX'') 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 has designated the proposed rule change as one establishing or
changing a member due, fee, or other charge imposed by the Exchange
under Section 19(b)(3)(A)(ii) of the Act \3\ and Rule 19b-4(f)(2)
thereunder,\4\ which renders the proposed rule change effective upon
filing with the Commission. 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.
    \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 proposes to amend the fee schedule applicable to
Members \5\ and non-members of the Exchange pursuant to BYX Rules
15.1(a) and (c). Changes to the fee schedule pursuant to this proposal
will be effective upon filing.
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    \5\ A Member is any registered broker or dealer that has been
admitted to membership in the Exchange.
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    The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the 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 parts 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 modify its fee schedule effective January
2, 2013,

in order to amend the rebates that it provides for removing liquidity,
amend the fees that it charges for adding liquidity and to modify
certain routing fees, as described in further detail below.
Rebates To Remove Liquidity
    The Exchange currently provides a rebate of $0.0002 per share for
orders that remove liquidity from the Exchange. The Exchange proposes
to introduce a tiered pricing structure for executions that remove
liquidity. Under the proposed tiered pricing structure, a Member must
add a daily average of at least 50,000 shares of liquidity on BYX
Exchange in order to receive this rebate. As with its other current
tiered pricing, the daily average in order to receive the liquidity
removal rebate will be calculated based on a Member's activity in the
month for which the rebates would apply. For Members that do not reach
the tier to receive the liquidity removal rebate, the Exchange proposes
to eliminate the rebate. The Exchange does not, however, propose to
charge such Members, but rather, will provide such executions free of
charge.
    Consistent with the current fee structure, the fee structure for
executions that remove liquidity from the Exchange described above will
not apply to executions that remove liquidity in securities priced
under $1.00 per share. The fee for such executions will remain at 0.10%
of the total dollar value of the execution. Similarly, as is currently
the case for adding liquidity to the Exchange, there will be no
liquidity rebate for adding liquidity in securities priced under $1.00
per share.
    In connection with the proposed change to the Exchange's fees to
remove liquidity, the Exchange proposes to modify a footnote on its fee
schedule related to its Retail Price Improvement (``RPI'') program,
which references the current standard liquidity removal rebate of
$0.0002 per share. This footnote was intended to make clear that
applicable removal fees, and not specific RPI pricing, would apply to
certain executions (Type 2 Retail Orders) that remove displayed
liquidity. The Exchange proposes to modify this footnote to simply
reference the applicable standard rebate or fee to access liquidity in
order to remove the necessity to update the footnote any time that
pricing applicable to removing displayed liquidity changes. Under the
proposed pricing structure, a Member that qualifies for the $0.0002 per
share liquidity removal rebate would receive such rebate for any Type 2
Retail Order that removes displayed liquidity, and a Member that does
not qualify for the liquidity removal rebate would not receive such
rebate but would instead receive the execution of a Type 2 Retail Order
that removes displayed liquidity free of charge.
Fees To Add Liquidity
    The Exchange currently maintains a tiered pricing structure for
adding displayed liquidity in securities priced $1.00 and above that
allows Members to add liquidity at a reduced fee to the extent such
liquidity sets the national best bid or offer (the ``NBBO Setter
Program''). The NBBO Setter Program is applicable to a Member's orders
so long as the Member submitting the order achieves the applicable
average daily volume (``ADV'') requirement of at least 0.1% of the
total consolidated volume (``TCV'') during the month. Members that
qualify for the NBBO Setter Program are charged a fee of $0.0002 per
share for executions resulting from orders that add liquidity to the
BYX Exchange order book and set the NBBO. All other executions
resulting from liquidity added by any Member are currently subject to a
fee of $0.0003 per share.
    The Exchange proposes to increase the ADV requirement for the NBBO
Setter Program to a requirement that a Member maintain ADV on the
Exchange of at least 0.5% of the total TCV during the month in order to
receive the reduced fee of $0.0002 per share on orders that set the
NBBO.
    The Exchange also proposes to add tiered pricing for executions of
orders that add liquidity but do not set a new NBBO. The Exchange
proposes to use the same criteria, specifically, that a Member
maintains ADV on the Exchange of at least 0.5% of the total TCV during
the month, in order for a Member to receive a reduced fee on executions
of orders that add liquidity but do not set the NBBO. The Exchange
proposes to charge a reduced fee of $0.00025 per share to Members that
qualify based on their ADV on the Exchange, which is a slight reduction
from the current standard fee to add liquidity of $0.0003 per share.
    Lastly, the Exchange proposes to charge Members that do not qualify
for a reduced fee based on their volume on the Exchange a fee of
$0.0005 per share for executions resulting from orders that add
liquidity to the Exchange, which is an increase from the current
standard fee to add liquidity of $0.0003 per share.
    The Exchange does not propose to modify its existing definitions of
ADV or TCV in connection with the changes described above. The Exchange
notes that, in contrast to the tiered pricing structure for removing
liquidity, described above, which only takes into account a Member's
liquidity adding activity, the definition of ADV used for the NBBO
Setter Program and the proposed tiered pricing structure for other
executions that add liquidity includes both a Member's liquidity adding
and removing activity.
Routing Fees
    The Exchange proposes to modify the fee charged by the Exchange for
its CYCLE, RECYCLE, Parallel D and Parallel 2D routing strategies from
$0.0028 per share to $0.0029 per share. To be consistent with this
change, the Exchange proposes to charge 0.29%, rather than 0.28%, of
the total dollar value of the execution for any security priced under
$1.00 per share that is routed away from the Exchange through these
strategies.
    Finally, the Exchange proposes to modify pricing for its SLIM \6\
routing strategy, which is focused on seeking execution of orders while
minimizing execution costs by setting a priority on routing, when
possible, to low cost execution venues on the Exchange's routing table.
The Exchange currently charges three different fees for executions
through the SLIM routing strategy. Specifically, the Exchange charges
the following fees for executions of orders routed through the SLIM
routing strategy: (i) A fee of $0.0029 per share for executions at BATS
Exchange, Inc. (``BZX''), (ii) a fee of $0.0024 per share for
executions at the New York Stock Exchange LLC (``NYSE''), and (iii) a
fee of $0.0026 per share for executions at any other venue. The
Exchange proposes to increase the fee for executions resulting from the
SLIM routing strategy at any other venue from $0.0026 per share to
$0.0027 per share. The Exchange does not propose any other changes to
SLIM routing fees.
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    \6\ As defined in BYX Rule 11.13(a)(3)(H).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations
thereunder that are applicable to a national securities exchange, and,
in particular, with the requirements of Section 6 of the Act.\7\
Specifically, the Exchange believes that the proposed rule change is
consistent with Section 6(b)(4) of the Act,\8\ in that it provides for
the equitable allocation of reasonable dues, fees and other charges
among members and other persons using any facility or system

which the Exchange operates or controls. The Exchange notes that it
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.
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    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(4).
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    The changes to Exchange execution fees and rebates proposed by this
filing are intended to attract order flow to the Exchange by continuing
to offer competitive pricing while also allowing the Exchange to
continue to offer incentives to providing aggressively priced displayed
liquidity. While many Members that remove liquidity from the Exchange,
add liquidity to the Exchange and/or route orders through the
Exchange's routing strategies will be paying higher fees or receiving
lower rebates due to the proposal, the increased revenue received by
the Exchange will be used to continue to fund programs that the
Exchange believes will attract additional liquidity and thus improve
the depth of liquidity available on the Exchange.
    With respect to the proposed tiered pricing structure for removing
liquidity from the Exchange, the Exchange believes that its proposal is
reasonable because it will allow Members that achieve a relatively low
threshold of added liquidity, and thus who contribute to the depth of
liquidity generally available on the Exchange, to continue to receive
the current rebate. Although Members that do not achieve the volume
threshold will no longer receive the rebate to remove liquidity, the
Exchange believes that its proposal is reasonable because such Members
will not be charged a fee to remove liquidity but will receive such
executions free of charge. Volume-based tiers such as the liquidity
removal tier proposed by the Exchange have been widely adopted in the
equities markets, and are equitable and not unfairly discriminatory
because they are open to all members on an equal basis and provide
rebates that are reasonably related to the value to an exchange's
market quality associated with higher levels of market activity, such
as higher levels of liquidity provision and introduction of higher
volumes of orders into the price and volume discovery process.
Accordingly, the Exchange believes that the proposal is equitably
allocated and not unfairly discriminatory because it is consistent with
the overall goals of enhancing market quality.
    The Exchange believes that its proposal to modify the footnote
related to the RPI program is reasonable, equitably allocated and not
unfairly discriminatory because this change merely achieves the goal of
the existing language by making clear that standard pricing to remove
liquidity, whatever that pricing may be, will be applied to Type 2
Retail Orders that remove displayed liquidity, and that RPI program
pricing does not apply.
    With respect to the Exchange's proposal to increase the threshold
necessary to participate in the NBBO Setter Program, the Exchange
believes that its proposal is reasonable because the tier is intended
to incentivize Members to maintain or increase their participation on
the Exchange. As noted above, volume-based tiers such as the threshold
necessary to qualify for the NBBO Setter Program and the reduced fee to
add liquidity are equitable and not unfairly discriminatory because
they are open to all members on an equal basis and provide rebates that
are reasonably related to the value to an exchange's market quality
associated with higher levels of market activity, such as higher levels
of liquidity provision and introduction of higher volumes of orders
into the price and volume discovery process.
    With respect to the fee tier for qualifying Members that add
liquidity but do not set the NBBO and the higher fee for Members that
do not qualify for such tier, the Exchange believes that the proposed
fees are reasonable as both fees are still comparable to other market
centers that charge to add displayed liquidity. The Exchange notes that
at least one market center charges a higher fee to add displayed
liquidity.\9\ Although the proposed changes will result in increased
fees charged to Members that do not qualify for the tier, the Exchange
believes that any additional revenue it receives will allow the
Exchange to devote additional capital to its operations and to continue
to offer competitive pricing, which, in turn, will benefit Members of
the Exchange. Further, the Exchange again notes that the tiered fee
structure whereby Members meeting certain volume thresholds will
receive reduced fees on their added liquidity executions is equitable
and not unfairly discriminatory because it will be open to all Members
on an equal basis the reduced fee is reasonably related to the value to
the Exchange's market quality associated with higher levels of market
activity, such as higher levels of liquidity provision and introduction
of higher volumes of orders into the price and volume discovery
process.
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    \9\ NASDAQ OMX BX charges up to $0.0018 per share, with the
potential for a slightly lower fee to the extent a participant meets
certain quoting criteria.
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    The Exchange believes that its increase to the standard routing fee
is reasonable in that it will align the Exchange's standard routing fee
with that charged by the Exchange's affiliate, BZX, and is consistent
with routing fees charged with others for routing services. The
proposed increase is also equitable and non-discriminatory in that it
will be increased equally for all Members. The Exchange also notes that
it operates in a highly competitive market in which market participants
can readily choose amongst market participants that provide routing
services, and believes that market participants will simply not use the
Exchange for routing services if they deem the fee levels set to be
excessive.
    Finally, the Exchange believes that the proposed changes to the
Exchange's SLIM routing strategy is reasonable, equitable and non-
discriminatory in that it is proposed in order to account for certain
increased costs to the Exchange in providing routing services, the fee
will be increased equally for all Members, and the SLIM routing
strategy is a completely optional routing service that Members must
affirmatively choose to use. The Exchange also notes that the increased
fee is still lower than its standard routing fee, thus providing
savings to Members that prefer to include access fee cost savings as a
factor in their routing determinations.

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

    Because the market for order execution is extremely competitive,
Members may choose to preference other market centers ahead of the
Exchange if they believe that they can receive better fees or rebates
elsewhere. Similarly, because the market for order routing services is
also competitive, Members may readily opt to disfavor the Exchange's
routing services if they believe that alternatives offer them better
value. Because certain of the proposed changes are intended to provide
incentives to Members that will result in increased activity on the
Exchange, such changes are necessarily competitive. However, the
Exchange does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. The Exchange does
not believe that any of the changes represent a significant departure
from previous pricing offered by the Exchange or pricing offered by the
Exchange's competitors.

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.

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

    Pursuant to Section 19(b)(3)(A)(ii) of the Act \10\ and Rule 19b-
4(f)(2) thereunder,\11\ the Exchange has designated this proposal as
establishing or changing a due, fee, or other charge applicable to the
Exchange's Members and non-members, which renders the proposed rule
change effective upon filing.
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    \10\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \11\ 17 CFR 240.19b-4(f)(2).
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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.

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-BYX-2013-001 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-BYX-2013-001. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site 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; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-BYX-2013-001, and should be
submitted on or before February 13, 2013.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-01221 Filed 1-22-13; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: July 9, 2008 (Volume 73, Number 132)]
[Notices]
[Page 39367-39368]
[DOCID:fr09jy08-115]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58059; File No. SR-OCC-2008-10]

Self-Regulatory Organizations; The Options Clearing Corporation;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to the New Methodology for Adjusting Options Contracts for
Cash Dividends and Distributions

June 30, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ notice is hereby given that on June 2, 2008, The Options
Clearing Corporation (``OCC'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change described in Items
I, II, and III below, which items have been prepared primarily by OCC.
OCC filed the proposed rule change pursuant to Section 19(b)(3)(A)(i)
of the Act \2\ and Rule 19b-4(f)(1) thereunder \3\ so that the proposal
was effective upon filing with the Commission. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested parties.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78s(b)(3)(A)(i).
    \3\ 17 CFR 240.19b-4(f)(1).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The proposed rule change would adopt interpretative guidance
relating to the new adjustment method for adjusting options contracts
for cash dividends or distributions (``New Methodology'').

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

    In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A),
(B), and (C) below, of the most significant aspects of these
statements.\4\
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    \4\ The Commission has modified the text of the summaries
prepared by OCC.
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(A) Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

Background
    Generally, options are not adjusted to reflect ``ordinary'' cash
dividends or distributions. Under OCC's existing By-Laws, which remain
operative until the New Methodology becomes effective, a cash dividend
is considered ordinary unless it is greater than 10% of the value of
the underlying security on the dividend declaration date. Dividends
greater than 10% under this definition usually trigger an options
contract adjustment, with the criterion for adjustment being the size
of the cash dividend. Under the New Methodology, a cash dividend or
distribution will be deemed to be ordinary (regardless of size) if it
is declared pursuant to a policy or practice of paying such dividends
on a quarterly or other regular basis. Dividends paid outside such
practice would be considered extraordinary. Extraordinary dividends
usually would trigger a contract adjustment unless the amount is less
than $12.50 per contract (i.e., the minimum size threshold). The New
Methodology will be effective for cash dividends and distributions
announced on or after February 1, 2009, but will not be applied to
certain grandfathered flex options as described in File No. SR-OCC-
2006-01.\5\
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    \5\ Securities Exchange Act Release No. 55258 (February 8,
2007), 72 FR 7701 (February 16, 2007).
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Interpretative Guidance
    OCC's adoption of the New Methodology has prompted market
participants to ask how the New Methodology would be administered and
applied. The OCC Securities Committee has reviewed those questions and
has developed responses thereto, which OCC is proposing to adopt as a
stated policy, practice, or interpretation with respect to the meaning,
administration, or enforcement of an existing rule (i.e., Article VI,
Section 11A of OCC's By-Laws). The responses are intended to provide
investors with useful guidance on how the New Methodology would be
applied in practice, subject to an adjustment panel's authority to make
adjustment decisions on a case-by-case basis and to make exceptions to
the general adjustment rules in cases where such exceptions are
determined appropriate.\6\ The interpretative guidance, which is
attached as Exhibit 5 to the proposed rule change, reviews the
mechanics of adjustments, the definition of ordinary cash dividends and
distributions, the rationale for the New Methodology, the impact of the
minimum size threshold, and actual and hypothetical examples to
illustrate the application of the New Methodology.\7\ OCC, however,
does not propose to publish the interpretative guidance in its By-Laws
and Rules. Rather, it would be published on OCC's public website, made
available in an information memorandum accessible to clearing members
or otherwise available in hard copy form on request.
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    \6\ Adjustments are individually determined by an adjustment
panel of the OCC Securities Committee. Actions of an adjustment
panel constitute the action of the Securities Committee. See Article
VI, Section 11(c) of OCC's By-Laws.
    \7\ Exhibit 5 of the proposed rule change can be found on OCC's
Web site at http://www.theocc.com/publications/rules/proposed_
changes/sr_occ_08_10.pdf.
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    The proposed rule change is consistent with the requirements of
Section 17A of the Act \8\ and the rules and regulations thereunder
applicable to OCC because it provides market participants with
interpretative guidance on the application of the New Methodology which
will be applied to adjustments for cash dividends and distributions.
The proposed rule change is not inconsistent with the existing rules of
OCC, including any other rules proposed to be amended.
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    \8\ 15 U.S.C. 78q-1.
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(B) Self-Regulatory Organization's Statement on Burden on Competition

    OCC does not believe that the proposed rule change would impose any
burden on competition.

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

    Written comments were not and are not intended to be solicited with
respect to the proposed rule change, and none have been received.

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

    The foregoing rule change has become effective upon filing pursuant
to Section 19(b)(3)(A)(i) of the Act \9\ and Rule 19b-4(f)(1) \10\
thereunder because the

proposal constitutes an interpretation with respect to the meaning,
administration, or enforcement of an existing rule of OCC. At any time
within sixty days of the filing of such rule change, the Commission may
summarily abrogate 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.
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    \9\ 15 U.S.C. 78s(b)(3)(A)(i).
    \10\ 17 CFR 240.19b-4(f)(1).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml) or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-OCC-2008-10 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-OCC-2008-10. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. The text of the proposed rule change is available at
OCC, the Commission's Public Reference Room, and http://www.theocc.com/
publications/rules/proposed_changes/sr_occ_08_10.pdf. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-OCC-2008-10 and should be
submitted on or before July 30, 2008.

    For the Commission by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
 [FR Doc. E8-15483 Filed 7-8-08; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Rules and Regulations]
[Pages 28528-28536]
[FR Doc No: 2018-13177]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 11, 404, 405, 420, 431, 435, 437, 460

[Docket No.: FAA-2016-6761; Amdt. Nos. 11-62, 404-6, 405-6, 420-8, 431-
6, 435-4, 437-2, 460-2]
RIN 2120-AK76

Updates to Rulemaking and Waiver Procedures and Expansion of the
Equivalent Level of Safety Option

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action streamlines and improves commercial space
transportation regulations' general rulemaking and petition procedures
to better reflect current practice; reorganizes the regulations for
clarity and flow; and allows petitioners to file their petitions to the
FAA's Office of Commercial Space Transportation electronically.
Further, it expands the option to satisfy commercial space
transportation requirements by demonstrating an equivalent level of

safety to the regulatory requirements. These changes are necessary to
ensure that the regulations regarding petitions are clear and current,
and that the commercial space launch industry is more easily able to
request approvals of safe alternative means of regulatory compliance.

DATES: Effective August 20, 2018.

ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.

FOR FURTHER INFORMATION CONTACT: For questions concerning this action,
contact Joshua Easterson, AST-300, Office of Commercial Space
Transportation, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591; telephone<PHONE_NUMBER>; email
[email protected].

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The Commercial Space Launch Act of 1984, as amended and re-codified
at 51 U.S.C. 50901-50923 (the Act), authorizes the Department of
Transportation and thus the FAA, through delegations, to oversee,
license, and regulate commercial launch and reentry activities, and the
operation of launch and reentry sites as carried out by U.S. citizens
or within the United States. 51 U.S.C. 50904, 50905. The Act directs
the FAA to exercise this responsibility consistent with public health
and safety, safety of property, and the national security and foreign
policy interests of the United States. 51 U.S.C. 50905. The Act directs
the FAA to regulate only to the extent necessary to protect the public
health and safety, safety of property, and national security and
foreign policy interests of the United States. 51 U.S.C. 50901(a)(7).
The FAA is also responsible for encouraging, facilitating, and
promoting commercial space launches by the private sector. 51 U.S.C.
50903.

I. Overview of Final Rule

    The FAA is adopting this final rule to: Streamline the general
rulemaking and petition procedures in part 404; clarify how the general
rulemaking and petition procedures in part 11 relate to those in part
404, and ensure the procedures reflect current practice; reorganize
part 404 to make clear the distinct requirements for petitions for
waivers and petitions for rulemaking; amend the title of part 405 to
better reflect the content; and expand the equivalent level of safety
option so that it applies more broadly throughout 14 CFR chapter III.
In addition, this final rule is adopting minor changes to part 11.
    This final rule reorganizes part 404 to clarify and streamline the
requirements. The reorganization moves the requirements for petitions
for waivers and petitions for rulemaking into separate sections but
does not substantially change the requirements. Instead, some
requirements, as discussed below, were revised for clarity, to remove
duplicate information and to ensure current practice is reflected. The
reorganization of part 404 as adopted is shown in the below table.

[GRAPHIC] [TIFF OMITTED] TR20JN18.053

    In addition to reorganizing part 404, this final rule:
     Adds a cross reference in Sec.  11.15 to part 404's
commercial space transportation waivers;
     Includes in Sec.  11.63 the correct internet link where
petitioners can find additional information on filing their petitions;
     Amends Sec.  404.1 to state that the scope of part 404
``establishes procedures for issuing regulations and for filing a
petition for waiver or petition for rulemaking to the Associate
Administrator for Commercial Space Transportation;''
     Revises Sec.  404.3 such that petitioners need only file
one copy of their petition to the Office of Commercial Space
Transportation (AST) by mailing it to AST's physical address or
emailing it to the AST email address provided in Sec.  404.3;
     Removes the requirement in Sec.  404.3 that a petition for
rulemaking contain a summary that the FAA may cause to be published in
the Federal Register;
     Amends Sec.  404.5 to require that the petition must
reference the specific section or sections of 14 CFR chapter III from
which relief is sought;
     Amends Sec.  404.5 to require that the petition must state
the reasons why granting the request for relief is in the public
interest and will not jeopardize the public health and safety, safety
of property, and national security and foreign policy interests of the
United States;
     Amends Sec.  404.7 to state that under 51 U.S.C.
50905(b)(3), the FAA is not authorized to grant a waiver that would
permit the launch or reentry of a launch vehicle or reentry vehicle
without a license or permit if a human being would be on board;
     Removes information in Sec. Sec.  404.9, 404.11, and
404.13 regarding filing petitions for rulemaking, the FAA's action on
petitions for rulemaking, and the agency's general rulemaking process
that duplicates part 11 and, instead, cross references relevant
sections of part 11 in Sec. Sec.  404.9, 404.11, and 404.13,
respectively;
     Changes the current title of part 405, ``Investigations
and Enforcement,'' to ``Compliance and Enforcement,'' to better reflect
the content;
     Expands the equivalent level of safety option to each
requirement of parts 420 (License To Operate A Launch Site), 431
(Launch And Reentry Of A Reusable Launch Vehicle), 435 (Reentry Of A
Reentry Vehicle Other Than A Reusable Launch Vehicle), and 437
(Experimental Permits); and,
     Expands the equivalent level of safety option to Sec.
460.5(d) as a means of compliance with pilot qualification
requirements.
    This final rule will result in nonquantified benefits for the
commercial space transportation industry, the interested public, and
the government by streamlining and improving commercial space
transportation regulations' general rulemaking and petition procedures
and allowing petitioners to file their petitions to the FAA's Office of
Commercial Space Transportation electronically. In addition, this rule

expands the option to satisfy commercial space transportation
requirements by demonstrating an equivalent level of safety, thereby
providing more choice to operators and reducing the number of waivers
that must be prepared by the industry and processed by the government.

II. Background

    On June 1, 2016, the FAA published a notice of proposed rulemaking
(NPRM) (81 FR 34919)[thinsp]proposing to amend 14 CFR chapter III to
modify and streamline the FAA's commercial space transportation
regulations regarding general rulemaking and petition procedures;
expand the equivalent level of safety option to provide the commercial
space transportation industry with alternative means of satisfying
chapter III requirements; and, make a minor change to revise a part
title.
    The Office of Commercial Space Transportation (AST) was established
under the Commercial Space Launch Act of 1984 (the Act) as part of the
Department of Transportation. In 1988, pursuant to the Act, rulemaking
and petition procedures specific to commercial space operations were
codified in 14 CFR, chapter III, part 404. In November 1995, AST was
transferred to the FAA, becoming the agency's only space-related line
of business. Whereas AST's rulemaking and petition requirements reside
in part 404, the FAA's rulemaking and petition procedures are codified
in part 11. The two sets of procedures are mostly duplicative and at
times confusing as to applicability. Therefore, the FAA issued the June
2016 NPRM to propose to reorganize, streamline, and modify the part 404
requirements. This final rule adopts the proposed changes to part 404
without change.
    An equivalent level of safety provision allows an applicant to
propose an alternative method to meet the safety intent of a current
regulatory requirement, by providing a clear and convincing
demonstration through technical rationale that the proposed alternative
approach provides a level of safety equivalent to the requirement it
would replace. An equivalent level of safety means an approximately
equal level of safety as determined by qualitative or quantitative
means. Prior to this rulemaking, the option to satisfy a commercial
space transportation regulation by demonstrating an equivalent level of
safety was limited to the launch license provisions for expendable
launch vehicles in parts 415 and 417, and to some specific sections of
other parts in chapter III including sections of the launch site
location review and explosive siting requirements to obtain a license
to operate a launch site in part 420, collision avoidance distances for
experimental permits in part 437, the requirement that a remote
operator possess an FAA pilot certificate with an instrument rating in
the Human Space Flight Requirements in part 460, and environmental
controls and life support system requirements also in part 460. This
restricted the FAA's flexibility in approving launch and reentry
related activities, where the operator can convincingly demonstrate in
an application that an alternative approach to the requirements of
chapter III provides an equivalent level of safety.
    While applicants are still able to petition for waiver of any
regulatory requirement, the June 2016 NPRM proposed to expand the
equivalent level of safety option so that it applies more broadly to
all requirements in parts 420, 431, 435, and 437 in chapter III. The
waiver process can sometimes be more time-consuming than pursuing an
equivalent level of safety determination. The NPRM also proposed
clarifying that the equivalent level of safety provision for FAA pilot
certificates applicable to remote operators in part 460 should also be
applicable to all pilots under part 460.
    Expanding the equivalent level of safety option is expected to
reduce paperwork burdens without negatively impacting safety. To
utilize the option applicants must demonstrate that they are achieving
a level of safety equivalent to any safety parameters specified in the
regulations. The FAA will evaluate every request for an alternative
means of regulatory compliance under the equivalent level of safety
provisions to ensure that the safety of the public, property, or any
national security or foreign policy interest of the United States is
maintained to be consistent with the requirements in chapter III of
Title 14 of the Code of Federal Regulations.
    This final rule adopts the proposed expansion of the equivalent
level of safety option without change. In addition to previously
available opportunities to pursue an equivalent level of safety,
applicants will now have the option to pursue an equivalent level of
safety option for each requirement of parts 420 (License To Operate A
Launch Site), 431 (Launch And Reentry Of A Reusable Launch Vehicle),
435 (Reentry Of A Reentry Vehicle Other Than A Reusable Launch
Vehicle), and 437 (Experimental Permits). The equivalent level of
safety determination by the FAA will be included as part of any license
or permit issued applying this provision.
    The title of part 405 was ``Investigations and Enforcement.''
However, part 405 does not relate to investigations. To avoid
confusion, the FAA proposed to revise the title of part 405 to a title
more descriptive of its contents, namely, ``Compliance and
Enforcement.'' This final rule adopts the change as proposed.
    In addition to the proposed changes to chapter III, the June 2016
NPRM proposed minor changes to part 11 of chapter I to add a cross
reference to part 404's commercial space transportation waivers; make
minor editorial changes and clarify that formal standing advisory
committees comply with the Federal Advisory Committee Act (FACA); and,
include the correct internet link to information relevant to filing
petitions. This final rule adopts the proposed changes, except for
minor clarifications discussed under the ``Discussion of Public
Comments'' section of this preamble.

III. Discussion of Public Comments

    The FAA received comments from two entities, the Aeronautical
Repair Station Association (ARSA) and Space Exploration Technologies
Corporation (SpaceX). In general, the commenters supported the proposed
amendments, with SpaceX fully supporting the rule. ARSA suggested minor
changes to the proposed regulatory text. After carefully considering
ARSA's comments, the FAA generally adopts the provisions as proposed,
but makes the two minor changes discussed below.
    ARSA recommended that the Web address referenced in proposed Sec.
11.63 (http://www.faa.gov/regulations_policies/) be changed to one less
likely to change over time. The FAA agrees and in the final rule
changed the Web address to http://www.faa.gov, which is a top-level Web
domain that is not likely to change. The FAA also added language
stating that the user should then navigate to the ``Rulemaking'' home
page.
    ARSA further recommended that the FAA not cite specific examples
(i.e., the Aviation Rulemaking Advisory Committee (ARAC) and the
Commercial Space Transportation Advisory Committee (COMSTAC)) of
standing advisory committees in proposed Sec.  11.27, as doing so might
be interpreted as excluding or limiting other types of committees from
which the FAA receives rulemaking recommendations. ARSA argued that
when another advisory committee is created, rulemaking would again be
necessary.

    The FAA carefully considered ARSA's suggested change, and
determined that the language unambiguously conveys that the FAA may
convene a variety of advisory committees of which ARAC and COMSTAC are
examples. Indeed, the existing regulation already contains a reference
to ARAC, which has not caused confusion or required the FAA to amend
Sec.  11.27 when additional types of advisory committees are used to
obtain rulemaking recommendations. That being said, the FAA has opted
to remove the proposed change. As such, the existing language in Sec.
11.27 will remain unchanged.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
that each Federal agency shall propose or adopt a regulation only upon
a reasoned determination that the benefits of the intended regulation
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub.
L. 96-354) requires agencies to analyze the economic impact of
regulatory changes on small entities. Third, the Trade Agreements Act
(Pub. L. 96-39) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States. In
developing U.S. standards, the Trade Act requires agencies to consider
international standards and, where appropriate, that they be the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) requires agencies to prepare a written assessment of
the costs, benefits, and other effects of proposed or final rules that
include a Federal mandate likely to result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $100 million or more annually (adjusted for inflation with
base year of 1995). This portion of the preamble summarizes the FAA's
analysis of the economic impacts of this rule.
    Department of Transportation Order DOT 2100.5 prescribes policies
and procedures for simplification, analysis, and review of regulations.
If the expected cost impact is so minimal that a proposed or final rule
does not warrant a full evaluation, this order permits that a statement
to that effect and the basis for it to be included in the preamble if a
full regulatory evaluation of the cost and benefits is not prepared.
Such a determination has been made for this final rule. The reasoning
for this determination follows.
    This rule will streamline and improve commercial space
transportation regulations' general rulemaking and petition procedures.
It will do this by updating the rule language to reflect current
practice; reorganizing it for clarity and flow; and allowing
petitioners to file their petitions to the FAA's Office of Commercial
Space Transportation electronically. In addition, this rule will expand
the option to satisfy commercial space transportation requirements by
demonstrating an equivalent level of safety. These changes are
necessary to ensure the regulations are current, accurate, and not
unnecessarily burdensome.
    As this rule will streamline and clarify FAA rulemaking procedures,
codify current practice and expand options to demonstrate an equivalent
level of safety possibly leading to fewer waiver requests, the expected
outcome will have only a minor cost savings impact. Therefore, the FAA
concludes this final rule will result in minimal costs and a regulatory
evaluation was not prepared. This conclusion is further bolstered by
the fact that the FAA received no comments on this minimal cost
determination.
    FAA has, therefore, determined that this final rule is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, and is not ``significant'' as defined in DOT's
Regulatory Policies and Procedures.

B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA)
establishes ``as a principle of regulatory issuance that agencies shall
endeavor, consistent with the objectives of the rule and of applicable
statutes, to fit regulatory and informational requirements to the scale
of the businesses, organizations, and governmental jurisdictions
subject to regulation.'' To achieve this principle, agencies are
required to solicit and consider flexible regulatory proposals and to
explain the rationale for their actions to assure that such proposals
are given serious consideration.'' The RFA covers a wide-range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will
have a significant economic impact on a substantial number of small
entities. If the agency determines that it will, the agency must
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to
have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
    This final rule is expected to have an effect on States, local
governments, large entities such as Boeing and a significant number of
small entities such as Scaled Composites, LLC, Masten Space Systems,
XCOR Aerospace, Escape Dynamics, and Space Information Laboratories.
    As this rule will streamline and clarify FAA rulemaking procedures,
codify current practice and expand options to demonstrate an equivalent
level of safety, the expected outcome will have only minor cost savings
impact on any small entity affected by this rulemaking action.
Therefore, the FAA concludes the rule will have only a minimal economic
cost. This conclusion is further bolstered by the fact that the FAA
received no comments on this minimal cost determination.
    If an agency determines that a rulemaking will not result in a
significant economic impact on a substantial number of small entities,
the head of the agency may so certify under section 605(b) of the RFA.
Therefore, as provided in section 605(b), the head of the FAA certifies
that this rulemaking will not result in a significant economic impact
on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. The FAA has
assessed the potential effect of this rule and determined that it would
impose the

same costs on domestic and international entities and thus has a
neutral trade impact.

D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement
assessing the effects of any Federal mandate in a proposed or final
agency rule that may result in an expenditure of $100 million or more
(in 1995 dollars) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $155 million in lieu of $100
million.
    This rule does not contain such a mandate; therefore, the
requirements of Title II of the Unfunded Mandates Reform Act do not
apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new requirement for information collection associated with
this final rule.

F. International Compatibility

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.

G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6 and involves no extraordinary
circumstances.

V. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The agency determined
that this action will not have a substantial direct effect on the
States, or the relationship between the Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and, therefore, does not have Federalism
implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

    The FAA analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
is not a ``significant energy action'' under the executive order and it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

C. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs

    This final rule is considered an E.O. 13771 deregulatory action.
The FAA expects minor cost savings that cannot be quantified. The rule
streamlines and improves commercial space transportation regulations'
general rulemaking and petition procedures. These changes should make
it easier to read and understand the regulations, and lead to minimal
cost savings that are not quantifiable. The rule also allows
petitioners to file their petitions to the FAA's Office of Commercial
Space Transportation electronically. This could save minimal costs over
mailing petitions. Finally, the rule expands the options to demonstrate
an equivalent level of safety. This would also reduce the number of
waivers that have to be approved. These cost savings are expected to be
minimal and not quantifiable, as we don't know the effect of having
acceptance of the equivalent level of safety approach earlier in the
process than the alternative of requesting a waiver later in the
process. We also don't know how often a petitioner will choose to
demonstrate an alternative level of safety as opposed to requesting a
waiver.

VI. How To Obtain Additional Information

A. Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained by
using the internet--
    1. Search the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visit the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/ or
    3. Access the Government Printing Office's web page at http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request (identified by
notice, amendment, or docket number of this rulemaking) to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling<PHONE_NUMBER>.

B. Comments Submitted to the Docket

    Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the
docket number for this action. Anyone is able to search the electronic
form of all comments received into any of the FAA's dockets by the name
of the individual submitting the comment (or signing the comment, if
submitted on behalf of an association, business, labor union, etc.).

C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FAA to comply with small entity requests for information
or advice about compliance with statutes and regulations within its
jurisdiction. A small entity with questions regarding this document,
may contact its local FAA official, or the person listed under the FOR
FURTHER INFORMATION CONTACT heading at the beginning of the preamble.
To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects

14 CFR Part 11

    Administrative practice and procedure, Reporting and recordkeeping
requirements.

14 CFR Part 404

    Administrative practice and procedure, Space transportation and
exploration.

14 CFR Part 405

    Investigations, Penalties, Space transportation and exploration.

14 CFR Part 420

    Environmental protection, Reporting and recordkeeping requirements,
Space transportation and exploration.

14 CFR Part 431

    Aviation safety, Environmental protection, Investigations,
Reporting and recordkeeping requirements, Space transportation and
exploration.

14 CFR Part 435

    Aviation safety, Environmental protection, Investigations,
Reporting

and recordkeeping requirements, Space transportation and exploration.

14 CFR Part 437

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements, Space transportation and exploration.

14 CFR Part 460

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements, Space transportation and exploration.

The Amendments

    In consideration of the foregoing, the Federal Aviation
Administration amends chapters I and III of title 14, Code of Federal
Regulations as follows:

PART 11--GENERAL RULEMAKING PROCEDURES

0
1. The authority citation for part 11 is revised to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g), 40101, 40103, 40105,
40109, 40113, 44110, 44502, 44701-44702, 44711, 46102, and 51 U.S.C.
50901-50923.

0
2. Revise Sec.  11.15 to read as follows:

Sec.  11.15   What is a petition for exemption?

    A petition for exemption is a request to the FAA by an individual
or entity asking for relief from the requirements of a current
regulation. For petitions for waiver of commercial space transportation
regulations, see part 404 of this title.

0
3. Amend Sec.  11.63 by revising paragraph (a)(1) to read as follows:

Sec.  11.63   How and to whom do I submit my petition for rulemaking or
petition for exemption?

    (a) * * *
    (1) By electronic submission, submit your petition for rulemaking
or exemption to the FAA through the internet at http://www.regulations.gov, the Federal Docket Management System website. For
additional instructions, you may visit http://www.faa.gov, and navigate
to the Rulemaking home page.
* * * * *

PART 404--PETITION AND RULEMAKING PROCEDURES

0
4. The authority citation for part 404 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
5. The heading of part 404 is revised to read as set forth above.

0
6. Remove the headings of subparts A and B.

0
7. Revise Sec.  404.1 to read as follows:

Sec.  404.1   Scope.

    This part establishes procedures for issuing regulations and for
filing a petition for waiver or petition for rulemaking to the
Associate Administrator for Commercial Space Transportation.

0
8. Amend Sec.  404.3 by revising the section heading and paragraphs
(a)(3), (b), (c), (d), and adding new paragraphs (e), (f), and (g) to
read as follows:

Sec.  404.3   General.

    (a) * * *
    (3) Waive the requirement for a license, except as provided in
Sec.  404.7(b).
    (b) A petition filed under this section may request, under Sec.
413.9 of this chapter, that the Associate Administrator withhold
certain trade secrets or proprietary commercial or financial data from
public disclosure.
    (c) Each petitioner filing under this section must:
    (1) For electronic submission, send one copy of the petition by
email to the Office of Commercial Space Transportation at
[email protected]; or
    (2) For paper submission, send one copy of the petition to the
Office of Commercial Space Transportation, Federal Aviation
Administration, 800 Independence Avenue SW, Room 331, Washington, DC
20591.
    (d) Each petition filed under this section must include the
petitioner's name, mailing address, telephone number and any other
contact information, such as an email address or a fax number.
    (e) Notification. When the Associate Administrator determines that
a petition should be granted or denied, the Associate Administrator
notifies the petitioner of the Associate Administrator's action and the
reasons supporting the action.
    (f) Reconsideration. Any person may petition the FAA to reconsider
a denial of a petition the person filed. The petitioner must send a
request for reconsideration within 60 days after being notified of the
denial to the same address to which the original petition was filed.
For the FAA to accept the reconsideration request, the petitioner must
show--
    (1) There is a significant additional fact and the reason it was
not included in the original petition;
    (2) The FAA made an important factual error in its denial of the
original petition; or
    (3) The denial is not in accordance with the applicable law and
regulations.
    (g) Public hearing. No public hearing, argument or other proceeding
is held on a petition before its disposition under this section.

0
9. Revise Sec.  404.5 to read as follows:

Sec.  404.5   Filing a petition for waiver.

    A petition for waiver must be submitted at least 60 days before the
proposed effective date of the waiver unless the petitioner shows good
cause for later submission in the petition, and the petition for waiver
must--
    (a) Include the specific section or sections of 14 CFR chapter III
from which the petitioner seeks relief;
    (b) Include the extent of the relief sought and the reason the
relief is being sought;
    (c) Include any facts, views, and data available to the petitioner
to support the waiver request; and
    (d) Show why granting the request for relief is in the public
interest and will not jeopardize the public health and safety, safety
of property, and national security and foreign policy interests of the
United States.

0
10. Add Sec.  404.7 to read as follows:

Sec.  404.7   Action on a petition for waiver.

    (a) Grant of waiver. The Associate Administrator may grant a
waiver, except as provided in paragraph (b) of this section, if the
Associate Administrator determines that the waiver is in the public
interest and will not jeopardize public health and safety, the safety
of property, or any national security or foreign policy interest of the
United States.
    (b) Waiver ineligibility. The FAA may not grant a waiver that would
permit the launch or reentry of a launch vehicle or a reentry vehicle
without a license or permit if a human being will be on board.
    (c) Denial of waiver. If the Associate Administrator determines
that the petition does not justify granting a waiver, the Associate
Administrator denies the petition.

0
11. Add Sec.  404.9 to read as follows:

Sec.  404.9   Filing a petition for rulemaking.

    A petition for rulemaking filed under this part must be made in
accordance with 14 CFR 11.71.

0
12. Revise Sec.  404.11 to read as follows:

Sec.  404.11   Action on a petition for rulemaking.

    The FAA will process petitions for rulemaking under this part in
accordance with 14 CFR 11.73.

0
13. Revise Sec.  404.13 to read as follows:

Sec.  404.13   Rulemaking.

    (a) The FAA's rulemaking procedures are located in subpart A of
part 11 of this title, under the General, Written

Comments, and Public Meetings and Other Proceedings headings.
    (b) In addition to the rulemaking procedures referenced in
paragraph (a) of this section, the provisions of Sec. Sec.  404.17 and
404.19 also apply.

Sec.  404.15   [Removed and Reserved]

0
14. Remove and reserve Sec.  404.15.

PART 405--COMPLIANCE AND ENFORCEMENT

0
15. The authority citation for part 405 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
16. The heading of part 405 is revised to read as set forth above.

PART 420--LICENSE TO OPERATE A LAUNCH SITE

0
17. The authority citation for part 420 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
18. Revise Sec.  420.1 to read as follows:

Sec.  420.1   General.

    (a) Scope. This part prescribes the information and demonstrations
that must be provided to the FAA as part of a license application, the
bases for license approval, license terms and conditions, and post-
licensing requirements with which a licensee shall comply to remain
licensed. Requirements for preparing a license application are
contained in part 413 of this subchapter.
    (b) Equivalent level of safety. Each requirement of this part
applies unless the applicant or licensee clearly and convincingly
demonstrates that an alternative approach provides an equivalent level
of safety to the requirement of this part.

0
19. Amend Sec.  420.23 by revising paragraphs (a)(3), (b)(4), and
(c)(2), and removing paragraph (c)(3) to read as follows:

Sec.  420.23   Launch site location review-- flight corridor.

    (a) * * *
    (3) Uses one of the methodologies provided in appendix A or B of
this part.
    (b) * * *
    (4) Uses one of the methodologies provided in appendix A or B to
this part.
    (c) * * *
    (2) An applicant shall base its analysis on an unguided suborbital
launch vehicle whose final launch vehicle stage apogee represents the
intended use of the launch point.
* * * * *

0
20. Amend Sec.  420.25 by revising paragraph (a) to read as follows:

Sec.  420.25   Launch site location review--risk analysis.

    (a) If a flight corridor or impact dispersion area defined by Sec.
420.23 contains a populated area, the applicant shall estimate the
casualty expectation associated with the flight corridor or impact
dispersion area. An applicant shall use the methodology provided in
appendix C to this part for guided orbital or suborbital expendable
launch vehicles and appendix D for unguided suborbital launch vehicles.
* * * * *

PART 431--LAUNCH AND REENTRY OF A REUSABLE LAUNCH VEHICLE (RLV)

0
21. The authority citation for part 431 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
22. Revise Sec.  431.1 to read as follows:

Sec.  431.1   General.

    (a) Scope. This part prescribes requirements for obtaining a
reusable launch vehicle (RLV) mission license and post-licensing
requirements with which a licensee must comply to remain licensed.
Requirements for preparing a license application are contained in part
413 of this subchapter.
    (b) Equivalent level of safety. Each requirement of this part
applies unless the applicant or licensee clearly and convincingly
demonstrates that an alternative approach provides an equivalent level
of safety to the requirement of this part.

PART 435--REENTRY OF A REENTRY VEHICLE OTHER THAN A REUSABLE LAUNCH
VEHICLE (RLV)

0
23. The authority citation for part 435 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
24. Revise Sec.  435.1 to read as follows:

Sec.  435.1   General.

    (a) Scope. This part prescribes requirements for obtaining a
license to reenter a reentry vehicle other than a reusable launch
vehicle (RLV), and postlicensing requirements with which a licensee
must comply to remain licensed. Requirements for preparing a license
application are contained in part 413 of this subchapter.
    (b) Equivalent level of safety. Each requirement of this part
applies unless the applicant or licensee clearly and convincingly
demonstrates that an alternative approach provides an equivalent level
of safety to the requirement of this part.

PART 437--EXPERIMENTAL PERMITS

0
25. The authority citation for part 437 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
26. Revise Sec.  437.1 to read as follows:

Sec.  437.1   Scope and organization of this part.

    (a) Scope. This part prescribes requirements for obtaining an
experimental permit. It also prescribes post-permitting requirements
with which a permittee must comply to maintain its permit. Part 413 of
this subchapter contains procedures for applying for an experimental
permit.
    (b) Equivalent level of safety. Each requirement of this part
applies unless the applicant or permittee clearly and convincingly
demonstrates that an alternative approach provides an equivalent level
of safety to the requirement of this part.
    (c) Organization of this part. Subpart A contains general
information about an experimental permit. Subpart B contains
requirements to obtain an experimental permit. Subpart C contains the
safety requirements with which a permittee must comply while conducting
permitted activities. Subpart D contains terms and conditions of an
experimental permit.

0
27. Amend Sec.  437.65 by revising paragraph (b) to read as follows:

Sec.  437.65   Collision avoidance analysis.

* * * * *
    (b) The collision avoidance analysis must establish each period
during which a permittee may not initiate flight to ensure that a
permitted vehicle and any jettisoned components do not pass closer than
200 kilometers to a manned or mannable orbital object.

PART 460--HUMAN SPACE FLIGHT REQUIREMENTS

0
28. The authority citation for part 460 continues to read as follows:

    Authority:  51 U.S.C. 50901-50923.

0
29. Amend Sec.  460.5 by revising paragraph (d) to read as follows:

Sec.  460.5   Crew qualifications and training.

* * * * *
    (d) A pilot or a remote operator may demonstrate an equivalent
level of safety to paragraph (c)(1) of this section through the license
or permit process.
* * * * *

    Issued in Washington, DC, on June 6, 2018.
Daniel K. Elwell,
Acting Administrator.
[FR Doc. 2018-13177 Filed 6-19-18; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 218 (Tuesday, November 14, 2023)]
[Notices]
[Pages 78056-78057]
[FR Doc No: 2023-25025]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2010-1066]

Recreational Boating Safety Projects, Programs, and Activities
Funded Under Provisions of the Infrastructure Investment and Jobs Act;
Fiscal Year 2023

ACTION: Notice.

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

SUMMARY: The Coast Guard is publishing this notice to satisfy a
requirement of the Infrastructure Investment and Jobs Act that requires
a detailed accounting of the projects, programs, and activities funded
under the national recreational boating safety program provision of the
Act be published annually in the Federal Register. This notice
specifies the funding amounts the Coast Guard has committed, obligated,
or expended during fiscal year 2023, as of September 30, 2023.

FOR FURTHER INFORMATION CONTACT: For questions on this notice please
contact Mr. Jeff Decker, U.S. Coast Guard, Regulations Development
Manager,<PHONE_NUMBER> or mailto: [email protected].

SUPPLEMENTARY INFORMATION:

Background and Purpose

    Since 1998, Congress has passed a series of laws providing funding
for projects, programs, and activities funded under the national
recreational boating safety program, which is administered by the U.S.
Coast Guard. On November 15, 2021, the Infrastructure Investment and
Jobs Act (Pub. L. 117-58, Sec. 28001) set aside funding for Coast Guard
administration, which for fiscal year 2023 was $13.835 million. Of
that, not less than $2.1 million shall be made available to ensure
compliance with chapter 43 of title 46, U.S. Code, and not more than
$1.5 million is available to conduct by grant or contract a survey of
levels of recreational boating participation and related matters in the
United States.
    These funds are available to the Secretary from the Sport Fish
Restoration and Boating Trust Fund (Trust Fund) established under 26
U.S.C. 9504(a) for payment of Coast Guard expenses for personnel and
activities directly related to coordinating and carrying out the
national recreational boating safety program. Amounts made available
under this subsection remain available during the two succeeding fiscal
years. Any amount that is unexpended or unobligated at the end of the
three-year period during which it is available shall be withdrawn by
the Secretary and allocated to the States in addition to any other
amounts available for allocation in the fiscal year in which they are
withdrawn or the following fiscal year.
    Use of these funds requires compliance with standard Federal
contracting rules with associated lead and processing times resulting
in a lag time between available funds and spending. The total amount of
funding transferred to the Coast Guard from the Trust Fund, and
committed, obligated, and/or expended during fiscal year 2023 for each
project is shown below.

Specific Accounting of Funds

    The total amount of funding transferred to the Coast Guard from the
Sport Fish Restoration and Boating Trust Fund and committed, obligated,
and/or expended during fiscal year 2023 for each project is shown in
the chart below.

------------------------------------------------------------------------
            Project                    Description             Cost
------------------------------------------------------------------------
46 U.S.C. 43 Compliance:         Provided for                 $2,484,350
 Inspection Program/Boat          continuance of the
 Testing Program.                 national recreational
                                  boat compliance
                                  inspection program,
                                  which began in January
                                  2001.
46 U.S.C. 43 Compliance: Staff   Provided for 3                  558,743
 Salaries.                        personnel to oversee
                                  manufacturer
                                  compliance with 46
                                  U.S.C. 43 requirements.
46 U.S.C. 43 Compliance: Staff   Provided for travel by           66,009
 Travel.                          employees of the
                                  Boating Safety
                                  Division to oversee
                                  manufacturer
                                  compliance with 46
                                  U.S.C. 43 requirements.

Administrative Overhead........  Provide for supplies             58,485
                                  and materials to
                                  support the RBS
                                  Program.
Boating Accident Report          Provided for                    456,128
 Database (BARD) Web System.      maintaining the BARD
                                  Web System, which
                                  enables reporting
                                  authorities in the 50
                                  States, five U.S.
                                  Territories, and the
                                  District of Columbia
                                  to submit their
                                  accident reports
                                  electronically over a
                                  secure Internet
                                  connection.
National Boating Safety          Provided for travel              17,751
 Advisory Committee.              performed by NBSAC
                                  members, meeting room
                                  costs and
                                  administrative costs
                                  to support the NBSAC.
Contract Personnel Support.....  Provided contract             1,285,012
                                  personnel to conduct
                                  boating safety-related
                                  research and analysis.
Grant Management Training......  Provided to facilitate           53,726
                                  staff training on new
                                  grant management
                                  requirements.
Recreational Boating Safety      Provided for travel by          168,419
 Program Travel.                  employees of the
                                  Boating Safety
                                  Division to gather
                                  background and
                                  planning information
                                  for new recreational
                                  boating safety
                                  initiatives.
Reimbursable Salaries..........  Provided for 18               3,776,451
                                  personnel directly
                                  related to
                                  coordinating and
                                  carrying out the
                                  national recreational
                                  boating safety program.
National Recreational Boating    Provided for collecting       1,500,000
 Survey.                          data to support the
                                  National Recreational
                                  Boating Survey.
------------------------------------------------------------------------

    Of the $13.835 million made available to the Coast Guard in fiscal
year 2023, $0 has been committed, obligated, or expended and an
additional $10.425 million of prior fiscal year funds have been
committed, obligated, or expended, as of September 30, 2023. The
remainder of the FY22 and FY23 funds made available to the Coast Guard
(approximately $20.345 million) may be retained for the allowable
period for the National Recreational Boating Survey, the expected
reengineering of the Boating Accident and Reporting Database, and other
projects, or it may be transferred into the pool of money available for
allocation through the state grant program.

Authority

    This notice is issued pursuant to 5 U.S.C. 552 and 46 U.S.C.
13107(c)(4).

Amy M. Beach,
Captain, U.S. Coast Guard, Director of Inspections and Compliance.
[FR Doc. 2023-25025 Filed 11-13-23; 8:45 am]
BILLING CODE 9110-04-P


Riegel v. Medtronic, 128 S.Ct. 999
(2008).
In this rulemaking, FDA has
determined that general controls by
themselves are insufficient to provide
reasonable assurance of the safety and
effectiveness of the device, and that
there is sufficient information to
establish special controls to provide
such assurance. FDA has therefore
imposed a special control to address the
amplification and detection of
enterovirus RNA in CSF from
individuals who have signs and
symptoms consistent with meningitis or
meningoencephalitis. The detection of
enterovirus RNA, in conjunction with
other laboratory tests, aids in the
clinical laboratory diagnosis of viral
meningitis caused by enterovirus.
As with any Federal requirement, if a
State law requirement makes
compliance with both Federal law and
State law impossible, or would frustrate
Federal objectives, the State
requirement would be preempted. See
Geier v. American Honda Co., 529 U.S.
861, (2000); English v. General Electric
Co., 496 U.S. 72, 79 (1990), Florida Lime
& Avocado Growers, Inc., 373 U.S. 132,
142–143 (1963); Hines v. Davidowitz,
312 U.S. 52, 67 (1941).
V. How Does This Rule Comply With
the Paperwork Reduction Act of 1995?
This final rule contains no collections
of information. Therefore, clearance by
the Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1995 is not required. Elsewhere
in this issue of the Federal Register,
FDA is issuing a notice announcing the
guidance for the final rule. This
guidance entitled ‘‘Class II Special
Controls Guidance Document: Nucleic
Acid Amplification Assay for the
Detection of Enterovirus RNA’’
references previously approved
collections of information found in FDA
regulations.
VI. What References Are on Display?
The following reference has been
placed on display in the Division of
Dockets Management (HFA–305), Food
and Drug Administration, 5630 Fishers
Lane, rm. 1061, Rockville, MD 20852,
and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday
through Friday.
1. Petition from Cepheid, dated March 9,
2007.
List of Subjects in 21 CFR Part 866
Biologics, Laboratories, Medical
devices.
■
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 866 is
amended as follows:
PART 866—IMMUNOLOGY AND
MICROBIOLOGY DEVICES
■
1. The authority citation for 21 CFR
part 866 continues to read as follows:
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 371.
■
2. Section 866.3225 is added to
subpart D to read as follows:
§866.3225
Enterovirus nucleic acid assay.
(a) Identification. An enterovirus
nucleic acid assay is a device that
consists of primers, probes, enzymes,
and controls for the amplification and
detection of enterovirus ribonucleic acid
(RNA) in cerebrospinal fluid (CSF) from
individuals who have signs and
symptoms consistent with meningitis or
meningoencephalitis. The detection of
enterovirus RNA, in conjunction with
other laboratory tests, aids in the
clinical laboratory diagnosis of viral
meningitis caused by enterovirus.
(b) Classification. Class II (special
controls). The special control is FDA’s
guidance document entitled ‘‘Class II
Special Controls Guidance Document:
Nucleic Acid Amplification Assay for
the Detection of Enterovirus RNA.’’ See
§866.1(e) for the availability of this
guidance document.
Dated: December 16, 2008.
Daniel G. Schultz,
Director, Center for Devices and Radiological
Health.
[FR Doc. E8–31213 Filed 12–31–08; 8:45 am]
BILLING CODE 4160–01–S
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