[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Notices]
[Pages 41868-41873]
[FR Doc No: 2012-17175]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67374; File No. SR-NYSE-2012-15]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Deleting NYSE Rule 440A and Interpretation 440A/01, Which Address
Telemarketing, and Adopting New NYSE Rule 3230 To Conform to FINRA's
Telemarketing Rule

July 10, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Exchange Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is
hereby given that June 25, 2012, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to delete NYSE Rule 440A and Interpretation
440A/01, which address telemarketing, and adopt new rule text that is
substantially similar to FINRA Rule 3230. The text of the proposed rule
change is available on the Exchange's Web site at www.nyse.com, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

    In its filing with the Commission, the 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 those statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections A, B, and C below, of the most significant parts of such
statements.

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

1. Purpose
    The Exchange proposes to delete NYSE Rule 440A and Interpretation
440A/01, which address telemarketing, and adopt new rule text that is
substantially similar to FINRA Rule 3230.\4\
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    \4\ See Securities Exchange Act Release No. 66279 (January 30,
2012), 77 FR 5611 (February 3, 2012) (SR-FINRA-2011-059). FINRA's
rule change will become effective on July 9, 2012. See FINRA
Regulatory Notice 12-17.
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Background
    On July 30, 2007, FINRA's predecessor, the National Association of
Securities Dealers, Inc. (``NASD''), and NYSE Regulation, Inc.
(``NYSER'') consolidated their member firm regulation operations into a
combined organization, FINRA. Pursuant to Rule 17d-2 under the Exchange
Act, NYSE, NYSER and FINRA entered into an agreement (the
``Agreement'') to reduce regulatory duplication for their members by
allocating to FINRA certain regulatory responsibilities for certain
NYSE rules and rule interpretations (``FINRA Incorporated NYSE
Rules''). NYSE MKT LLC (``NYSE MKT'') became a party to the Agreement
effective December 15, 2008.\5\
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    \5\ See Securities Exchange Act Release No. 56148 (July 26,
2007), 72 FR 42146 (August 1, 2007) (order approving the Agreement);
Securities Exchange Act 56147 (July 26, 2007), 72 FR 42166 (August
1, 2007) (SR-NASD-2007-054) (order approving the incorporation of
certain NYSE Rules as ``Common Rules''); and Securities Exchange Act
60409 (July 30, 2009), 74 FR 39353 (August 6, 2009) (order approving
the amended and restated Agreement, adding NYSE MKT LLC as a party).
Paragraph 2(b) of the Agreement sets forth procedures regarding
proposed changes by FINRA, NYSE or NYSE MKT to the substance of any
of the Common Rules.
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    As part of its effort to reduce regulatory duplication and relieve
firms that are members of FINRA, NYSE and NYSE MKT of conflicting or
unnecessary regulatory burdens, FINRA is now engaged in the process of
reviewing and amending the NASD and FINRA Incorporated NYSE Rules in
order to create a consolidated FINRA rulebook.\6\
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    \6\ FINRA's rulebook currently has three sets of rules: (1) NASD
Rules, (2) FINRA Incorporated NYSE Rules, and (3) consolidated FINRA
Rules. The FINRA Incorporated NYSE Rules apply only to those members
of FINRA that are also members of the NYSE (``Dual Members''), while
the consolidated FINRA Rules apply to all FINRA members. For more
information about the FINRA rulebook consolidation process, see
FINRA Information Notice, March 12, 2008.
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Proposed Rule Change
    The Exchange proposes to delete NYSE Rule 440A and Interpretation

440A/01 and adopt new NYSE Rule 3230 to conform to the changes adopted
by FINRA for telemarketing. FINRA adopted NASD Rule 2212 as FINRA Rule
3230, taking into account FINRA Incorporated NYSE Rule 440A and
Interpretation 440A/01. FINRA Rule 3230 adds provisions that are
substantially similar to Federal Trade Commission (``FTC'') rules that
prohibit deceptive and other abusive telemarketing acts or practices.
    NASD Rule 2212 and NYSE Rule 440A are similar rules that require
members, among other things, to maintain do-not-call lists, limit the
hours of telephone solicitations, and prohibit members from using
deceptive and abusive acts and practices in connection with
telemarketing. The Commission directed FINRA and the Exchange to enact
these telemarketing rules in accordance with the Telemarketing Consumer
Fraud and Abuse Prevention Act of 1994 (``Prevention Act'').\7\ The
Prevention Act requires the Commission to promulgate, or direct any
national securities exchange or registered securities association to
promulgate, rules substantially similar to the FTC rules to prohibit
deceptive and other abusive telemarketing acts or practices.\8\
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    \7\ 15 U.S.C. 6101-6108.
    \8\ 15 U.S.C. 6102.
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    In 2003, the FTC and the Federal Communications Commission
(``FCC'') established requirements for sellers and telemarketers to
participate in the national do-not-call registry.\9\ Pursuant to the
Prevention Act, the Commission requested that FINRA and the Exchange
amend their telemarketing rules to include a requirement that their
members participate in the national do-not-call registry. In 2004, the
Commission approved amendments to NASD Rule 2212 requiring member firms
to participate in the national do-not-call registry.\10\ The following
year, the Commission approved amendments to NYSE Rule 440A, which were
similar to the NASD rule amendments, but included additional provisions
regarding the use of caller identification information, pre-recorded
messages, telephone facsimiles, and computer advertisements.\11\
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    \9\ See 68 FR 4580 (January 29, 2003); 68 FR 44144 (July 25,
2003); CG Docket No. 02-278, FCC 03-153, (adopted June 26, 2003;
released July 3, 2003).
    \10\ See Securities Exchange Act Release No. 49055 (January 12,
2004), 69 FR 2801 (January 20, 2004) (Order Approving File No. SR-
NASD-2003-131).
    \11\ See Securities Exchange Act Release No. 52579 (October 7,
2005), 70 FR 60119 (October 14, 2005) (Order Approving File No. SR-
NYSE-2004-73).
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    As mentioned above, the Prevention Act requires the Commission to
promulgate, or direct any national securities exchange or registered
securities association to promulgate, rules substantially similar to
the FTC rules to prohibit deceptive and other abusive telemarketing
acts or practices.\12\ In 2011, Commission staff directed all exchanges
and FINRA to conduct a review of their telemarketing rules and propose
rule amendments that provide protections that are at least as strong as
those provided by the FTC's telemarketing rules. FINRA's adoption of
FINRA Rule 3230 reflects amendments to NASD Rule 2212 and FINRA
Incorporated NYSE Rule 440A that update those rules to meet the
standards of the Prevention Act.\13\
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    \12\ 15 U.S.C. 6102.
    \13\ See Securities Exchange Act Release No. 65645 (October 27,
2011), 76 FR 67787 (November 2, 2011) (Order Approving File No. SR-
FINRA-2011-059).
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    The proposed rule change, as directed by the Commission staff,
adopts provisions in proposed NYSE Rule 3230 that are substantially
similar to the FTC's current rules that prohibit deceptive and other
abusive telemarketing acts or practices as described below.\14\
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    \14\ The text of proposed NYSE Rule 3230 would also be the same
as FINRA Rule 3230, except that (i) the Exchange would substitute
the term ``member organization'' for ``member;'' and (ii) the
Exchange would add supplementary material to define the term
``person associated with a member organization'' to have the same
meaning as the terms ``person associated with a member'' or
``associated person of a member'' as defined in Article I(rr) of the
FINRA By-Laws.
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Telemarketing Requirements
    Proposed NYSE Rule 3230(a) provides that no member organization or
person associated with a member organization shall initiate any
outbound telephone call \15\ to:
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    \15\ An ``outbound telephone call'' is a telephone call
initiated by a telemarketer to induce the purchase of goods or
services or to solicit a charitable contribution from a donor. A
``customer'' is any person who is or may be required to pay for
goods or services through telemarketing. A ``donor'' means any
person solicited to make a charitable contribution. A ``person'' is
any individual, group, unincorporated association, limited or
general partnership, corporation, or other business entity.
``Telemarketing'' means consisting of or relating to a plan,
program, or campaign involving at least one outbound telephone call,
for example cold-calling. The term does not include the solicitation
of sales through the mailing of written marketing materials, when
the person making the solicitation does not solicit customers by
telephone but only receives calls initiated by customers in response
to the marketing materials and during those calls takes orders only
without further solicitation. For purposes of the previous sentence,
the term ``further solicitation'' does not include providing the
customer with information about, or attempting to sell, anything
promoted in the same marketing materials that prompted the
customer's call. See proposed NYSE Rule 3230(m)(11), (14), (16),
(17), and (20); see also FINRA Rule 3230(m)(11), (14), (16), (17),
and (20); and 16 CFR 310.2(f), (l), (n), (v), (w), and (dd).
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    (1) Any residence of a person before the hour of 8 a.m. or after 9
p.m. (local time at the called party's location), unless the member
organization has an established business relationship \16\ with the
person pursuant to paragraph 3230(m)(12)(A), the member organization
has received that person's prior express invitation or permission, or
the person called is a broker or dealer;
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    \16\ An ``established business relationship'' is a relationship
between a member organization and a person if (i) the person has
made a financial transaction or has a security position, a money
balance, or account activity with the member organization or at a
clearing firm that provides clearing services to the member
organization within the 18 months immediately preceding the date of
an outbound telephone call; (b) the member organization is the
broker-dealer of record for an account of the person within the 18
months immediately preceding the date of an outbound telephone call;
or (c) the person has contacted the member organization to inquire
about a product or service offered by the member organization within
the three months immediately preceding the date of an outbound
telephone call. A person's established business relationship with a
member organization does not extend to the member organization's
affiliated entities unless the person would reasonably expect them
to be included. Similarly, a person's established business
relationship with a member organization's affiliate does not extend
to the member organization unless the person would reasonably expect
the member organization to be included. The term ``account
activity'' includes, but is not limited to, purchases, sales,
interest credits or debits, charges or credits, dividend payments,
transfer activity, securities receipts or deliveries, and/or journal
entries relating to securities or funds in the possession or control
of the member organization. The term ``broker-dealer of record''
refers to the broker or dealer identified on a customer's account
application for accounts held directly at a mutual fund or variable
insurance product issuer. See proposed NYSE Rule 3230(m)(1), (4),
and (12); see also 16 CFR 310.2(o) and FINRA Rule 3230(m)(1), (4),
and (12).
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    (2) Any person that previously has stated that he or she does not
wish to receive an outbound telephone call made by or on behalf of the
member organization; \17\ or
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    \17\ This restriction was previously included under NYSE Rule
440A(a). See the discussion below under Procedures.
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    (3) Any person who has registered his or her telephone number on
the FTC's national do-not-call registry.
    The proposed rule change is substantially similar to the FTC's
provisions regarding abusive telemarketing acts or practices.\18\ The
FTC provided a discussion of the provision when it was adopted pursuant
to the Prevention Act.\19\
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    \18\ See 16 CFR 310.4(b)(1)(iii)(A) and (B) and (c); see also
FINRA Rule 3230(a).
    \19\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission,
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43855.
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National Do-Not-Call List Exceptions
    Proposed NYSE Rule 3230(b) provides that a member organization
making

outbound telephone calls will not be liable for initiating any outbound
telephone call to any person who has registered his or her telephone
number on the FTC's national do-not-call registry if:
    (1) The member organization has an established business
relationship with the recipient of the call; \20\
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    \20\ A person's request to be placed on the firm-specific do-
not-call list terminates the established business relationship
exception to that national do-not-call list provision for that
member organization even if the person continues to do business with
the member organization.
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    (2) The member organization has obtained the person's prior express
invitation or permission; \21\ or
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    \21\ Such permission must be evidenced by a signed, written
agreement (which may be obtained electronically under the E-Sign Act
(See 15 U.S.C. 7001 et seq.) between the person and member
organization which states that the person agrees to be contacted by
the member organization and includes the telephone number to which
the calls may be placed.
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    (3) The associated person making the call has a personal
relationship \22\ with the recipient of the call.
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    \22\ The term ``personal relationship'' means any family member,
friend, or acquaintance of the person making an outbound telephone
call. See proposed NYSE Rule 3230(m)(18); see also FINRA Rule
3230(m)(18).
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    The proposed rule change modifies the established business
relationship exception in NYSE Rule 440A and the definition for
``established business relationships,'' which is substantially similar
to the FTC's definition of that term.\23\ In addition, the proposed
rule change is substantially similar to the FTC's provision regarding
an exception to the prohibition on making outbound telephone calls to
persons on the FTC's do-not-call registry.\24\ The FTC provided a
discussion of the provision when it was adopted pursuant to the
Prevention Act.\25\
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    \23\ See supra note 16; see also FINRA Rule 3230(a).
    \24\ See 16 CFR 310.4(b)(1)(iii)(B); see also FINRA Rule
3230(b).
    \25\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission,
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43854.
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Safe Harbor Provision
    Proposed NYSE Rule 3230(c) provides that a member organization or
person associated with a member organization making outbound telephone
calls will not be liable for initiating any outbound telephone call to
any person who has registered his or her telephone number on the FTC's
national do-not-call registry if the member organization or person
associated with a member organization demonstrates that the violation
is the result of an error and that as part of the member organization's
routine business practice, it meets the following standards:
    (1) The member organization has established and implemented written
procedures to comply with the national do-not-call rules;
    (2) The member organization has trained its personnel, and any
entity assisting in its compliance, in procedures established pursuant
to the national do-not-call rules;
    (3) The member organization has maintained and recorded a list of
telephone numbers that it may not contact; and
    (4) The member organization uses a process to prevent outbound
telephone calls to any telephone number on any list established
pursuant to the do-not-call rules, employing a version of the national
do-not-call registry obtained from the administrator of the registry no
more than 31 days prior to the date any call is made, and maintains
records documenting this process.
    The proposed rule change is substantially similar to the FTC's safe
harbor to the prohibition on making outbound telephone calls to persons
on the FTC's national do-not-call registry.\26\ The FTC provided a
discussion of the provision when it was adopted pursuant to the
Prevention Act.\27\
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    \26\ See 16 CFR 310.4(b)(1)(iii)(B); see also FINRA Rule
3230(c).
    \27\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (Jan. 29, 2003) at 4628; and Federal Trade Commission,
Telemarketing Sales Rule, 60 FR 43842 (Aug. 23, 1995) at 43855.
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Procedures
    Proposed NYSE Rule 3230(d) adopts procedures that member
organizations must institute to comply with NYSE Rule 3230(a) prior to
engaging in telemarketing. These procedures are substantially similar
to the procedural requirements under NYSE Rule 440A(b); however, the
proposed rule change deletes the requirement that a member organization
honor a firm-specific do-not-call request for five years from the time
the request is made. Additionally, the proposed rule change clarifies
that the request not to receive further calls would come from a person.
The procedures must meet the following minimum standards:
    (1) Member organizations must have a written policy for maintaining
their do-not-call lists.
    (2) Personnel engaged in any aspect of telemarketing must be
informed and trained in the existence and use of the member
organization's do-not-call list.
    (3) If a member organization receives a request from a person not
to receive calls from that member organization, the member organization
must record the request and place the person's name, if provided, and
telephone number on its do-not-call list at the time the request is
made.\28\
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    \28\ Member organizations must honor a person's do-not-call
request within a reasonable time from the date the request is made,
which may not exceed 30 days from the date of the request. If these
requests are recorded or maintained by a party other than the member
organization on whose behalf the outbound telephone call is made,
the member organization on whose behalf the outbound telephone call
is made will still be liable for any failures to honor the do-not-
call request.
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    (4) Member organizations or persons associated with a member
organization making an outbound telephone call must make certain caller
disclosures set forth in NYSE Rule 3230(d)(4).
    (5) In the absence of a specific request by the person to the
contrary, a person's do-not-call request shall apply to the member
organization making the call, and will not apply to affiliated entities
unless the consumer reasonably would expect them to be included given
the identification of the call and the product being advertised.
    (6) A member organization making outbound telephone calls must
maintain a record of a person's request not to receive further calls.
    Inclusion of this requirement to adopt these procedures will not
create any new obligations on member organizations, as they are already
subject to identical provisions under FCC telemarketing
regulations.\29\
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    \29\ See 47 CFR 64.1200(d); see also FINRA Rule 3230(d).
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Wireless Communications
    Proposed NYSE Rule 3230(e) states that the provisions set forth in
the rule are applicable to member organizations telemarketing or making
telephone solicitations calls to wireless telephone numbers. In
addition, proposed NYSE Rule 3230(e) clarifies that the application of
the rule also applies to persons associated with a member organization
making outbound telephone calls to wireless telephone numbers.\30\
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    \30\ See also FINRA Rule 3230(e).
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Outsourcing Telemarketing
    NYSE Rule 3230(f) states that if a member organization uses another
entity to perform telemarketing services on its behalf, the member
organization remains responsible for ensuring compliance with all
provisions contained in the rule. Proposed NYSE Rule 3230(f) also
clarifies that member organizations must consider whether the entity or
person that a member organization uses for outsourcing, must be
appropriately registered or licensed, where required.\31\
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    \31\ See also FINRA Rule 3230(f).

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Caller Identification Information
    Proposed NYSE Rule 3230(g) provides that any member organization
that engages in telemarketing must transmit or cause to be transmitted
the telephone number, and, when made available by the member
organization's telephone carrier, the name of the member organization,
to any caller identification service in use by a recipient of an
outbound telephone call. The telephone number so provided must permit
any person to make a do-not-call request during regular business hours.
In addition, any member organization that engages in telemarketing is
prohibited from blocking the transmission of caller identification
information.\32\
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    \32\ Caller identification information includes the telephone
number and, when made available by the member organization's
telephone carrier, the name of the member organization.
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    These provisions are similar to the caller identification provision
in the FTC rules.\33\ Inclusion of these caller identification
provisions in this proposed rule change will not create any new
obligations on member organizations, as they are already subject to
identical provisions under FCC telemarketing regulations.\34\
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    \33\ See 16 CFR 310.4(a)(8); see also FINRA Rule 3230(g).
    \34\ See 47 CFR 64.1601(e).
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Unencrypted Consumer Account Numbers
    Proposed NYSE Rule 3230(h) prohibits a member organization or
person associated with a member organization from disclosing or
receiving, for consideration, unencrypted consumer account numbers for
use in telemarketing. The proposed rule change is substantially similar
to the FTC's provision regarding unencrypted consumer account
numbers.\35\ The FTC provided a discussion of the provision when it was
adopted pursuant to the Prevention Act.\36\ Additionally, the proposed
rule change defines ``unencrypted'' as not only complete, visible
account numbers, whether provided in lists or singly, but also
encrypted information with a key to its decryption. The proposed
definition is substantially similar to the view taken by the FTC.\37\
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    \35\ See 16 CFR 310.4(a)(6); see also FINRA Rule 3230(h).
    \36\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (January 29, 2003) at 4615.
    \37\ See id. at 4616.
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Submission of Billing Information
    The proposed rule change provides that, for any telemarketing
transaction, no member organization or person associated with a member
organization may submit billing information \38\ for payment without
the express informed consent of the customer. Proposed NYSE Rule
3230(i) requires, for any telemarketing transaction, a member
organization or person associated with a member organization to obtain
the express informed consent of the person to be charged and to be
charged using the identified account. If the telemarketing transaction
involves preacquired account information \39\ and a free-to-pay
conversion \40\ feature, the member organization or person associated
with a member organization must:
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    \38\ The term ``billing information'' means any data that
enables any person to access a customer's or donor's account, such
as a credit or debit card number, a brokerage, checking, or savings
account number, or a mortgage loan account number. See proposed NYSE
Rule 3230(m)(3).
    \39\ The term ``preacquired account information'' means any
information that enables a member organization or person associated
with a member organization to cause a charge to be placed against a
customer's or donor's account without obtaining the account number
directly from the customer or donor during the telemarketing
transaction pursuant to which the account will be charged. See
proposed NYSE Rule 3230(m)(19).
    \40\ The term ``free-to-pay conversion'' means, in an offer or
agreement to sell or provide any goods or services, a provision
under which a customer receives a product or service for free for an
initial period and will incur an obligation to pay for the product
or service if he or she does not take affirmative action to cancel
before the end of that period. See proposed NYSE Rule 3230(m)(13).
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    (1) Obtain from the customer, at a minimum, the last four digits of
the account number to be charged;
    (2) Obtain from the customer an express agreement to be charged and
to be charged using the identified account number; and
    (3) Make and maintain an audio recording of the entire
telemarketing transaction.
    For any other telemarketing transaction involving preacquired
account information, the member organization or person associated with
a member organization must:
    (1) Identify the account to be charged with sufficient specificity
for the customer to understand what account will be charged; and
    (2) Obtain from the customer an express agreement to be charged and
to be charged using the identified account number.
    The proposed rule change is substantially similar to the FTC's
provision regarding the submission of billing information.\41\ The FTC
provided a discussion of the provision when it was adopted pursuant to
the Prevention Act.\42\
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    \41\ See 16 CFR 310.4(a)(7); see also FINRA Rule 3230(i).
    \42\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (January 29, 2003) at 4615.
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Abandoned Calls
    Proposed NYSE Rule 3230(j) prohibits a member organization or
person associated with a member organization from abandoning \43\ any
outbound telemarketing call. The abandoned calls prohibition is subject
to a ``safe harbor'' under proposed subparagraph (j)(2) that requires:
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    \43\ An outbound telephone call is ``abandoned'' if the called
person answers it and the call is not connected to a member
organization or person associated with a member organization within
two seconds of the called person's completed greeting.
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    (1) The member organization or person associated with a member
organization to employ technology that ensures abandonment of no more
than three percent of all calls answered by a person, measured over the
duration of a single calling campaign, if less than 30 days, or
separately over each successive 30-day period or portion thereof that
the campaign continues;
    (2) The member organization or person associated with a member
organization, for each telemarketing call placed, allows the telephone
to ring for at least 15 seconds or four rings before disconnecting an
unanswered call;
    (3) Whenever a person associated with a member organization is not
available to speak with the person answering the telemarketing call
within two seconds after the person's completed greeting, the member
organization or person associated with a member organization promptly
plays a recorded message stating the name and telephone number of the
member organization or person associated with a member organization on
whose behalf the call was placed; and
    (4) The member organization to maintain records documenting
compliance with the ``safe harbor.''
    The proposed rule change is substantially similar to the FTC's
provisions regarding abandoned calls.\44\ The FTC provided a discussion
of the provisions when they were adopted pursuant to the Prevention
Act.\45\
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    \44\ See 16 CFR 310.4(b)(1)(iv); see also 16 CFR 310.4(b)(4).
    \45\ See Federal Trade Commission, Telemarketing Sales Rule, 68
FR 4580 (January 29, 2003) at 4641.
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Prerecorded Messages
    Proposed NYSE Rule 3230(k) prohibits a member organization or
person associated with a member organization from initiating any
outbound telemarketing call that delivers a prerecorded message without
a person's express written agreement \46\

to receive such calls. The proposed rule change also requires that all
prerecorded telemarketing calls provide specified opt-out mechanisms so
that a person can opt out of future calls. The prohibition does not
apply to a prerecorded message permitted for compliance with the ``safe
harbor'' for abandoned calls under proposed subparagraph (j)(2).
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    \46\ The express written agreement must: (a) Have been obtained
only after a clear and conspicuous disclosure that the purpose of
the agreement is to authorize the member organization to place
prerecorded calls to such person; (b) have been obtained without
requiring, directly or indirectly, that the agreement be executed as
a condition of purchasing any good or service; (c) evidence the
willingness of the called person to receive calls that deliver
prerecorded messages by or on behalf of the member organization; and
(d) include the person's telephone number and signature (which may
be obtained electronically under the E-Sign Act).
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    The proposed rule change is substantially similar to the FTC's
provisions regarding prerecorded messages.\47\ The FTC provided a
discussion of the provisions when they were adopted pursuant to the
Prevention Act.\48\
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    \47\ See 16 CFR 310.4(b)(1)(v); see also FINRA Rule 3230(k).
    \48\ See Federal Trade Commission, Telemarketing Sales Rule, 73
FR 51164 (August 29, 2008) at 51165.
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Credit Card Laundering
    Proposed NYSE Rule 3230(l) prohibits credit card laundering, the
practice of depositing into the credit card system \49\ a sales draft
that is not the result of a credit card transaction between the
cardholder \50\ and the member organization. Except as expressly
permitted, the proposed rule change prohibits a member organization or
person associated with a member organization from:
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    \49\ The term ``credit card system'' means any method or
procedure used to process credit card transactions involving credit
cards issued or licensed by the operator of that system. The term
``credit card'' means any card, plate, coupon book, or other credit
device existing for the purpose of obtaining money, property, labor,
or services on credit. The term ``credit'' means the right granted
by a creditor to a debtor to defer payment of debt or to incur debt
and defer its payment. See proposed NYSE Rule 3230(m)(7), (8), and
(10).
    \50\ The term ``cardholder'' means a person to whom a credit
card is issued or who is authorized to use a credit card on behalf
of or in addition to the person to whom the credit card is issued.
See proposed NYSE Rule 3230(m)(6).
---------------------------------------------------------------------------

    (1) Presenting to or depositing into, the credit card system for
payment, a credit card sales draft \51\ generated by a telemarketing
transaction that is not the result of a telemarketing credit card
transaction between the cardholder and the member organization;
---------------------------------------------------------------------------

    \51\ The term ``credit card sales draft'' means any record or
evidence of a credit card transaction. See proposed NYSE Rule
3230(m)(9).
---------------------------------------------------------------------------

    (2) Employing, soliciting, or otherwise causing a merchant,\52\ or
an employee, representative or agent of the merchant, to present to or
to deposit into the credit card system for payment, a credit card sales
draft generated by a telemarketing transaction that is not the result
of a telemarketing credit card transaction between the cardholder and
the merchant; or
---------------------------------------------------------------------------

    \52\ The term ``merchant'' means a person who is authorized
under written contract with an acquirer to honor or accept credit
cards, or to transmit or process for payment credit card payments,
for the purchase of goods or services or a charitable contribution.
The term ``acquirer'' means a business organization, financial
institution, or an agent of a business organization or financial
institution that has authority from an organization that operates or
licenses a credit card system to authorize merchants to accept,
transmit, or process payment by credit card through the credit card
system for money, goods or services, or anything else of value. A
``charitable contribution'' means any donation or gift of money or
any other thing of value, for example a transfer to a pooled income
fund. See proposed NYSE Rule 3230(m)(2) and (14).
---------------------------------------------------------------------------

    (3) Obtaining access to the credit card system through the use of a
business relationship or an affiliation with a merchant, when such
access is not authorized by the merchant agreement \53\ or the
applicable credit card system.
---------------------------------------------------------------------------

    \53\ The term ``merchant agreement'' means a written contract
between a merchant and an acquirer to honor or accept credit cards,
or to transmit or process for payment credit card payments, for the
purchase of goods or services or charitable contribution. See
proposed NYSE Rule 3230(m)(15).
---------------------------------------------------------------------------

    The proposed rule change is substantially similar to the FTC's
provisions regarding credit card laundering.\54\ The FTC provided a
discussion of the provisions when they were adopted pursuant to the
Prevention Act.\55\
---------------------------------------------------------------------------

    \54\ See 16 CFR 310.2; see also FINRA Rule 3230(l).
    \55\ See Federal Trade Commission, Telemarketing Sales Rule, 60
FR 43842 (August 23, 1995) at 43852.
---------------------------------------------------------------------------

Definitions
    Proposed NYSE Rule 3230(m) adopts the following definitions, which
are substantially similar to the FTC's definitions of these terms:
``acquirer,'' ``billing information,'' ``caller identification
service,'' ``cardholder,'' ``charitable contribution,'' ``credit,''
``credit card,''``credit card sales draft,'' ``credit card system,''
``customer,'' ``donor,'' ``established business relationship,'' ``free-
to-pay conversion,'' ``merchant,'' ``merchant agreement,'' ``outbound
telephone call,'' ``person,'' ``preacquired account information,'' and
telemarketing''.\56\ The FTC provided a discussion of each definition
when they were adopted pursuant to the Prevention Act.
---------------------------------------------------------------------------

    \56\ See proposed NYSE Rule 3230(m)(2), (3), (5), (6), (7), (8),
(9), (10), (11), (12), (13), (14), (15), (16), (17), (19), and (20);
and 16 CFR 310.2(a), (c), (d), (e), (f), (h), (i), (j), (k), (l),
(n), (o), (p), (s), (t), (v), (w), (x), and (dd); see also FINRA
Rule 3230(m)(2), (3), (5), (6), (7), (8), (9), (10), (11), (12),
(13), (14), (15), (16), (17), (19), and (20). The proposed rule
change also adopts definitions of ``account activity,'' ``broker-
dealer of record,'' and ``personal relationship'' that are
substantially similar to FINRA's definitions of these terms. See
proposed NYSE Rule 3230(m)(1), (4), and (18) and FINRA Rule
3230(m)(1), (4), and (18); see also 47 CFR 64.1200(t)(14) (FCC's
definition of ``personal relationship'').
---------------------------------------------------------------------------

    The Exchange proposes make NYSE Rule 3230 effective on the same
date as FINRA makes FINRA Rule 3230 effective.\57\
---------------------------------------------------------------------------

    \57\ See supra note 4.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act \58\ in general, and furthers the
objectives of Section 6(b)(5) \59\ in particular, in that it is
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, to foster cooperation
and coordination with persons engaged in facilitating transactions in
securities, and to remove impediments to and perfect the mechanism of a
free and open market and a national market system. Specifically, the
Exchange believes that the proposed rule change supports the objectives
of the Exchange Act by providing greater harmonization between NYSE
Rules and FINRA Rules of similar purpose, resulting in less burdensome
and more efficient regulatory compliance. In particular, NYSE member
organizations that are also FINRA members are subject to both NYSE Rule
440A and FINRA Rule 3230 and harmonizing these two rules would promote
just and equitable principles of trade by requiring a single standard
for telemarketing. In addition, adopting Rule 3230 will assure that the
Exchange's rules governing telemarketing meet the standards set forth
in the Prevention Act. To the extent the Exchange has proposed changes
that differ from the FINRA version of the NYSE Rules, it believes such
changes are technical in nature and do not change the substance of the
proposed NYSE Rules. The Exchange also believes that the proposed rule
change will update and clarify the requirements governing
telemarketing, which will promote just and equitable principles of
trade and help to protect investors.
---------------------------------------------------------------------------

    \58\ 15 U.S.C. 78f(b).
    \59\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

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

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

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

    The Exchange neither solicited nor received written comments 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 Exchange Act \60\ and Rule 19b-4(f)(6)
thereunder.\61\ Because the proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative prior to 30 days from the date on which it was filed,
or such shorter time as the Commission may designate, if consistent
with the protection of investors and the public interest, the proposed
rule change has become effective pursuant to Section 19(b)(3)(A) of the
Exchange Act and Rule 19b-4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \60\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \61\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \62\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b4(f)(6)(iii),\63\ 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 proposal
may become operative immediately upon filing.
---------------------------------------------------------------------------

    \62\ 17 CFR 240.19b-4(f)(6).
    \63\ 17 CFR 240.19b-4(f)(6)(iii).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Exchange 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 Exchange 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-NYSE-2012-15 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-NYSE-2012-15. 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 Section, 100 F Street
NE., Washington, DC 20549-1090 on official business days between the
hours of 10 a.m. and 3 p.m. Copies of the filing will also be available
for inspection and copying at the NYSE's principal office and on its
Internet Web site at www.nyse.com. 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-NYSE-2012-15 and
should be submitted on or before August 6, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\64\
---------------------------------------------------------------------------

    \64\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-17175 Filed 7-13-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Notices]
[Page 12440]
[FR Doc No: 2021-04385]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 14799-002]

Lock 13 Partners, LLC; Notice of Availability of Environmental
Assessment

    In accordance with the National Environmental Policy Act of 1969
and the Federal Energy Regulatory Commission's (Commission)
regulations, 18 CFR part 380, the Office of Energy Projects has
reviewed the application for an original license for the Evelyn
Hydroelectric Project No. 14799, and has prepared an Environmental
Assessment (EA) for the project. The proposed project would be located
on the Kentucky River in Lee County, Kentucky, at the existing Kentucky
River Lock and Dam No. 13, which is owned by the Commonwealth of
Kentucky and operated by the Kentucky River Authority. No federal land
would be occupied by project works or located within the project
boundary.
    The EA contains staff's analysis of the potential environmental
impacts of the project and concludes that licensing the project, with
appropriate environmental protective measures, would not constitute a
major federal action that would significantly affect the quality of the
human environment.
    The Commission provides all interested persons with an opportunity
to view and/or print the EA via the internet through the Commission's
Home Page (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. At this time, the Commission has
suspended access to the Commission's Public Reference Room, due to the
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19), in a Presidential proclamation issued
on March 13, 2020. For assistance, contact FERC Online Support at
<EMAIL_ADDRESS>or toll-free at<PHONE_NUMBER>, or for TTY,
(202) 502-8659.
    You may also register online at https://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, contact FERC
Online Support.
    Any comments should be filed within 30 days from the date of this
notice.
    The Commission strongly encourages electronic filing. Please file
comments using the Commission's eFiling system at https://ferconline.ferc.gov/eFiling.aspx. Commenters can submit brief comments
up to 6,000 characters, without prior registration, using the eComment
system at https://ferconline.ferc.gov/QuickComment.aspx. You must
include your name and contact information at the end of your comments.
For assistance, please contact FERC Online Support. In lieu of
electronic filing, you may submit a paper copy. Submissions sent via
the U.S. Postal Service must be addressed to: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street NE,
Room 1A, Washington, DC 20426. Submissions sent via any other carrier
must be addressed to: Kimberly D. Bose, Secretary, Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
The first page of any filing should include docket number P-14799-002.
    For further information, contact Sarah Salazar at<PHONE_NUMBER>,
or by email at<EMAIL_ADDRESS>
    Dated: February 25, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2021-04385 Filed 3-2-21; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 87, Number 11 (Tuesday, January 18, 2022)]
[Notices]
[Page 2605]
[FR Doc No: 2022-00812]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 3472-024]

Aspinook Hydro, LLC; Notice of Intent To Prepare an Environmental
Assessment

    On April 30, 2020, Aspinook Hydro, LLC filed an application for a
new major license for the 2.78-megawatt Wyre Wynd Hydroelectric Project
(Wyre Wynd Project) (FERC No. 3472). The Wyre Wynd Project is located
on the Quinebaug River in New London and Windham Counties, Connecticut.
The project does not occupy federal land.
    In accordance with the Commission's regulations, on October 6,
2021, Commission staff issued a notice that the project was ready for
environmental analysis (REA notice). Based on the information in the
record, including comments filed on the REA notice, staff does not
anticipate that licensing the project would constitute a major federal
action significantly affecting the quality of the human environment.
Therefore, staff intends to prepare an Environmental Assessment (EA) on
the application to license the Wyre Wynd Project.
    The EA will be issued and circulated for review by all interested
parties. All comments filed on the EA will be analyzed by staff and
considered in the Commission's final licensing decision.
    The application will be processed according to the following
schedule. Revisions to the schedule may be made as appropriate.

------------------------------------------------------------------------
               Milestone                           Target date
------------------------------------------------------------------------
Commission issues EA...................  June 2022.\1\
Comments on EA.........................  July 2022.
------------------------------------------------------------------------

    Any questions regarding this notice may be directed to Kristine
Sillett at<PHONE_NUMBER> or [email protected].
---------------------------------------------------------------------------

    \1\ The Council on Environmental Quality's (CEQ) regulations
under 40 CFR 1501.10(b)(1) require that EAs be completed within 1
year of the federal action agency's decision to prepare an EA. This
notice establishes the Commission's intent to prepare an EA for the
Wyre Wynd Project. Therefore, in accordance with CEQ's regulations,
the EA must be issued within 1 year of the issuance date of this
notice.

    Dated: January 11, 2022.
Kimberly D. Bose,
Secretary.
[FR Doc. 2022-00812 Filed 1-14-22; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: February 3, 2006 (Volume 71, Number 23)]
[Notices]
[Page 5834-5836]
[DOCID:fr03fe06-53]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OA-2006-0080; FRL-8026-8]

Agency Information Collection Activities: Proposed Collection;
Comment Request; Valuing Reduced Asthma Episodes for Adults and
Children-Focus Groups; EPA ICR Number 2215.01

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
et seq.), this document announces that EPA is planning to submit a
request for a new Information Collection Request (ICR) to the Office of
Management and Budget (OMB). Before submitting the ICR to OMB for
review and approval, EPA is soliciting comments on specific aspects of
the proposed information collection as described below.

DATES: Comments must be submitted on or before April 4, 2006.

ADDRESSES: Submit your comments, referencing docket ID number EPA-HQ-
OA-2006-0080, by one of the following methods:
     http://www.regulations.gov: Follow the on-line

instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Office of Environmental Information (OEI) Docket,
Environmental Protection Agency, Mailcode 28221T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460.
     Hand Deliver: Office of Environmental Information (OEI)
Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OA-2006-
0080. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site

is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be

automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.

FOR FURTHER INFORMATION CONTACT: Dr. Chris Dockins, Office of Policy,
Economics and Innovation, U.S. EPA, Mail Code 1809T, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number<PHONE_NUMBER>; fax number<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

How Can I Access the Docket and/or Submit Comments?

    EPA has established a public docket for this ICR under Docket ID
No. EPA-HQ-OA-2006-0080, which is available for online viewing at
http://www.regulations.gov, or in person viewing at the Office of

Environmental Information (OEI) Docket in the EPA Docket Center (EPA/
DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC.
The EPA/DC Public Reading Room is open from 8 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The telephone number for the
Reading Room is<PHONE_NUMBER>, and the telephone number for the Office
of Environmental Information (OEI) Docket is<PHONE_NUMBER>.
    Use http://www.regulations.gov to obtain a copy of the draft

collection of information, submit or view public comments, access the
index listing of the contents of the docket, and to access those
documents in the public docket that are available electronically. Once
in the system, select ``search,'' then key in the docket ID number
identified in this document.

What Information Is EPA Particularly Interested In?

    Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically
solicits comments and information to enable it to:
    (i) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the Agency,
including whether the information will have practical utility;
    (ii) Evaluate the accuracy of the Agency's estimate of the burden
of the proposed collection of information, including the validity of
the methodology and assumptions used;
    (iii) Enhance the quality, utility, and clarity of the information
to be collected; and
    (iv) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses. In particular, EPA is requesting comments from
very small businesses (those that employ less than 25) on examples of
specific additional efforts that EPA could make to reduce the paperwork
burden for very small businesses affected by this collection.

What Should I Consider When I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your
comments:
    1. Explain your views as clearly as possible and provide specific
examples.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used
that support your views.
    4. If you estimate potential burden or costs, explain how you
arrived at the estimate that you provide.
    5. Offer alternative ways to improve the collection activity.
    6. Make sure to submit your comments by the deadline identified
under DATES.
    7. To ensure proper receipt by EPA, be sure to identify the docket
ID number assigned to this action in the subject line on the first page
of your response. You may also provide the name, date, and Federal
Register citation.

What Information Collection Activity or ICR Does This Apply To?

    Affected Entities: Entities potentially affected by this action are
individuals volunteering to participate in focus group discussions.
    Title: Valuing Reduced Asthma Episodes for Adults and Children--
Focus Groups.
    ICR Numbers: EPA ICR No. 2215.01.
    ICR Status: This ICR is for a new information collection activity.
An Agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information, unless it displays a currently
valid OMB control number. The OMB control numbers for EPA's regulations
in title 40 of the CFR, after appearing in the Federal Register when
approved, are listed in 40 CFR part 9, are displayed either by
publication in the Federal Register or by other appropriate means, such
as on the related collection instrument or form, if applicable. The
display of OMB control numbers in certain EPA regulations is
consolidated in 40 CFR part 9.
    Abstract: Asthma is one of the most common chronic illnesses in the
United States, particularly among children. The disease is
characterized by recurring episodes of symptoms like cough, shortness
of breath, and wheezing. Epidemiological studies suggest that ambient
air pollution may contribute to exacerbation of these episodes. Acute
asthma episodes are a leading cause of work and school absence and
contribute to the economic burden of the disease. The policies and
programs of many public and private entities including EPA may affect
the frequency and severity of asthma episodes, but economic analysis of
these programs is hindered by inadequate information about the economic
benefits of reduced asthma episodes. The proposed surveys would gather
information to support estimation of willingness to pay (WTP) to avoid
acute episodes of asthma exacerbation for adults and children.
    The survey research has three main objectives. The first is to
estimate WTP to reduce frequency of asthma episodes. The second is to
examine how the ``attributes'' of asthma episodes, such as their
frequency, severity and symptoms, affect WTP. The third is to provide
some evidence on the WTP to reduce the severity of asthma episodes,
while holding frequency constant. WTP would be estimated in the context
of the severity of the individual's asthma and the activities taken to
manage the disease. The resulting estimates will help to provide
researchers and policy analysts with a systematic and credible basis
for valuing policies that influence acute asthma episodes.
    Through a cooperative agreement from EPA (R-83062801-0),
researchers at the University of Central Florida (UCF) have designed
and are proposing to conduct two nationwide surveys of adult
individuals. One survey would be administered to a sample of adults
with physician-diagnosed asthma who have experienced asthma symptoms
during the 12 months preceding the survey. This survey focuses on
eliciting adults' WTP to reduce the asthma episodes that they
experience. The other survey would be administered to a national sample
of parents of children with physician-diagnosed asthma who have
experienced asthma symptoms during the 12 months preceding the survey.
In this case, the focus is on eliciting parents' WTP to reduce the
asthma episodes that their children experience.
    The purpose of the proposed ICR is to gain approval for the conduct
of a series of focus groups and individual interviews as part of the
survey development process. Focus groups and cognitive interviews are a
crucial component in the survey development process as they allow
survey developers to identify problematic approaches, terminology, and
graphics in the survey instrument. A total of 50 interviews are
anticipated, including focus group responses and individual interviews.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
    The EPA would like to solicit comments in order to:
    (i) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
    (ii) Evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information, including the validity of
the methodology and assumptions used;
    (iii) Enhance the quality, utility, and clarity of the information
to be collected; and
    (iv) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
    Burden Statement: The annual public reporting and recordkeeping
burden for this collection of information is estimated to average 2
hours per response. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
    The only burden imposed by the interviews on respondents will be
the time required to participate in focus group discussions and answer
interview questions. The survey developers estimate that this will
require an average of 2 hours per respondent. With a total of 50
respondents this requires a total of 100 hours. Based on an average
hourly rate of $26.05 \1\ (including employer costs of all employee
benefits), the survey developers expect that the average per-respondent
cost for the pilot survey will be $52.10 and the

corresponding one-time total cost to all respondents will be $5210.00.
Since this information collection is voluntary and does not involve any
special equipment, respondents will not incur any capital or operation
and maintenance (O&M) costs.
---------------------------------------------------------------------------

    \1\ Employer costs per hour worked for employee compensation and
costs as a percent of total compensation: Civilian workers, total
compensation, December 2005 (http://stats.bls.gov/news.release/ecec.t02.htm
).

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

What Is the Next Step in the Process for This ICR?

    EPA will consider the comments received and amend the ICR as
appropriate. The final ICR package will then be submitted to OMB for
review and approval pursuant to 5 CFR 1320.12. At that time, EPA will
issue another Federal Register notice pursuant to 5 CFR
1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the
opportunity to submit additional comments to OMB. If you have any
questions about this ICR or the approval process, please contact the
technical person listed under FOR FURTHER INFORMATION CONTACT.

    Dated: January 5, 2006.
Al McGartland,
Director, National Center for Environmental Economics, Office of Policy
Economics and Innovation.
[FR Doc. E6-1503 Filed 2-2-06; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register: February 21, 2006 (Volume 71, Number 34)]
[Notices]
[Page 8877-8880]
[DOCID:fr21fe06-84]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53277; File No. SR-NYSE-2006-03]

Self-Regulatory Organizations; New York Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Extend for an Additional Six Months the Pilot Program Permitting a
Floor Broker and an RCMM To Use an Exchange Authorized and Provided
Portable Telephone on the Exchange Floor

 February 13, 2006.
    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 January 31, 2006, the New York Stock Exchange, Inc. (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``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 seeks to extend its pilot program that amends NYSE
Rule 36 (Communication Between Exchange and Members' Offices) to allow
Floor brokers and Registered Competitive Market Makers (``RCMMs'') to
use Exchange authorized and provided portable telephones on the
Exchange Floor upon approval by the Exchange (``Pilot'') for an
additional six months, until July 31, 2006. The last extension of the
Pilot was in effect on a six-month pilot basis expiring on January 31,
2006.\3\ The text of the proposed rule change is available on the
Exchange's Web site (http://www.nyse.com), at the

Exchange's principal office, and at the Commission's Public Reference
Room.
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    \3\ See Securities Exchange Act Release No. 52188 (August 1,
2005), 70 FR 46252 (August 9, 2005) (SR-NYSE-2005-53).
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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

Background

    The Commission originally approved the Pilot to be implemented as a
six-month pilot \4\ beginning no later than June 23, 2003. \5\ Since
the inception of the Pilot, the Exchange has extended the Pilot five
times, with the current Pilot expiring on January 31, 2006.\6\ Most
recently, the Exchange incorporated RCMMs into the Pilot and clarified
the conditions under which a Floor broker may use an Exchange
authorized and provided portable phone.\7\ The Exchange has also filed
for permanent approval of NYSE Rule 36, as amended.\8\
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    \4\ See Securities Exchange Act Release No. 47671 (April 11,
2003), 68 FR 19048 (April 17, 2003) (SR-NYSE-2002-11) (``Original
Order'').
    \5\ See Securities Exchange Act Release No. 47992 (June 5,
2003), 68 FR 35047 (June 11, 2003) (SR-NYSE-2003-19) (delaying the
implementation date for portable phones from on or about May 1, 2003
to no later than June 23, 2003).
    \6\ See Securities Exchange Act Release Nos. 48919 (December 12,
2003), 68 FR 70853 (December 19, 2003) (SR-NYSE-2003-38) (extending
the Pilot for an additional six months ending on June 16, 2004);
49954 (July 1, 2004), 69 FR 41323 (July 8, 2004) (SR-NYSE-2004-30)
(extending the Pilot for an additional five months ending on
November 30, 2004); 50777 (December 1, 2004), 69 FR 71090 (December
8, 2004) (SR-NYSE-2004-67) (extending the Pilot for an additional
four months ending March 31, 2005); 51464 (March 31, 2005), 70 FR
17746 (April 7, 2005) (SR-NYSE-2005-20) (extending the Pilot for
additional four months ending July 31, 2005); and 52188, supra note
3.
    \7\ See Securities Exchange Act Release No. 53213 (February 2,
2006) (SR-NYSE-2005-80).
    \8\ See SR-NYSE-2004-52 (September 7, 2004).
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    With respect to regulatory actions concerning the Pilot, there is
an open investigation into possible insider trading in an NYSE listed
security in which the trading activity of two RCMMs has been identified
and is under review. The use of an Exchange authorized and provided
portable phone by one of the RCMMs in or about January 2005 is under
review as part of the investigation. No administrative or technical
problems, other than routine telephone maintenance issues, have
resulted from the Pilot over the past few months.\9\ Therefore, the
Exchange seeks to extend the Pilot for an additional six months, until
July 31, 2006.
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    \9\ The Exchange notes that it has received incoming telephone
records for Floor brokers for the period of July 4, 2005 through
January 31, 2006, and for RCMMs for the period of November 22, 2005
through January 31, 2006, and will continue to receive monthly
updates.
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NYSE Rule 36

    NYSE Rule 36 governs the establishment of telephone or electronic
communications between the Exchange Floor and any other location. Prior
to the Pilot, NYSE Rule 36.20 prohibited the use of portable telephone
communications between the Exchange Floor and any off-Floor location.
The only way that voice communication could be conducted by Floor
brokers between the Exchange Floor and an off-Floor location prior to
the Pilot was by means of a telephone located at a broker's booth.
These communications often involved a customer calling a broker at the
booth for ``market look'' information. Prior to the Pilot, a broker
could not use a portable phone at the point of sale in the trading
crowd to speak with a person located off the Exchange Floor.
    Furthermore, until recently, NYSE Rule 36.20 only applied to a
Floor broker's ability to use an Exchange authorized and provided
portable phone.\10\ RCMMs are non-specialist members of the Exchange
and do not have the same type of information (i.e., access to the
Display Book[reg]) that a specialist has. As such, the Exchange
believes it is appropriate for RCMMs to participate in the Pilot so
that they can communicate with their offices in order to, among other
things, enter off-Floor orders and better monitor their positions.\11\
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    \10\ Telephone conversation between Jeff Rosenstrock, Senior
Counsel, NYSE, and Molly M. Kim, Attorney, Division of Market
Regulation, Commission, on February 8, 2006.
    \11\ The Exchange has developed surveillance and examination
procedures to monitor the activities of RCMMs, including their use
of Exchange authorized and provided portable phones.
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    The Exchange proposes to extend the Pilot for an additional six
months, expiring on July 31, 2006. The Pilot would amend NYSE Rule 36
to permit Floor brokers and RCMMs to use Exchange authorized and issued
portable telephones on the Exchange Floor. Thus, with the approval of
the Exchange, a Floor broker would be permitted to engage in direct
voice communication from the point of sale to an off-Floor location,
such as a member firm's trading desk or the office of one of the
broker's customers. Such communications would permit the broker to
accept orders consistent with Exchange rules \12\ and provide status
and oral execution reports of orders previously received, as well as
``market look'' observations as have historically been routinely
transmitted from a broker's booth location. Moreover, the Pilot would
allow RCMMs to use an Exchange authorized and portable phone solely to
communicate with their or their member organizations' off-Floor office
and the off-Floor office of their clearing member organization, to
enter off-Floor orders, and to discuss matters related to the clearance
and settlement of transactions, provided the off-Floor office uses a
wired telephone line for these discussions. RCMMs, however, would not
be allowed to use a portable phone to conduct any agency business until
issues involving the use of portable phones by RCMMs acting in the
capacity of agent have been fully reviewed and resolved by NYSE
Regulation in consultation with the Commission.\13\ For both RCMMs and
Floor brokers, use of a portable telephone on the Exchange Floor other
than one authorized and issued by the Exchange would continue to be
prohibited.
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    \12\ Floor brokers receiving orders from the public over
portable phones must be properly qualified to engage in such
``direct access'' business under NYSE Rules 342 and 345, among
others.
    \13\ Allowing RCMMs acting as Floor brokers to use Exchange
authorized and provided portable phones would involve further
discussions with the Commission and would be the subject of a
separate filing with the Commission.
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    Furthermore, both incoming and outgoing calls would continue to be
allowed, provided the requirements of all other Exchange rules have
been met. Under NYSE Rule 123(e), a broker would not be permitted to
represent and execute any order received as a result of such voice
communication unless the order was first properly recorded by the
member and entered into the Exchange's Front End Systemic Capture
(``FESC'') electronic database.\14\ In addition, Exchange rules require
that any Floor

broker receiving orders from the public over portable phones must be
properly qualified to engage in such direct access business under NYSE
Rules 342 and 345, among others.\15\
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    \14\ See Securities Exchange Act Release No. 43689 (December 7,
2000), 65 FR 79145 (December 18, 2000) (SR-NYSE-98-25). See also
Securities Exchange Act Release No. 44943 (October 16, 2001), 66 FR
53820 (October 24, 2001) (SR-NYSE-2001-39) (discussing certain
exceptions to FESC, such as orders to offset an error or a bona fide
arbitrage, which may be entered within 60 second after a trade is
executed).
    \15\ See Information Memos 01-41 (November 21, 2001), 01-18
(July 11, 2001) (available on http://www.nyse.com) and 91-25 (July

8, 1991) for more information regarding Exchange requirements for
conducting a public business on the Exchange Floor.
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    In addition, NYSE Rule 36 does not apply to specialists, who are
prohibited from speaking from the post to upstairs trading desks or
customers.\16\ The Exchange notes that specialists are subject to
separate restrictions in NYSE Rule 36 on their ability to engage in
voice communications from the specialist post to an off-Floor
location.\17\
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    \16\ NYSE Rule 36.30 provides that, with the approval of the
Exchange, a specialist unit may maintain a telephone line at its
stock trading post location to the off-Floor offices of the
specialist unit or the unit's clearing firm. Such telephone
connection shall not be used for the purpose of transmitting to the
Floor orders for the purchase or sale of securities, but may be used
to enter options or futures hedging orders through the unit's off-
Floor office or the unit's clearing firm, or through a member (on
the Exchange Floor) of an options or futures exchange.
    \17\ See Securities Exchange Act Release No. 46560 (September
26, 2002), 67 FR 62088 (October 3, 2002) (SR-NYSE-00-31) (discussing
restrictions on specialists' communications from the post).
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    By enabling customers to speak directly to a Floor broker in a
trading crowd on an Exchange authorized and issued portable telephone
and by allowing RCMMs to communicate with their upstairs office's land
line and the land line of their clearing member organization's upstairs
office, the Exchange believes that the proposed rule change would
expedite and make more direct the free flow of information which, prior
to the Pilot, had to be transmitted somewhat more circuitously via the
booth. The Exchange believes that an extension of the Pilot for an
additional six months would enable the Exchange to provide more direct,
efficient access to its trading crowds and customers, increase the
speed of transmittal of orders and the execution of trades, and provide
an enhanced level of service to customers in an increasingly
competitive environment.\18\
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    \18\ See, e.g., Securities Exchange Act Release Nos. 43493
(October 30, 2000), 65 FR 67022 (November 8, 2000) (SR-CBOE-00-04)
(expanding the Chicago Board Options Exchange, Inc.'s existing
policy and rules governing the use of telephones at equity option
trading posts by allowing for the receipt of orders over outside
telephone lines from any source, directly at equity trading posts)
and 43836 (January 11, 2001), 66 FR 6727 (January 22, 2001) (SR-PCS-
00-33) (discussing and approving the Pacific Exchange's proposal to
remove current prohibitions against Floor brokers' use of cellular
or cordless phones to make calls to persons located off the trading
floor).
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Pilot Program Results

    Since the Pilot's inception, the Exchange represents that there
have been approximately 800 portable phone subscribers.\19\ In
addition, with regard to portable phone usage, for a sample week of
December 5, 2005 through December 9, 2005, an average of 10,951 calls
per day were originated from portable phones, and an average of 4,932
calls per day were received on portable phones. Of the calls originated
from portable phones, an average of 7,216 calls per day was internal
calls to the booth, and 3,735 calls per day were external calls. Thus,
approximately 66% of the calls originated from portable phones were
internal calls to the booth. With regard to received calls, of the
4,932 average calls per days received, an average of 2,472 calls per
day was external calls and an average of 2,460 calls per day was
internal calls received from the booth. Thus, approximately 50% of all
received calls were internally generated and 50% were calls from the
outside.
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    \19\ The data includes both Floor brokers' and RCMMs' usage of
Exchange authorized and provided phones. Telephone conversation
between Jeff Rosenstrock, Senior Special Counsel, NYSE, and Molly M.
Kim, Attorney, Division of Market Regulation, Commission, on
February 7, 2006.
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    Therefore, the Exchange believes that the Pilot appears to be
successful in that there is a reasonable degree of usage of portable
phones. Furthermore, except as noted above, there have been no other
regulatory, administrative, or other technical problems identified with
their usage. The Exchange also believes that the Pilot appears to
facilitate communication on the Exchange Floor for both Floor brokers
and RCMMs without any corresponding drawbacks. Therefore, the Exchange
believes it is appropriate to extend the Pilot for an additional six
months, expiring on July 31, 2006.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act \20\ in general, and further the
objectives of Section 6(b)(5) of the Act \21\ 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. The Exchange believes that the
amendment to NYSE Rule 36 would support the mechanism of free and open
markets by providing for increased means by which communications to and
from the Exchange Floor could take place.
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    \20\ 15 U.S.C. 78f(b).
    \21\ 15 U.S.C. 78f(b)(5).
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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.

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

    The Exchange has neither solicited nor received written comments on
the proposed rule change.

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

    Because the foregoing 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, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \22\ and Rule 19b-
4(f)(6) thereunder.\23\ At any time within 60 days of the filing of the
proposed 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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    \22\ 15 U.S.C. 78s(b)(3)(A).
    \23\ 17 CFR 240.19b-4(f)(6).
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    The Exchange requests that the Commission waive the 30-day
operative period under Rule 19b-4(f)(6)(iii).\24\ The Exchange believes
that the continuation of the Pilot is in the public interest as it will
avoid inconvenience and interruption to the public. The Commission
believes that it is consistent with the protection of investors and the
public interest to waive the 30-day operative delay and make this
proposed rule change immediately effective upon filing on January 31,
2006.\25\ The Commission believes that the waiver of the 30-day
operative delay will allow the Exchange to continue, without
interruption, the

existing operation of its Pilot until July 31, 2006.
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    \24\ 17 CFR 240.19b-4(f)(6)(iii).
    \25\ For purposes only of waiving, the 30-day operative delay of
this proposal, the Commission has considered the proposed rule's
impact on efficiency, competition, and capital formation. 15 U.S.C.
78c(f).
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    The Commission notes that proper surveillance is an essential
component of any telephone access policy to an exchange trading floor.
Surveillance procedures should help to ensure that Floor brokers and
RCMMs use portable phones as authorized by NYSE Rule 36 \26\ and that
orders are being handled in compliance with NYSE rules. The Commission
expects the Exchange to actively review these procedures and address
any potential concerns that have arisen during the Pilot. In this
regard, the Commission notes that the Exchange should address whether
telephone records are adequate for surveillance purposes.
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    \26\ See note 11 supra and accompanying text for other NYSE
requirements that Floor brokers be properly qualified before doing
public customer business.
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    The Commission also requests that the Exchange report any problems,
surveillance, or enforcement matters associated with the Floor brokers'
and RCMMs' use of an Exchange authorized and provided portable
telephone on the Exchange Floor. As stated in the Original Order, the
NYSE should also address whether additional surveillance would be
needed because of the derivative nature of the ETFs. Furthermore, in
any future additional filings on the Pilot, the Commission would expect
that the NYSE submit information documenting the usage of the phones,
any problems that have occurred, including, among other things, any
regulatory actions or concerns, and any advantages or disadvantages
that have resulted.\27\
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    \27\ In the future, the Commission expects the information to
distinguish between Floor brokers' and RCMMs' usage of the phones.
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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-NYSE-2006-03 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2006-03. 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. Copies of such
filing also will be available for inspection and copying at the
principal office of the NYSE. 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-NYSE-2006-03 and
should be submitted on or before March 14, 2006.

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E6-2367 Filed 2-17-06; 8:45 am]

BILLING CODE 8010-01-P