[Federal Register Volume 81, Number 104 (Tuesday, May 31, 2016)]
[Notices]
[Pages 34393-34398]
[FR Doc No: 2016-12673]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77899; File No. SR-NYSE-2016-37]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing of Proposed Rule Change Removing From Its Rules
Certain Internal Procedures Regarding the Use of Fine Income

May 24, 2016.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'' or ``Exchange Act'') \2\ and Rule 19b-4
thereunder,\3\ notice is hereby given that, on May 13, 2016, New York
Stock Exchange LLC (``NYSE'' or the ``Exchange'') filed with the
Securities and Exchange Commission (the ``Commission'') the proposed
rule change as described in Items I, II, and III below, which Items
have been prepared by the self-regulatory organization. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of the
Substance of the Proposed Rule Change

    The Exchange proposes to remove from its rules certain internal
procedures regarding the use of fine income. The proposed rule change
is available on the Exchange's Web site at www.nyse.com, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    The Exchange proposes to remove from its rules certain internal
procedures regarding the use of fine income, which were approved in
2007 (the ``Fine Income Procedures'') in order to align the Exchange's
use of fine income with other self-regulatory organizations (``SROs'').
The Exchange believes that the Fine Income Limitations [sic] are no
longer necessary and are duplicative of the limitations on the use of
regulatory assets and income, including fine income, set forth in
Article IV, Section 4.05 of the operating agreement of the Exchange
(``Section 4.05''). Section 4.05 prohibits the Exchange from using any
regulatory assets or any regulatory fees, fines or penalties collected
by the Exchange's regulatory staff for commercial purposes or
distributing such assets, fees, fines or penalties to NYSE Group, Inc.
(``NYSE Group''), the Exchange's member, or any other entity.\4\
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    \4\ See Ninth Amended and Restated Operating Agreement of New
York Stock Exchange LLC, Art. IV, Sec. 4.05; see also Securities
Exchange Act Release No. 75991 (September 28, 2015), 80 FR 59837
(October 2, 2015) (SR-NYSE-2015-27) (``NYSE Approval Order''), at
59839.
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    For the reasons discussed below, the Exchange believes that
together Section 4.05 and the provisions governing the Regulatory
Oversight Committee (``ROC'') of the Exchange's Board of Directors
adequately address the concerns underlying the Fine Income Procedures
and provide sufficient protections to ensure the proper use of fine
income by the Exchange.
Background
The Fine Income Procedures
    In 2006, New York Stock Exchange, Inc. merged with Archipelago
Holdings, Inc. (the ``Archipelago Merger'').\5\ Prior to approval of
rule changes related to the Archipelago Merger, in conversation with
the staff of the Securities and Exchange Commission (``Commission''),
the Exchange undertook to subsequently file a proposed rule change
regarding the use of fines collected from member organizations
following disciplinary action against such member organizations.\6\ On
January 31, 2007, the Commission approved the proposed rule change
establishing the Fine Income Procedures.\7\
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    \5\ See id. The Archipelago Merger had the effect of
``demutualizing'' New York Stock Exchange, Inc. by separating equity
ownership from trading privileges, and converting it to a for-profit
entity. See Securities Exchange Act Release No. 53382, 71 FR 11251,
11254 (February 27, 2006) [sic] (SR-NYSE-2005-77) (``Merger Approval
Order''). In the resulting re-organization, the Exchange became a
wholly-owned subsidiary of NYSE Group, and succeeded to New York
Stock Exchange, Inc.'s registration as a national securities
exchange under the Exchange Act. See id. at 11255.
    \6\ See id. at 11270, note 231. Subject to the requirement to
file fees with the Commission, the Exchange determines, assesses,
collects and retains certain registration and regulatory fees set
forth in its Price List.
    \7\ See Securities Exchange Act Release No. 55216 (January 31,
2007), 72 FR 5779 (February 7, 2007) (NYSE-2006-109) (``Order
Approving the Fine Income Procedures'').
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    The Exchange's Fine Income Procedures referred to actions to be
taken by the Exchange's subsidiary, NYSE Regulation, Inc. (``NYSE
Regulation''), and NYSE Regulation's board of directors (the ``NYSE
Regulation Board''), because at the time performance of certain of the
Exchange's regulatory functions was delegated to NYSE Regulation. Such
delegation was made in 2006 pursuant to a Delegation Agreement (the
``Delegation Agreement'') between the Exchange, NYSE Regulation, and
NYSE Market (DE), Inc. (``NYSE Market (DE)'').\8\
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    \8\ See NYSE Approval Order, supra note 4, at 59839. The
Exchange's market functions were delegated to NYSE Market (DE).
Although the Delegation Agreement set forth the terms under which
the Exchange delegated its functions to NYSE Regulation and NYSE
Market (DE), the Exchange retained ultimate responsibility for the
operations, rules and regulations developed by NYSE Regulation and
NYSE Market (DE) and for their enforcement.
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    As approved, the Fine Income Procedures provided that: \9\
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    \9\ See Securities Exchange Act Release No. 55003 (December 22,
2006), 71 FR 78497, 78498 (December 29, 2006) (NYSE-2006-109) (the
``Proposing Release'').
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     Fines would play no role in the annual NYSE Regulation
budget process. Beginning with the preparation of the 2007 operating
budget, fines would be budgeted at zero, that is, budgeted expenses of
NYSE Regulation would be offset entirely by budgeted income that did
not include any anticipated income from fines. Among other things, this
meant that fines would not offset amounts budgeted for compensation of
NYSE Regulation employees or directors. During the course of a year,
income from fines would be considered as available to fund non-
compensation expenses of NYSE Regulation, which expenses were not
anticipated in the budget process or which could not be included in the
budget prepared in advance of the fiscal year because NYSE Regulation
was unable to budget sufficient income from sources other than fines to
offset the expenses.
     The use of fine income by NYSE Regulation would be subject
to specific review and approval by the NYSE Regulation board of
directors. On a quarterly basis, the staff of NYSE Regulation would
provide to the NYSE Regulation Board a report on the amount of fine
income received to date during the year and recommendations regarding
its proposed use to fund regulatory expenses as above described. The
use of the fine income would be subject to NYSE Regulation Board
approval. Following each year, the staff of NYSE Regulation would
provide the NYSE Regulation Board a report reprising the fines imposed
and the utilization of fine income by NYSE Regulation during that year.
This report would analyze fines imposed by NYSE Regulation for
consistency with precedent from both other NYSE disciplinary cases as
well as publicly available disciplinary cases adjudicated by the
National Association of Securities Dealers, Inc. and the Commission.
    Each year the NYSE Regulation Board would also consider whether
unused fine income had accumulated beyond a level reasonably necessary
for future contingencies, and could determine to utilize any such
excess to fund one or more special projects of NYSE Regulation, to
reduce fees charged by NYSE Regulation to its member organizations or
the markets that it serves, or for a charitable purpose.
Amendment of the Fine Income Procedures
    Effective February 16, 2016, the Delegation Agreement terminated
and NYSE Regulation ceased performing regulatory functions on behalf of
the Exchange, which has re-integrated its regulatory functions. The ROC
of the Exchange's Board of Directors now provides independent oversight
of the regulatory function of the Exchange.\10\
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    \10\ See NYSE Approval Order, supra note 4, at 59838. Similarly,
following termination of the Delegation Agreement, NYSE Market
(DE)'s delegated market responsibilities are performed by the
Exchange.
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    In its filing proposing the creation of the ROC and termination of
the Delegation Agreement, the Exchange addressed the Fine Income
Procedures. Specifically, it ``reiterate[ed] [sic] the previous
commitments that fines would play no role in the annual regulatory
operating budget process and that the use of fine income by Exchange
regulatory staff would be subject to review and approval by the
proposed ROC.'' \11\ Accordingly, the ROC has

assumed the responsibilities previously held by the NYSE Regulation
Board.
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    \11\ See Securities Exchange Act Release No. 75288 (June 24,
2015), 80 FR 37316 (June 30, 2015) (SR-NYSE-2015-27), note 25.
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Proposed Amendment
    The Exchange proposes to delete the Fine Income Procedures from the
Exchange rules. The Exchange would remain subject to Section 4.05,
which prohibits it from using any regulatory assets or any regulatory
fees, fines or penalties collected by the Exchange's regulatory staff
for commercial purposes or distributing such assets, fees, fines or
penalties to the Exchange's member or any other entity.\12\
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    \12\ All fine monies previously collected would remain subject
to the restrictions in Section 4.05.
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    In its Order Approving the Fine Income Procedures, the Commission
stated that the Fine Income Procedures were ``to assure the proper
exercise by NYSE Regulation of its power to fine member organizations
of the Exchange and the proper use by NYSE Regulation of the funds so
collected.'' \13\ The Exchange believes that Section 4.05 and the
operating agreement provisions governing the ROC adequately address
these concerns.
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    \13\ Order Approving the Fine Income Procedures, supra note 7,
at 5779.
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    First, the Exchange believes that limitations on the use of fines
is not the most effective way to assure proper exercise by Exchange
regulatory staff of the Exchange's power to fine member organizations.
Simply put, usage limitations on fine income do not provide oversight
of regulatory performance. They just monitor how the resulting income
is spent. The Exchange believes that the responsibility to assure
proper exercise by Exchange regulatory staff of the Exchange's power to
fine member organizations more properly lies with the ROC, which is
responsible to oversee the Exchange's regulatory and self-regulatory
organization responsibilities and assess the Company's regulatory
performance.\14\
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    \14\ See Ninth Amended and Restated Operating Agreement of New
York Stock Exchange LLC, Art. II, Sec. 2.03(h)(ii). The ROC is made
up entirely of independent directors of the Exchange.
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    In addition, the disciplinary process itself contains a powerful
check on the improper exercise by Exchange regulatory staff of the
power to fine members and member organizations, specifically the
appellate process, whereby adverse hearing panel determinations can be
appealed to the Committee for Review, a committee of the Board of
Directors of the Exchange that includes independent directors and
individuals associated with member organizations of the Exchange, which
recommends a disposition to the Board of Directors of the Exchange.
Final actions of the Exchange can be appealed to the Commission, and
Commission determinations can be challenged in federal court.
    Second, the Exchange believes that, by setting clear limitations on
its use, Section 4.05 is sufficient to ensure the proper use by the
Exchange of fine income. Section 4.05 addresses this concern by
prohibiting the use of fines for commercial purposes or distributions.
Indeed, because Section 4.05 encompasses all regulatory assets and
income, not just fines, it ensures the proper use by the Exchange of a
broader range of regulatory funds, by prohibiting their use for
commercial purposes or distributions.
    The Commission stated in its Order Approving the Fine Income
Procedures that it believed the Fine Income Procedures would ``guard
against the possibility that fines may be assessed to respond to
budgetary needs rather than to serve a disciplinary purpose.'' \15\
Section 4.05 also guards against this possibility by limiting the use
of fines. However, unlike the Fine Income Procedures, Section 4.05 also
guards against the possibility that other regulatory income, such as
examination, access, registration, qualification, arbitration, dispute
resolution and other regulatory fees, or regulatory assets, could be
used or assessed to respond to budgetary needs, by making them
unavailable for commercial purposes or distributions. At the same time,
the ROC is specifically charged with reviewing the regulatory budget of
the Exchange and inquiring into the adequacy of resources available in
the budget for regulatory activities.\16\ Accordingly, the Exchange
believes that removing the Fine Income Procedures and relying on
Section 4.05 and the provisions governing the ROC would provide
adequate protections against the use of regulatory assets, or
assessment of regulatory income, to respond to budgetary needs.
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    \15\ Order Approving the Fine Income Procedures, supra note 7,
at 5780.
    \16\ See note 14, supra.
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    The Exchange believes that the circumstances that led to the Fine
Income Procedures no longer exist. At the time the Fine Income
Procedures were adopted, a predecessor to Section 4.05 was in effect
(the ``Predecessor Section''). Indeed, the Commission cited that fact
when approving the Archipelago Merger:

    The Commission further notes that the NYSE has taken steps to
safeguard the use of regulatory monies. Specifically, New York Stock
Exchange LLC will not be permitted to use any assets of, or any
regulatory fees, fines, or penalties collected by, NYSE Regulation
for commercial purposes or distribute such assets, fees, fines, or
penalties to NYSE Group or any entity other than NYSE
Regulation.\17\
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    \17\ See Merger Approval Order, supra note 5, at 11263.
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    At the time, NYSE Regulation performed regulatory functions on
behalf of the Exchange. On its face, the Predecessor Section, found
in the Exchange's 2006 operating agreement, only limited the
Exchange itself. NYSE Regulation had the obligation under the
Delegation Agreement to assure compliance with the rules of the
Exchange, but the Fine Income Procedures provided a more direct
commitment by NYSE Regulation to ensure the proper exercise of NYSE
Regulation's power to fine member organizations and the proper use
by NYSE Regulation of fines collected.

    Today, because the Delegation Agreement is no longer in effect, the
same entity that fines member organizations is directly subject to the
limits of Section 4.05. Accordingly, the Exchange believes that
removing the Fine Income Procedures and relying on Section 4.05 and the
provisions governing the ROC would provide adequate protections against
the concerns cited by the Commission in the Order Approving the Fine
Income Procedures. Indeed, as pointed out above, Section 4.05 is wider
in scope than the Fine Income Procedures, and so limits the Exchange's
use of all regulatory assets and income, not just fine income.
    The proposed change would have the benefit of bringing the
Exchange's restrictions on the use of regulatory assets and income into
greater conformity with those of its affiliates NYSE MKT LLC and NYSE
Arca, Inc. NYSE MKT LLC has substantially the same provision as Section
4.05 its operating agreement.\18\ The bylaws of NYSE Arca, Inc. also
preclude the use of regulatory fees and penalties for commercial
operations or dividends, limiting their use to funding legal,
regulatory and surveillance operations.\19\
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    \18\ See Eighth Amended and Restated Operating Agreement of NYSE
MKT LLC, Art. IV, Sec. 4.05 (``The Company shall not use any
regulatory assets or any regulatory fees, fines or penalties
collected by Exchange regulatory staff for commercial purposes or
distribute such assets, fees, fines or penalties to the Member or
any other entity.'').
    \19\ See Bylaws of NYSE Arca, Inc., Art. II, Sec. 2.06 (``Any
revenues received by the Exchange from regulatory fees or regulatory
penalties will be applied to fund the legal, regulatory and
surveillance operations of the Exchange and will not be used to pay
dividends. For purposes of this Section, regulatory penalties shall
include restitution and disgorgement of funds intended for
customers.'').
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    In addition, removing the Fine Income Procedures from its rules
would

make the Exchange's rules more consistent with the limitations on the
use of regulatory assets and income of other SROs. Indeed, no other SRO
limits the use of fine income to extra-budgetary use or subjects the
use of fine income to specific review and approval by a regulatory
oversight committee or any other body. Rather, other SROs' limitations
on the use of regulatory funds are generally similar to Section 4.05,
in that they provide that regulatory funds shall be used to fund the
relevant SRO's legal, regulatory and (in some cases) surveillance
operations, and shall not be used to make a distribution to the SRO's
member or stockholder, as the case may be.
    For example, the limited liability company agreement of the BOX
Options Exchange (``BOX'') provides that regulatory funds shall be used
to the [sic] fund legal, regulatory and surveillance operations of BOX,
and BOX shall not make any distribution to members using regulatory
funds. BOX defines ``regulatory funds'' to include fees, fines or
penalties derived from its regulatory operations.\20\ Similarly, the
limited liability company agreements of International Securities
Exchange, LLC, and its affiliates ISE Gemini, LLC and ISE Mercury, LLC
provide that regulatory funds shall not be used for non-regulatory
purposes, but rather shall be used to fund legal, regulatory and
surveillance operations, and the SRO shall not make any distribution to
its member using regulatory funds.\21\
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    \20\ See Box Options Exchange Limited Liability Company
Agreement, Art. 1, Sec. 1.1 and Art. 8, Sec. 8.1. The definition
also states that ``Regulatory Funds shall not include revenues
derived from listing 6 A/72816686.20 [sic] fees, market data
revenues, transaction revenues or any other aspect of the commercial
operations of the Exchange or a facility of the Exchange, even if a
portion of such revenues are used to pay costs associated with the
regulatory operations of the Exchange.'' Id.
    \21\ Such agreements define ``Regulatory Funds'' to mean ``fees,
fines or penalties derived from the regulatory operations of the
Company, provided that Regulatory Funds shall not include revenues
derived from listing fees, market data revenues, transaction
revenues or any other aspect of the commercial operations of the
Company or a facility of the Company, even if a portion of such
revenues are used to pay costs associated with the regulatory
operations of the Company.'' See Third Amended and Restated Limited
Liability Company Agreement of International Securities Exchange,
LLC, Art. III, Sec. 3.3(ii); Second Amended and Restated Limited
Liability Company Agreement of ISE Gemini, LLC, Art. III, Sec.
3.3(ii); and Limited Liability Company Agreement of ISE Mercury,
LLC, Art. III, Sec. 3.3(ii).
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    Section 4.05 is more restrictive than the provisions of some other
SROs, whose rules allow the use of regulatory funds for restitution and
disgorgement of funds intended for customers. For example, the
governing documents of affiliates BATS BZX Exchange, Inc., BATS BYX
Exchange, Inc., BATS EDGX Exchange, Inc., and EDGA Exchange, Inc.
provide that revenues received from fees derived from the regulatory
function or regulatory penalties may be used to pay restitution and
disgorgement of funds intended for customers, as well as to fund legal
and regulatory operations, including surveillance and enforcement
activities. Such funds may not be used for non-regulatory purposes or
distributed to the stockholder.\22\ The limited liability company
agreement of Miami International Securities Exchange, LLC, and bylaws
of National Stock Exchange, Inc., have similar provisions.\23\
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    \22\ See Fourth Amended and Restated Bylaws of BATS BZX
Exchange, Inc., Art. X, Sec. 4; Fourth Amended and Restated Bylaws
of BATS BYX Exchange, Inc., Art. X, Sec. 4; Fifth Amended and
Restated Bylaws of BATS EDGX Exchange, Inc., Art. X, Sec. 4; and
Fifth Amended and Restated Bylaws of BATS EDGA Exchange, Inc., Art.
X, Sec. 4.
    \23\ See Second Amended and Restated Limited Liability Company
Agreement of Miami International Securities Exchange, LLC, Art. IX,
Sec. 9.4 (``Any Regulatory Funds will not be used for non-regulatory
purposes or distributed to the LLC Member, but rather, shall be
applied to fund the legal and regulatory operations of the Company
(including surveillance and enforcement activities), or, as the case
may be, shall be used to pay restitution and disgorgement of funds
intended for customers.''); Amended and Restated By-laws of National
Stock Exchange, Inc., [sic] Art. X, Sec. 10.4 (``Any revenues
received by the Exchange from fees derived from its regulatory
function or regulatory penalties will not be used to pay dividends
and shall be applied to fund the legal and regulatory operations of
the Exchange (including surveillance and enforcement activities),
or, as the case may be, shall be used to pay restitution and
disgorgement of funds intended for customers.''); see also Amended
and Restated By-Laws of Miami International Securities Exchange,
LLC, Art. IX, Sec. 9.4.
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    The limitations imposed on the NASDAQ Stock Market LLC (``Nasdaq'')
in its operating agreement are also less restrictive than the
limitations imposed on the Exchange by Section 4.05. They simply limit
Nasdaq from making a distribution to its member using regulatory funds.
``Regulatory funds'' is defined to mean fees, fines, or penalties
derived from the regulatory operations of Nasdaq.\24\ When the NASDAQ
OMX Group, Inc. acquired the Boston Stock Exchange (``BSE''), the BSE
by-laws were amended to include a similar provision that dividends
could not be paid to the stockholders using regulatory funds, also
defined as fees, fines, or penalties derived from regulatory
operations.\25\ The Commission described the provision as ``intended to
preclude BSE from using its authority to raise regulatory funds for the
purpose of benefiting its shareholders, or for other non-regulatory
purposes, such as executive compensation.'' \26\ The Exchange believes
that Section 4.05, which is more expansive in its scope, meets the same
goal.
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    \24\ See Second Amended Limited Liability Company Agreement of
The NASDAQ Stock Market LLC, Sec. 15. The definition of Regulatory
Funds also states that ```Regulatory Funds' shall not be construed
to include revenues derived from listing fees, market data revenues,
transaction revenues, or any other aspect of the commercial
operations of the Company, even if a portion of such revenues are
used to pay costs associated with the regulatory operations of the
Company.'' Id, Sch. A. See also by-laws of NASDAQ BX, Inc., Art. IX,
Sec. 9.8, and Second Amended Limited Liability Company Agreement of
NASDAQ PHLX LLC, Sec. 14.
    \25\ See Securities Exchange Act Release No. 58324 (August 7,
2008), 73 FR 46936 (August 12, 2008) (SR-BSE- 2008-02; SR-BSE-2008-
23; SR-BSE-2008- 25; SR-BSECC-2008-01), at 46942.
    \26\ See Securities Exchange Act Release No. 58324 (August 7,
2008), 73 FR 46936 (August 12, 2008) (SR-BSE- 2008-02; SR-BSE-2008-
23; SR-BSE-2008- 25; SR-BSECC-2008-01), at 46942.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act \27\ in general, and Section
6(b)(1) \28\ in particular, in that it enables the Exchange to be so
organized as to have the capacity to be able to carry out the purposes
of the Exchange Act and to comply, and to enforce compliance by its
exchange members and persons associated with its exchange members, with
the provisions of the Exchange Act, the rules and regulations
thereunder, and the rules of the Exchange. Deletion of the Fine Income
Procedures would not diminish the Exchange's ability to adequately
ensure the proper exercise of the Exchange's power to fine member
organizations and the proper use by the Exchange of the funds collected
through the disciplinary process.
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    \27\ 15 U.S.C. 78f(b).
    \28\ 15 U.S.C. 78f(b)(1).
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    The Exchange believes that Section 4.05 and the operating agreement
provisions governing the ROC adequately address the concerns underlying
adoption of the Fine Income Procedures, rendering the Fine Income
Procedures superfluous. First, the Fine Income Procedures cannot assure
the proper exercise by Exchange regulatory staff of the Exchange's
power to fine member organizations of the Exchange, as usage
limitations on fine income do not provide oversight of regulatory
performance. The responsibility more properly lies with the ROC, which
is responsible for overseeing the Exchange's regulatory and self-
regulatory organization responsibilities and assessing its regulatory
performance, including reviewing the regulatory budget and inquiring
into the adequacy of resources available in the budget for regulatory
activities.\29\ In

addition, the disciplinary process itself contains a powerful check on
the improper exercise by Exchange regulatory staff of the power to fine
members and member organizations, specifically, the appellate process,
whereby adverse hearing panel determinations can be appealed to the
Committee for Review, which recommends a disposition to the Board of
Directors of the Exchange. Final actions of the Exchange can be
appealed to the Commission, and Commission determinations can be
challenged in federal court. Second, by setting clear imitations [sic]
on its use, Section 4.05 is not only sufficient to ensure the proper
use by the Exchange of fine income but also, because it encompasses all
regulatory assets and income, ensures the proper use by the Exchange of
a broader range of regulatory funds, by prohibiting their use for
commercial purposes or distributions.
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    \29\ See note 14, supra.
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    Finally, the Exchange believes that Section 4.05 and the operating
agreement provisions governing the ROC would provide adequate
protections against the assessment of regulatory income, or the use of
regulatory assets, to respond to budgetary needs. By limiting their
use, Section 4.05 guards against the possibility that fines may be
assessed to respond to budgetary needs rather than to serve a
disciplinary purpose. However, unlike the Fine Income Procedures,
Section 4.05 also guards against the possibility that other regulatory
income, such as examination, access, registration, qualification,
arbitration, dispute resolution and other regulatory fees, or
regulatory assets, could be used or assessed to respond to budgetary
needs, by making them unavailable for commercial purposes or
distributions.
    For the same reasons, the Exchange believes that the proposed
deletion of the Fine Income Procedures is consistent with Section
6(b)(4),\30\ which requires that the rules of the exchange provide for
the equitable allocation of reasonable dues, fees, and other charges
among the exchange's members and issuers and other persons using its
facilities, and Section 6(b)(5),\31\ which requires that the rules of
the exchange be designed to prevent fraudulent and manipulative acts
and practices, to promote just and equitable principles of trade, to
foster cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, 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.
As noted, the Exchange believes that the responsibility to assure the
proper exercise by Exchange regulatory staff of the Exchange's power to
fine member organizations more properly lies with the ROC, and that, by
setting clear imitations [sic] on its use, Section 4.05 is not only
sufficient to ensure the proper use by the Exchange of fine income but
also, because it encompasses all regulatory assets and income, ensures
the proper use by the Exchange of a broader range of regulatory funds,
by prohibiting their use for commercial purposes or distributions.
Finally, the Exchange believes that Section 4.05 and the operating
agreement provisions governing the ROC would provide adequate
protections against the assessment of regulatory income, or the use of
regulatory assets, to respond to budgetary needs. Section 4.05 not only
guards against the possibility that fines may be assessed to respond to
budgetary needs rather than to serve a disciplinary purpose, but also
guards against the possibility that other regulatory income or
regulatory assets could be used or assessed in that manner, by making
them unavailable for commercial purposes or distributions.
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    \30\ 15 U.S.C. 78f(b)(4).
    \31\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed deletion of the Fine Income
Procedures is consistent with the Exchange's present governance
structure, centered on a ROC. Today, because the Delegation Agreement
is no longer in effect, the same entity that fines member organizations
is directly subject to the limits of Section 4.05. Accordingly, the
proposed deletion is consistent with ensuring that the Exchange is so
organized as to have the capacity to be able to carry out the purposes
of the Exchange Act and to comply, and to enforce compliance by its
exchange members and persons associated with its exchange members, with
the provisions of the Exchange Act, the rules and regulations
thereunder, and the rules of the Exchange.
    The Exchange notes that the proposed change would have the
additional benefit of making the Exchange's rules more consistent with
the limitations on the use of regulatory assets and income of other
SROs and bringing the Exchange's restrictions on the use of regulatory
assets and income into greater conformity with those of its affiliates
NYSE MKT LLC and NYSE Arca, Inc. Indeed, no other SRO limits the use of
fine income to extra-budgetary use or subjects the use of fine income
to specific review and approval by a regulatory oversight committee or
any other body.\32\ Rather, other SROs' limitations on the use of
regulatory funds are generally similar to Section 4.05, in that they
provide that regulatory funds shall be used to fund the relevant SRO's
legal, regulatory and (in some cases) surveillance operations, and
shall not be used to make a distribution to the SRO's member or
stockholder, as the case may be. In fact, Section 4.05 is more
restrictive than the provisions of some other SROs, whose rules allow
the use of regulatory funds for restitution and disgorgement of funds
intended for customers, or simply limit the SRO from making a
distribution to its member using regulatory funds.
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    \32\ See notes 20-25 [sic] and accompanying text.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act. The proposed rule
change is not intended to address competitive issues but rather is
concerned solely with the administration and functioning of the
Exchange.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    Within 45 days of the date of publication of this notice in the
Federal Register or up to 90 days (i) as the Commission may designate
if it finds such longer period to be appropriate and publishes its
reasons for so finding or (ii) as to which the self-regulatory
organization consents, the Commission will:
    (A) By order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2016-37 on the subject line.

Paper Comments

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

    All submissions should refer to File Number SR-NYSE-2016-37. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSE-2016-37, and should be
submitted on or before June 21, 2016.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
---------------------------------------------------------------------------

    \33\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-12673 Filed 5-27-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 66 (Friday, April 5, 2019)]
[Notices]
[Page 13680]
[FR Doc No: 2019-06635]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4415-DR; Docket ID FEMA-2019-0001]

Mississippi; Amendment No. 2 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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

SUMMARY: This notice amends the notice of a major disaster declaration
for State of Mississippi (FEMA-4415-DR), dated February 14, 2019, and
related determinations.

DATES: This change occurred on March 28, 2019.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) hereby gives notice that pursuant to the authority vested in the
Administrator, under Executive Order 12148, as amended, Lai Sun Yee, of
FEMA is appointed to act as the Federal Coordinating Officer for this
disaster.
    This action terminates the appointment of Jon K. Huss as Federal
Coordinating Officer for this disaster.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Pete Gaynor,
Acting Administrator, Federal Emergency Management Agency.
[FR Doc. 2019-06635 Filed 4-4-19; 8:45 am]
 BILLING CODE 9111-23-P


	ENVIRONMENTAL PROTECTION AGENCY

	40 CFR Part 52 and 81

	[EPA-R03-OAR-2007-0606; FRL-         ]

Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania;  Redesignation of the Allentown-Bethlehem-Easton 8-Hour
Ozone Nonattainment Area to Attainment and Approval of the Area’s
Maintenance Plan and 2002 Base Year Inventory

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final rule.

SUMMARY:  EPA is approving a State Implementation Plan (SIP) revision
submitted by the Commonwealth of Pennsylvania.  The Pennsylvania
Department of Environmental Protection (PADEP) is requesting that the
Allentown-Bethlehem-Easton ozone nonattainment Area (or also referred to
here as the Allentown Area, or simply the Area) be redesignated as
attainment for the 8-hour ozone ambient air quality standard (NAAQS).
The Allentown-Bethlehem-Easton Area is composed of Carbon, Lehigh, and
Northampton Counties.  EPA is approving the ozone redesignation request
for the Allentown Area.  In conjunction with its redesignation request,
PADEP submitted a SIP revision consisting of a maintenance plan for the
Allentown Area that provides for continued attainment of the 8-hour
ozone NAAQS for at least 10 years after redesignation.  EPA is approving
the 8-hour maintenance plan.  PADEP also submitted a 2002 base year
inventory for the Allentown Area, which EPA is approving.  In addition,
EPA is approving the adequacy determination for the motor vehicle
emission budgets (MVEBs) that are identified in the
Allentown-Bethlehem-Easton Area maintenance plan for purposes of
transportation conformity, and is approving those MVEBs.  EPA is
approving the redesignation request, the maintenance plan, and the 2002
base year emissions inventory as revisions to the Pennsylvania SIP in
accordance with the requirements of the Clean Air Act (CAA).

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket
ID Number EPA-R03-OAR-2007-0606.  All documents in the docket are listed
in the www.regulations.gov website.  Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute.  Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form.  Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103.  Copies of the State
submittal are available at the Pennsylvania Department of Environment
Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:  Brian Rehn,<PHONE_NUMBER>, or by
e-mail at   HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>.

SUPPLEMENTARY INFORMATION:

I.  Background

On January 7, 2008 (73 FR 1162), EPA published a notice of proposed
rulemaking (NPR) for the Commonwealth of Pennsylvania.  The NPR proposed
approval of Pennsylvania’s redesignation request and maintenance plan
SIP revisions for the Allentown-Bethlehem-Easton Area that provide for
continued attainment of the 8-hour ozone NAAQS for at least 10 years
after redesignation.  The NPR also proposed approval of a 2002 base year
emissions inventory for the Area.  The formal SIP revisions were
submitted by PADEP on June 26, 2007, with technical correction SIP
revision concerning emissions inventory data submitted on August 9,
2007.  Other specific requirements of Pennsylvania’s redesignation
request and maintenance plan SIP revisions, and the rationale for
EPA’s proposed actions, are explained in the NPR and will not be
restated here.  No public comments were received on the NPR.

However, on December 22, 2006, the U.S. Court of Appeals for the
District of Columbia Circuit vacated EPA’s Phase 1 Implementation Rule
for the 8-hour Ozone Standard.  (69 FR 23591, April 30, 2004).  South
Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C.Cir. 2006).
 On June 8, 2007, in South Coast Air Quality Management Dist. v. EPA,
Docket No. 04-1201, in response to several petitions for rehearing, the
D.C. Circuit clarified that the Phase 1 Rule was vacated only with
regard to those parts of the rule that had been successfully challenged.
 Therefore, the Phase 1 Rule provisions related to classifications for
areas currently classified under subpart 2 of Title I, part D of the Act
as 8-hour nonattainment areas, the 8-hour attainment dates, and the
timing for emissions reductions needed for attainment of the 8-hour
ozone NAAQS remain effective.  The June 8 decision left intact the
Court’s rejection of EPA’s reasons for implementing the 8-hour
standard in certain nonattainment areas under subpart 1 in lieu of
subpart 2.  By limiting the vacatur, the Court let stand EPA’s
revocation of the 1-hour standard and those anti-backsliding provisions
of the Phase 1 Rule that had not been successfully challenged.  The June
8 decision reaffirmed the December 22, 2006 decision that EPA had
improperly failed to retain measures required for 1-hour nonattainment
areas under the anti-backsliding provisions of the regulations: (1)
nonattainment area New Source Review (NSR) requirements based on an
area’s 1-hour nonattainment classification; (2) Section 185 penalty
fees for the 1-hour severe or extreme nonattainment areas; and (3)
measures to be implemented pursuant to section 172(c)(9) or 182 (c)(9)
of the CAA, on the contingency of an area not making reasonable further
progress toward attainment of the 1-hour NAAQS, or for failure to attain
NAAQS.  In addition, the June 8 decision clarified that the Court’s
reference to conformity requirements for anti-backsliding purposes was
limited to requiring the continued use of the 1-hour motor vehicle
emissions budgets until 8-hour budgets were available for 8-hour
conformity determinations, which is already required under EPA’s
conformity regulations.  The Court thus clarified the 1-hour conformity
determinations are not required for anti-backsliding purposes.

For the reasons set forth in the proposal, EPA does not believe that the
Court’s rulings alter any requirements relevant to this redesignation
action so as to preclude redesignation, and do not prevent EPA from
finalizing this redesignation.  EPA believes that the Court’s December
22, 2006 and June 8, 2007 decisions impose no impediment to moving
forward with redesignation of this area to attainment, because even in
the light of the Court’s decisions, redesignation is appropriate under
the relevant redesignation provisions of the CAA and longstanding
policies regarding redesignation requests.

II.  Final Action

EPA is approving the Commonwealth of Pennsylvania’s redesignation
request, maintenance plan, and 2002 base year emissions inventory SIP
revisions because they satisfy the requirements for approval.  EPA has
evaluated Pennsylvania’s redesignation request that was submitted on
June 26, 2007 and determined that it meets the redesignation criteria
set forth in section 107(d)(3)(E) of the CAA.  EPA believes that the
redesignation request and monitoring data demonstrate that the
Allentown-Bethlehem-Easton Area has attained the 8-hour ozone standard.
The final approval of this redesignation request will change the
designation of the Area from nonattainment to attainment for the 8-hour
ozone standard.  EPA is approving the maintenance plan for the
Allentown-Bethlehem-Easton Area submitted on June 26, 2007 as a revision
to the Pennsylvania SIP.  EPA is also approving the MVEBs submitted by
PADEP in conjunction with its redesignation request.  In addition, EPA
is approving the 2002 base year emissions inventory submitted by PADEP
on June 26, 2007 (as well as a technical correction SIP including
omitted emissions inventory information submitted on August 9, 2007) as
a revision to the Pennsylvania SIP.

In this final rulemaking, EPA is notifying the public that we have found
that the MVEBs for nitrogen oxides (NOx) and volatile organic compounds
(VOC) in the Allentown-Bethlehem-Easton Area for the 8-hour ozone
maintenance plan are adequate and approved for conformity purposes. As a
result of our finding, the Area must use the MVEBs from the submitted
8-hour ozone maintenance plan for future conformity determinations.
There are two separate metropolitan planning organizations (MPOs)
responsible for transportation planning within the
Allentown-Bethlehem-Easton Area.  They are the Lehigh Valley
Transportation Study MPO (for Lehigh and Northampton Counties), and the
Northeastern Pennsylvania Alliance (for Carbon County).  The adequate
and approved MVEBs for each MPO within the Allentown-Bethlehem-Easton
Area are provided in the following tables:

Adequate and Approved Motor Vehicle Emissions Budgets for the Lehigh
Valley Transportation Study MPO (covering the Lehigh and Northampton
Counties Portion of the Allentown-Bethlehem-Easton Area) (2009 & 2018)

in Tons per Summer Day (TPSD)

Budget Year	VOC 	NOx

2009	20.6	28.9

2018	 12.4	12.4

Adequate and Approved Motor Vehicle Emissions Budgets for the
Northeastern Pennsylvania Alliance MPO (covering the Carbon County
Portion of the Allentown-Bethlehem-Easton Area) (2009 & 2018)

in Tons per Summer Day (TPSD)

Budget Year	VOC 	NOx

2009	3.4	5.9

2018	 2.3	3.0

The Allentown Area is subject to the CAA’s requirement for the basic
nonattainment areas until and unless it is redesignated to attainment.

III.  Statutory and Executive Order Reviews

A.   General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action
is not a "significant regulatory action" and therefore is not subject to
review by the Office of Management and Budget.  For this reason, this
action is also not subject to Executive Order 13211, "Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use" (66 FR 28355, May 22, 2001).  This action merely approves state law
as meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law.  Redesignation is an action that
affects the status of a geographical area and does not impose any new
regulatory requirements on sources.  Accordingly, the Administrator
certifies that this rule will not have a significant economic impact on
a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).  Because this rule approves pre-existing
requirements under state law and does not impose any additional
enforceable duty beyond that required by state law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Public Law 104-4).  This final rule also does not have tribal
implications because it will 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, as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Because this action affects the status of a geographical area, does not
impose any new requirements on sources, or allows the state to avoid
adopting or implementing other requirements, this action also does not
have Federalism implications because it does not have substantial direct
effects 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, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999).  This action
merely approves a state rule implementing a Federal requirement, and
does not alter the relationship or the distribution of power and
responsibilities established in the CAA.  This rule also is not subject
to Executive Order 13045 (Protection of Children from Environmental
Health Risks and Safety Risks( (62 FR 19885, April 23, 1997), because it
approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA(s role is to approve state choices,
provided that they meet the criteria of the CAA.  In this context, in
the absence of a prior existing requirement for the State to use
voluntary consensus standards (VCS), EPA has no authority to disapprove
a SIP submission for failure to use VCS.  It would thus be inconsistent
with applicable law for EPA, when it reviews a SIP submission, to use
VCS in place of a SIP submission that otherwise satisfies the provisions
of the CAA.  Redesignation is an action that affects the status of a
geographical area and does not impose any new requirements on sources.
Thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).

B.   Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States.  EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register.  This rule is not a
(major rule( as defined by 5 U.S.C. 804(2).

C.  Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of
this action must be filed in the United States Court of Appeals for the
appropriate circuit by [insert date 60 days from date of publication of
this document in the Federal Register].  Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.

This action, approving the redesignation of the
Allentown-Bethlehem-Easton Area to attainment for the 8-hour ozone
NAAQS, the associated maintenance plan, the 2002 base year emission
inventory, and the MVEBs identified in the maintenance plan, may not be
challenged later in proceedings to enforce its requirements.  (See
section 307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements, Volatile organic
compounds.

40 CFR Part 81

Air pollution Control, National Parks, Wilderness Areas.

_February 21, 2008
__________/s/______________

Dated:   		    				Donald S. Welsh,
		            Regional Administrator,

                                  					Region III.

40 CFR parts 52 and 81 are amended as follows:

PART 52 - [AMENDED]

1.  The authority citation for part 52 continues to read as follows:

               Authority:  42 U.S.C. 7401 et seq.

Subpart NN(Pennsylvania

2.  In ( 52.2020, the table in paragraph (e)(1) is amended by adding an
entry at the end of the table to read as follows:

( 52.2020  	Identification of plan.

* 	* 	* 	* 	*

(e) * * *

   (1)* * *

Name of non-regulatory SIP revision	Applicable geographic area	State
submittal date	EPA approval date	Additional explanation

*            *             *            *            *            *
     *

8-Hour Ozone Maintenance Plan and 2002 Base Year Emissions Inventory
Allentown-Bethlehem-Easton Area:  Carbon, Lehigh, and Northampton,
Counties 	06/26/07,

08/9/07

	[Insert Federal Register] publication date] [Insert page number where
the document begins]	Technical correction dated 08/9/07 addresses
omitted emissions inventory information from 06/26/07 submittals.

*	*	*	*	*

PART 81- [AMENDED]

The authority citation for Part 81 continues to read as follows:

               Authority: 42 U.S.C. 7401 et seq.

In §81.339, the table entitled “Pennsylvania- Ozone (8-Hour
Standard)” is amended by revising the entry for the
Allentown-Bethlehem-Easton, PA, Carbon County, Lehigh County,
Northampton County, to read as follows:

§81.339                    Pennsylvania

*          *          *          *          *

Pennsylvania – Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*           *           *           *           *           *
*

Allentown-Bethlehem-Easton,  PA:  Carbon County

Lehigh County

Northampton County	[Insert date 30 days from date of publication]
Attainment

*           *           *           *           *           *
*

aIncludes Indian County located in each county or area, except otherwise
noted.

1This date is June 15, 2004, unless otherwise noted.

*           *           *           *           *

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