[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Notices]
[Pages 24069-24074]
[FR Doc No: 2011-10362]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-64338; File No. SR-Phlx-62011-13]

Self-Regulatory Organizations; NASDAQ OMX PHLX LLC; Order
Approving Proposed Rule Change, as Modified by Amendment No. 1,
Relating to Amendments to NASDAQ OMX PHLX LLC's Limited Liability
Company Agreement, By-Laws, Rules, Advices and Regulations

April 25, 2011.

I. Introduction

    On February 16, 2011, NASDAQ OMX PHLX LLC (``Phlx'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to alter its governance structure and to make
other non-substantive conforming changes. The proposed rule change was
published for comment in the Federal Register on March 4, 2011.\3\ On
April 15, 2011, the Exchange filed Amendment No. 1 to the proposed rule
change.\4\ The Commission received no comment letters regarding the
proposal. This order approves the proposed rule change, as modified by
Amendment No. 1.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 63981 (February 25,
2011), 76 FR 12180 (March 4, 2011) (``Notice'').
    \4\ In Amendment No. 1, the Exchange amended the text of Rules
607, 862, 1012, 1017, 1058, 1079, 1080, 1082, and 3202 to reflect
separate and unrelated intervening proposed rule changes that became
effective after this proposal was published for comment. Because
Amendment No. 1 is technical in nature, the Commission is not
required to publish it for comment.
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II. Description of the Proposal

    The Exchange proposes to amend its Limited Liability Company
Agreement (``LLC Agreement'') and By-Laws to substantially conform them
to The NASDAQ Stock Market LLC's (``NASDAQ'') Second Amended Limited
Liability Company Agreement (``NASDAQ LLC Agreement'') and By-Laws,
respectively. These conforming changes include, among other things: (1)
The elimination of the Exchange's Series A Preferred Stock and
dissolution of the Member Voting Trust; (2) modifications to the
Exchange's board and committee structure to harmonize it with NASDAQ's
board and committee structure; \5\ (3) the elimination of foreign
currency option (``FCO'') participations, of which there are none
outstanding; (4) the elimination of definitions, rules, and references
to XLE (the Exchange's former equities trading platform); and (5)
changes to other terms, names, and cross-references contained in the
Exchange's LLC Agreement and By-Laws, including technical and
grammatical changes to reflect the Exchange's recent conversion from a
Delaware corporation to a Delaware limited liability company
(``LLC''),\6\ and changes to clarify and simplify the By-Laws, Rules,
Option Floor Procedure Advices and Equity Floor Procedure Advices (the
latter two are collectively referred to herein as ``Advices''), and
Regulations of the Exchange.
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    \5\ To align itself with the terminology used by NASDAQ, the
Exchange proposes to rename the Board of Governors to now be the
Board of Directors (``Board''). As a result, all references to
``Governors'' would be changed to ``Directors'' in the By-Laws,
Rules, Advices, and Regulations of the Exchange. See Notice, supra
note 3, 76 FR at 12181, 12185, 12189.
    \6\ See Securities Exchange Act Release No. 62783 (August 27,
2010), 75 FR 54204 (September 3, 2010) (SR-Phlx-2010-104). As a
result of the conversion, all references to Incorporation would be
changed to LLC in the By-Laws, Rules, Advices, and Regulations of
the Exchange. The specific proposed rule changes relating to this
amendment are discussed in detail in the Notice. See Notice, supra
note 3, 76 FR at 12181, 12189.
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A. Elimination of the Series A Preferred Stock and Dissolution of the
Member Voting Trust

    The Exchange proposes to amend the Exchange's formation documents
to eliminate the Series A Preferred Stock. In 2003, Phlx, formerly the
Philadelphia Stock Exchange, Inc., filed with the Commission to amend
its formation documents to form a demutualized Delaware stock
corporation.\7\ At the time of demutualization, the Exchange amended
its Certificate of Incorporation to designate one share of preferred
stock as the ``Series A Preferred Stock,'' the holder of which had the
sole power to select and remove the On-Floor Governors,\8\ in
accordance with specified procedures.\9\ A trust agreement was created
and the one and only outstanding share of Series A Preferred Stock was
then held by the Phlx Member Voting Trust (``Trust''). The Exchange
believes that these arrangements were necessary at the time of
demutualization to preserve the ability of members to vote for and
affirmatively elect certain board Governors because: (i) Under Delaware
law, only stockholders can elect the directors of a Delaware
corporation; and (ii) after the demutualization, Members and Member
Organizations that were not owners at the time of the demutualization
were not stockholders of the Exchange.\10\
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    \7\ See Securities Exchange Act Release No. 49098 (January 16,
2004), 69 FR 3974 (January 27, 2004) (SR-Phlx-2003-73).
    \8\ ``On-Floor Governors'' were the Governors elected by the
Exchange's Members and Member Organizations. See Securities Exchange
Act Release No. 53734 (April 27, 2006), 71 FR 26589 (May 5, 2006)
(SR-Phlx-2005-93); e-mail from Angela S. Dunn, Assistant General
Counsel, Office of the General Counsel, NASDAQ OMX (``Dunn''), to
Ronesha A. Butler, Special Counsel, Division of Trading and Markets,
Commission (``Butler''), dated April 20, 2011 (``Dunn Email''). See
also supra note 7 (discussing On-Floor Governors).
    \9\ See supra note 7.
    \10\ See Notice, supra note 3, 76 FR at 12181.
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    After the Exchange's demutualization, the trustee of the Trust,
pursuant to the Amended Trust Agreement, had the power to vote the
share of Series A Preferred Stock to elect the Member Governor and the
Designated Independent Governors,\11\ as directed by the vote of the
Member Organization Representatives of Member Organizations entitled to
vote pursuant to Article III of the By-Laws. According to the Exchange,
this process was designed to facilitate the exercise by Members and
Member Organizations of their rights to fair representation in the
selection and removal of certain Governors of the Exchange and to
facilitate the administration of the affairs of the Exchange in
accordance with the Act.\12\ In particular, the Trust ensured that the
candidates for Governor elected by vote of the Members were, in turn,
validly elected to the Board of Governors pursuant to Delaware law and
that the Members' vote could not be overridden.
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    \11\ After the Exchange's demutualization, the term ``On-Floor
Governors'' was eliminated and replaced by the Member Governor and
the Designated Independent Governors. See Dunn Email, supra note 8.
``Member Governor'' means a Governor who is a Member or a general
partner or an executive officer (vice-president and above) of a
Member Organization and is duly elected to fill the one vacancy on
the Board of Governors allocated to the Member Governor. See By-Laws
Article I. ``Designated Independent Governors'' means those
Independent Governors who are elected by the holder of the Series A
Preferred Stock. See id.
    \12\ See Notice, supra note 3, 76 FR at 12181.
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    In 2008, the Exchange was acquired by and became a wholly-owned
subsidiary of The NASDAQ OMX Group, Inc. (``NASDAQ OMX''). The Exchange
represents that, since the acquisition by NASDAQ OMX, there are no
longer any other common

shareholders of Phlx.\13\ As a result, the Exchange's formation
documents were amended so that the Series A Preferred Stockholder is
the sole preferred shareholder of the Exchange and elects the Member
Governor and the Designated Independent Governors pursuant to Section
16 of the LLC Agreement and Article IV of the By-Laws.\14\ Currently,
the number of Designated Independent Governors, together with the
Member Governor, equals at least 20% of the total number of Governors
who are elected by the Series A Preferred Stockholder. Further, Phlx
recently restructured to a limited liability company and thus is no
longer a corporation subject to Delaware corporate law.\15\
Accordingly, the Exchange proposes to amend the LLC Agreement to refer
to the fact that it has a single stockholder--NASDAQ OMX
(``Stockholder'').
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    \13\ See id.
    \14\ The Exchange represents that the Series A Preferred Stock
is still held by the Trust pursuant to the Third Amended and
Restated Trust Agreement dated February 22, 2007 (``Amended Trust
Agreement''). See Notice, supra note 3, 76 FR at 12181.
    \15\ See supra note 6.
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    Because the Exchange believes the Series A Preferred Stock
mechanism is no longer necessary to facilitate the exercise by Members
and Member Organizations of their rights to fair representation, Phlx
proposes to eliminate the Trust in favor of a nomination process for
Member Representative Directors that is identical to the process
currently utilized by NASDAQ.\16\ The Exchange believes that its
proposed board structure and election process, identical to that of
NASDAQ, would provide Members and Member Organizations fair
representation in the selection and removal of certain directors of the
Exchange (``Directors'') in accordance with the Act.\17\ The Exchange
would maintain the requirement that at least 20% of the Directors would
be Member Representative Directors, and all Directors other than the
Member Representative Directors would be elected by the Stockholder as
described in the By-Laws.\18\
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    \16\ The term ``Member Representative Director'' would mean a
Director who has been elected or appointed after having been
nominated by the Member Nominating Committee or by a Member pursuant
to the By-Laws. A Member Representative Director may be, but is not
required to be, an officer, director, employee, or agent of a
Member. See Notice, supra note 3, 76 FR at 12185.
    \17\ See id. at 12181. The Exchange is not proposing to amend
its By-Laws with respect to the nomination of Directors, which
process is currently the same as that of NASDAQ. Rather, the
Exchange is proposing to eliminate the prior mechanism concerning
the actual election of designated directors that the Series A
Preferred Stock and accompanying Trust were designed to facilitate.
    \18\ See LLC Agreement, Section 8.
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    The Exchange represents that it would continue to accept
nominations from Members and Member Organizations for certain
designated Board positions.\19\ With respect to the election of the
Member Representative Directors, the Exchange represents the process
would remain substantially unchanged.\20\ In an uncontested election
(i.e., when there is only one candidate nominated for each open Member
Representative Director position), the Stockholder would be obligated
to elect the Member Representative Directors from the list of
candidates provided by the Member Nominating Committee.\21\ In a
contested election, the Stockholder would be obligated to elect the
persons on the list of candidates who received the most Member votes,
where the Members have the right to cast one vote for each Member
Representative Director position to be filled.\22\ The Stockholder
would not have discretion to do anything other than vote for the Member
Representative Director candidates nominated as described above.
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    \19\ See Notice, supra note 3, 76 FR at 12181.
    \20\ See id. at 12184.
    \21\ See id.
    \22\ See id. Pursuant to proposed By-Laws Article II, Section 2-
1, a candidate would be added to the list of candidates by a Member
that submits a timely and duly executed written nomination to the
Secretary of the Exchange. The Exchange represents that it provides
Members procedures to nominate candidates at each annual meeting.
See Notice, supra note 3, 76 FR at 12182.
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B. Composition of the Board

    The Exchange proposes to conform its Board structure to mirror that
of NASDAQ's, including provisions related to composition and powers,
standing committees, meetings, and quorum. Among other provisions, the
Exchange proposes to amend its LLC Agreement to indicate that the
Stockholder would have discretion to determine the size of the Board,
subject to compositional and term requirements. The authorized number
of Directors could be increased or decreased by the Stockholder at any
time, upon notice to all Directors, but no decrease in the number of
Directors could shorten the term of any incumbent Member Representative
Director.\23\ Currently, the By-Laws give the Board of Governors the
exact same discretion.\24\
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    \23\ See NASDAQ LLC Agreement, Section 9.
    \24\ See By-Laws Article IV, Section 4-1.
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    Phlx would retain one-year terms for Directors and would allow for
removal of a Director for cause (e.g., the Director no longer satisfies
the classification for which the Director was elected or the Director's
continued service as such would violate the compositional requirements
of the Board).\25\ Additionally, the Exchange would retain the
discretion to hold Member meetings.\26\
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    \25\ See NASDAQ By-Laws Article II, Section 2; Notice, supra
note 3, 76 at 12184-85. Currently, Governors are elected for one
year. See By-Laws Article IV, Section 4-3. Similar to NASDAQ
provisions, each Director elected, designated, or appointed by the
Stockholder would hold office until a successor is elected and
qualified or until the earlier of such Director's death,
resignation, expulsion, or removal.
    \26\ See By-Laws Article IV, Section 4-11; Dunn Email, supra
note 8.
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    The Exchange proposes to amend its By-Laws regarding the annual
election of Member Representative Directors to mirror the provisions of
the NASDAQ By-Laws. Specifically, the Stockholder would be able to fill
a vacancy in a Member Representative Director position on the Board
with a person from a list of candidates prepared by the Member
Nominating Committee. Filling such vacancies currently requires a
majority vote by the Board of Governors.\27\ However, as proposed, the
vacancy could remain unfilled if the remaining term of the vacant
Director position is less than six months.\28\
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    \27\ See e-mail from Dunn to Butler, dated April 21, 2011. The
Exchange also proposes to rename Article II ``Annual Election of
Member Representative Directors and Other Actions By Members.'' The
specific NASDAQ By-Laws and the relevant, current By-Laws are
identified in the Notice. See Notice, supra note 3, 76 FR at 12184.
    \28\ See proposed By-Laws Article II, Section 2-3; NASDAQ By-
Laws Article II, Section 3.
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    The Exchange also proposes to amend the composition qualifications
for its Board. Currently, the Board of Governors includes: One Governor
who is the Chief Executive Officer; one Governor who is a Member
Governor; one Governor who is a Stockholder Governor; and such
additional Governors, who are Independent Governors, to fill the
remaining seats, including a number of Designated Independent
Governors, who, together with the Member Governor, equal at least 20%
of the total number of Governors.\29\
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    \29\ All of the Governors are required to meet the respective
qualifications set forth in Article I of the By-Laws. See Notice,
supra note 3, 76 FR at 12185. The number of Governors is set by the
Board of Governors. See By-Laws, Section 4-1.
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    As proposed, the new Board would consist of: A number of Non-
Industry Directors, including at least one Public Director and at least
one Stockholder Director (or if the Board consists of ten or more
Directors, at least two Stockholder Directors), which would equal or
exceed the sum of the number of Industry Directors and Member

Representative Directors to be elected under the terms of the LLC
Agreement. The Exchange would retain the same 20% requirement with
respect to directors elected by Members, and the composition of the new
Board would be identical to that of NASDAQ.
    The Exchange proposes to amend Article I of the By-Laws to
incorporate changes to defined terms that concern its revised Board
structure.\30\ The Exchange is proposing to replace the Independent
Governor designation with ``Public Director,'' the Designated Industry
Governor/Member Governor designation with ``Member Representative
Director,'' and the Stockholder Governor designation with ``Stockholder
Director.''
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    \30\ The specific additions and deletions are listed in the
Notice. See Notice, supra, note 3, 76 FR at 12183.
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    The Exchange proposes to adopt the following definitions for the
various Director positions. The term ``Industry Director'' would mean a
Director who has demonstrated industry experience by satisfying one of
several criteria.\31\ The term ``Non-Industry Director'' would mean a
Director who is (i) a Public Director; (ii) an officer, director, or
employee of an issuer of securities listed on the national securities
exchange operated by the Exchange; or (iii) any other individual who
would not be an Industry Director.\32\ The term ``Public Director''
would mean a Director who has no material business relationship with a
broker or dealer, the Exchange or its affiliates, or FINRA.\33\ The
term ``Stockholder Director'' would mean a Director who is an officer,
director (or a person in a similar position in business entities that
are not corporations), designee, or employee of a holder of common
stock or any affiliate or subsidiary of such holder of common stock and
is duly elected to fill the one vacancy on the Board allocated to the
Stockholder Director.\34\
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    \31\ The Director either: (i) Is or has served in the prior
three years as an officer, director, or employee of a broker or
dealer, excluding an outside director or a director not engaged in
the day-to-day management of a broker or dealer; (ii) is an officer,
director (excluding an outside director), or employee of an entity
that owns more than 10% of the equity of a broker or dealer, and the
broker or dealer accounts for more than 5% of the gross revenues
received by the consolidated entity; (iii) owns more than 5% of the
equity securities of any broker or dealer, whose investments in
brokers or dealers exceed 10% of his or her net worth, or whose
ownership interest otherwise permits him or her to be engaged in the
day-to-day management of a broker or dealer; (iv) provides
professional services to brokers or dealers, and such services
constitute 20% or more of the professional revenues received by the
Director or 20% or more of the gross revenues received by the
Director's firm or partnership; (v) provides professional services
to a director, officer, or employee of a broker, dealer, or
corporation that owns 50% or more of the voting stock of a broker or
dealer, and such services relate to the director's, officer's, or
employee's professional capacity and constitute 20% or more of the
professional revenues received by the Director or member, or 20% or
more of the gross revenues received by the Director's or member's
firm or partnership; or (vi) has a consulting or employment
relationship with or provides professional services to the Exchange
(or any affiliate thereof) or the Financial Industry Regulatory
Authority (``FINRA'') (or any predecessor) or has had any such
relationship or provided any such services at any time within the
prior three years. See id. at 12185.
    \32\ See id.
    \33\ See id.
    \34\ See id.
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C. Committees of the Board

    Currently, the Exchange's enumerated standing committees are: An
Executive Committee, a Regulatory Oversight Committee, a Business
Conduct Committee, a Nominating Committee, a Member Nominating
Committee, a Quality of Markets Committee, and an Options Trade Review
Committee. Additional committees may be established by resolution of
the Board of Governors.\35\ Each standing committee is currently
composed of not more than nine members, including ex-officio members,
except for the Options Trade Review Committee which may be composed of
twenty members.\36\ Currently, the chair of each standing committee
must be a member of the Board of Governors and at least one other
person on each committee must be a Governor, except for the Options
Trade Review Committee.\37\ All committee members are appointed by the
Board of Governors, and each appointee serves for one year, except for
the members of the Options Trade Review Committee who are appointed for
terms of no more than three years, subject to reappointment by the
Board of Governors.\38\
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    \35\ See By-Laws Article X; Notice, supra note 3, 76 FR at
12182.
    \36\ See Notice, supra note 3, 76 FR at 12182.
    \37\ See id.
    \38\ See id.
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    The Exchange proposes to revise its current standing committees to
more closely align them with the standing committees of NASDAQ.
Committees would fall into two categories: ``Committees Composed Solely
of Directors'' or ``Committees Not Composed Solely of Directors.'' This
categorization of committees would not affect any committee's
compositional requirements. The Executive Committee, a Finance
Committee,\39\ and the Regulatory Oversight Committee, all of which the
Exchange currently has, would be Committees Composed Solely of
Directors. The Nominating Committee, the Member Nominating Committee,
and the Business Conduct Committee, all of which also currently exist,
would be Committees Not Composed Solely of Directors.\40\
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    \39\ The current By-Laws permit, but do not require, a Finance
Committee. See By-Laws Article X, Section 10-1.
    \40\ Proposed By-Laws Section 5-1, titled ``Committees,'' would
require committee members, who are not Directors, to provide the
Secretary of the Exchange certain information to classify as a
committee member. See Notice, supra note 3, 76 FR at 12186.
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    The Exchange proposes to amend the composition of the Business
Conduct Committee by increasing its size from between five and nine to
between eight and twelve, as determined by the Board.\41\ Further,
while the composition of the Business Conduct Committee would remain
majority ``Non-Industry,'' \42\ the compositional requirements would
change slightly to require that the number of Non-Industry Directors,
including at least three Public Directors, equal or exceed the sum of
the number of Industry Directors and Member Representative Directors.
This new composition would result in Phlx's Business Conduct Committee
mirroring the composition of the NASDAQ Review Council, which performs
similar functions.\43\ The Business Conduct Committee would continue to
include a number of Member Representative Directors equal to at least
20% of the total number of members.\44\
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    \41\ See id.
    \42\ See id.
    \43\ See NASDAQ By-Laws Article VI, Section 2.
    \44\ Currently, at least one Member who conducts options
business at the Exchange is required to be on the Business Conduct
Committee. See By-Laws Article 10, Section 10-11.
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    In addition, the language describing the responsibilities of the
Quality of Markets Committee would be revised to conform to the
language used to describe the responsibilities of the NASDAQ Quality of
Markets Committee, though the Quality of Markets Committee would
continue to perform the same functions that it performs today.\45\ The
Quality of Markets Committee would continue to include broad
representation of market participants, including investors, market
makers, integrated retail firms, and order entry firms. Further, it
would

continue to be comprised of a number of Member Representative Directors
that is equal to at least 20% of the total number of members. The
number of Non-Industry Directors would continue to equal or exceed the
sum of the number of Industry Directors and Member Representative
Directors.
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    \45\ See By-Laws Article 10, Section 10-21; NASDAQ By-Laws
Article III, Section 6. The Quality of Markets Committee would
continue to: (1) Provide advice and guidance to the Board on issues
relating to the fairness, integrity, efficiency, and competitiveness
of the information, order handling, and execution mechanisms of the
national securities exchange operated by the Exchange from the
perspective of investors, both individual and institutional, retail
firms, market making firms, NASDAQ-listed companies, and other
market participants; and (2) advise the Board with respect to
national market system plans and linkages between the facilities of
the Exchange and other markets.
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    Finally, the Exchange proposes to rename its Options Trade Review
Committee as the Market Operations Review Committee and expand its
scope to include both equities and options matters.\46\ This committee
would continue to include a number of Member Representative Directors
equal to at least 20% of the total number of members. Further, the By-
Laws would continue to require that no more than 50% of the members of
the Market Operations Review Committee would be engaged in market
making activity or employed by a Member firm whose revenues from market
making activity exceed 10% of its total revenues.\47\
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    \46\ Accordingly, all references to ``Options Trade Review
Committee'' would be changed to ``Market Operations Review
Committee'' in the By-Laws, Rules, Advices, and Regulations of the
Exchange as discussed in the Notice. See supra note 3, 76 FR at
12189. The functions of this committee are specified in Rules 124,
1092, 3312, and Option Floor Procedure Advice F-27. See id. at
12187.
    \47\ See By-Laws Article X, Section 10-10; Notice, supra note 3,
76 FR at 12187.
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D. Meetings of the Board and Committees

    The Exchange proposes to amend its LLC Agreement to modify the
provisions regarding meetings of the Board to mirror provisions in
NASDAQ's LLC Agreement which are similar to current Phlx By-Laws.\48\
In the absence or disqualification of a member of a committee composed
solely of Directors, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such members
constitute a quorum, could unanimously appoint another member of the
Board to act at the meeting in the place of any such absent or
disqualified member.\49\ Members of each committee would hold office
for such period as may be fixed by a resolution adopted by the Board.
Any member of a committee could be removed from such committee only by
the Board, and vacancies could be filled by the Board.
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    \48\ See NASDAQ LLC Agreement, Section 9; By-Laws Article IV,
Sections 4-10, 4-11, and 4-14.
    \49\ See proposed LLC Agreement, Section 8; NASDAQ LLC
Agreement, Section 9.
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    The quorum requirements for the Board and the committees are not
substantively changing. Thus, as proposed, a majority of a committee
would continue to constitute a quorum and the vote of a majority
present would continue to be an act of the committee.\50\ Further, any
committee that consists solely of one or more Directors would continue
to have and could exercise all the powers and authority of the Board in
the management of the business and affairs of the Exchange, to the
extent provided in a resolution of the Board.\51\
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    \50\ See By-Laws Article IV, Section 4-9, and Article X, Section
10-3.
    \51\ See By-Laws Article X, Section 10-3.
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E. Elimination of Foreign Currency Options Participations

    The initial offering period for FCOs on Phlx began on January 25,
1982 and extended through the last business day preceding the first day
of FCO trading on the Exchange.\52\ Access to the Exchange's FCO market
was available only to those who purchased a FCO participation (``FCO
Participation''). Non-members were admitted to the Exchange as FCO
participants (``FCO Participants'') by the Exchange's Admission
Committee upon completing an application process similar to that
utilized when Exchange membership was sought.\53\
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    \52\ See Securities Exchange Act Release No. 19134 (October 14,
1982), 47 FR 46949 (October 21, 1982) (SR-Phlx-82-5).
    \53\ See id.
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    In 2003, when the Exchange demutualized, the Exchange proposed that
access to the Exchange's facilities and the right to trade would be
conferred by newly-issued permits rather than by ownership or leasing
of seats of the Exchange.\54\ However, the Exchange preserved the
concept of FCO Participations after its demutualization. Trading of
FCOs continued to be allowed through the FCO Participations, but, since
demutualization, trading of any product other than FCOs requires
permits.\55\
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    \54\ See Securities Exchange Act Release No. 48847 (November 26,
2003), 68 FR 67720 (December 3, 2003) (SR-Phlx-2003-73).
    \55\ See Rule 908. FCO Participants and the organizations upon
which the Exchange confers FCO trading privileges are subject to all
the provisions of the Rules that are applicable to Members and
Member Organizations, and to many provisions of the By-Laws. See
Notice, supra note 3, 76 FR at 12184.
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    The Exchange represents that it currently does not have any persons
who are FCO Participants because such participations are no longer
necessary in light of the fact that a trading permit holder has the
ability, by virtue of the trading permit, to trade all of the products
traded on the Exchange, including FCOs.\56\ The Exchange is proposing
to eliminate FCO Participations and to delete all related references
and provisions that are only applicable to FCO Participations,
including remaining provisions concerning seat leases, owners, and
lessors in the By-Laws and the Rules.
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    \56\ See Notice, supra note 3, 76 FR at 12184.
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F. Technical Changes

    The Exchange proposes to delete definitions and Equity Floor
Procedure Advices that related solely to the Exchange's former equity
trading system, XLE, which ceased operations in October 2008.\57\ In
addition, the Exchange is proposing to change references from ``XLE''
to ``PSX,'' the Exchange's recently-launched new cash equities trading
platform,\58\ where applicable. Rule 3202 notes existing rules which
are applicable to PSX, and the Exchange proposes to amend it to
enumerate former By-Laws applicable to PSX participants, which would be
relocated to sections of the Rules, and to include another rule
pertaining to listing criteria on PSX.\59\
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    \57\ See Securities Exchange Act Release No. 58613 (September
22, 2008), 73 FR 57181 (October 1, 2008) (SR-Phlx-2008-65). The
definitions are listed in the Notice. See supra note 3, 76 FR at
12189.
    \58\ See Securities Exchange Act Release No. 62877 (September 9,
2010), 75 FR 56633 (September 16, 2010) (SR-Phlx-2010-79).
    \59\ The specific rules are identified in the Notice. See supra
note 3, 76 FR at 12190.
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    The Exchange is also proposing to remove outdated references to
AUTO-X and AUTOM, which references no longer apply to the current
equity options trading platform, Phlx XL.\60\ Additionally, the
Exchange proposes to update certain references to AUTOM and AUTO-X with
references to Phlx XL, where applicable.\61\
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    \60\ The Exchange removed such verbiage from Rule 1014. See
Securities Exchange Act Release No. 63036 (October 4, 2010), 75 FR
62621 (October 12, 2010) (SR-Phlx-2010-131); Dunn Email, supra note
8.
    \61\ See Rule 1080(a).
---------------------------------------------------------------------------

    Lastly, the Exchange proposes to amend other references in the
Rules to correct and update cross-references to sections that were
impacted by previous rule changes; \62\ to make technical amendments to
certain rules which are reserved or would benefit from the addition of
a heading for ease of reference; and to make other non-substantive
changes. In particular, the Exchange proposes to:
---------------------------------------------------------------------------

    \62\ See Securities Exchange Act Release Nos. 42889 (June 2,
2000), 65 FR 36878 (June 12, 2000) (SR-Phlx-00-12) (a proposal to
rescind Rule 132); 60169 (June 24, 2009), 74 FR 31782 (July 2, 2009)
(SR-Phlx-2009-40) (a proposal to amend text in Rule 1043); and
63036, supra note 60.
---------------------------------------------------------------------------

     Amend the LLC Agreement to require explicitly that the
Board keep books and records within the United States;

     Permit a transfer or assignment to an affiliate of the
Stockholder; \63\
---------------------------------------------------------------------------

    \63\ The Exchange represents that this change would give the
Stockholder the ability to transfer or assign the common stock of
Phlx to an affiliate within the NASDAQ OMX organizational chart. See
Dunn Email, supra note 8.
---------------------------------------------------------------------------

     Add a new Schedule A to the LLC Agreement to define
certain new terms for ease of reference; \64\
---------------------------------------------------------------------------

    \64\ The specific definitions are listed in the Notice. See
supra note 3, 76 FR at 12183. Additionally, the Exchange proposes to
adopt new rules of construction to further explain the definitions
as used in the LLC Agreement, and the current Schedule A, amended to
eliminate the reference to the Trust, would become Schedule B. See
id.
---------------------------------------------------------------------------

     Replace ``Member Organization Representative'' with
``Executive Representative;''
     Replace certain references to ``Phlx'' with references to
the ``Exchange;''
     Update names of other self-regulatory organizations'
references in the Rules; and
     Change references to reflect the restructuring of certain
departments of the Exchange, including name changes.\65\

    \65\ The specific references are described in detail in the
Notice. See id. at 12189.
---------------------------------------------------------------------------

The Exchange has represented that these proposed changes are all
technical in nature and do not constitute substantive or material
changes.\66\
---------------------------------------------------------------------------

    \66\ See id. at 12190.
---------------------------------------------------------------------------

III. Discussion

    After careful review of the proposal, the Commission finds that the
proposed rule change, as modified by Amendment No. 1, is consistent
with the requirements of the Act and the rules and regulations
thereunder applicable to a national securities exchange.\67\ In
particular, the Commission finds that the proposal is consistent with
Section 6(b)(1) of the Act,\68\ which requires a national securities
exchange to be so organized and have the capacity to carry out the
purposes of the Act and to comply, and to enforce compliance by its
members and persons associated with its members, with the provisions of
the Act. The Commission further finds that the proposal is consistent
with Section 6(b)(3) of the Act,\69\ which requires that one or more
directors be representative of issuers and investors and not be
associated with a member of the exchange, or with a broker or dealer.
The Commission also finds that the proposal is consistent with Section
6(b)(5) of the Act,\70\ which requires, among other things, that the
rules of an exchange be designed to promote just and equitable
principles of trade, to remove impediments to and perfect the mechanism
of a free and open market and a national market system, and, in
general, to protect investors and the public interest.
---------------------------------------------------------------------------

    \67\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \68\ 15 U.S.C. 78f(b)(1).
    \69\ 15 U.S.C. 78f(b)(3)
    \70\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission finds that the proposed elimination of Phlx's Series
A Preferred Stock and dissolution of the Trust is consistent with the
Act. Though it is dismantling the current mechanism through which it
assures that members have the power to nominate, vote for, and elect
certain representative governors to its Board of Governors, the
Exchange is preserving the fair representation of members in the
selection of governors/directors by adopting provisions that are
substantially similar to those currently utilized by NASDAQ, which were
previously approved by the Commission.\71\ In particular, under the new
process, the Exchange will continue to accept nominations from Members
and Member Organizations for specifically designated Member
Representative Director positions, and the Stockholder will be
obligated to elect persons on the list of candidates provided by the
Member Nominating Committee (which list, in the case of a contested
election, would be those directors that received the most Member
votes). The Commission notes that the dissolution of the Trust will not
eliminate or affect the ability of members to nominate and vote for
Member Representative Directors, nor will it affect the assurance that
Members' chosen director candidates will be elected to the Board by the
Stockholder. The Commission believes that the proposed nomination
process for Member Representative Directors, similar to that of NASDAQ,
would provide Members and Member Organizations with fair representation
in the selection of certain Directors of the Exchange in accordance
with the Act.
---------------------------------------------------------------------------

    \71\ See Securities Exchange Act Release No. 53128 (January 13,
2006), 71 FR 3550, 3553 (January 23, 2006) (File No. 181) (approving
NASDAQ as a national securities exchange) (``NASDAQ Approval
Order'').
---------------------------------------------------------------------------

    The Commission notes that the revised LLC Agreement and By-Laws
will require the Board to include Public,\72\ Non-Industry,\73\ and
Member Representative Directors,\74\ the latter of which will continue
to comprise at least 20% of the Board. The Commission has previously
noted that, consistent with Section 6(b)(3) of the Act,\75\ the
selection of Member Representative Directors helps to ensure that an
exchange's members have a voice in the governing body of the exchange
and the corresponding exercise by the exchange of its self-regulatory
authority, and that the exchange is administered in a way that is
equitable to all who trade on its market or through its facilities.\76\
Further, the composition of the Board will continue to satisfy the
requirements of Section 6(b)(3) of the Act by requiring that one or
more directors be representative of issuers and investors and not be
associated with a member of the Exchange, broker, or dealer.
---------------------------------------------------------------------------

    \72\ A Public Director has no material business relationship
with a broker or dealer, the Exchange or its affiliates, or FINRA.
    \73\ A Non-Industry Director is a Public Director; an officer,
director, or employee of an issuer of securities listed on the
national securities exchange operated by the Exchange; or any other
individual who would not be an Industry Director.
    \74\ A Member Representative Director is elected or appointed
after having been nominated by the Member Nominating Committee or by
a Member pursuant to the By-Laws, and he or she may, but is not
required to be, an officer, director, employee, or agent of a
Member.
    \75\ 15 U.S.C. 78f(b)(3).
    \76\ See NASDAQ Approval Order, supra note 71, 71 FR at 3553.
---------------------------------------------------------------------------

    The Exchange also proposes to adopt a provision that allows for the
removal of a Director with cause (e.g., where the Director no longer
satisfies the classification for which the Director was elected or the
Director's continued service as such would violate the compositional
requirements of the Board). The Commission finds that such removal for
cause is consistent with the Act in that it is identical to a NASDAQ
provision previously approved by the Commission, and is designed to
ensure that the Board continues to satisfy compositional requirements
consistent with Section 6(b)(3) of the Act.\77\ In addition, the
Exchange proposes to amend its By-Laws so that the Stockholder would
fill a vacancy of a Member Representative Director on the Board with a
person from a list of candidates prepared by the Member Nominating
Committee. Currently, such vacancies may be filled only upon a majority
vote by the Board of Governors.\78\ This change is intended to
replicate a NASDAQ provision previously approved by the Commission, and
is consistent with the Act in that it is designed to ensure that the
Board continues to satisfy compositional requirements, particularly
those concerning fair

representation.\79\ The Commission believes that Phlx's revised
governing documents, as proposed, will continue to provide for the fair
representation of Phlx Members and Member Organizations and also will
provide board qualification requirements that are consistent with the
Act and consistent with those that have been approved previously by the
Commission for NASDAQ.
---------------------------------------------------------------------------

    \77\ Id.
    \78\ The vacancy could remain unfilled if the term of the vacant
Director position is less than six months.
    \79\ See NASDAQ Approval Order, supra note 71, 71 FR at 3553.
---------------------------------------------------------------------------

    The Commission finds that the Exchange's proposal to modify the
composition of Business Conduct Committee is consistent with the Act.
The proposed revisions to the composition of the Business Conduct
Committee will make it identical to the composition of the equivalent
NASDAQ committee (the NASDAQ Review Council).\80\ In particular, the
Exchange proposes to increase the number of Non-Industry and Member
Representative Directors on the committee as well as require the
Business Conduct Committee to be comprised of a number of Member
Representative Directors that equals at least 20% of the total number
of members of the committee.\81\
---------------------------------------------------------------------------

    \80\ See id. at 3554 (``The Commission believes that [NASDAQ's]
proposed committees should enable it to carry out its
responsibilities under the Exchange Act.''). See also Notice, supra
note 3, 76 FR at 12187.
    \81\ Currently, the Business Conduct Committee is required to
have not less than one Member who conducts options business at the
Exchange, which would provide less than 20% member representation if
the committee had more than five members.
---------------------------------------------------------------------------

    In addition, other proposed changes to the Exchange's committees
will not materially affect the compositional requirements that are
currently in place. For example, the Quality of Markets and Market
Operations Review Committees are currently, and will remain, subject to
the same compositional requirement for Member Representative Directors,
and the Regulatory Oversight Committee will continue to be comprised of
Public Directors. According to the Exchange, these compositional
requirements are designed to foster the Exchange's ability to protect
the public interest and foster the integrity of the Exchange by
bringing a unique, unbiased perspective to these committees and the
work that they perform. Among other things, the Exchange intends for
these changes to increase representation of Non-Industry Directors on
the committees. The Commission notes these proposed changes are
designed to align Phlx's compositional requirements with those of its
affiliated exchange, NASDAQ, which were previously approved by the
Commission.\82\
---------------------------------------------------------------------------

    \82\ See NASDAQ Approval Order, supra note 71, 71 FR at 3554.
---------------------------------------------------------------------------

    The Commission finds that the Exchange's proposal to eliminate FCO
Participations is also consistent with the Act. Importantly, the
Exchange represents that it currently does not have any persons who
access the Exchange's FCO market exclusively through an FCO
Participation, as such participations are no longer utilized on the
Exchange in light of the ability, since the Exchange demutualized, of
any permit holder to trade FCO Participations by means of a general
all-purpose trading permit. As a result, the Commission believes that
the elimination of FCO Participations will not adversely impact the
ability of market participants to continue to access and trade on the
Exchange FCO market.
    The Commission believes that the remaining revisions to the LLC
Agreement, By-Laws, Rules, Advices, and Regulations, including those
related to the Exchange's organizational structure, renaming the Board
of Governors the Board of Directors, and identifying NASDAQ OMX as the
single Stockholder, are consistent with the Act and are designed to
update the Exchange's governance process and create equivalent
governing standards between Phlx and NASDAQ, which are both controlled
by NASDAQ OMX. The proposed changes are designed to conform certain
Phlx provisions to more closely parallel provisions maintained by
NASDAQ that were previously approved by the Commission.
    Finally, the Exchange's proposed conforming changes to various
provisions of the LLC Agreement, By-Laws, Rules, Advices, and
Regulations to amend cross references, update terminology, and rename
and renumber sections are consistent with the Act and are intended to
make non-material revisions to update and correct various outdated
references. For example, the revisions to eliminate references to FCO
Participations and to XLE, as well as other now-obsolete terms are
reasonable and are not intended to constitute a material or substantive
change to any provision. The Commission finds that these changes are
technical in nature and will provide clarity to the Exchange's LLC
Agreement, By-Laws, Rules, Advices, and Regulations.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\83\ that the proposed rule change (SR-Phlx-2011-13), as modified
by Amendment No. 1, be, and hereby is, approved.
---------------------------------------------------------------------------

    \83\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\84\
---------------------------------------------------------------------------

    \84\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Cathy H. Ahn,
Deputy Secretary.
[FR Doc. 2011-10362 Filed 4-28-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: January 27, 2010 (Volume 75, Number 17)]
[Notices]
[Page 4401-4402]
[DOCID:fr27ja10-95]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2007-D-0420] (formerly Docket No. 2007D-0365)

Guidance for Industry on the Use of Mechanical Calibration of
Dissolution Apparatus 1 and 2--Current Good Manufacturing Practice;
Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing the
availability of a guidance for industry entitled ``The Use of
Mechanical Calibration of Dissolution Apparatus 1 and 2--Current Good
Manufacturing Practice (CGMP).'' This guidance recommends an
alternative method for manufacturers to comply with FDA's CGMP
regulations that require laboratory apparatus be calibrated at suitable
intervals in accordance with established written specifications. The
guidance is intended to aid drug manufacturers (including ancillary
testing laboratories) in calibrating U.S. Pharmacopeia (USP)
Dissolution Apparatus 1 and 2 to help assure that critical parameters
associated with the dissolution apparatus meet certain mechanical
calibration (MC) tolerances.

DATES: Submit written or electronic comments on agency guidances at any
time.

ADDRESSES: Submit written requests for single copies of this guidance
to the Division of Drug Information, Center for Drug Evaluation and
Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg.
51, rm. 2201, Silver Spring, MD 20993-0002. Send one self-addressed
adhesive label to assist that office in processing your requests.
Submit written comments on the guidance to the Division of Dockets
Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane,
rm. 1061, Rockville, MD 20852. Submit electronic comments to http://
www.regulations.gov. See the SUPPLEMENTARY INFORMATION section for
electronic access to the guidance document.

FOR FURTHER INFORMATION CONTACT: Larry A. Ouderkirk, Center for Drug
Evaluation and Research, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 51, rm. 4228, Silver Spring, MD 20993-0002, 301-
796-1585.

SUPPLEMENTARY INFORMATION:

I. Background

    FDA is announcing the availability of a guidance for industry
entitled ``The Use of Mechanical Calibration of Dissolution Apparatus 1
and 2--Current Good Manufacturing Practice (CGMP).'' The guidance
recommends an alternative method for manufacturers to comply with the
CGMP regulations that require laboratory apparatus be calibrated at
suitable intervals in accordance with established written
specifications (Sec. Sec.  211.160(b)(4) and 211.68 (21 CFR
211.160(b)(4) and 211.68)).
    Historically, both MC and chemical (tablet) calibration procedures
have been employed to assure that reproducible and repeatable data are
obtained with dissolution test apparatus. Recent studies performed in
FDA and USP laboratories have identified several significant sources of
variation within Apparatus 1 and 2 that can be minimized by employing
an enhanced MC procedure. The enhanced MC procedure recommended in the
guidance can be used as an alternative to the current Apparatus
Suitability procedure for USP Dissolution Apparatus 1 and 2 described
in USP General Chapter <711> Dissolution that employs basic MC with a
performance verification test (PVT) using USP Reference Standard
tablets.
    In the Federal Register of October 19, 2007 (72 FR 59298), FDA
published a notice announcing the availability of a draft guidance
entitled ``The Use of Mechanical Calibration of Dissolution Apparatus 1
and 2--Current Good Manufacturing Practice (CGMP).'' The notice gave
interested persons an opportunity to submit comments by January 17,
2008. Comments received during the comment period have been carefully
reviewed, and changes were made to the draft guidance in an effort to
make the document clearer. Also, as a result of the received comments,
the guidance provides advice on controlling the following recognized
sources of significant variability in dissolution testing: Dissolved
gases, vibration, and vessel dimensions.
    In finalizing this guidance, FDA has made changes to the draft
guidance to reflect the most recent changes to USP General Chapter
<711> Dissolution. On August 1, 2007, USP revised its Chapter <711> as
follows: (1) Changed the terminology ``calibrator tablets'' to
``reference standard (RS) tablets,'' which is the term used to describe
tablets used to establish system suitability; and (2) renamed the
``Apparatus Suitability Test, Apparatus 1 and 2'' to ``Performance
Verification Test, Apparatus 1 and 2.'' In making these revisions, USP
has explicitly stated, ``USP's RS tablets are not calibrator
tablets.''\1\ USP has also announced its intention as of December 1,
2009, to discontinue use of its Salicylic Acid Tablets RS in the
Performance Verification Test for Dissolution Apparatus 1 and 2 in
<711> (but USP will retain use of its Prednisone Tablets RS). Although
USP <711> establishes critical tolerances and parameters for
dissolution apparatus, it does not describe enhanced MC practices that
can optimize and assure consistent apparatus performance. In October
2007, USP posted to its Web site a ``toolkit'' to aid practitioners in
performing apparatus MC. However, we note that neither the mechanical
tolerances specified in USP <711> nor the MC procedure described in the
USP toolkit is as comprehensive or stringent as the enhanced MC
procedure recommended in the agency guidance.
---------------------------------------------------------------------------

    \1\ Deng G., A. J. Ashley, W. E. Brown, et al., 2008, ``The USP
Performance Verification Test, Part I: USP Lot P Prednisone
Tablets--Quality Attributes and Experimental Variables Contributing
to Dissolution Variance,'' Pharmaceutical Research; 25(5): 1100-
1109.
---------------------------------------------------------------------------

    The CGMP regulations in Sec. Sec.  211.160(b)(4) and 211.68 require
that laboratory apparatus (mechanical equipment used in manufacturing)
be calibrated at suitable intervals in accordance with an established
written program of scheduled procedures containing provisions for
remedial actions. The enhanced MC procedure recommended in the agency
guidance satisfies these CGMP requirements and thus can be used as an
alternative to the Apparatus Suitability procedure described in USP
<711>. Furthermore,

the agency does not consider a reference tablet-based procedure such as
a PVT to be a critical component when the enhanced MC procedures
recommended in the agency guidance are followed.
    This guidance is being issued consistent with FDA's good guidance
practices regulation (21 CFR 10.115). The guidance represents the
agency's current thinking on a new process for making available to
sponsors FDA guidance on how to design product-specific bioequivalence
studies to support ANDAs. It does not create or confer any rights for
or on any person and does not operate to bind FDA or the public. An
alternative approach may be used if such approach satisfies the
requirements of the applicable statutes and regulations.

II. Comments

    Interested persons may submit to the Division of Dockets Management
(see ADDRESSES) written or electronic comments regarding this document.
Submit a single copy of electronic comments or two paper copies of any
mailed comments, except that individuals may submit one paper copy.
Comments are to be identified with the docket number found in brackets
in the heading of this document. Received comments may be seen in the
Division of Dockets Management between 9 a.m. and 4 p.m., Monday
through Friday.

III. Electronic Access

    Persons with access to the Internet may obtain the document at
either http://www.fda.gov/Drugs/
GuidanceComplianceRegulatoryInformation/Guidances/default.htm or http:/
/www.regulations.gov.

    Dated: January 21, 2010.
David Dorsey,
Acting Deputy Commissioner for Policy, Planning and Budget.
[FR Doc. 2010-1517 Filed 1-26-10; 8:45 am]
BILLING CODE 4160-01-S


[Federal Register Volume 87, Number 203 (Friday, October 21, 2022)]
[Notices]
[Pages 64029-64030]
[FR Doc No: 2022-22914]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER23-102-000]

Revolution Wind, LLC; Supplemental Notice That Initial Market-
Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding of
Revolution Wind, LLC's application for market-based rate authority,
with an accompanying rate tariff, noting that such application includes
a request for blanket authorization, under 18 CFR part 34, of future
issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is November 7, 2022.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically may mail similar pleadings to
the Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426. Hand delivered submissions in docketed
proceedings should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) using
the ``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number

field to access the document. At this time, the Commission has
suspended access to the Commission's Public Reference Room, due to the
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19), issued by the President on March 13,
2020. For assistance, contact the Federal Energy Regulatory Commission
at [email protected] or call toll-free,<PHONE_NUMBER> or TYY,
(202) 502-8659.

    Dated: October 17, 2022..
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2022-22914 Filed 10-20-22; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 85, Number 96 (Monday, May 18, 2020)]
[Notices]
[Pages 29779-29780]
[FR Doc No: 2020-10622]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Summary Notice No. 2020-30]

Petition for Exemption; Summary of Petition Received; Sun Country
Inc. d/b/a Sun Country Airlines

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Notice.

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

SUMMARY: This notice contains a summary of a petition seeking relief
from specified requirements of Federal Aviation Regulations. The
purpose of this notice is to improve the public's awareness of, and
participation in, the FAA's exemption process. Neither publication of
this notice nor the inclusion or omission of information in the summary
is intended to affect the legal status of the petition or its final
disposition.

DATES: Comments on this petition must identify the petition docket
number and must be received on or before June 8, 2020.

ADDRESSES: Send comments identified by docket number FAA-2020-0266
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Room W12-140,
West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to http://www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
http://www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for

accessing the docket or go to the Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Megan Blatchford, Office of
Rulemaking, Federal Aviation Administration, Telephone<PHONE_NUMBER>,
800 Independence Avenue SW, Washington, DC 20591.
    This notice is published pursuant to 14 CFR 11.85.

    Issued in Washington, DC, on May 13, 2020.
Brandon Roberts,
Acting Executive Director, Office of Rulemaking.

Petition for Exemption

    Docket No.: FAA-2020-0266
    Petitioner: Sun Country Inc. d.b.a. Sun Country Airlines
    Section of 14 CFR Affected: Sec.  121.463(a)(2)
    Description of Relief Sought: Sun Country Inc. d.b.a. Sun Country
Airlines seeks relief from Sec.  121.463(a)(2) of the Code of Federal
Regulations to allow a specified new dispatcher the ability to satisfy
their operating familiarization, as it pertains to the flight deck, in
any approved simulator not on motion, due to medical or physical
circumstances.

[FR Doc. 2020-10622 Filed 5-15-20; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: December 17, 2009 (Volume 74, Number 241)]
[Proposed Rules]
[Page 66924-66926]
[DOCID:fr17de09-8]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2009-1180; Directorate Identifier 2009-CE-060-AD]
RIN 2120-AA64

Airworthiness Directives; Hawker Beechcraft Corporation (Type
Certificate Previously Held by Raytheon Aircraft Company) Models B300
and B300C Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for
certain Hawker Beechcraft Corporation (type certificate previously held
by Raytheon Aircraft Company) Models B300 and B300C airplanes. This
proposed AD would require you to inspect the terminal board on the
circuit card rack assembly to determine if the correct bus bar is
installed. This proposed AD would also require you to replace the bus
bar if necessary and inspect the left and right pitot heat annunciators
for proper operation. This proposed AD results from reports of the left
and right pitot heat annunciators not illuminating for an inoperative
pitot heat condition. We are proposing this AD to detect and correct
installation of an incorrect bus bar, which could result in failure of
the pitot heat annunciators to illuminate. This failure could lead to
the pilot being unaware that moisture has frozen on the pitot tube(s)
and cause erroneous flight instrument indication.

DATES: We must receive comments on this proposed AD by February 1,
2010.

ADDRESSES: Use one of the following addresses to comment on this
proposed AD:
     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 W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
    For service information identified in this proposed AD, contact
Hawker Beechcraft Corporation, Attn: Airline Technical Support, P.O.
Box 85, Wichita, Kansas 67201; telephone:<PHONE_NUMBER>; fax: (316)
676-8745; Internet: http://www.hawkerbeechcraft.com.

FOR FURTHER INFORMATION CONTACT: Kevin Schwemmer, Aerospace Engineer,
FAA, Wichita Aircraft Certification Office (ACO), 1801 Airport Road,
Room 100, Wichita, Kansas 67209, telephone:<PHONE_NUMBER>, fax: (316)
946-4107.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments regarding this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include the docket number, ``FAA-
2009-1180; Directorate Identifier 2009-CE-060-AD'' at the beginning of
your comments. We specifically invite comments on the overall
regulatory, economic, environmental, and energy aspects of the proposed
AD. We will consider all comments received by the closing date and may
amend the proposed AD in light of 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 concerning this proposed AD.

Discussion

    We have received reports indicating that there was a discrepancy
between the installation drawing and the wiring diagram for installing
the bus bar for the pitot heat annunciators on Hawker Beechcraft
Corporation Models B300 and B300C airplanes.
    Installing the incorrect bus bar creates a condition where the left
and right pitot heat annunciators may not illuminate for an inoperative
pitot heat condition.
    This condition, if not corrected, could result in failure of the
pitot heat annunciators to illuminate. This failure could lead to
moisture freezing on the pitot tube(s) and cause erroneous flight
instrument indication.

Relevant Service Information

    We have reviewed Hawker Beechcraft Mandatory Service Bulletin SB
31-3948, Issued: April 2009.
    The service information describes procedures for:
     Inspecting the left and right pitot heat annunciators for
proper operation;
     Inspecting the terminal board on the circuit card rack
assembly to determine if the correct bus bar is installed; and
     Replacing the bus bar if necessary.

FAA's Determination and Requirements of the Proposed AD

    We are proposing this AD because we evaluated all information and
determined the unsafe condition described previously is likely to exist
or develop on other products of the same type design. This proposed AD
would require inspecting the terminal board on the circuit card rack
assembly to determine if the correct bus bar is installed. This
proposed AD would also require replacing the bus bar if necessary and
inspecting the left and right pitot heat annunciators for proper
operation.

Costs of Compliance

    We estimate that this proposed AD would affect 131 airplanes in the
U.S. registry.
    We estimate the following costs to do the proposed operational
check:

----------------------------------------------------------------------------------------------------------------
                                                                                Total cost per   Total cost on
                  Labor cost                               Parts cost                airplane     U.S. operators
----------------------------------------------------------------------------------------------------------------
1 work-hour x $80 per hour = $80..............  Not applicable..................             $80         $10,480
----------------------------------------------------------------------------------------------------------------

     We estimate the following costs to do any necessary placard
fabrication and installation that would be required based on the
results of the proposed operational check. We have no way of
determining the number of airplanes that may need the placard:

------------------------------------------------------------------------
                                                          Total cost per
               Labor cost                   Parts cost       airplane
------------------------------------------------------------------------
.5 work-hour x $80 per hour = $40.......  Not applicable             $40
------------------------------------------------------------------------

    We estimate the following costs to do the proposed inspection:

----------------------------------------------------------------------------------------------------------------
                                                                                Total cost per   Total cost on
                  Labor cost                               Parts cost                airplane     U.S. operators
----------------------------------------------------------------------------------------------------------------
1 work-hour x $80 per hour = $80..............  Not applicable..................             $80         $10,480
----------------------------------------------------------------------------------------------------------------

     We estimate the following costs to do any necessary replacements
that would be required based on the results of the proposed inspection.
We have no way of determining the number of airplanes that may need
replacement:

------------------------------------------------------------------------
                                                          Total cost per
               Labor cost                   Parts cost       airplane
------------------------------------------------------------------------
3 work-hours x $80 per hour = $240......             $50            $290
------------------------------------------------------------------------

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 have 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 that the 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.

Examining the AD Docket

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

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, 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:

Hawker Beechcraft Corporation (Type Certificate previously held by
Raytheon Aircraft Company): Docket No. FAA-2009-1180; Directorate
Identifier 2009-CE-060-AD.

Comments Due Date

    (a) We must receive comments on this airworthiness directive
(AD) action by February 1, 2010.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to the following airplane models and serial
numbers that are certificated in any category:

------------------------------------------------------------------------
               Models                             Serial Nos.
------------------------------------------------------------------------
B300................................  FL-381, FL-383 through FL-530, FL-
                                       532, FL-534 through FL-596, FL-
                                       598, and FL-600.
B300C...............................  FM-12 through FM-25.
------------------------------------------------------------------------

Subject

    (d) Air Transport Association of America (ATA) Code 31:
Instruments.

Unsafe Condition

    (e) This AD results from reports of the left and right pitot
heat annunciators not illuminating for an inoperative pitot heat
condition. We are issuing this AD to detect and correct the
installation of an incorrect bus bar, which could result in failure
of the pitot heat annunciators to illuminate. This failure could
lead to moisture freezing on the pitot tube(s) and cause erroneous
flight instrument indication.

Compliance

    (f) To address this problem, you must do the following, unless
already done:

------------------------------------------------------------------------
           Actions                 Compliance            Procedures
------------------------------------------------------------------------
(1) Do an operational check   Within the next 15    Follow Hawker
 of the left and right pitot   hours time-in-        Beechcraft
 heat annunciators for         service (TIS) after   Mandatory Service
 illumination.                 the effective date    Bulletin SB 31-
                               of this AD or         3948, Issued: April
                               within the next 30    2009.
                               days after the
                               effective date of
                               this AD, whichever
                               occurs first. If
                               you may
(2) If the left and/or right  Before further        Follow Hawker
 pitot heat annunciators do    flight after the      Beechcraft
 not illuminate, install a     operational check     Mandatory Service
 placard on the instrument     required in           Bulletin SB 31-
 panel within the pilot's      paragraph (f)(1) of   3948, Issued: April
 clear view specifying the     this AD.              2009.
 pitot heat annunciator(s)
 as inoperative.
(3) Inspect the terminal      Within the next 50    Follow Hawker
 board on the circuit card     hours TIS after the   Beechcraft
 rack assembly to determine    effective date of     Mandatory Service
 if a five-hole bus bar is     this AD or within     Bulletin SB 31-
 installed.                    the next 3 months     3948, Issued: April
                               after the effective   2009.
                               date of this AD,
                               whichever occurs
                               first.
(4) If a five-hole bus bar    Before further        Follow Hawker
 is found installed during     flight after the      Beechcraft
 the inspection required in    inspection required   Mandatory Service
 paragraph (f)(3) of this      in paragraph (f)(3)   Bulletin SB 31-
 AD, perform an operational    of this AD.           3948, Issued: April
 check. If the operational                           2009.
 check detects anomalies,
 contact the manufacturer
 specified in paragraph (i)
 of this AD to obtain an FAA-
 approved repair scheme and
 incorporate the repair
 scheme.
(5) If a four-hole bus bar    Before further        Follow Hawker
 is found installed during     flight after the      Beechcraft
 the inspection required in    inspection required   Mandatory Service
 paragraph (f)(3) of this      in paragraph (f)(3)   Bulletin SB 31-
 AD, replace it with a five-   this AD.              3948, Issued: April
 hole bus bar and perform an                         2009.
 operational check. If the
 operational check detects
 anomalies, contact the
 manufacturer specified in
 paragraph (i) of this AD to
 obtain an FAA-approved
 repair scheme and
 incorporate the repair
 scheme.
(6) If proper operation of    Before further        Follow Hawker
 the left and right pitot      flight after doing    Beechcraft
 heat annunciators are         the operational       Mandatory Service
 verified in paragraphs        check required in     Bulletin SB 31-
 (f)(4) and (f)(5) of this     paragraphs (f)(4)     3948, Issued: April
 AD, remove the placard that   and (f)(5) of this    2009.
 was installed in paragraph    AD.
 (f)(2) of this AD.
------------------------------------------------------------------------

    Note: The operational check required in this AD is different
from the pilot's pre-flight check. An FAA-approved licensed mechanic
authorized to do maintenance is required to do the operational
check.

    (g) The inspection action of paragraph (f)(3) of this AD and the
follow-on actions of paragraphs (f)(4) and (f)(5) of this AD may be
done instead of the operational check and the placard requirements
of paragraphs (f)(1) and (f)(2) of this AD provided the inspection
is done within the next 15 hours TIS after the effective date of
this AD.

Alternative Methods of Compliance (AMOCs)

    (h) The Manager, Wichita Aircraft Certification Office (ACO),
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: Kevin Schwemmer, Aerospace Engineer, ACE-118W, Wichita ACO,
1801 Airport Road, Room 100, Wichita, Kansas 67209, telephone: (316)
946-4174, 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.

Related Information

    (i) To get copies of the service information referenced in this
AD, contact Hawker Beechcraft, Attn: Airline Technical Support, P.O.
Box 85, Wichita, Kansas 67201; telephone:<PHONE_NUMBER>; fax: (316)
676-8745; Internet: http://www.hawkerbeechcraft.com. To view the AD
docket, go to U.S. Department of Transportation, Docket Operations,
M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, or on the Internet at http://
www.regulations.gov.

    Issued in Kansas City, Missouri, on December 8, 2009.
Margaret Kline,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. E9-29975 Filed 12-16-09; 8:45 am]

BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80131-80132]
[FR Doc No: 2023-25557]

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

DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Part 744

[Docket No.<PHONE_NUMBER>]
RIN 0694-AJ47

Entity List Removal

AGENCY: Bureau of Industry and Security, Department of Commerce.

ACTION: Final rule.

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

SUMMARY: In this rule, the Bureau of Industry and Security (BIS) amends
the Export Administration Regulations (EAR) by removing one entity
under the destination of the People's Republic of China (China).

DATES: This rule is effective November 16, 2023.

FOR FURTHER INFORMATION CONTACT: Chair, End-User Review Committee,
Office of the Assistant Secretary for Export Administration, Bureau of
Industry and Security, Department of Commerce, Phone:<PHONE_NUMBER>,
Email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Entity List (supplement no. 4 to part 744 of the EAR (15 CFR
parts 730-774)) identifies entities for which there is reasonable cause
to believe, based on specific and articulable facts, that the entities
have been involved, are involved, or pose a significant risk of being
or becoming involved in activities contrary to the national security or
foreign policy interests of the United States, pursuant to Sec.
744.11(b). The EAR impose additional license requirements on, and limit
the availability of, most license exceptions for exports, reexports,
and transfers (in-country) when a listed entity is a party to the
transaction. The license review policy for each listed entity is
identified in the ``License Review Policy'' column on the Entity List,
and the impact on the availability of license exceptions is described
in the relevant Federal Register document that added the entity to the
Entity List. The Bureau of Industry and Security (BIS) places entities
on the Entity List pursuant to parts 744 (Control Policy: End-User and
End-Use Based) and 746 (Embargoes and Other Special Controls) of the
EAR.
    The End-User Review Committee (ERC), composed of representatives of
the Departments of Commerce (Chair), State, Defense, Energy and, where
appropriate, the Treasury, makes all decisions regarding additions to,
removals from, or other modifications to the Entity List. The ERC makes
all decisions to add an entry to the Entity List by majority vote and
makes all decisions to remove or modify an entry by unanimous vote.

Entity List Decisions

Removal From the Entity List

    The ERC determined to remove the Ministry of Public Security's
Institute of Forensic Science of China from the Entity List pursuant to
a removal proposal and review that the ERC conducted in accordance with
procedures described in supplement no. 5 to part 744 of the EAR. Prior
to removal from the Entity List by this rule, the Ministry of Public
Security's Institute of Forensic Science of China was listed under the
destination of China.

Export Control Reform Act of 2018

    On August 13, 2018, the President signed into law the John S.
McCain National Defense Authorization Act for Fiscal Year 2019, which
included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-
4852). ECRA provides the legal basis for BIS's principal authorities
and serves as the authority under which BIS issues this rule.

Rulemaking Requirements

    1. This rule has been determined to be not significant for purposes
of Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is
required to respond to or be subject to a penalty for failure to comply
with a collection of information, subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless
that collection of information displays a currently valid Office of
Management and Budget (OMB) Control Number. This regulation involves an
information collection approved by OMB under control number 0694-0088,
Simplified Network Application Processing System. BIS does not
anticipate a change to the burden hours associated with this collection
as a result of this rule. Information regarding the collection,
including all supporting materials, can be accessed at https://www.reginfo.gov/public/do/PRAMain.
    3. This rule does not contain policies with federalism implications
as that term is defined in Executive Order 13132.
    4. Pursuant to section 1762 of the Export Control Reform Act of
2018, this action is exempt from the Administrative Procedure Act (5
U.S.C.

553) requirements for notice of proposed rulemaking, opportunity for
public participation, and delay in effective date.
    5. Because a notice of proposed rulemaking and an opportunity for
public comment are not required to be given for this rule by 5 U.S.C.
553, or by any other law, the analytical requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., are not applicable.
Accordingly, no regulatory flexibility analysis is required, and none
has been prepared.

List of Subjects in 15 CFR Part 744

    Exports, Reporting and recordkeeping requirements, Terrorism.

    Accordingly, part 744 of the Export Administration Regulations (15
CFR parts 730-774) is amended as follows:

PART 744--CONTROL POLICY: END-USER AND END-USE BASED

0
1. The authority citation for part 744 continues to read as follows:

    Authority:  50 U.S.C. 4801-4852; 50 U.S.C. 4601 et seq.; 50
U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 12058, 43 FR 20947, 3 CFR,
1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p.
608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026,
61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3
CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp.,
p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice
of November 8, 2022, 87 FR 68015, 3 CFR, 2022 Comp., p. 563; Notice
of September 7, 2023, 88 FR 62439 (September 11, 2023).

0
2. Supplement no. 4 is amended by removing the entry for ``Ministry of
Public Security's Institute of Forensic Science of China'' under CHINA,
PEOPLE'S REPUBLIC OF.

Matthew S. Borman,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 2023-25557 Filed 11-16-23; 8:45 am]
BILLING CODE 3510-33-P