[Federal Register: September 29, 2010 (Volume 75, Number 188)]
[Rules and Regulations]
[Page 59966-59968]
[DOCID:fr29se10-5]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0138]
RIN 1625-AA00

Safety Zone; New York Air Show at Jones Beach State Park,
Wantagh, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone for
the annual New York Air Show at Jones Beach State Park in Wantagh, New
York. This safety zone is necessary to provide for the safety of
navigation and protection of the maritime public from the hazards
inherent with an air show which consists of aircraft performing
aerobatic maneuvers over the Atlantic Ocean off of Jones Beach State
Park.

DATES: This rule is effective October 29, 2010.

ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-2010-0138 and are available online by going to
http://www.regulations.gov, inserting USCG-2010-0138 in the ``Keyword''
box, and then clicking ``Search.'' This material is 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: Petty Officer Joseph Graun, Prevention Department, USCG
Sector Long Island Sound at<PHONE_NUMBER>, e-mail:
<EMAIL_ADDRESS>If you have questions on viewing the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On April 21, 2010, we published a notice of proposed rulemaking
(NPRM) entitled: Safety Zone; New York Air Show at Jones Beach State
Park, Atlantic Ocean off of Jones Beach, Wantagh, NY, in the Federal
Register (75 FR 20802). We received no comments or requests for a
public meeting on the proposed rule.

Basis and Purpose

    The Air Show consists of aircraft performing aerobatics in close
proximity to other aircraft over a specified area of the Atlantic Ocean
off of Jones Beach State Park. The safety zone will provide for the
safety of the maritime community and spectators viewing the Air Show
from the water should an accident, such as a collision of aircraft,
occur during the Show.
    Entry into this zone is prohibited unless authorized by the Captain
of the Port Long Island Sound or by Designated On-scene Patrol
Personnel. Any violation of the safety zone described herein is
punishable by, among other things, civil and criminal penalties, in rem
liability against the offending vessel, and the initiation of
suspension or revocation proceedings against Coast Guard-issued
merchant mariner credentials.

Background

    The New York State Office of Parks, Recreation and Historic
Preservation sponsors an annual air show at Jones Beach State Park
during the week before Memorial Day. In the past the Coast Guard
established temporary regulations for this event every year and was not
previously published in the CFR. The Notice of Proposed Rulemaking
process provided the opportunity for public comments to be voiced and
eliminated the unnecessary burden of establishing temporary rules every
year.

Discussion of Comments and Changes

    During the Notice of Proposed Rulemaking process, the sponsor of
the event informed the Coast Guard that the dates of the enforcement
period needed to be changed. The original proposed dates for the safety
zone were from May 24, 2010 until May 30, 2010 allowing enforcement of
the safety zone during the air show practice sessions. There will no
longer be a practice session; therefore, the safety zone will only be
needed during the main event on the Thursday through Sunday before
Memorial Day in May.

Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities. This rule may affect the following entities, some of which
may be small entities: The owners or operators of vessels intending to
transit or anchor in those portions of the Atlantic Ocean off of Jones
Beach State Park, Jones Beach, New York covered by the safety zone.
    This regulation may have some impact on the public, but the
potential impact will be minimized for the following reasons: The zone
would only be enforced for a temporary period each day over a four day
period; and vessels may transit in all areas around the zone at all
times.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to
assist small entities in understanding the rule so that they could
better evaluate its effects on them and participate in the rulemaking
process.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-

888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate
against small entities that question or complain about this rule or any
policy or action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such expenditure, we do discuss the effects of this rule elsewhere in
this preamble.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

Indian Tribal Governments

    This rule does not have Tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of
the Instruction. This rule involves establishing safety zones and
therefore falls within the categorical exclusion noted above. An
environmental analysis checklist and a categorical exclusion
determination are available in the docket where indicated under
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226 and 1231; 46 U.S.C. Chapter 701, 3306,
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5;
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.

0
2. Add Sec.  165.159 to read as follows:

Sec.  165.159  Safety Zone: New York Air Show at Jones Beach State
Park, Wantagh, NY.

    (a) Location. The following waters of the Atlantic Ocean off of
Jones Beach State Park, Wantagh, NY are designated a safety zone:
Beginning at a point on land located in Jones Beach State Park at
approximate position 40[deg]35'06'' N, 073[deg]32'37'' W, then running
east along the shoreline of Jones Beach State Park to approximate
position 40[deg]35'49'' N, 073[deg]28'47'' W; then running south to a
position in the Atlantic Ocean off of Jones Beach at approximate
position 40[deg]35'05'' N, 073[deg]28'34'' W; then running west to
approximate position 40[deg]34'23'' N, 073[deg]32'23'' W; then running
north to the point of origin. All coordinates are North American Datum
1983.
    (b) Definitions. The following definition applies to this section:
Designated On-scene Patrol Personnel, means any commissioned, warrant
and petty officers of the U.S. Coast Guard operating Coast Guard
vessels who have been authorized to act on the behalf of the Captain of
the Port Long Island Sound.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23 of this part, entry into or movement within this zone is
prohibited unless authorized by the Captain of the Port Long Island
Sound or designated on-scene patrol personnel.
    (2) All persons and vessels must comply with the Coast Guard
Captain of the Port or designated on-scene patrol personnel. On-scene
Coast Guard patrol personnel include commissioned,

warrant, and petty officers of the Coast Guard on board Coast Guard,
Coast Guard Auxiliary, and local, State, and Federal law enforcement
vessels.
    (3) Upon being hailed by siren, radio, flashing light or other
means from a U.S. Coast Guard vessel or other vessel with on-scene
patrol personnel aboard, the operator of the vessel shall proceed as
directed.
    (4) Persons and vessels desiring to enter the regulated area may
request permission to enter from the designated on scene patrol
personnel by contacting them on VHF-16 or by a request to the Captain
of the Port Long Island Sound via phone at<PHONE_NUMBER>.
    (d) Enforcement Period. This rule will be enforced annually on the
Thursday through Sunday before Memorial Day in May. Notification of the
enforcement of the safety zone will be made via marine broadcasts and
local notice to mariners.

    Dated: May 24, 2010.
Daniel A. Ronan,
Captain, U.S. Coast Guard, Captain of the Port, Long Island Sound.
[FR Doc. 2010-24236 Filed 9-28-10; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register: March 11, 2010 (Volume 75, Number 47)]
[Proposed Rules]
[Page 11477-11479]
[DOCID:fr11mr10-17]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2009-1190; Airspace Docket No. 09-ANM-27]

Proposed Establishment of Class E Airspace; Kemmerer, WY

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to establish Class E airspace at Kemmerer
Municipal Airport, Kemmerer, WY, to accommodate new Area Navigation
(RNAV) Global Positioning System (GPS) Standard Instrument Approach
Procedures (SIAPs) at the airport. This action would enhance the safety
and management of Instrument Flight Rules (IFR) operations at the
airport.

DATES: Comments must be received on or before April 26, 2010.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Telephone<PHONE_NUMBER>. You must identify FAA Docket No. FAA-2009-
1190; Airspace Docket No. 09-ANM-27, at the beginning of your comments.
You may also submit comments through the Internet at http://
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eldon Taylor, Federal Aviation
Administration, Operations Support Group, Western Service Center, 1601
Lind Avenue, SW., Renton, WA 98057; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
    Communications should identify both docket numbers (FAA Docket No.
FAA 2009-1190 and Airspace Docket No. 09-ANM-27) and be submitted in
triplicate to the Docket Management System (see ADDRESSES section for
address and phone number). You may also submit comments through the
Internet at http://www.regulations.gov.
    Commenters wishing the FAA to acknowledge receipt of their comments
on this action must submit with those comments a self-addressed stamped
postcard on which the following statement is made: ``Comments to FAA
Docket No. FAA-2009-1190 and Airspace Docket No. 09-ANM-27''. The
postcard will be date/time stamped and returned to the commenter.
    All communications received on or before the specified closing date
for comments will be considered before taking action on the proposed
rule. The proposal contained in this action may be changed in light of
comments received. All comments submitted will be available for
examination in the public docket both before and after the closing date
for comments. A report summarizing each substantive public contact with
FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's Web page at http://
www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_
amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see the ADDRESSES section for the address and phone number)
between 9 a.m. and 5 p.m., Monday through Friday, except federal
holidays. An informal docket may also be examined during normal
business hours at the Northwest Mountain Regional Office of the Federal
Aviation Administration, Air Traffic Organization, Western Service
Center, Operations Support Group, 1601 Lind Avenue, SW., Renton, WA
98057.
    Persons interested in being placed on a mailing list for future
NPRMs should contact the FAA's Office of Rulemaking,<PHONE_NUMBER>,
for a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    The FAA is proposing an amendment to Title 14 Code of the Federal
Regulations (14 CFR) part 71 by establishing Class E surface area
airspace at Kemmerer Municipal Airport, Kemmerer, WY. Controlled
airspace is necessary to accommodate aircraft using the new RNAV (GPS)
SIAPs at Kemmerer Municipal Airport, Kemmerer, WY. This action would
enhance the safety and management of aircraft operations at the
airport. The geographic coordinates also would be amended for the
existing Class E airspace area to coincide with the FAA's National
Aeronautical Charting Office.
    Class E airspace designations are published in paragraph 6002 and
6005 of FAA Order 7400.9T, signed August 27, 2009, and effective
September 15, 2009, which is incorporated by reference in 14 CFR 71.1.
The Class E airspace designation listed in this document will be
published subsequently in this Order.
    The FAA has determined this proposed regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation: (1) Is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
regulatory evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified this proposed rule, when
promulgated, would not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes
the authority for the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of the
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it establishes additional controlled airspace at Kemmerer Municipal
Airport, Kemmerer, WY.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of the FAA Order
7400.9T, Airspace Designations and Reporting Points, signed August 27,
2009, and effective September 15, 2009 is amended as follows:

Paragraph 6002 Class E airspace designated as surface areas.

* * * * *

ANM WY, E2 Kemmerer, WY [New]

Kemmerer Municipal Airport, WY
    (Lat. 41[deg]49'27'' N., long. 110[deg]33'25'' W)

    Within a 4.3-mile radius of the Kemmerer Municipal Airport, and
within 1 mile each side of the 360[deg] bearing from the airport,
extending from the 4.3-mile radius to 7 miles north of the airport.
This Class E airspace area is effective during the specific dates
and times established in advance by a Notice to Airmen. The
effective date and time will thereafter be continuously published in
the Airport/Facility Directory.

Paragraph 6005. Class E airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

ANM WY, E5 Kemmerer, WY [Amended]

Kemmerer Municipal Airport, WY
    (Lat. 41[deg]49'27'' N., long. 110[deg]33'25'' W)

    That airspace extending upward from 700 feet above the surface
within the 8-mile radius of the Kemmerer Municipal Airport,

and within 4 miles each side of the 174[deg] bearing from the
Kemmerer Airport extending from the airport 11 miles south of the
airport, and within 3.6 miles each side of the 354[deg] bearing from
the Kemmerer Airport extending from the airport to 16.1 miles
northwest of the airport; and that airspace extending upward from
1,200 feet above the surface bounded by a line beginning at lat.
41[deg]30'00'' N., long. 111[deg]00'00'' W.; to lat. 42[deg]10'00''
N., long. 111[deg]00'00'' W.; to lat. 42[deg]10'00'' N., long.
110[deg]00'00'' W.; to lat. 41[deg]30'00'' N., long. 110[deg]00'00''
W.; to lat. 41[deg]15'00'' N., long. 110[deg]23'00'' W.; to point of
origin; and excluding that airspace within Federal airways; and the
Fort Bridger, WY, Class E airspace areas.

    Issued in Seattle, Washington, on February 26, 2010.
William M. Buck,
Acting Manager, Operations Support Group, Western Service Center.
[FR Doc. 2010-5182 Filed 3-10-10; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 82, Number 138 (Thursday, July 20, 2017)]
[Notices]
[Pages 33534-33537]
[FR Doc No: 2017-15195]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-81150; File Nos. SR-NYSE-2016-71 and SR-NYSEMKT 2016-
99]

Self-Regulatory Organizations; New York Stock Exchange LLC; NYSE
MKT LLC; Order Disapproving Proposed Rule Changes Amending Exchange
Rule 104 To Delete Subsection (g)(i)(A)(III), Which Prohibits
Designated Market Makers From Engaging in Transactions, During the Last
Ten Minutes of Trading Before the Close, That Establish a New High
(Low) Price for the Day on the Exchange in an Assigned Security in
Which the DMM Has a Long (Short) Position

July 1, 2017.

I. Introduction

    On October 27, 2016, New York Stock Exchange LLC (``NYSE'') and
NYSE MKT LLC (``NYSE MKT'') (each an ``Exchange,'' and collectively the
``Exchanges'') each filed with the Securities and Exchange Commission
(``Commission'') pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change amending its respective Rule 104
to delete subsection (g)(i)(A)(III)--``Prohibited Transactions.'' \3\
Exchange Rule 104(g)(i)(A)(III) prohibits Designated Market Makers
(``DMMs'') from engaging in a transaction that establishes, during the
last ten minutes of trading before the close, a new high (low) price
for the day on the Exchange in an assigned security in which the DMM
has a long (short) position (``Prohibited Transactions Rule''). The
proposed rule changes were published for comment in the Federal
Register on November 17, 2016.\4\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ This order refers to both NYSE Rule 104 and NYSE MKT Rule
104--Equities as ``Exchange Rule 104.'' NYSE MKT Rule 104--Equities
is based on and, in relevant part, substantively identical to NYSE
Rule 104. See Securities Exchange Act Release Nos. 58705 (Oct. 1,
2008), 73 FR 58995 (Oct. 8. 2008) (SR-Amex-2008-63) and 59022 (Nov.
26, 2008), 73 FR 73683 (Dec. 3, 2008) (amending NYSE MKT equity
rules to conform to NYSE New Market Model Pilot rules).
    \4\ See Securities Exchange Act Release Nos. 79284 (Nov. 10,
2016), 81 FR 81222 (Nov. 17, 2016) (``NYSE Notice'') and 79283 (Nov.
10, 2016), 81 FR 81210 (Nov. 17, 2016) (``NYSE MKT Notice'').
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    On December 20, 2016, the Commission extended to February 15, 2017,
the time period in which to approve or disapprove the proposed rule
changes or to institute proceedings to determine whether to approve or
disapprove the proposals.\5\ On February 15, 2017, the Commission
instituted proceedings to determine whether to approve or disapprove
the proposed rule changes.\6\ The Commission then received a comment
letter, as well as a combined response letter from NYSE and NYSE
MKT.\7\ On April 28, 2017, the Commission designated a longer period
for Commission action on proceedings to determine whether to approve or
disapprove the proposed rule changes.\8\ This order disapproves the
proposed rule changes.
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    \5\ See Securities Exchange Act Release Nos. 79612 (Dec. 20,
2016), 81 FR 95205 (Dec. 27, 2016) and 79611 (Dec. 20, 2016), 81 FR
95205 (Dec. 27, 2016).
    \6\ See Securities Exchange Act Release Nos. 80044 (Feb. 15,
2017), 82 FR 11388 (Feb. 22, 2017) (``NYSE Order Instituting
Proceedings'') and 80043 (Feb. 15, 2017), 82 FR 11379 (Feb. 22,
2017) (``NYSE MKT Order Instituting Proceedings'') (collectively,
the ``Orders Instituting Proceedings'').
    \7\ See Letter from Stephen John Berger, Managing Director,
Government and Regulatory Policy, Citadel Securities, to Brent J.
Fields, Secretary, Commission (Mar. 15, 2017) (``Citadel Letter'');
Letter from Elizabeth K. King, General Counsel and Corporate
Secretary, NYSE, to Brent J. Fields, Secretary, Commission (Mar. 16,
2017) (``NYSE Letter''). The Citadel Letter addressed only the NYSE
proposal, which is substantively identical to the NYSE MKT proposal.
The NYSE Letter was submitted on behalf of both NYSE and NYSE MKT.
    \8\ See Securities Exchange Act Release Nos. 80552 (Apr. 28,
2017), 82 FR 20927 (May 4, 2017) and 80550 (Apr. 28, 2017), 82 FR
20926 (May 4, 2017).
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II. Description of the Proposals

    Currently, under Exchange Rule 104(g)(i)(A)(III), a DMM with a long
(short) position in an assigned security cannot, during the last ten
minutes before the close of trading, make a purchase (sale) in that
security that results in a new high (low) price on the Exchange for the
day.\9\ The Prohibited Transactions Rule provides two exceptions that
permit a DMM to: (1) Match another market's better bid or offer price;
or (2) bring the price of a security into parity with an underlying or
related security or asset.\10\ The Exchanges propose to remove the
Prohibited Transactions Rule from their rulebooks.
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    \9\ See Exchange Rule 104(g)(i)(A)(III).
    \10\ See id.; see also Exchange Rule 104(g)(i)(A)(II)(2)(i).

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    The Exchanges assert that, in light of developments in the equity
markets and in their trading model, the Prohibited Transactions Rule
has lost its original purpose and utility.\11\ Specifically, the
Exchanges assert that in today's electronic marketplace--where DMMs
have replaced specialists and control of pricing decisions has moved
away from market participants on the Exchange trading floor--the
Prohibited Transactions Rule is no longer necessary.\12\ According to
the Exchanges, eliminating the Prohibited Transactions Rule would not
eliminate other existing safeguards that prevent DMMs from
inappropriately influencing or manipulating the close.\13\
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    \11\ See NYSE Notice, supra note 4, 81 FR at 81223; NYSE MKT
Notice, supra note 4, 81 FR at 81211.
    \12\ See NYSE Notice, supra note 4, 81 FR at 81222; NYSE MKT
Notice, supra note 4, 81 FR at 81212.
    \13\ See NYSE Notice, supra note 4, 81 FR at 81222-23; NYSE MKT
Notice, supra note 4, 81 FR at 81212.
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    The Exchanges assert that the rationale behind the Prohibited
Transactions Rule--preventing specialists from setting the price of a
security on the Exchange in the final ten minutes of trading--was to
prevent a specialist from inappropriately influencing the price of a
security at the close to advantage the specialist's proprietary
position.\14\ According to the Exchanges, in today's fragmented
marketplace, a new high (low) price for a security on one of the
Exchanges in the last ten minutes of trading does not have a
significant effect on the market price for that security, because a new
high (low) price on one of the Exchanges may not be the new high (low)
market-wide price for a security--prices may be higher (lower) in away
markets, where the majority of intra-day trading in Exchange-listed
securities takes place--and because any advantage to a DMM from
establishing a new high or low on the Exchange during the last ten
minutes can rapidly evaporate following trades in away markets.\15\ The
Exchanges assert that, because DMMs do not have the ability to direct
or influence trading or to control intra-day prices that specialists
had before the implementation of Regulation NMS, the Prohibited
Transactions Rule is anachronistic.\16\
---------------------------------------------------------------------------

    \14\ See NYSE Notice, supra note 4, 81 FR at 81223; NYSE MKT
Notice, supra note 4, 81 FR at 81211.
    \15\ See id.
    \16\ See id.
---------------------------------------------------------------------------

III. Summary of Comment Letter and the Exchanges' Response

    The Commission received one comment letter in support of the NYSE
proposal and a combined response letter from NYSE and NYSE MKT.\17\ The
commenter asserts that the Prohibited Transactions Rule is no longer
necessary. First, the commenter states that, when the Prohibited
Transactions Rule was originally adopted, structural advantages enjoyed
by NYSE specialists--including a dominant position in NYSE-listed
securities and an advance look at incoming orders--warranted imposing
prescriptive limitations on their trading activities, particularly at
certain critical pricing points during the day, such as the pre-closing
period.\18\ The commenter states that, because DMMs no longer have
these same structural advantages, and because DMMs do not have the
dominant position that NYSE specialists once had in the trading of
NYSE-listed securities, DMMs should be able to engage in the sorts of
transactions barred under the Prohibited Transactions Rule.\19\
---------------------------------------------------------------------------

    \17\ See supra note 7. While Citadel submitted its letter solely
to the NYSE proposal, the Commission will consider the comment
letter to be applicable to the NYSE MKT proposal, as both proposals
are substantively identical.
    \18\ See Citadel Letter, supra note 7, at 1-3.
    \19\ See id. The commenter states that, for example, in February
2017, NYSE market share for NYSE-listed stocks was approximately 24%
including auctions and 19% excluding auctions. See id. at 2. The
commenter further states that, during the same month, a stock in
which NYSE is the primary exchange and the DMM is the commenter,
NYSE market share during the last ten minutes was approximately 27%
on a share-weighted basis. See id.
---------------------------------------------------------------------------

    Second, the commenter states that the Prohibited Transactions Rule
is unnecessary because existing NYSE and Commission rules ``prohibit
all market participants, including DMMs, from engaging in market
manipulation, including around the close.'' \20\ Finally, the commenter
states that the Prohibited Transactions Rule is ``artificial'' and
creates an ``uneven playing field'' in the current market structure
because it only prohibits trading activity on a single exchange.\21\
According to the commenter, this restriction affects a DMM's ability to
provide competitive quotations during the last ten minutes of trading,
thereby hindering price discovery, reducing liquidity at NYSE, and
causing trading activity to migrate to venues where participants are
not subject to the same artificial restriction.\22\
---------------------------------------------------------------------------

    \20\ Id. at 3.
    \21\ See id. at 3-4.
    \22\ See id.
---------------------------------------------------------------------------

    According to NYSE and NYSE MKT, in today's electronic marketplace,
where increased automation of trading has decentralized control of
pricing decisions away from the DMM and from other market participants
on the Exchanges' trading floor, retaining the Prohibited Transactions
Rule is no longer necessary.\23\ NYSE and NYSE MKT believe that the
Prohibited Transactions Rule is anachronistic because DMMs do not have
the same ability to direct or influence trading or control intra-day
prices that specialists had before Regulation NMS.\24\ Further, NYSE
and NYSE MKT assert that the proposal does not alter the existing
balance of DMM benefits and obligations because, despite the
elimination of the Prohibited Transactions Rule, remaining DMM
obligations would be sufficient to safeguard against the possibility
that DMMs may act to inappropriately influence prices or manipulate the
close.\25\ Finally, NYSE and NYSE MKT state that the Exchanges would
use their existing suite of trading surveillances to assess whether a
particular transaction was effectuated to manipulate a security's price
going into the close to benefit the DMM's position.\26\
---------------------------------------------------------------------------

    \23\ See NYSE Letter, supra note 7, at 3.
    \24\ See id.
    \25\ See id. at 3-6. The Exchanges state that these obligations
include the obligations: (1) Not to destabilize the market when
buying or selling to increase a position or reaching across the
market; (2) to facilitate the close; (3) to effect transactions in a
reasonable and orderly manner; and (4) to refrain from causing or
exacerbating excessive price movements. See id.
    \26\ See id. at 5.
---------------------------------------------------------------------------

IV. Discussion and Commission Findings

    Under Section 19(b)(2)(C) of the Exchange Act,\27\ the Commission
shall approve a proposed rule change by a self-regulatory organization
if the Commission finds that the proposed rule change is consistent
with the requirements of the Exchange Act and the applicable rules and
regulations thereunder.\28\ The Commission shall disapprove a proposed
rule change if it does not make such a finding.\29\ The Commission's
Rules of Practice, under Rule 700(b)(3), state that the ``burden to
demonstrate that a proposed rule change is consistent with the Exchange
Act and the rules and regulations issued thereunder . . . is on the
self-regulatory organization that proposed the rule change'' and that a
``mere assertion that the proposed rule change is consistent with those
requirements . . . is not sufficient.'' \30\
---------------------------------------------------------------------------

    \27\ 15 U.S.C. 78s(b)(2)(C).
    \28\ See 15 U.S.C. 78s(b)(2)(C)(i).
    \29\ See 15 U.S.C. 78s(b)(2)(C)(ii).
    \30\ 17 CFR 201.700(b)(3). The description of a proposed rule
change, its purpose and operation, its effect, and a legal analysis
of its consistency with applicable requirements must all be
sufficiently detailed and specific to support an affirmative
Commission finding. See id. Any failure of a self-regulatory
organization to provide the information elicited by Form 19b-4 may
result in the Commission not having a sufficient basis to make an
affirmative finding that a proposed rule change is consistent with
the Exchange Act and the rules and regulations issued thereunder
that are applicable to the self-regulatory organization. See id.

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

    After careful consideration of the proposals, and for the reasons
discussed below, the Commission does not believe that the proposed rule
changes are consistent with the requirements of the Exchange Act and
the rules and regulations thereunder applicable to a national
securities exchange.\31\ Specifically, the Commission does not find
that the proposals are consistent with Section 6(b)(5) of the Exchange
Act, which, among other things, requires that the rules of a national
securities exchange not be designed to permit unfair discrimination and
that those rules be designed to prevent fraudulent and manipulative
acts and practices, 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.\32\
---------------------------------------------------------------------------

    \31\ In disapproving the proposed rule changes, the Commission
has considered the proposed rules' impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
    \32\ See 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchanges propose to eliminate the Prohibited Transactions
Rule--a negative obligation imposed on DMMs to restrict aggressive
trading immediately before the close--and the Commission analyzes the
proposed rule changes in the context of the unique role played by DMMs
on the Exchanges. Because the Exchanges' proposal would alter the
balance of the benefits and obligations of DMMs, and in light of the
special responsibilities that DMMs have for the closing auction on the
Exchanges, the Commission sought comment in the Orders Instituting
Proceedings on these topics. Specifically, the Commission asked for
public comment on whether each Exchange's proposal ``would maintain an
appropriate balance between the benefits and obligations of being a DMM
on the Exchange and whether the obligations of DMMs under remaining
Exchange rules are reasonably designed to prevent DMMs from
inappropriately influencing or manipulating the close in light of DMMs'
special responsibility for closing auctions under Exchange rules.''
\33\
---------------------------------------------------------------------------

    \33\ NYSE Order Instituting Proceedings, supra note 6, 82 FR at
11389; NYSE MKT Order Instituting Proceedings, supra note 6, 82 FR
at 11380.
---------------------------------------------------------------------------

    The Prohibited Transactions Rule was originally adopted by NYSE in
2006 as NYSE moved to its ``hybrid market'' model,\34\ and NYSE
retained Prohibited Transactions Rule in 2008, when it adopted its New
Market Model, which replaced the specialists on its floor with
DMMs.\35\ NYSE MKT subsequently adopted the NYSE's New Market Model,
including the Prohibited Transactions Rule, pursuant to its merger with
the NYSE.\36\
---------------------------------------------------------------------------

    \34\ See Securities Exchange Act Release No. 54860 (Dec. 1,
2006), 71 FR 71221 (Dec. 8, 2006) (SR-NYSE-2006-76) (order approving
amendments to Rule 104 that included Prohibited Transactions in
Supplementary Material .10 of Rule 104).
    \35\ See Securities Exchange Act Release No. 58845 (Oct. 24,
2008), 73 FR 64379 (Oct. 29, 2008) (SR-NYSE-2008-46) (order
approving New Market Model pilot program).
    \36\ See Securities Exchange Act Release No. 75952 (Sept. 18,
2015), 80 FR 57645, 57646 & n.6 (Sept. 24, 2015) (describing filings
by which NYSE MKT adopted NYSE equity trading rules).
---------------------------------------------------------------------------

    Exchange Rule 104 sets forth the obligations of DMMs on each
Exchange, which include the affirmative obligation to engage in a
course of dealings for their own account to assist in the maintenance
of a fair and orderly market in securities for which they have been
assigned responsibility as the DMM, to maintain quotes in their
assigned securities at the inside market a specified percentage of
time, and to facilitate certain transactions in their assigned
securities, most notably the opening and closing auctions.\37\ Under
Exchange rules, DMMs have significant responsibilities to ``facilitate
the close of trading'' in their assigned securities.\38\ The closing
price for a security on its listing exchange is widely used as a
reference price (e.g., by mutual funds calculating their net asset
value), and the listing exchange tends to have a dominant market share
at the close.\39\
---------------------------------------------------------------------------

    \37\ See Exchange Rule 104.
    \38\ See Exchange Rule 104; NYSE Rule 123C; NYSE MKT Rule 123C--
Equities.
    \39\ See, e.g., NYSE Opening and Closing Auctions Fact Sheet
(stating that NYSE has a 100% market share in the closing auction
for Tape A securities), https://www.nyse.com/publicdocs/nyse/markets/nyse/NYSE_Opening_and_Closing_Auctions_Fact_Sheet.pdf.
---------------------------------------------------------------------------

    Supporting these general obligations, Exchange Rules 104(g) and
104(h) regulate specific types of DMM transactions: Neutral
Transactions, Non-Conditional Transactions, Conditional Transactions,
and Prohibited Transactions.\40\ DMMs may engage in Conditional
Transactions throughout the trading day--generally, crossing the market
to take liquidity by buying (selling) at an increasing (decreasing)
price--if those transactions are followed by ``appropriate'' re-entry
on the opposite side of the market ``commensurate with the size of the
DMM's transaction.'' \41\ During the last ten minutes of the day,
however, DMMs are subject to the Prohibited Transactions Rule at issue
here--a bright-line rule against aggressively taking liquidity and
moving prices on the exchange immediately before the closing
auction.\42\
---------------------------------------------------------------------------

    \40\ See Exchange Rule 104(g)(i)(A)(I)-(III) (defining Neutral
Transactions, Non-Conditional Transactions, and Prohibited
Transactions); Exchange Rule 104(h)(i) (defining Conditional
Transaction). A Neutral Transaction is a purchase or sale by which a
DMM liquidates or decreases a position and may be made without
regard to price, but the DMM's ``obligation to maintain a fair and
orderly market may require re-entry on the opposite side of the
market trend . . . in accordance with the immediate and anticipated
needs of the market.'' See Exchange Rule 104(g)(i)(A)(I). A Non-
Conditional Transaction is a DMM's bid or purchase and offer or sale
that establishes or increases a position, other than a transaction
that reaches across the market to trade with the Exchange best bid
or offer, and may be made without regard to price in order to match
another market's better bid or offer price; to bring the price of a
security into parity with an underlying or related security or
asset; to add size to an independently established bid or offer on
the Exchange; to purchase at the published bid price on the
Exchange; to sell at the published offer price on the Exchange; to
purchase or sell at a price between the Exchange BBO; or to purchase
below the published bid or sell above the published offer on the
Exchange. See Exchange Rule 104(g)(i)(A)(II). Following a Non-
Conditional Transaction, a DMM's obligation to maintain a fair and
orderly market ``may require re-entry on the opposite side of the
market trend . . . commensurate with the size of the Non-Conditional
Transactions and the immediate and anticipated needs of the
market.'' Id.
    \41\ See Exchange Rule 104(h)(i)-(iv). According to their rules,
the Exchanges periodically issue guidelines, called ``price
participation points'' that ``identify the price at or before which
a DMM is expended to re-enter the market after effecting a
Conditional Transaction.'' See Exchange Rule 104(h)(iii)(A).
    \42\ See Exchange Rule 104(g)(i)(A)(III).
---------------------------------------------------------------------------

    In return for their obligations and responsibilities, DMMs have
significant priority and informational advantages in trading on the
Exchanges, both during continuous trading and during the closing
auction. During continuous trading, DMMs trade on parity with the
entire order book and with floor brokers, which ``provides DMMs with a
substantial advantage over off-Floor orders'' sent to the NYSE order
book.\43\ Moreover, during the trading day, including the ten minutes
before the close, DMMs have unique access to aggregated information
about closing auction interest at each price level, and, during the
auction itself, DMMs are

aware of interest represented by floor brokers, which is not publicly
disseminated.\44\ When offsetting an imbalance during the closing
auction, DMM interest trades at parity with limit orders on the
Exchange order book, and DMM interest takes priority over limit-on-
close orders with a price equal to the closing price and over closing-
offset orders.\45\ In approving the entire set of advantages given to
DMMs in 2008 through the New Market Model, the Commission specifically
assessed ``whether the rewards granted to DMMs . . . are commensurate
with their obligations'' and found that the proposed New Market Model
pilot reflected ``an appropriate balance of DMM obligations against the
benefits provided to DMMs.'' \46\
---------------------------------------------------------------------------

    \43\ See Securities Exchange Act Release No. 58845 (Oct. 24,
2008), 73 FR 64379, 64389 (Oct. 29, 2008) (Order approving SR-NYSE-
2008-46). See also NYSE Rule 72(c)(ii) and NYSE MKT Rule 72(c)(ii)--
Equities (stating that, for the purpose of share allocation in an
execution, each single floor broker, the DMM, and orders on the
Exchange book shall constitute individual participants and that the
orders on the Exchange book shall constitute a single participant).
    \44\ See Exchange Rule 104(j); see also NYSE Rule 123C and NYSE
MKT Rule 123C--Equities.
    \45\ See NYSE Rule 123C(7)(b); NYSE MKT Rule 123C(7)(b)--
Equities.
    \46\ Securities Exchange Act Release No. 58845 (Oct. 24, 2008),
73 FR 64379, 64388-89 (Oct. 29, 2008) (SR-NYSE-2008-46).
---------------------------------------------------------------------------

    In proposing to remove the Prohibited Transactions Rule, however,
NYSE and NYSE MKT have failed to adequately explain or justify how the
proposed alteration to the balance of benefits and obligations of a DMM
previously approved by the Commission is consistent with Section
6(b)(5) of the Exchange Act, or how allowing DMMs to aggressively take
liquidity in the last ten minutes of trading is both consistent with a
DMM's obligation to maintain a fair and orderly market in its assigned
securities and designed to prevent fraudulent or manipulative acts and
practices regarding the closing auction, for which a DMM has crucial
responsibilities.
    The Exchanges and Citadel in their comment letters argue that
changes in market structure such as the inability of DMMs, compared to
specialists, to ``set prices'' in their assigned securities, and the
movement of trading volume in NYSE-listed securities away from the
NYSE, support the elimination of the Prohibited Transactions Rule. But,
as noted above, the Prohibited Transactions Rule was included in the
New Market Model rule filing that established the role of DMMs, and the
market-share statistics offered by Citadel--which purportedly establish
the relatively weak pricing power of a DMM \47\--fail to acknowledge
that the Exchanges have a dominant market share in the closing
auction,\48\ and that a DMM has discretion and informational advantages
that place the DMM in a unique position to choose its own level of
participation in the auction and to influence the closing price.\49\
Additionally, the argument by Citadel that the current prohibition
creates an uneven playing field, and that it limits DMMs' ``ability to
provide competitive quotations,'' \50\ fails to address that DMMs have
unique privileges on NYSE and NYSE MKT and that the proposed rule
change is not limited to circumstances in which DMMs would be allowed
to quote competitively and provide liquidity, but would also allow them
to aggressively take liquidity.
---------------------------------------------------------------------------

    \47\ See Citadel Letter, supra note 7, at 2.
    \48\ See supra note 39 and accompanying text.
    \49\ See supra notes 42-44 and accompanying text.
    \50\ Citadel Letter, supra note 7, at 2-3.
---------------------------------------------------------------------------

    Additionally, while NYSE and NYSE MKT have argued that the proposal
is consistent with the Exchange Act because remaining exchange rules
address the possibility of disruptive or improper DMM trading during
the last ten minutes of the day, the Commission does not believe that
NYSE and NYSE MKT have met their burden to demonstrate that these other
rules--which require the exercise of judgment as to what is
``reasonable,'' ``excessive,'' ``appropriate,'' or ``commensurate''
\51\--are adequate substitutes for a clear, meaningful, and enforceable
bright-line rule that limits aggressive DMM trading at a particularly
sensitive and important time of the trading day and that addresses the
risk of destabilizing or even manipulative activity. Additionally, the
Commission believes that NYSE and NYSE MKT have merely asserted that,
but not explained how, existing surveillances can act as an adequate
substitute for this bright-line rule.
---------------------------------------------------------------------------

    \51\ See supra notes 25 & 40 and accompanying text.
---------------------------------------------------------------------------

    Thus, because the Exchanges' arguments in favor of the proposed
rule changes do not adequately address significant issues raised by the
proposals, the Commission does not find that the proposed rule changes
are consistent with the requirements of the Exchange Act and the rules
and regulations thereunder applicable to a national securities exchange
and, in particular, with Section 6(b)(5) of the Exchange Act.

V. Conclusion

    It is therefore ordered that, pursuant to Section 19(b)(2) of the
Exchange Act,\52\ the proposed rule changes (SR-NYSE-2016-71 and SR-
NYSEMKT-2016-99) be, and hereby are, disapproved.
---------------------------------------------------------------------------

    \52\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\53\
---------------------------------------------------------------------------

    \53\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2017-15195 Filed 7-19-17; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: June 24, 2008 (Volume 73, Number 122)]
[Proposed Rules]
[Page 35595-35596]
[DOCID:fr24jn08-14]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2008-0672; Directorate Identifier 2008-NM-032-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Model A330-200, A330-300, and
A340-300 Series Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for the
products listed above. This proposed AD results from mandatory
continuing airworthiness information (MCAI) originated by an aviation
authority of another country to identify and correct an unsafe
condition on an aviation product. The MCAI describes the unsafe
condition as:

    During manufacturing of A330/A340 aircraft framework, cracks
have been found on Frame (FR) 12, left (LH) and right (RH) sides. It
has been confirmed that a defect of the FR12 forming tool press is
the root cause of the cracks.
    If undetected such damage could affect, after propagation, the
structural integrity of the aircraft.
* * * * *
The proposed AD would require actions that are intended to address the
unsafe condition described in the MCAI.

DATES: We must receive comments on this proposed AD by July 24, 2008.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://
www.regulations.gov; or in person at the Docket Operations office
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this proposed AD, the regulatory
evaluation, any comments received, and other information. The street
address for the Docket Operations office (telephone<PHONE_NUMBER>) is
in the ADDRESSES section. Comments will be available in the AD docket
shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Vladimir Ulyanov, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
227-1138; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2008-0672;
Directorate Identifier 2008-NM-032-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD based on those comments.
    We will post all comments we receive, without change, to http://
www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Community, has issued EASA
Airworthiness Directive 2007-0302, dated December 14, 2007 (referred to
after this as ``the MCAI''), to correct an unsafe condition for the
specified products. The MCAI states:

    During manufacturing of A330/A340 aircraft framework, cracks
have been found on Frame (FR) 12, left (LH) and right (RH) sides. It
has been confirmed that a defect of the FR12 forming tool press is
the root cause of the cracks.
    If undetected such damage could affect, after propagation, the
structural integrity of the aircraft.
    In order to permit an early detection and repair of cracks on
FR12, LH and RH sides, this Airworthiness Directive (AD) mandates a
one time High Frequency Eddy Current (HFEC) inspection of FR12.

Corrective actions include, for certain findings, contacting Airbus for
repair instructions and doing the repair; repairing cracking (i.e.,
installing a new splice); and applying new protective coatings and
corrosion inhibitors. You may obtain further information by examining
the MCAI in the AD docket.

Relevant Service Information

    Airbus has issued Service Bulletins A330-53-3174 and A340-53-4177,
both dated October 10, 2007. The actions described in this service
information are intended to correct the unsafe condition identified in
the MCAI.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of the same
type design.

Differences Between This AD and the MCAI or Service Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have proposed different actions in this AD from those
in the MCAI in order to follow FAA policies. Any such differences are
highlighted in a Note within the proposed AD.

Costs of Compliance

    Based on the service information, we estimate that this proposed AD
would affect about 20 products of U.S. registry. We also estimate that
it would take about 3 work-hours per product to comply with the basic
requirements of this proposed AD. The average labor rate is $80 per
work-hour. Required parts would cost about $0 per product. Where the
service information lists required parts costs that are covered under
warranty, we have assumed that there will be no charge for these costs.
As we do not control warranty coverage for affected parties, some
parties may incur costs higher than estimated here. Based on these
figures, we estimate the cost of the proposed AD on U.S.

operators to be $4,800, or $240 per product.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979); and
    3. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared a regulatory evaluation of the estimated costs to
comply with this proposed AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

    1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

    2. The FAA amends Sec.  39.13 by adding the following new AD:

Airbus: Docket No. FAA-2008-0672; Directorate Identifier 2008-NM-
032-AD.

Comments Due Date

    (a) We must receive comments by July 24, 2008.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Airbus Model A330-200, A330-300, and
A340-300 series airplanes; certificated in any category; all
certified models, all manufacturing serial numbers (MSN) from MSN
0489 through 0722 inclusive, and MSN 0725, 0726, 0728, 0730, 0732,
and 0734.

Subject

    (d) Air Transport Association (ATA) of America Code 53:
Fuselage.

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:

    During manufacturing of A330/A340 aircraft framework, cracks
have been found on Frame (FR) 12, left (LH) and right (RH) sides. It
has been confirmed that a defect of the FR12 forming tool press is
the root cause of the cracks.
    If undetected such damage could affect, after propagation, the
structural integrity of the aircraft.
    In order to permit an early detection and repair of cracks on
FR12, LH and RH sides, this Airworthiness Directive (AD) mandates a
one time High Frequency Eddy Current (HFEC) inspection of FR12.

Corrective actions include, for certain findings, contacting Airbus
for repair instructions and doing the repair; repairing cracking
(i.e., installing a new splice); and applying new protective
coatings and corrosion inhibitors.

Actions and Compliance

    (f) Unless already done, do the following actions.
    (1) Prior to the accumulation of 19,500 total flight cycles or
within 3 months after the effective date of this AD, whichever
occurs later: Perform a HFEC inspection at the LH (left-hand) and RH
(right-hand) sides of frame 12, in accordance with the instructions
defined in Airbus Service Bulletin A330-53-3174 or A340-53-4177,
both dated October 10, 2007, as applicable. If no cracking is found,
no further action is required by this AD. Except as required by
paragraph (f)(2) of this AD, if any cracking is found, before
further flight, do the applicable corrective actions in accordance
with the instructions of Airbus Service Bulletin A330-53-3174 or
A340-53-4177, as applicable.
    (2) If any cracking is found that exceeds the limits specified
in Airbus Service Bulletin A330-53-3174 or A340-53-4177, both dated
October 10, 2007, as applicable; or if any cracking is found during
any HFEC inspection of the cut-out area; before further flight,
contact Airbus for repair instructions and do the repair.

FAA AD Differences

    Note: This AD differs from the MCAI and/or service information
as follows: No difference.

Other FAA AD Provisions

    (g) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. Send information to ATTN:
Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116,
Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton,
Washington 98057-3356; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.
Before using any approved AMOC on any airplane to which the AMOC
applies, notify your appropriate principal inspector (PI) in the FAA
Flight Standards District Office (FSDO), or lacking a PI, your local
FSDO.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act, the
Office of Management and Budget (OMB) has approved the information
collection requirements and has assigned OMB Control Number 2120-
0056.

Related Information

    (h) Refer to European Aviation Safety Agency (EASA)
Airworthiness Directive 2007-0302, dated December 14, 2007, and
Airbus Service Bulletins A330-53-3174 and A340-53-4177, both dated
October 10, 2007, for related information.

    Issued in Renton, Washington, on June 17, 2008.
Dionne Palermo,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. E8-14186 Filed 6-23-08; 8:45 am]

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