deterioration, and increase volatility. See id. But see supra notes
110-160 and accompanying text discussing why the proposal is
reasonably designed to not impact the price discovery process of the
primary listing markets' closing auctions.
    \192\ See id.
---------------------------------------------------------------------------

    NYSE further asserted that the proposal could potentially provide
some market participants, such as professional traders, with useful
information that other market participants do not have, such as the
direction of an imbalance, which could be used to influence the
official closing price.\193\
---------------------------------------------------------------------------

    \193\ See NYSE Letter 1, at 6. However, ViableMkts argued that
because these market participants would not know the full magnitude
of the imbalance, it does not believe the proposal creates an
incremental risk of manipulation. See ViableMkts Letter, at 5.
---------------------------------------------------------------------------

    Although not citing concerns regarding manipulation specifically,
T. Rowe Price similarly argued that the proposal would lead to
information asymmetries that could result in changes in continuous
trading behavior leading into the market close as some market
participants could be trading on information gathered from Cboe Market
Close pairing results.\194\ T. Rowe Price asserted that a market
participant that is aware of the composition of volume paired through
Cboe Market Close at 3:35 p.m. would be in a position to use that
information to influence its trading behavior over the next ten to
fifteen minutes leading in to the closing auction cut-off times on NYSE
and Nasdaq respectively.\195\ T. Rowe Price argued that, as a result,
the proposal could not only impact price discovery in closing auctions
on the primary listing markets it could also impact continuous trading
behavior.\196\
---------------------------------------------------------------------------

    \194\ See T. Rowe Price Letter, at 2-3.
    \195\ See id.
    \196\ See id.
---------------------------------------------------------------------------

    In contrast, BZX argued that information asymmetries are inherent
in trading, including the primary listing markets closing
auctions.\197\ For example, BZX argued that the current operation of d-
Quotes on NYSE carries a risk of manipulation as it provides an
informational advantage to NYSE DMMs and floor brokers, and allows d-
Quotes to be entered, modified or cancelled up until 3:59:50 p.m. while
other market participants are prohibited from entering, modifying or
cancelling on-close orders after 3:45 p.m.\198\ Lastly, BZX argued that
the information

disseminated through the Bats Auction Feed would not provide any
indication of whether the cancelling of a particular side of an order
that has not been matched back to a market participant ``is meaningful
or just happenstance,'' which limits this information's ability to
create or increase manipulative activity.\199\
---------------------------------------------------------------------------

    \197\ See BZX Letter 1, at 11-12 and BZX Letter 2, at 9.
    \198\ See BZX Letter 1, at 12 and BZX Letter 2, at 9. BZX also
requested that the Commission review the appropriateness of NYSE's
use of the d-Quote and its potential for price manipulation of
NYSE's closing prices. See BZX Letter 1, at 9.
    \199\ See id.
---------------------------------------------------------------------------

    The Commission believes that the proposed rule change is consistent
with the requirement of Section 6(b)(5) of the Act that the rules of a
national securities exchange be designed to prevent fraudulent and
manipulative acts and practices. The Commission believes information
asymmetries as those described by commenters exist today and are
inherent in trading, including with respect to closing auctions. For
example, any party to a trade gains valuable insight regarding the
depth of the market when an order is executed or partially executed.
Further, on NYSE, not only DMMs, but NYSE floor brokers have access to
closing auction imbalance information that is not simultaneously
available to other market participants, far in advance of the NYSE
order entry cut-off time. Specifically, pursuant to NYSE rules, floor
brokers receive the amount of, and any imbalance between, MOC and
marketable LOC interest every fifteen seconds beginning at 2:00 p.m.
until 3:45 p.m.\200\ Floor brokers are permitted to provide their
customers with specific data points from this imbalance feed. In
arguing for the Commission to approve its proposal to disseminate such
information to floor brokers, NYSE stated that the imbalance
information does not represent overall supply or demand for a security,
but rather is a small subset of buying and selling interest that is
subject to change before the close, nor is it actionable prior to 15
minutes before the close.\201\ NYSE further asserted that it believed
the information it disseminates to all participants at 3:45 p.m. is
more material to investors, as it is more accurate, complete, and
timely information.\202\
---------------------------------------------------------------------------

    \200\ See NYSE Rule 123C(6)(b).
    \201\ See Securities Exchange Act Release No. 62923 (September
15, 2010), 75 FR 57541, 57542 (September 21, 2010) (SR-NYSE-2010-20;
SR-NYSEAmex-2010-25).
    \202\ See id.
---------------------------------------------------------------------------

    The Commission believes that the same arguments apply with respect
to BZX's proposal. In particular, even if a market participant becomes
aware of the direction of the imbalance for a security in Cboe Market
Close as a result of receiving a cancellation of part or all of that
participant's order, such information does not represent overall supply
or demand for the security, is subject to change before the close, and
is only one piece of information and likely less useful than other
information regarding the close that would be available to market
participants, such as the total matched amount of MOC shares that would
be disseminated by BZX at 3:35 p.m. and available to all market
participants on equal terms, as well as any imbalance information
disseminated by the primary listing markets. While commenters argue
that those who participate in Cboe Market Close would be able to
discern the direction of an imbalance and use such information to
manipulate the closing price, the Commission believes the utility of
such gleaned information is limited. In particular, a market
participant would only be able to determine the direction of the
imbalance, and would have difficulty determining the magnitude of any
imbalance, as it would only know the unexecuted size of its own order.
In addition, the information would only be with regard to the pool of
liquidity on BZX and would provide no insight into imbalances on the
primary listing market, competing auctions, or off-exchange matching
services which, as described above, can represent a significant portion
of trading volume at the close. Likewise, while a market participant
would be able to determine whether its own order made up a large or
small percentage of the paired shares for a security in Cboe Market
Close, it would not be able to determine the composition of same-side
or contra-side MOC orders submitted to Cboe Market Close, nor would
such information enable it to determine the composition of orders
submitted to the primary listing market, competing auctions, or off-
exchange matching services.\203\ Therefore, the Commission believes the
utility of this information is also limited. Accordingly, the
Commission believes the proposal's potential for increased manipulation
due to information asymmetries is negligible.
---------------------------------------------------------------------------

    \203\ See supra notes 194-196 and accompanying text. While one
commenter expressed concern that market participants that are aware
of the composition of volume paired through Cboe Market Close would
be in a position to use that information to influence their trading
behavior leading up to the close, under BZX's proposal, BZX would
only publish the size, and not the composition, of paired MOC
shares, and that such disseminated information would be available to
all market participants.
---------------------------------------------------------------------------

    NYSE also argued that the proposal would increase potential
manipulation for several reasons.\204\ First, NYSE asserted that the
potential for manipulative activity at the close would increase because
primary listing exchange auctions would decrease in size and thus be
easier to manipulate.\205\ NYSE also argued that the proposal
facilitates manipulative activity by providing an incentive for market
participants to influence the closing price when they know they have
been successfully matched on BZX to the benefit of the price of its
already matched order.\206\ Further, NYSE argued that market
participants could manipulate information leading up to the close by
entering orders into Cboe Market Close in an attempt to send a false
signal regarding demand and subsequently reverse such positions after
hours.\207\
---------------------------------------------------------------------------

    \204\ See NYSE Letter 1, at 6 and NYSE Report, at 19-22. See
also Americas Executions Letter (stating that the proposal creates
new opportunities to possibly manipulate the close).
    \205\ See NYSE Letter 1, at 6.
    \206\ See NYSE Letter 1, at 6 and NYSE Report, at 19.
    \207\ See NYSE Report, at 19-20.
---------------------------------------------------------------------------

    The Commission recognizes that, with or without Cboe Market Close,
the potential exists that there may be market participants who may seek
to engage in manipulative or illegal trading activity, including with
respect to closing prices.\208\ Although no commenters provided
specific data, analyses, or studies regarding manipulation generally or
to support the assertion that the proposal could increase the potential
for manipulative activity,\209\ scholarly articles have suggested that
closing auction manipulations are often characterized by large,
unrepresentatively priced orders submitted in the final seconds of the
auction.\210\ Accordingly, the

Commission believes that, while it is possible that the potential for
manipulation could increase if the closing auctions on the primary
listing exchanges decreased significantly in size, existing
surveillance systems, should be able to continue to detect such
activity.\211\ With respect to NYSE's comment that the proposal would
provide an incentive for market participants to influence the closing
price when they know they have been successfully matched on BZX, market
participants can attempt this today with respect to existing off-
exchange MOC matching services (which are surveilled by FINRA) and any
attempts to use Cboe Market Close to do this would result in such
activity occurring on BZX, a national securities exchange with
obligations under the Act to regulate and surveil its market.
Similarly, entering non bona fide orders in an attempt to give the
appearance of high demand is not a new form of potential manipulation
unique to the proposal; rather, similar forms of market manipulation
exist today and the Commission believes that current surveillance
systems are designed to detect such activity.
---------------------------------------------------------------------------

    \208\ NYSE also asserted that arbitrageurs will look for
opportunities presented by Cboe Market Close to ``gam[e] the
system.'' However, NYSE also acknowledged that, ``[i]t is hard to
predict all of the ways in which, and the degree to which, this
might occur because it will depend on a wide range of variables,
including the degree of usage of the Bats close, the changes to
order flow and liquidity provision in the primary market's closing
mechanism, the profits realized from manipulation, and the vitality
of market oversight.'' See NYSE Report, at 19-22.
    \209\ In the OIP, the Commission specifically solicited comments
on the whether the proposal would increase the potential for
manipulation and requested that commenters provide specific data,
analyses, or studies for support to the extent possible. See OIP,
supra note 7, at 40211. Although the NYSE Report criticized the DERA
Analysis for not addressing concerns regarding manipulation, the
potential impact of the proposal on manipulation was outside the
intended scope of such analysis, see supra note 144, and NYSE did
not, in response to the OIP request, provide any of its own specific
data or purport to provide findings of any study or analyses in this
area. See NYSE Report, at 19-22.
    \210\ See Carole Comerton-Forde and Talis J. Putnins,
``Measuring Closing Price Manipulation,'' Journal of Financial
Intermediation 20, 135-158 (2011), available at: https://www.sciencedirect.com/science/article/pii/S104295731000015X; and
Talis J. Putnins, ``Market Manipulation: A Survey,'' Journal of
Economic Surveys, 26, 952-967 (2012), available at: http://onlinelibrary.wiley.com/doi/10.1111/j.1467-6419.2011.00692.x/full.
    \211\ See infra for discussion of the obligations under the Act
of national securities exchanges, as self-regulatory organizations,
to surveil for manipulative activity on their markets.
---------------------------------------------------------------------------

    Lastly, Nasdaq stated that it and other exchanges would need to
develop new cross-market surveillance systems in order to address these
risks.\212\ NYSE also stated that there are no safeguards built-in to
the proposal to prevent manipulation, and identifying manipulative
activity would also become more difficult under the proposal due to the
time difference between the Cboe Market Close and primary market
closing auctions and the cross-market nature of the manipulation.\213\
Further, NYSE argued that market participants may have legitimate
reasons to want to reverse their trades that have been matched in Cboe
Market Close by trading in the primary market auction, and thus, it
would be difficult to distinguish between manipulative trading activity
and legitimate `positioning.' \214\ GTS similarly argued that the
proposal would make surveillance of the market close more difficult and
expensive due to fragmentation of order flow across multiple
markets.\215\ In contrast, IEX argued that participation in the Cboe
Market Close, followed by activity intended to affect the closing price
on the primary market, would make manipulation of closing crosses as or
more conspicuous than other trading patterns for which exchanges
already conduct surveillance.\216\ Two commenters also stated that the
Consolidated Audit Trail would provide a new tool for detecting any
such manipulation.\217\
---------------------------------------------------------------------------

    \212\ See Nasdaq Letter 2, at 14.
    \213\ See NYSE Report, at 20-21 and NYSE Letter 1, at 6.
    \214\ See NYSE Report, at 19.
    \215\ See GTS Securities Letter 1, at 6; GTS Securities Letter
2, at 5.
    \216\ See IEX Letter, at 2.
    \217\ See id., at 2-3 and Bollerman Letter, at 2.
---------------------------------------------------------------------------

    In response, BZX made several arguments as to why it does not
believe that the proposal creates a potential for increased
manipulation.\218\ BZX stated that, should the Commission approve the
proposal, both it and FINRA, as well as other exchanges, would continue
to surveil for manipulative activity and ``seek to punish those that
engage in such behavior.'' \219\ In its final response letter, BZX
reiterated that while it does not believe that the proposal would
increase the potential for manipulation, it is ``committed to enhancing
its current surveillance procedures and working with other [SROs],
including FINRA, the NYSE, and Nasdaq, to ensure that any potential
inappropriate trading activity is detected and prevented.'' \220\
Specifically, BZX stated that, consistent with its obligations as an
SRO, it currently surveils all trading activity on its system including
trading activity at the close, and intends to implement and enhance in-
house surveillance processes designed to detect potential manipulative
activity related to the Cboe Market Close.\221\
---------------------------------------------------------------------------

    \218\ See BZX Letter 1, at 11-12 and BZX Letter 2, at 9.
    \219\ See BZX Letter 1, at 11 and BZX Letter 2, at 9.
    \220\ See BZX Letter 4, at 1.
    \221\ Id. In particular, BZX stated that the surveillance would
include, among other things, monitoring for possible non bona fide
order activity, such as the submission of orders for the purpose of
gaining an informational advantage, the entry of large size orders
on one side of the market, or other trading activity that would
indicate a pattern or practice aimed at manipulating the closing
auction. Id. Further, BZX committed to providing the Commission
staff its surveillance plan and stated that it would implement that
plan on the date that Cboe Market Close becomes available to market
participants. See id. at 2.
---------------------------------------------------------------------------

    BZX also highlighted the cross-market surveillance that FINRA
conducts on its behalf.\222\ In particular, BZX stated that FINRA's
comprehensive cross-market surveillance program can monitor for
nefarious activity by a market participant across two or more markets
and includes surveillance designed to detect activity geared towards
manipulating a security's closing price.\223\ Stating that it currently
provides FINRA the necessary trade data to conduct such surveillance,
BZX represented that it is also committed to work with FINRA on
enhancements to the current cross market surveillance program to
account for any potential manipulative activity by participants in Cboe
Market Close and the primary listing markets' closing auctions.\224\
BZX also stated that, as a member of the Intermarket Surveillance Group
(``ISG''), it would share the necessary information concerning Cboe
Market Close with NYSE and Nasdaq, as part of their participation in
ISG, to allow them to properly surveil for potentially manipulative
activity within their closing auctions.\225\
---------------------------------------------------------------------------

    \222\ See id. Under regulatory services agreements, national
securities exchanges, such as BZX, may enter into contracts with
other regulatory entities, such as FINRA, to provide regulatory
services on the exchange's behalf. Notwithstanding the existence of
a regulatory services agreement, the exchange retains legal
responsibility for the regulation of its members and its market and
the performance of its regulatory services provider.
    \223\ Id.
    \224\ Id.
    \225\ Id.
---------------------------------------------------------------------------

    With respect to manipulative or illegal trading activity more
broadly, self-regulatory organizations such as BZX and the primary
listing markets have an obligation under the Act to surveil for
manipulative activity on their markets. The Commission generally
believes that existing self-regulatory organization surveillance and
enforcement activity, and the measures that the Exchange has
represented that it would take to surveil for and detect manipulative
activity related to the proposal, would help to deter market
participants who might otherwise seek to try and abuse Cboe Market
Close or a closing auction on a primary listing exchange. The
Commission expects that BZX will closely monitor Cboe Market Close and
implement new or enhanced surveillance measures, as necessary, designed
to identify potential manipulative behavior. Further, the Commission
expects that potential violative conduct identified by BZX, FINRA, or
any other national securities exchange would be investigated. With
respect to NYSE's comment on the potential challenges posed that time
differences or cross-market activity may pose in identifying
manipulative activity,\226\ these issues also exist today with respect
to existing off-exchange MOC matching services. To the extent

that such attempted manipulative activity instead occurs on BZX, it
would simply shift surveillance from FINRA to BZX, a national
securities exchange with obligations under the Act to regulate and
surveil its market. Further, with regard to the challenge of
differentiating between legitimate trading and manipulative activity,
this too exists today with regard to many different trading scenarios.
---------------------------------------------------------------------------

    \226\ See supra note 213 and accompanying text.
---------------------------------------------------------------------------

Impact on Competition

    A number of commenters addressed the proposal's impact on
competition. Seven commenters supporting the proposal stated that it
would increase competition among exchanges for executions of orders at
the close.\227\ These commenters asserted that increased competition
could result in reduced fees for market participants.\228\ Three
commenters characterized the primary listing markets as maintaining a
``monopoly'' on orders seeking a closing price with no market
competition, which they argued has, and would continue to, result in a
continual increase in fees for such orders if the proposal were not
approved.\229\ In addition, IEX argued that the proposal does not
unduly burden competition as exchanges often attempt to compete by
adopting functionality or fee schedules developed by competitors.\230\
ViableMkts also asserted that the proposal is not fully competitive
with closing auctions, as it does not accept priced orders or
disseminate imbalance information.\231\ Rather, it believed that the
proposal competes with other un-priced orders in closing auctions
which, in its view, is not ``destructive to the mission of the closing
auction.'' \232\
---------------------------------------------------------------------------

    \227\ See PDQ Letter; Clearpool Letter, at 2; Virtu Letter, at
2; SIFMA Letter 1, at 2; IEX Letter, at 1; ViableMkts Letter, at 1-
2; and Bollerman Letter, at 2.
    \228\ See PDQ Letter; Clearpool Letter, at 2; Virtu Letter, at
2; SIFMA Letter 1, at 2; IEX Letter, at 1; ViableMkts Letter, at 1;
SIFMA Letter 2, at 2; and Bollerman Letter, at 2.
    \229\ See IEX Letter, at 3; Clearpool Letter, at 2; and
ViableMkts Letter, at 1-2. However, one commenter also stated that
it believes the fees charged by NYSE and Nasdaq for participating in
their closing auctions are not excessive and there is no need for
additional fee competition for executing orders at the official
closing price. See GTS Securities Letter 1, at 5.
    \230\ See IEX Letter, at 3.
    \231\ See ViableMkts Letter, at 5.
    \232\ See id. ViableMkts also argued that the effect of this
competition will most likely be increased volumes at the closing
price because of lower marginal costs and the potential to attract
new types of investors to transact at the closing price. See id.
---------------------------------------------------------------------------

    In contrast, other commenters argued that the proposal would impose
a burden on competition not necessary or appropriate in furtherance of
the purposes of the Act, including by ``free-riding'' on the
investments the primary listing markets have made in their closing
auctions.\233\ Specifically, NYSE asserted that the proposal is an
unnecessary and inappropriate burden on competition as it would allow
BZX to use the closing prices established through the auction of a
primary listing market, without bearing any of the costs or risks
associated with conducting a closing auction.\234\ NYSE added that the
existing exchange fees for closing auctions reflect the value created
by the primary listing exchange's complex procedures and technology to
determine the official closing price of a security.\235\ NYSE
emphasized that it has invested significantly in intellectual property
and software to implement systems that facilitate orderly price
discovery in the closing auction, as well as surveillance tools
necessary to monitor activity leading up to, and in, the closing
process.\236\ Specifically, NYSE stated that operating an auction is
the most technologically complicated function of an exchange that
requires significant resources.\237\ According to NYSE, BZX would be
able to sell the official closing price established by a NYSE closing
auction at a price point with which it could not realistically
compete.\238\ NYSE also stated that the proposal differs from the
Nasdaq and NYSE Arca competing auctions in securities not listed on
their exchanges in that such auctions compete on a level playing field
because they are independent price-discovery auction events that do not
rely on prices established by the primary listing exchange and they
serve as an alternative method of establishing an official closing
price if a primary listing exchange is unable to conduct a closing
auction due to a technology issue.\239\
---------------------------------------------------------------------------

    \233\ See NYSE Letter 1, at 9-10; NYSE Letter 3, at 1, 4-6
Nasdaq Letter 1, at 5-6 & 9; Nasdaq Letter 2, at 7-8 (reiterating
its assertion that BZX is ``free-riding'' on the primary listing
markets' investments in issuer relationships, real-time regulation,
and closing cross technology); BioCryst Letter, at 2; Digimarc
Letter, at 1-2; NBT Bancorp Letter, at 2; Balchem Letter, at 2; Cree
Letter, at 2; Sirius Letter, at 2; Lam Letter, at 2; and PayPal
Letter, at 1. See also Angel Letter, at 3 (calling for a
rationalization of intellectual property protection in order to
foster productive innovation).
    \234\ See NYSE Letter 1, at 9, NYSE Letter 2, at 1-3 (adding
that the proposal is anti-competitive because it is proposing to
sell at a lower price the closing prices produced through resources
expended by NYSE), and NYSE Letter 3, at 5; and NYSE Letter 4, at 1.
In contrast, one commenter argued that BZX would not be ``free-
riding'' on the primary listing exchanges' price discovery process
because it is ``a regular and accepted practice'' to match orders at
reference prices. See SIFMA Letter 2, at 2.
    \235\ See NYSE Letter 1, at 9 and NYSE Letter 3, at 5 (stating
that NYSE does not segregate the costs associated with building,
testing, monitoring or maintaining its closing auction process and
that the costs do not vary based on the volume of orders sent to the
closing auction). NYSE also argued that the proposal impacts
competition for listings, as issuers choose where to list their
securities based on how primary listing exchanges are able to
centralize liquidity and perform closing auctions. See NYSE Letter
1, at 9.
    \236\ See NYSE Letter 2, at 2. Moreover, NYSE stated that it
dedicates resources to providing systems to DMMs necessary to
facilitate the closing of trading as well as to floor brokers to
enter and manage their customers' closing interest. See id.
    \237\ See NYSE Letter 3, at 5.
    \238\ See id. NYSE stated that the majority of costs associated
with operating a closing auction are fixed costs. If NYSE were to
reduce the fees charged for participating in its closing auction,
NYSE stated that there likely would be other impacts on the
exchange's overall fee structure. See id.
    \239\ See NYSE Letter 1, at 6; NYSE Letter 2, at 3-4; and NYSE
Letter 3, at 5. In response, one commenter stated that these
competing auctions were not originally proposed to only serve as a
back-up to a primary listing markets' closing auction. See SIFMA
Letter 2, at 2. In addition, one commenter stated that such
competing auctions are not expressly limited to operating only when
another primary listing exchange is experiencing a failure. See
Bollerman Letter, at 3.
---------------------------------------------------------------------------

    Nasdaq also argued that the proposal would impose a burden on
competition not necessary or appropriate in furtherance of the purposes
of the Act. Specifically, Nasdaq believed that the proposal undermines
intra-market competition, by removing orders from Nasdaq's auction book
and prohibiting those orders from competing on Nasdaq, which Nasdaq
argued is necessary for the exchange to arrive at the most accurate
closing price.\240\ Nasdaq also stated that, by diverting orders away
from NYSE and Nasdaq, the proposal would detract from robust price
competition and discovery that closing auctions ensure.\241\ Nasdaq
further argued that in order for BZX to meaningfully enhance
competition, it would have to generate its own closing price, as
opposed to merely utilizing the closing price generated by a primary
listing market.\242\ In addition, Nasdaq argued that price competition
between exchanges is not as important a form of competition as
innovation because price competition elevates fragmentation, sacrifices
quote and order interaction, and, in the case of Cboe Market Close,
undermines innovation.\243\ Further, Nasdaq stated that BZX's
comparisons to pegged orders, where the price is based upon reference
data that does not originate on that exchange, was misplaced because
all exchanges

contribute to the prices to which such orders are pegged.\244\ Nasdaq
asserted that Cboe Market Close is not an analogous offering because
BZX does not contribute to the closing price on a primary listing
exchange.\245\
---------------------------------------------------------------------------

    \240\ See Nasdaq Letter 1, at 9.
    \241\ See Nasdaq Letter 1, at 10 and Nasdaq Letter 2, at 7-8.
See also supra notes 27-109 and accompanying text (discussing
comments on the proposal's impact on price discovery).
    \242\ See id., at 13. See also supra notes 52-54 (discussing
comments on the proposal's impact on price discovery and competing
auctions and over-the-counter matching services).
    \243\ See Nasdaq Letter 2, at 8.
    \244\ See id., at 13.
    \245\ See id.
---------------------------------------------------------------------------

    In response to commenters' contentions about competition, BZX
asserted that the proposal would enhance rather than burden
competition.\246\ In this regard, BZX argued that its proposal would
promote competition in the use of MOC orders at the official closing
price.\247\ Specifically, BZX stated that the proposal would have a
positive impact on competition as it offers a price-competitive
alternative that will not impact the price discovery process.\248\
---------------------------------------------------------------------------

    \246\ See BZX Letter 1, at 10-11 and BZX Letter 2, at 6-7.
    \247\ See id. BZX further argued that Nasdaq's assertion that
the proposal would undermine competition amongst orders is misplaced
because BZX believes that paired MOC orders, which are beneficiaries
of price discovery and not price-setting orders do not impact
interactions that take place on another exchange because orders
compete with each other for executions within each individual
exchange based on the parameters a market participant places on its
orders. See id., at 11.
    \248\ See BZX Letter 2, at 7.
---------------------------------------------------------------------------

    BZX also challenged the assertion that it was ``free-riding'' on
the primary listing exchanges' closing auctions.\249\ In this regard,
BZX argued that instead it was, on balance, providing a ``a materially
better value to the marketplace'' in two ways: By not diverting price-
forming limit orders away from the primary listing market; and by
providing users with the official closing price because any other price
would be undesirable to market participants and potentially harmful to
price formation.\250\ BZX further argued that there is precedent for an
exchange to execute orders solely at reference prices while not also
displaying priced orders for that security.\251\ In addition, BZX
stated that no rule or regulation provides the primary listing market
with control over how other market participants use the official
closing price in their matching engines or with regard to the pricing
of their own products, such as mutual funds, ETFs, and indices.\252\
BZX also stated that improving and mimicking functionality enhances the
competitive dynamic amongst exchanges.\253\
---------------------------------------------------------------------------

    \249\ See BZX Letter 1, at 5 and BZX Letter 2, at 7.
    \250\ See BZX Letter 1, at 5.
    \251\ See BZX Letter 1, at 6 and BZX Letter 2, at 7 (describing
NYSE's after hours crossing sessions which executes orders at the
NYSE official closing price and the ISE Stock Exchange functionality
that only executed orders at the midpoint of the NBBO and did not
display orders).
    \252\ See BZX Letter 2, at 8.
    \253\ See id.
---------------------------------------------------------------------------

    Further, BZX asserted that the Commission has approved the
operation of competing closing auctions, noting in particular the
closing auctions on Nasdaq, NYSE Arca, and the American Stock
Exchange.\254\
---------------------------------------------------------------------------

    \254\ See BZX Letter 1, at 6. See also supra notes 81-93 and
accompanying text (discussing BZX's comments on competing closing
auctions with regard to price discovery). In addition, in response
to Nasdaq's contention that it is aware of no regulator in any
jurisdiction that has sanctioned a diversion of orders from the
primary market close, BZX stated the Ontario Securities Commission's
approval of a similar proposal by Chi-X Canada ATS, which it said is
currently owned by Nasdaq, to match MOC orders at the closing price
established by the Toronto Stock Exchange. See Nasdaq Letter 1, at
10; BZX Letter 1, at 7; and BZX Letter 2, at 2 (stating that the
Ontario Securities Commission stated that the proposal would not
threaten the integrity of the price formation process and would
pressure the Toronto Stock Exchange to competitively price
executions during their closing auction).
---------------------------------------------------------------------------

    The Commission believes that the proposal does not impose any
burden on competition not necessary or appropriate in furtherance of
the Act; rather, it provides an alternative venue to which market
participants may submit closing interest and receive the official
closing price. The Commission believes that while BZX would not be
conducting the closing auction that would determine the execution price
for orders executed in Cboe Market Close, the availability of Cboe
Market Close will inject competition into the closing process to the
ultimate benefit of market participants generally, which could include
price and execution quality competition. The Commission further
believes that implementation of Cboe Market Close could incent other
venues, including the primary listing exchanges as well as off-exchange
matching venues, to continue to innovate and compete to attract MOC
orders to their closing auctions, which may include lowering
transaction fees, to the benefit of market participants generally. The
proposal would also provide an opportunity for market participants to
assess and compare their experience in seeking to execute MOC orders on
different national securities exchanges, which would foster competition
and that may enhance the quality and efficiency of MOC order
executions. Ultimately, the Commission believes that the success of the
Cboe Market Close in competing with the primary listing exchanges and
off-exchange matching venues for MOC orders will depend on a variety of
factors, including the quality of the MOC order execution services, the
attendant risks, and the costs associated with such executions.
    While the primary listing markets and other commenters argue that
BZX is ``free riding'' on investments of the primary listing markets in
the development and maintenance of the closing auction process and thus
impeding competition in a manner inconsistent with the Act, the
Commission believes that this form of burden on competition must be
evaluated against the potentially enhanced competition that the
proposal also provides, as discussed above.\255\ Further, while NYSE
and Nasdaq argue that their fees for closing executions reflect their
costs of developing and operating the closing auctions, other
commenters assert that the primary listing markets have taken advantage
of the ``monopoly'' they have on orders seeking a closing price to
impose high fees. In this regard, the Commission expects that the
proposal, by introducing further competition, should result in a
reduction of fees for such orders. This may result in benefits to
investors generally. In addition, in the highly competitive environment
of the current national market system with numerous exchanges competing
for order flow, it is commonplace for exchanges to attempt to mimic or
build upon various functionality of their competitors. Doing so does
not result in the proposal imposing a competitive burden not necessary
or appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \255\ To the extent that the primary listing markets believe the
proposal infringes on their intellectual property and innovations
they have developed with regard to closing auctions, they have the
ability to seek protection under applicable laws, as appropriate.
---------------------------------------------------------------------------

    In addition, both NYSE and Nasdaq referenced the Commission's
disapproval of Nasdaq's proposal to create a Benchmark Order as support
that BZX has not sufficiently satisfied its obligation to justify that
the proposal is consistent with the Act and not an inappropriate burden
on competition. NYSE argued that BZX essentially proposes to compete
with broker-dealer agency order matching services.\256\ NYSE asserted
that the Commission disapproved Nasdaq's Benchmark Order in part
because it would provide an exchange with an unfair advantage over
competing broker-dealers, which was not consistent with Section 6(b)(8)
of the Act.\257\ Nasdaq further argued that the disapproval of its
Benchmark Order proposal supports the assertion that an exchange must
articulate how a proposed service is consistent with the

policy goals of the Act with respect to national securities
exchanges.\258\
---------------------------------------------------------------------------

    \256\ See NYSE Letter 1, at 8.
    \257\ See id.
    \258\ See Nasdaq Letter 1, at 5.
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    Likewise, SIFMA also referenced the Commission's disapproval of
Nasdaq's proposal to create a Benchmark Order as support for its
assertion that BZX is proposing to offer a function identical to that
currently offered by broker-dealers, yet would benefit from regulatory
immunity as well as the limits on liability contained in BZX Rule
11.16.\259\ Specifically, SIFMA stated that, while it supports the
proposal, it believes that as a condition of approval, BZX and the
Commission should clarify in writing that Cboe Market Close would not
be entitled to any application of regulatory immunity and that the
Exchange should amend its Rule 11.16 to provide that Cboe Market Close
would not be subject to the monetary limits on the Exchange's
liability.\260\
---------------------------------------------------------------------------

    \259\ See SIFMA Letter 3, at 2-4.
    \260\ See id. at 1.
---------------------------------------------------------------------------

    With respect to regulatory immunity, SIFMA asserted that both
courts and the Commission have stated that regulatory immunity applies
only in situations where an exchange is exercising its regulatory
authority over its member, pursuant to the Act.\261\ SIFMA stated that
because Cboe Market Close would not be a self-regulatory function
whereby the exchange would be regulating its members, BZX should not be
entitled to apply regulatory immunity for any losses arising from the
functionality.\262\ In addition, SIFMA stated that BZX Rule 11.16
currently limits the liability exposure of the exchange to its
members.\263\ SIFMA asserted that BZX's limits on liability set forth
in Rule 11.16 ``bear no relation to the actual amount of financial loss
that could result from an exchange malfunction.'' \264\ SIFMA argued
that the ``disparity is particularly acute'' with respect to the
proposal because broker-dealers currently perform services akin to Cboe
Market Close without a limitation on their liability.\265\ Accordingly,
SIFMA stated that, as a condition of operating Cboe Market Close, BZX
should carve it out from the liability limits of Rule 11.16.\266\
---------------------------------------------------------------------------

    \261\ See id. at 2-3.
    \262\ See id. at 3.
    \263\ See BZX Rule 11.16.
    \264\ See SIFMA Letter 3, at 4.
    \265\ See id.
    \266\ See id.
---------------------------------------------------------------------------

    BZX argued that, rather than looking to compete with broker-dealer
services, it is seeking to compete on price with the primary listing
markets' closing auctions.\267\ In addition, BZX argued that, contrary
to the assertions by NYSE and Nasdaq, its proposal does not implicate
the same issues as Nasdaq's Benchmark Order proposal because the
Commission's disapproval of that proposal rested primarily on its
finding that it raised issues under the Market Access Rule.\268\ BZX
responded to SIFMA's comments on regulatory immunity and its limitation
on liability rule by stating that the concerns raised were ``not
germane to whether the [p]roposal is consistent with the Act,'' and
further stated that it believed it would be inappropriate in the
context of a filing on one proposed rule change to set a new standard
on an issue that has broad application to all exchange services as well
as National Market System Plans.\269\ BZX also asserted that SIFMA did
not provide any evidence to support its claim that its members have
been disadvantaged by the exchange's limitation of liability rule as
compared to limitation on liability provisions in a broker-dealer's
contracts with its clients, which often disclaim all liability.\270\
---------------------------------------------------------------------------

    \267\ See BZX Letter 1, at 10.
    \268\ See id., at 11.
    \269\ See id.
    \270\ See BZX Letter 3, at 5.
---------------------------------------------------------------------------

    The Commission believes, as acknowledged by BZX, that it is
possible that BZX's proposal could divert some MOC orders from off-
exchange matching services operated by broker-dealers onto a regulated
exchange.\271\ Broker-dealers and national securities exchanges
currently compete with respect to a variety of functions and services
that they offer to market participants within the current national
market system. As such, the fact that a national securities exchange
proposes to offer functionality that is similar to a service offered by
a broker-dealer does not, in and of itself, render such functionality
an inappropriate burden on competition. Rather, the proposal must be
considered in the broader context of the existing competitive landscape
and different regulatory structures applicable to broker-dealers and
exchanges under the Act, respectively. With respect to BZX's proposal,
the Commission believes that, on balance, in light of the differing
requirements under the Act and the rules and regulations thereunder
applicable to national securities exchanges and broker-dealers, the
proposal does not pose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \271\ See BZX Letter 2, at 11.
---------------------------------------------------------------------------

    Further, the Commission believes that the issues raised by
commenters regarding the judicial doctrine of regulatory immunity and
rule-based limitations on liability are part of a broader policy issue
regarding the different regulatory structures for exchanges and broker-
dealers, and do not materially impact the Commission's analysis or
finding regarding whether this proposal poses an unnecessary or
inappropriate burden on competition.\272\
---------------------------------------------------------------------------

    \272\ The Commission also notes that MOC orders submitted to
other exchanges' closing auctions would be subject to those
exchanges' rules governing limitations on liability.
---------------------------------------------------------------------------

    The Commission has taken the position that immunity from suit ``is
properly afforded to the exchanges when engaged in their traditional
self-regulatory functions--where the exchanges act as regulators of
their members,'' including ``the core adjudicatory and prosecutorial
functions that have traditionally been accorded absolute immunity, as
well as other functions that materially relate to the exchanges'
regulation of their members,'' but should not ``extend to functions
performed by an exchange itself in the operation of its own market, or
to the sale of products and services arising out of those functions.''
\273\ The Court of Appeals for the Second Circuit recently reached a
similar conclusion.\274\ The Commission has also recognized that an
exchange's invocation of immunity from suit should be examined on a
```case-by-case basis,' with `the party asserting immunity bear[ing]
the burden of demonstrating [an] entitlement to it.' '' \275\ Whether
and to what extent a court would consider BZX's additional
functionality under the proposed rule to fall within an exchange's
traditional regulatory functions depends on an assessment of the facts
and circumstances of the particular allegations before it and is beyond
the scope of the Commission's consideration of the proposed rule change
pursuant to the Act.
---------------------------------------------------------------------------

    \273\ Brief of the Securities and Exchange Commission, Amicus
Curiae, No. 15-3057, City of Providence v. Bats Global Markets, Inc.
(2d Cir.) (``City of Providence Amicus Br.''), at 22.
    \274\ City of Providence v. Bats Global Markets, Inc., 878 F.3d
36 (2d Cir. 2017) (``When an exchange engages in conduct to operate
its own market that is distinct from its oversight role, it is
acting as a regulated entity--not a regulator. Although the latter
warrants immunity, the former does not.'').
    \275\ City of Providence Amicus Br. at 21 (quoting In re NYSE
Specialists Secs. Litig., 503 F.3d 89, 96 (2d Cir. 2007)).
---------------------------------------------------------------------------

IV. Conclusion

    For the foregoing reasons, the Commission finds that the proposed
rule change is consistent with the Act and the rules and regulations
thereunder applicable to a national securities exchange.

    It is therefore ordered, pursuant to Section 19(b)(2) of the Act
\276\ that the proposed rule change (SR-BatsBZX-2017-34), as modified
by Amendment No. 1, be, and hereby is, approved.
---------------------------------------------------------------------------

    \276\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\277\
---------------------------------------------------------------------------

    \277\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-01093 Filed 1-22-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: November 18, 2010 (Volume 75, Number 222)]
[Notices]
[Page 70730-70731]
[DOCID:fr18no10-71]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 13817-000]

EBD Hydro; Notice of Application Accepted for Filing and
Soliciting Comments, Motions To Intervene, Protests, Recommendations,
and Terms and Conditions

November 10, 2010.
    Take notice that the following hydroelectric application has been
filed

with the Commission and is available for public inspection:
    a. Type of Application: Conduit Exemption.
    b. Project No.: 13817-000.
    c. Date filed: July 16, 2010.
    d. Applicant: EBD Hydro.
    e. Name of Project: 45-Mile Hydroelectric Project.
    f. Location: The proposed 45-Mile Hydroelectric Project would be
located on the concrete drop structure of the North Unit Irrigation
District's main irrigation canal in Jefferson County, near the Town of
Culver, Oregon. The land on which all the project structures are
located is leased by the applicant.
    g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791a-825r.
    h. Applicant Contact: Mr. Jim Gordon, EBD Hydro, 20247 Gaines
Court, Bend, Oregon 97702, phone<PHONE_NUMBER>.
    i. FERC Contact: Robert Bell,<PHONE_NUMBER><EMAIL_ADDRESS>    j. Status of Environmental Analysis: This application is ready for
environmental analysis at this time, and the Commission is requesting
comments, reply comments, recommendations, terms and conditions, and
prescriptions.
    k. Deadline for filing responsive documents: In light of the
comments received by resource agencies, the 60-day timeframe specified
in 18 CFR 4.43(b) for filing all comments, motions to intervene,
protests, recommendations, terms and conditions, and prescriptions is
shortened to 20 days from the issuance date of this notice. All reply
comments filed in response to comments submitted by any resource
agency, Indian Tribe, or person, must be filed with the Commission
within 30 days from the issuance date of this notice.
    Comments, protests, and interventions may be filed electronically
via the Internet in lieu of paper; see 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's Web site under the http://
www.ferc.gov/ docs-filing/efiling.asp. The Commission strongly
encourages electronic filings.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency.
    l. Description of Project: The 45-Mile Hydroelectric Project would
consist of: (1) A proposed intake structure; (2) a proposed 2,700-foot-
long, 96-inch diameter reinforced Krah/HDPE pipe; (3) a proposed
powerhouse containing three proposed generating units with a total
installed capacity of 5,000 kilowatts; and (4) appurtenant facilities.
The applicant estimates the project would have an average annual
generation of 18.126 gigawatt-hours.
    m. This filing is available for review and reproduction at the
Commission in the Public Reference Room, Room 2A, 888 First Street,
NE., Washington, DC 20426. The filing may also be viewed on the Web at
http://www.ferc.gov/ docs-filing/elibrary.asp using the ``eLibrary''
link. Enter the docket number, here P-13817, in the docket number field
to access the document. For assistance, call toll-free 1-866-208-3676
or e-mail<EMAIL_ADDRESS>For TTY, call<PHONE_NUMBER>. A
copy is also available for review and reproduction at the address in
item h above.
    n. Development Application--Any qualified applicant desiring to
file a competing application must submit to the Commission, on or
before the specified deadline date for the particular application, a
competing development application, or a notice of intent to file such
an application. Submission of a timely notice of intent allows an
interested person to file the competing development application no
later than 120 days after the specified deadline date for the
particular application. Applications for preliminary permits will not
be accepted in response to this notice.
    o. Notice of Intent--A notice of intent must specify the exact
name, business address, and telephone number of the prospective
applicant, and must include an unequivocal statement of intent to
submit a competing development application. A notice of intent must be
served on the applicant(s) named in this public notice.
    p. Protests or Motions to Intervene--Anyone may submit a protest or
a motion to intervene in accordance with the requirements of Rules of
Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In
determining the appropriate action to take, the Commission will
consider all protests filed, but only those who file a motion to
intervene in accordance with the Commission's Rules may become a party
to the proceeding. Any protests or motions to intervene must be
received on or before the specified deadline date for the particular
application.
    q. All filings must (1) bear in all capital letters the title
``PROTEST,'' ``MOTION TO INTERVENE,'' ``NOTICE OF INTENT TO FILE
COMPETING APPLICATION'', ``COMPETING APPLICATION,'' ``COMMENTS,''
``REPLY COMMENTS,'' ``RECOMMENDATIONS,'' ``TERMS AND CONDITIONS,'' or
``PRESCRIPTIONS;'' (2) set forth in the heading the name of the
applicant and the project number of the application to which the filing
responds; (3) furnish the name, address, and telephone number of the
person protesting or intervening; and (4) otherwise comply with the
requirements of 18 CFR 385.2001 through 385.2005. All comments,
recommendations, terms and conditions or prescriptions must set forth
their evidentiary basis and otherwise comply with the requirements of
18 CFR 4.34(b). Agencies may obtain copies of the application directly
from the applicant. Any of these documents must be filed by providing
the original and seven copies to: The Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426. An
additional copy must be sent to Director, Division of Hydropower
Administration and Compliance, Office of Energy Projects, Federal
Energy Regulatory Commission, at the above address. A copy of any
protest or motion to intervene must be served upon each representative
of the applicant specified in the particular application. A copy of all
other filings in reference to this application must be accompanied by
proof of service on all persons listed in the service list prepared by
the Commission in this proceeding, in accordance with 18 CFR 4.34(b)
and 385.2010.
    r. Waiver of Pre-filing Consultation: On July 16, 2010, the
applicant requested the agencies support to waive the Commission's
consultation requirements under 18 CFR 4.38(c). On October 15, 2010,
the U.S. Department of the Interior's Fish and Wildlife service
concurred with this request. No other comments were received.
Therefore, we intend to accept the consultation that has occurred on
this project during the pre-filing period and we intend to waive pre-
filing consultation under section 4.38(c), which requires, among other
things, conducting studies requested by resource agencies, and
distributing and consulting on a draft exemption application.

Kimberly D. Bose,
Secretary.
[FR Doc. 2010-29063 Filed 11-17-10; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: October 12, 2010 (Volume 75, Number 196)]
[Rules and Regulations]
[Page 62469]
[DOCID:fr12oc10-11]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2010-0847]

Drawbridge Operation Regulations; Charles River, Boston, MA,
Maintenance

AGENCY: Coast Guard, DHS.

ACTION: Notice of temporary deviation from regulations.

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SUMMARY: The Commander, First Coast Guard District, has issued a
temporary deviation from the regulation governing the operation of the
Craigie Bridge across the Charles River, mile 1.0, at Boston,
Massachusetts. The deviation is necessary to facilitate scheduled
rehabilitation maintenance at the bridge. Under this deviation the
bridge may remain in the closed position from November 1, 2010 through
April 26, 2011.

DATES: This deviation is effective from November 1, 2010 through April
26, 2011.

ADDRESSES: Documents mentioned in this preamble as being available in
the docket are part of docket USCG-2010-0847 and are available online
at www.regulations.gov, inserting USCG-2010-0847 in the ``Keyword'' and
then clicking ``Search.'' They are also available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Mr. John W. McDonald, Project Officer, First Coast Guard
District, telephone<PHONE_NUMBER><EMAIL_ADDRESS>If you
have questions on viewing the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Craigie Bridge across the Charles River
at mile 1.0, has a vertical clearance of 10.25 feet at normal pool
elevation. The drawbridge operation regulations are listed at 33 CFR
117.591(e).
    During the rehabilitation construction the Craigie Bridge will
provide a vertical clearance of 17.41 feet at normal pool elevation
from November 15, 2010 through January 19, 2011, and 10.25 feet at
normal pool elevation from January 20, 2011 through April 26, 2011.
    The operator of the bridge, the Massachusetts Department of
Transportation, requested a temporary deviation from the regulations to
facilitate scheduled rehabilitation maintenance from November 1, 2010
through April 26, 2011.
    The normal waterway users are predominantly recreational craft of
various sizes and commercial tour boats that operate from April through
November. The waterway is normally frozen from late December through
March each year.
    Under this temporary deviation the Craigie Bridge may remain in the
closed position from November 1, 2010 through April 26, 2011, to
facilitate rehabilitation maintenance at the bridge.
    From November 1 through November 14, 2010, a work barge will be
located under the bridge blocking the entire channel from vessel access
while the bridge lift spans are removed.
    From November 15, 2010 through April 26, 2011, vessels that can
pass under the bridge in the closed position may do so provided they
contact the contractor, J.F. White, Mr. Greg Labrum, via land line at
508-879-4700 or cell phone at<PHONE_NUMBER>, to arrange a transit.
    Waterway users were advised of the requested bridge and channel
closure and offered no objection.
    In accordance with 33 CFR 117.35(e), the bridge must return to its
regular operating schedule immediately at the end of the designated
time period. This deviation from the operating regulations is
authorized under 33 CFR 117.35.

    Dated: September 28, 2010.
Gary Kassof,
Bridge Program Manager, First Coast Guard District.
[FR Doc. 2010-25498 Filed 10-8-10; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register: November 21, 2008 (Volume 73, Number 226)]
[Rules and Regulations]
[Page 70598]
[DOCID:fr21no08-9]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-RCRA-2002-0002; FRL-8743-5]
RIN 2050-AE78

Regulation of Oil-Bearing Hazardous Secondary Materials From the
Petroleum Refining Industry Processed in a Gasification System To
Produce Synthesis Gas; Notice of Action Denying Petition for
Reconsideration

AGENCY: Environmental Protection Agency.

ACTION: Notice of action denying petition for reconsideration.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
providing notice that it has responded to a petition for
reconsideration of the final rule, ``Regulation of Oil-Bearing
Hazardous Secondary Materials from the Petroleum Refining Industry
Processed in a Gasification System to Produce Synthesis Gas'',
published at 73 FR 57 (January 2, 2008). The EPA considered the
petition along with information contained in the rulemaking docket in
reaching a decision on the petition. EPA Assistant Administrator Susan
Parker Bodine denied the petition for reconsideration in a letter to
the petitioners issued in November 2008. The letter explains EPA's
reasons for the denial. Section 7006(a) of the Resource Conservation
and Recovery Act (RCRA) states, in pertinent part, that judicial review
of the denial of any petition for the amendment or repeal of any
regulation under the Act may be filed only in the United States Court
of Appeals for the District of Columbia Circuit within 90 days of the
denial.

FOR FURTHER INFORMATION CONTACT: Alan Carpien, U.S. Environmental
Protection Agency, Office of General Counsel, Mail Code 2366A, 1200
Pennsylvania Ave., NW., Washington, DC 20460; telephone<PHONE_NUMBER>;
or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

How Can I Get Copies of This Document and Other Related Information?

    This Federal Register notice, the petition for reconsideration and
the letter denying the petition for reconsideration are available in a
docket EPA has established for this action under Docket ID No. EPA-HQ-
RCRA-2008-0808. All documents in the docket are listed on the http://
www.regulations.gov Web site. Although listed in the index, some
information may not be publicly available, because for example, it may
be Confidential Business Information (CBI) or other information, the
disclosure of which is restricted by statute. Certain material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://
www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the RCRA
Docket is<PHONE_NUMBER>. A reasonable fee may be charged for copying
docket materials.

    Dated: November 14, 2008.
Susan Parker Bodine,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. E8-27759 Filed 11-20-08; 8:45 am]

BILLING CODE 6560-50-P