[Federal Register Volume 84, Number 31 (Thursday, February 14, 2019)]
[Notices]
[Pages 4060-4063]
[FR Doc No: 2019-02354]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPP-2018-0010; FRL-9987-70]

Pesticide Emergency Exemptions; Agency Decisions and State and
Federal Agency Crisis Declarations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA has granted emergency exemptions under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) for use of
pesticides as listed in this notice. The exemptions were granted during
the period of April 1, 2018 to September 30, 2018 to control unforeseen
pest outbreaks.

FOR FURTHER INFORMATION CONTACT: Michael L. Goodis, Director
Registration Division (7505P), Office of Pesticide Programs,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
DC 20460-0001; main telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
     Crop production (NAICS code 111).
     Animal production (NAICS code 112).
     Food manufacturing (NAICS code 311).
     Pesticide manufacturing (NAICS code 32532).
    If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed at the end of
the emergency exemption.

B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification
(ID) number EPA-HQ-OPP-2018-0010, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory
Public Docket (OPP Docket) in the Environmental Protection Agency
Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334,
1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the OPP
Docket is<PHONE_NUMBER>. Please review the visitor instructions and
additional information about the docket available at http://www.epa.gov/dockets.

II. Background

    EPA has granted emergency exemptions to the following State and
Federal agencies. The emergency exemptions may take the following form:
Crisis, public health, quarantine, or specific. EPA has also listed
denied emergency exemption requests in this notice.
    Under FIFRA section 18 (7 U.S.C. 136p), EPA can authorize the use
of a pesticide when emergency conditions exist. Authorizations
(commonly called emergency exemptions) are granted to State and Federal
agencies and are of four types:
    1. A ``specific exemption'' authorizes use of a pesticide against
specific pests on a limited acreage in a particular State. Most
emergency exemptions are specific exemptions.
    2. ``Quarantine'' and ``public health'' exemptions are emergency
exemptions issued for quarantine or public health purposes. These are
rarely requested.
    3. A ``crisis exemption'' is initiated by a State or Federal agency
(and is confirmed by EPA) when there is insufficient time to request
and obtain EPA permission for use of a pesticide in an emergency.
    EPA may deny an emergency exemption: If the State or Federal agency
cannot demonstrate that an emergency exists, if the use poses
unacceptable risks to the environment, or if EPA cannot reach a
conclusion that the proposed pesticide use is likely to result in ``a
reasonable certainty of no harm'' to human health, including exposure
of residues of the pesticide to infants and children.
    If the emergency use of the pesticide on a food or feed commodity
would result in pesticide chemical residues, EPA establishes a time-
limited tolerance meeting the ``reasonable certainty of no harm
standard'' of the Federal Food, Drug, and Cosmetic Act (FFDCA).
    In this document: EPA identifies the State or Federal agency
granted the exemption, the type of exemption, the pesticide authorized
and the pests, the crop or use for which authorized, number of acres
(if applicable), and the duration of the exemption. EPA also gives the
Federal Register citation for the time-limited tolerance, if any.

III. Emergency Exemptions

A. U. S. States and Territories

Alabama
Department of Agriculture
    Specific exemption: EPA authorized the use of flupyradifurone on a
maximum of 500 acres of sweet sorghum (forage and syrup) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.679(b). Effective May 14,
2018 to November 15, 2018.
Arizona
Department of Agriculture
    Specific exemption: EPA authorized the use of sulfoxaflor on a
maximum of 26,000 acres of sorghum (grain and forage) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.668(b); Effective April 30,
2018 to November 30, 2018.
    EPA authorized the use of sulfoxaflor on a maximum of 150,000 acres
of cotton to control tarnished plant bug (Lygus spp.). A permanent
tolerance in connection with an earlier registration action has been
established in 40 CFR 180.668(a). Effective June 1, 2018 to October 31,
2018.
California
Department of Pesticide Regulation
    Specific exemption: EPA authorized the use of sulfoxaflor on a
maximum of 270,000 acres of cotton to control tarnished plant bug
(Lygus spp.). A permanent tolerance in connection with an earlier
registration action has been established in 40 CFR 180.668(a).
Effective May 15, 2018 to October 31, 2018.
    EPA authorized the use of methoxyfenozide on a maximum of 100,000
acres of rice to control armyworm (Mythimna unipuncta) and Western
Yellowstriped Armyworm (Spodoptera praefica). A time-limited tolerance
in connection with this action has been established in 40 CFR

180.544(b). Effective June 21, 2018 to October 4, 2018.
    EPA authorized the use of bifenthrin on a maximum of 18,000 acres
of pomegranates to control leaf-footed plant bugs. A time-limited
tolerance in connection with this action has been established in 40 CFR
180.442(b); Effective August 21, 2018 to December 31, 2018.
Delaware
Department of Agriculture
    Specific exemptions: EPA authorized the use of bifenthrin on a
maximum of 415 acres of apple, peach, and nectarine to control the
brown marmorated stinkbug. Time-limited tolerances in connection with
past actions were established in 40 CFR 180.442(b); Effective May 11,
2018 to October 15, 2018.
    EPA authorized the use of dinotefuran on a maximum of 415 acres of
pome and stone fruit to control the brown marmorated stinkbug. Time-
limited tolerances in connection with past actions were established in
40 CFR 180.603(b); Effective June 8, 2018 to October 15, 2018. The
request was granted because an emergency condition exists with
significant economic losses expected. Since this request proposed a use
for which an emergency exemption has been requested for 5 or more
previous years (and supported by the Interregional Research Project
Number 4 (IR-4) program) and a registration application or tolerance
petition has not been submitted to EPA, in accordance with the
requirements at 40 CFR 166.24, a notice of receipt published in the
Federal Register on May 7, 2018 (83 FR 20070) (FRL-9979-46) with the
public comment period closing on May 22, 2018.
Georgia
Department of Agriculture
    Specific exemption: EPA authorized the use of flupyradifurone on a
maximum of 50,000 acres of sweet sorghum (forage and syrup) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.679(b). Effective May 1, 2018
to December 1, 2018.
Illinois
Department of Agriculture
    Specific exemption: EPA authorized the use of sulfoxaflor on a
maximum of 23,000 acres of sorghum (grain and forage) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.668(b); Effective July 17,
2018 to November 30, 2018.
Indiana
Office of the Indiana State Chemist
    Specific exemption: EPA authorized the use of pyridate on a maximum
of 11,200 acres of mint for postemergence control of herbicide-
resistant annual weeds such as redroot pigweed, Armaranthus retroflexus
and other broadleaf weeds. Tolerances in connection with an earlier
registration action are established in 40 CFR 180.462(a). Effective May
18, 2018 to August 31, 2018.
Kentucky
Department of Agriculture
    Specific exemption: EPA authorized the use of flupyradifurone on a
maximum of 1,500 acres of sweet sorghum (forage and syrup) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.679(b). Effective May 8, 2018
to November 15, 2018.
Maryland
Department of Agriculture
    Specific exemptions: EPA authorized the use of bifenthrin on a
maximum of 3,570 acres of apple, peach, and nectarine to control the
brown marmorated stinkbug. Time-limited tolerances in connection with
past actions were established in 40 CFR 180.442(b); Effective May 11,
2018 to October 15, 2018.
    EPA authorized the use of dinotefuran on a maximum of 3,730 acres
of pome and stone fruit to control the brown marmorated stinkbug. Time-
limited tolerances in connection with past actions were established in
40 CFR 180.603(b); Effective June 8, 2018 to October 15, 2018. Since
this request proposed a use for which an emergency exemption has been
requested for 5 or more previous years (and supported by the IR-4
program) and a registration application or tolerance petition has not
been submitted to EPA, in accordance with the requirements at 40 CFR
166.24, a notice of receipt published in the Federal Register on May 7,
2018 (83 FR 20070) (FRL-9979-46) with the public comment period closing
on May 22, 2018.
Michigan
Department of Agriculture and Rural Development
    Specific exemption: EPA authorized the use of pyridate on a maximum
of 1,250 acres of mint for postemergence control of herbicide-resistant
annual weeds such as redroot pigweed, Armaranthus retroflexus and other
broadleaf weeds. Tolerances in connection with an earlier registration
action are established in 40 CFR 180.462(a). Effective May 18, 2018 to
August 31, 2018.
    EPA authorized the use of dinotefuran on a maximum of 35,280 acres
of pome and stone fruit to control the brown marmorated stinkbug. Time-
limited tolerances in connection with past actions were established in
40 CFR 180.603(b); Effective June 8, 2018 to October 15, 2018. Since
this request proposed a use for which an emergency exemption has been
requested for 5 or more previous years (and supported by the IR-4
program) and a registration application or tolerance petition has not
been submitted to EPA, in accordance with the requirements at 40 CFR
166.24, a notice of receipt published in the Federal Register on May 7,
2018 (83 FR 20070) (FRL-9979-46) with the public comment period closing
on May 22, 2018.
Montana
Department of Agriculture
    Specific exemption: EPA authorized the use of indaziflam in
rangeland, pastures, and conservation reserve programs on a maximum of
55,000 acres to control Medusahead and Ventenata. Time-limited
tolerances in connection with this action have been established in 40
CFR 180.653(b); Effective August 1, 2018 to August 1, 2019.
New Jersey
Department of Environmental Protection
    Specific exemptions: EPA authorized the use of dinotefuran on a
maximum of 8,100 acres of pome and stone fruit to control the brown
marmorated stinkbug. Time-limited tolerances in connection with past
actions were established in 40 CFR 180.603(b); Effective June 8, 2018
to October 15, 2018. Since this request proposed a use for which an
emergency exemption has been requested for 5 or more previous years
(and supported by the IR-4 program) and a registration application or
tolerance petition has not been submitted to EPA, in accordance with
the requirements at 40 CFR 166.24, a notice of receipt published in the
Federal Register on May 7, 2018 (83 FR 20070) (FRL-9979-46) with the
public comment period closing on May 22, 2018.
    EPA authorized the use of bifenthrin on a maximum of 8,200 acres of
apple, peach, and nectarine to control the brown marmorated stinkbug.
Time-limited tolerances in connection with

past actions were established in 40 CFR 180.442(b); Effective June 26,
2018 to October 15, 2018.
New Mexico
Department of Agriculture
    Specific exemption: EPA authorized the use of sulfoxaflor on a
maximum of 140,000 acres of sorghum (grain and forage) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.668(b); Effective May 10,
2018 to November 30, 2018.
New York
Department of Environmental Conservation
    Specific exemptions: EPA authorized the use of bifenthrin on a
maximum of 7,321 acres of apple, peach, and nectarine to control the
brown marmorated stinkbug. Time-limited tolerances in connection with
past actions were established in 40 CFR 180.442(b); Effective July 6,
2018 to October 15, 2018.
North Carolina
Department of Agriculture and Consumer Services
    Specific exemptions: EPA authorized the use of dinotefuran on a
maximum of 4,000 acres of pome and stone fruit to control the brown
marmorated stinkbug. Time-limited tolerances in connection with past
actions were established in 40 CFR 180.603(b); Effective June 8, 2018
to October 15, 2018. Since this request proposed a use for which an
emergency exemption has been requested for 5 or more previous years
(and supported by the IR-4 program) and a registration application or
tolerance petition has not been submitted to EPA, in accordance with
the requirements at 40 CFR 166.24, a notice of receipt published in the
Federal Register on May 7, 2018 (83 FR 20070) (FRL-9979-46) with the
public comment period closing on May 22, 2018.
    EPA authorized the use of sulfoxaflor on a maximum of 425,000 acres
of cotton to control tarnished plant bug (Lygus spp.). A permanent
tolerance in connection with an earlier registration action has been
established in 40 CFR 180.668(a). Effective June 15, 2018 to October
30, 2018.
    EPA authorized the use of bifenthrin on a maximum of 3,000 acres of
apple, peach, and nectarine to control the brown marmorated stinkbug.
Time-limited tolerances in connection with past actions were
established in 40 CFR 180.442(b); Effective June 26, 2018 to October
15, 2018.
    Specific exemption: EPA authorized the use of flupyradifurone on a
maximum of 750 acres of sweet sorghum (forage and syrup) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 166.20(b). Effective July 3, 2018
to November 15, 2018.
Oklahoma
Department of Agriculture
    Specific exemption: EPA authorized the use of sulfoxaflor on a
maximum of 300,000 acres of sorghum (grain and forage) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.668(b); Effective April 10,
2018 to November 30, 2018.
    EPA authorized the use of sulfoxaflor on a maximum of 700,000 acres
of cotton to control tarnished plant bug (Lygus spp.). A permanent
tolerance in connection with an earlier registration action has been
established in 40 CFR 180.668(a). Effective May 29, 2018 to October 30,
2018.
Oregon
Department of Agriculture
    Crisis exemption: EPA authorized the use of sulfoxaflor on a
maximum of 7,000 acres of alfalfa grown for seed to control lygus bugs;
Effective July 31, 2018 to August 14, 2018.
Pennsylvania
Department of Agriculture
    Specific exemptions: EPA authorized the use of bifenthrin on a
maximum of 24,974 acres of apple, peach, and nectarine to control the
brown marmorated stinkbug. Time-limited tolerances in connection with
past actions were established in 40 CFR 180.442(b); Effective May 11,
2018 to October 15, 2018.
    EPA authorized the use of dinotefuran on a maximum of 24,974 acres
of pome and stone fruit to control the brown marmorated stinkbug. Time-
limited tolerances in connection with past actions were established in
40 CFR 180.603(b); Effective June 8, 2018 to October 15, 2018. Since
this request proposed a use for which an emergency exemption has been
requested for 5 or more previous years (and supported by the IR-4
program) and a registration application or tolerance petition has not
been submitted to EPA, in accordance with the requirements at 40 CFR
166.24, a notice of receipt published in the Federal Register on May 7,
2018 (83 FR 20070) (FRL-9979-46) with the public comment period closing
on May 22, 2018.
South Carolina
Department of Pesticide Regulation
    Specific exemption: EPA authorized the use of sulfoxaflor on a
maximum of 19,600 acres of sorghum (grain and forage) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.668(b); Effective July 3,
2018 to November 30, 2018.
Texas
Department of Agriculture
    Specific exemption: EPA authorized the use of clothianidin on a
maximum of 4,000 acres of immature citrus trees to manage the
transmission of Huanglongbing (HLB) disease vectored by the Asian
citrus psyllid. A time-limited tolerance in connection with this action
was established in 40 CFR 180.668(b); Effective May 1, 2018 to May 1,
2019.
Utah
Department of Agriculture
    Specific exemption: EPA authorized the use of indaziflam in
rangeland, pastures, and conservation reserve programs on a maximum of
10,000 acres to control Medusahead and Ventenata. Time-limited
tolerances in connection with this action have been established in 40
CFR 180.653(b); Effective June 10, 2018 to June 9, 2019.
Virginia
Department of Agriculture and Consumer Services
    Specific exemptions: EPA authorized the use of sulfoxaflor on a
maximum of 16,591 acres of sorghum (grain and forage) to control
sugarcane aphid. A time-limited tolerance in connection with this
action has been established in 40 CFR 180.668(b); Effective April 4,
2018 to November 30, 2018.
    EPA authorized the use of bifenthrin on a maximum of 29,000 acres
of apple, peach, and nectarine to control the brown marmorated
stinkbug. Time-limited tolerances in connection with past actions were
established in 40 CFR 180.442(b); Effective May 11, 2018 to October 15,
2018.
    EPA authorized the use of dinotefuran on a maximum of 29,000 acres
of pome and stone fruit to control the brown marmorated stinkbug. Time-
limited tolerances in connection with past actions were established in
40 CFR 180.603(b); Effective June 8, 2018 to October 15, 2018. Since
this request proposed a use for which an emergency exemption has been
requested for 5 or more previous years (and supported by the IR-4
program) and a registration

application or tolerance petition has not been submitted to EPA, in
accordance with the requirements at 40 CFR 166.24, a notice of receipt
published in the Federal Register on May 7, 2018 (83 FR 20070) (FRL-
9979-46) with the public comment period closing on May 22, 2018.
Washington
Department of Agriculture
    Specific exemption: EPA authorized the use of lambda-cyhalothrin on
a maximum of 7,000 acres of asparagus to control the European asparagus
aphid. Due to the long (120-day) pre-harvest interval required and no
detectable residues expected, time-limited tolerances were not
required; Effective July 20, 2018 to October 30, 2018. The request was
granted because an emergency condition exists with significant economic
losses expected. Since this request proposed a use for which an
emergency exemption has been requested for 5 or more previous years
(and supported by the IR-4 program) and a registration application or
tolerance petition has not been submitted to EPA, in accordance with
the requirements at 40 CFR 166.24, a notice of receipt published in the
Federal Register on June 28, 2018 (83 FR 30443) (FRL-9979-46) with the
public comment period closing on July 13, 2018.
Wisconsin
Department of Agriculture
    Specific exemption: EPA authorized the use of pyridate on a maximum
of 3,100 acres of mint for postemergence control of herbicide-resistant
annual weeds such as redroot pigweed, Armaranthus retroflexus and other
broadleaf weeds. Tolerances in connection with an earlier registration
action are established in 40 CFR 180.462(a). Effective May 18, 2018 to
August 31, 2018.
West Virginia
Department of Agriculture
    Specific exemptions: EPA authorized the use of dinotefuran on a
maximum of 5,986 acres of pome and stone fruit to control the brown
marmorated stinkbug. Time-limited tolerances in connection with past
actions were established in 40 CFR 180.603(b); Effective June 8, 2018
to October 15, 2018. Since this request proposed a use for which an
emergency exemption has been requested for 5 or more previous years
(and supported by the IR-4 program) and a registration application or
tolerance petition has not been submitted to EPA, in accordance with
the requirements at 40 CFR 166.24, a notice of receipt published in the
Federal Register on May 7, 2018 (83 FR 20070) (FRL-9979-46) with the
public comment period closing on May 22, 2018.
    EPA authorized the use of bifenthrin on a maximum of 5,986 acres of
apple, peach, and nectarine to control the brown marmorated stinkbug.
Time-limited tolerances in connection with past actions were
established in 40 CFR 180.442(b); Effective June 26, 2018 to October
15, 2018.
Wyoming
Department of Agriculture
    Specific exemption: EPA authorized the use of indaziflam on a
maximum of 300,000 acres of rangeland, pastures, and areas subject to
the conservation reserve program to control Medusahead and Ventenata.
Time-limited tolerances in connection with this action have been
established in 40 CFR 180.653(b); Effective September 14, 2019 to
September 14, 2019.

B. Federal Departments and Agencies

Agriculture Department
Animal and Plant Health Inspector Service
    Quarantine Exemptions: EPA authorized the use of acetic acid on
nonporous surfaces to decontaminate from foot and mouth disease virus;
Effective April 19, 2018 to April 19, 2021.
    EPA authorized the use of sodium hypochlorite on porous and
nonporous surfaces to decontaminate from viruses of foot and mouth
disease, classical swine fever, and African swine fever; Effective
September 17, 2018 to September 17, 2021.
    EPA authorized the use of sodium hydroxide on nonporous surfaces to
control prions; Effective September 25, 2018 to September 25, 2021.
    EPA authorized the use of sodium hypochlorite on nonporous surfaces
to control prions; Effective September 25, 2018 to September 25, 2021.
National Aeronautics and Space Administration
    Specific exemption. EPA authorized use of ortho-phthalaldehyde,
immobilized to a porous resin, to treat the International Space Station
(ISS) internal active thermal control system (IATCS) coolant for
control of aerobic and microaerophilic water bacteria and unidentified
gram-negative rods. Effective May 31, 2018 to May 31, 2019. This
request was granted because without this use, the ISS would have no
means of controlling microorganisms in the IATCS because there are no
registered alternatives available which meet the required criteria.
Since this request proposed a use of a new (unregistered) chemical, in
accordance with the requirements at 40 CFR 166.24, a notice of receipt
published in the Federal Register on June 14, 2018 (83 FR 27766) (FRL-
9978-55), with the public comment period eliminated since the time
available for a decision on the application required it.

    Authority: 7 U.S.C. 136 et seq.

    Dated: December 21, 2018.
Donna S. Davis,
Acting Director, Registration Division, Office of Pesticide Programs.
[FR Doc. 2019-02354 Filed 2-13-19; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 242 (Tuesday, December 19, 2023)]
[Notices]
[Pages 87832-87836]
[FR Doc No: 2023-27807]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99165; File No. SR-NYSE-2023-48]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Amend the Connectivity Fee Schedule

December 13, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on December 11, 2023, 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 Substance
of the Proposed Rule Change

    The Exchange proposes to amend the Connectivity Fee Schedule (the
``Fee Schedule'') to add circuits provided by Fixed Income and Data
Services (``FIDS'') for connectivity into and out of the data center in
Mahwah, New Jersey (the ``MDC''). The proposed rule change is available
on the Exchange's website 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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend the Connectivity Fee Schedule (the
``Fee Schedule'') to add circuits provided by Fixed Income and Data
Services (``FIDS'') \4\ for connectivity into and out of the data
center in Mahwah, New Jersey (the ``MDC'').
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    \4\ Through its FIDS business (previously ICE Data Services),
Intercontinental Exchange, Inc. (``ICE'') operates the MDC. The
Exchange is an indirect subsidiary of ICE and is an affiliate of
NYSE American LLC, NYSE Arca, Inc., NYSE Chicago, Inc., and NYSE
National, Inc. (together, the ``Affiliate SROs''). Each Affiliate
SRO has submitted substantially the same proposed rule change. See
SR-NYSEAMER-2023-65, SR-NYSEARCA-2023-83, SR-NYSECHX-2023-24, and
SR-NYSENAT-2023-29.
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    As background, market participants that request to receive
colocation services directly from the Exchange (``Users'') require
wired circuits \5\ to connect into and out of the MDC. A User's
equipment in the MDC's colocation hall connects to a circuit leading
out of the MDC, which connects to the User's equipment in their back
office or another data center.
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    \5\ In addition to wired fiber optic connections, Users may use
FIDS or third-party wireless connections to the MDC. In such a case,
the portion of the connection closest to the MDC is wired. Other
than Telecoms, Users are the only FIDS customers with equipment
physically located in the MDC.
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    Before 2013, all such circuits were provided by ICE's predecessor,
NYSE Euronext. In response to customer demand for more connectivity
options, in 2013, the MDC opened two ``meet-me-rooms'' to
telecommunications service providers (``Telecoms''),\6\ to enable
Telecoms to offer circuits into the MDC in competition with NYSE
Euronext. Currently, 16 Telecoms operate in the meet-me-rooms and
provide circuit options to Users requiring connectivity into and out of
the MDC. As of June 1, 2023, more than 95% of the circuits for which
Users contracted were supplied by Telecoms, and all but two of the
Users that used FIDS circuits as of that date also connected to Telecom
circuits in the MMRs.
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    \6\ In this filing, telecommunication service providers that
choose to provide circuits at the MDC are referred to as
``Telecoms.'' Telecoms are licensed by the Federal Communications
Commission (``FCC'') and are not required to be, or be affiliated
with, a member of the Exchange or an Affiliate SRO.
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    The Exchange proposes to add several circuits provided by FIDS to
the Fee Schedule. Specifically, the Exchange proposes to amend the Fee
Schedule to add two different types of FIDS circuits, each available in
three different sizes. Because FIDS is not a telecommunications
provider, FIDS would purchase circuits from telecommunications
providers, with portions allocated and sold to Users.
    First, the Exchange proposes to amend the Fee Schedule to add
``Optic Access'' circuits supplied by FIDS. Users can use an Optic
Access circuit to connect between the MDC and the FIDS access centers
at the following five third-party owned data centers: (1) 111 Eighth
Avenue, New York, NY; (2) 32 Avenue of the Americas, New York, NY; (3)
165 Halsey, Newark, NJ; (4) Secaucus, NJ (the ``Secaucus Access
Center''); and (5) Carteret, NJ (the ``Carteret Access Center''). Optic
Access circuits are available in 1 Gb, 10 Gb, and 40 Gb sizes.
    Second, the Exchange proposes to amend the Fee Schedule to add
lower-latency ``Optic Low Latency'' circuits supplied by FIDS that
Users can use to connect between the MDC and FIDS's Secaucus Access
Center or Carteret Access Center. Optic Low Latency circuits are
available in 1 Gb, 10 Gb, and 40 Gb sizes.
    The Exchange proposes to add the following chart to the Fee
Schedule, under the new heading ``E. FIDS Circuits'':

------------------------------------------------------------------------
            Type of service                            Fees
------------------------------------------------------------------------
Optic Access Circuit--1 Gb.............  $1,500 initial charge plus $650
                                          monthly charge.
Optic Access Circuit--10 Gb............  $5,000 initial charge plus
                                          $1,900 monthly charge.
Optic Access Circuit--40 Gb............  $5,000 initial charge plus
                                          $4,000 monthly charge.
Optic Low Latency Circuit--1 Gb........  $1,500 initial charge plus
                                          $2,750 monthly charge.
Optic Low Latency Circuit--10 Gb.......  $5,000 initial charge plus
                                          $3,950 monthly charge.
Optic Low Latency Circuit--40 Gb.......  $5,000 initial charge plus
                                          $8,250 monthly charge.
------------------------------------------------------------------------

Application and Impact of the Proposed Changes
    The proposed change is not targeted at, or expected to be limited
in applicability to, a specific segment of market participant. The FIDS
circuits would be available for purchase for any potential User
requiring a circuit between the MDC and the FIDS access centers at the
third-party owned data centers listed above. The proposed changes do
not apply differently to distinct types or sizes of customers. Rather,
they apply to all customers equally.
    Use of the services proposed in this filing are completely
voluntary and available to all market participants on a non-
discriminatory basis.
    The proposed changes are not otherwise intended to address any
other issues relating to services related to the MDC and/or related
fees, and the

Exchange is not aware of any problems that market participants would
have in complying with the proposed change.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Act,\7\ in general, and furthers the
objectives of Section 6(b)(5) of the Act,\8\ in particular, because it
is designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in 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
and because it is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. The Exchange further believes
that the proposed rule change is consistent with Section 6(b)(4) of the
Act,\9\ because it provides for the equitable allocation of reasonable
dues, fees, and other charges among its members and issuers and other
persons using its facilities and does not unfairly discriminate between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
    \9\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

The Proposed Change Is Reasonable
    The Exchange believes that the proposed rule change is reasonable.
In considering the reasonableness of proposed services and fees, the
Commission's market-based test considers ``whether the exchange was
subject to significant competitive forces in setting the terms of its
proposal . . . , including the level of any fees.'' \10\ If the
Exchange meets that burden, ``the Commission will find that its
proposal is consistent with the Act unless `there is a substantial
countervailing basis to find that the terms' of the proposal violate
the Act or the rules thereunder.'' \11\ Here, the Exchange is subject
to significant competitive forces in setting the terms on which it
offers its proposal, in particular because substantially similar
substitutes are available, and the third-party vendors are not at a
competitive disadvantage created by the Exchange.
---------------------------------------------------------------------------

    \10\ Securities Exchange Act Release No. 90209 (October 15,
2020), 85 FR 67044, 67049 (October 21, 2020) (Order Granting
Accelerated Approval to Establish a Wireless Fee Schedule Setting
Forth Available Wireless Bandwidth Connections and Wireless Market
Data Connections) (SR-NYSE-2020-05, SR-NYSEAMER-2020-05, SR-
NYSEArca-2020-08, SR-NYSECHX-2020-02, SR-NYSENAT-2020-03, SR-NYSE-
2020-11, SR-NYSEAMER-2020-10, SR-NYSEArca-2020-15, SR-NYSECHX-2020-
05, SR-NYSENAT-2020-08) (``Wireless Approval Order''), citing
Securities Exchange Act Release No. 59039 (December 2, 2008), 73 FR
74770, 74781 (December 9, 2008) (``2008 ArcaBook Approval Order'').
See NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010).
    \11\ Wireless Approval Order, supra note 10, at 67049, citing
2008 ArcaBook Approval Order, supra note 10, at 74781.
---------------------------------------------------------------------------

    The proposed FIDS circuits would compete with circuits currently
offered by the 16 Telecoms operating in the meet-me-rooms at the MDC.
The Telecom circuits are reasonable substitutes for the FIDS circuits.
The Commission has recognized that products do not need to be identical
or equivalent to be considered substitutable; it is sufficient that
they be substantially similar.\12\ The circuits provided by FIDS and by
the Telecoms all perform the same function: connecting into and out of
the MDC. The providers of these circuits design them to perform with
particular combinations of latency, bandwidth, price, termination
point, and other factors that they believe will attract Users, and
Users choose from among these competing services on the basis of their
business needs.
---------------------------------------------------------------------------

    \12\ See 2008 ArcaBook Approval Order, supra note 10, at 74789
and note 295 (recognizing that products need not be identical to be
substitutable).
---------------------------------------------------------------------------

    The proposed FIDS circuits are sufficiently similar substitutes to
the circuits offered by the 16 Telecoms even though the proposed FIDS
circuits would all terminate in one of the five data centers mentioned
above, while circuits from the 16 Telecoms could terminate in those
locations or additional locations. While neither the Exchange nor FIDS
knows the end point of any particular Telecom circuit, the Exchange
understands that the Telecoms can offer circuits terminating in any
location, including the five data center locations where the FIDS
circuits would terminate. In addition, Users can choose to configure
their pathway leading out of colocation in the way that best suits
their business needs, which may include connecting to the User's
equipment at one of the five data center locations that serve as
termination points for the proposed FIDS circuits, or connecting first
to one of those five data centers with a FIDS- or Telecom-supplied
circuit and then further connecting to another remote location using a
telecommunication provider-supplied circuit.
    The proposed FIDS circuits do not have a distance or latency
advantage over the Telecoms' circuits within the MDC. FIDS has
normalized (a) the distance between the meet-me-rooms and the
colocation halls and (b) the distance between the rooms where the FIDS
circuits are located and the colocation halls. As a result, a User
choosing whether to use the proposed FIDS circuits or Telecom circuits
does not face any difference in the distances or latency within the
MDC.
    The Exchange also believes that the proposed FIDS circuits do not
have any latency or bandwidth advantage over the Telecoms' circuits as
a whole outside of the MDC. FIDS would purchase the proposed FIDS
circuits from third-party telecommunications providers and would
allocate and resell portions of them to Users. The Exchange believes
that the Telecoms operating in the meet-me-rooms offer circuits with a
variety of latency and bandwidth specifications, some of which may
exceed the specifications of the proposed FIDS circuits.\13\ The
Exchange believes that Users consider these latency and bandwidth
factors--as well as other factors, such as price and termination
point--in determining which circuit offerings will best serve their
business needs.\14\
---------------------------------------------------------------------------

    \13\ The specifications of FIDS's competitors' circuits are not
publicly known. The Exchange understands that FIDS has gleaned any
information it has about its competitors through anecdotal
communications, by observing customers' purchasing choices in the
competitive market, and from its own experience as a purchaser of
circuits from telecommunications providers to build FIDS's own
networks.
    \14\ The fact that the FIDS circuits do not have an advantage is
reflected by the fact that Users choose to use Telecom circuits for
the vast majority of their circuit needs. Whereas before 2013, NYSE
Euronext provided 100% of such circuits, today more than 95% of the
circuits that Users have contracted for are supplied by third-party
Telecoms, with FIDS supplying less than 5%.
---------------------------------------------------------------------------

    In sum, the Exchange does not believe that there is anything about
the proposed FIDS circuits that would make the Telecoms' circuits
inadequate substitutes.
    Nor does the Exchange have a meaningful competitive advantage over
the Telecoms by virtue of the fact that it owns and operates the MDC's
meet-me-rooms. The Exchange understands that Telecoms choose to pay
fees to the Exchange for the opportunity to install equipment in the
MDC's meet-me-rooms because of the financial benefits those Telecoms
can accrue by selling circuits to Users. It is therefore in the
Exchange's best interest to set fees at the MDC--including both the
meet-me-room fees that Telecoms pay and the FIDS circuit fees that
Users would pay--at a level that encourages market

participants, including Telecoms, to maximize their use of the MDC.\15\
---------------------------------------------------------------------------

    \15\ See Securities Exchange Act Release No. 97998 (July 26,
2023), 88 FR 50238 (August 1, 2023) (SR-NYSE-2023-27) (``MMR
Notice'').
---------------------------------------------------------------------------

    Setting the FIDS circuit fees at a reasonable level makes it more
likely that Users will connect into and out of the MDC. Competitive
rates for circuits, whether FIDS circuits or Telecom circuits, help
draw more Users and Hosted Customers \16\ into the MDC, which directly
benefits the Exchange by increasing the customer base to whom the
Exchange can sell its colocation services (including cabinets, power,
ports, and connectivity to many third-party data feeds) and encouraging
greater participation on the Exchange. In other words, by setting the
fees for FIDS circuits at a level attractive to Users, the Exchange
spurs demand for all of the services it sells at the MDC.
---------------------------------------------------------------------------

    \16\ ``Hosting'' is a service offered by a User to another
entity in the User's space within the MDC. The Exchange allows Users
to act as Hosting Users for a monthly fee. See Securities Exchange
Act Release No. 76008 (September 29, 2015), 80 FR 60190 (October 5,
2015) (SR-NYSE-2015-40). Hosting Users' customers are referred to as
``Hosted Customers.''
---------------------------------------------------------------------------

    If the Exchange were to set the price of the FIDS circuits too
high, Users would likely respond by choosing one of the many
alternative options offered by the 16 Telecoms. Conversely, if the
Exchange were to offer the FIDS circuits at prices aimed at
undercutting comparable Telecom circuits, the Telecoms might reassess
whether it makes financial sense for them to continue to participate in
the MDC's meet-me-rooms. Their departure might negatively impact User
participation in colocation and on the Exchange. As a result, the
Exchange is not motivated to undercut the prices of Telecom circuits.
    For these reasons, the proposed change is reasonable.
The Proposed Change Is an Equitable Allocation of Fees and Credits
    The Exchange believes that its proposal equitably allocates its
fees among market participants. The Exchange believes that the proposed
change is equitable because it would not apply differently to distinct
types or sizes of market participants. Rather, it would apply to all
market participants equally.
    In addition, the Exchange believes that the proposal is equitable
because only market participants that voluntarily select to receive the
proposed FIDS circuits would be charged for them. The proposed FIDS
circuits are available to all market participants on an equal basis,
and all market participants that voluntarily choose to purchase a FIDS
circuit are charged the same amount for that circuit as all other
market participants purchasing that type of FIDS circuit.
    Moreover, any telecommunications service provider licensed by the
FCC is eligible to be a Telecom operating in the MRR, irrespective of
size and type. The Exchange's MMR services are available to all
Telecoms on an equal basis at standardized pricing.
The Proposed Change Is Not Unfairly Discriminatory
    The Exchange believes its proposal is not unfairly discriminatory.
The proposed change does not apply differently to distinct types or
sizes of market participants. Rather, it applies to all market
participants equally. The purchase of any proposed service is
completely voluntary and the Fee Schedule will be applied uniformly to
all market participants.
    In addition, the Exchange believes that the proposal is not
unfairly discriminatory because only market participants that
voluntarily select to receive the proposed FIDS circuits would be
charged for them. The proposed FIDS circuits are available to all
market participants on an equal basis, and all market participants that
voluntarily choose to purchase a FIDS circuit are charged the same
amount for that circuit as all other market participants purchasing
that type of FIDS circuit.
    For these reasons, the Exchange believes that the proposal is
consistent with the Act.

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

    The Exchange believes that the proposal will not impose any burden
on competition that is not necessary or appropriate in furtherance of
the purposes of Section 6(b)(8) of the Act.\17\
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    The proposed change would not impose a burden on competition among
national securities exchanges or among members of the Exchange. The
proposed change would enhance competition in the market for circuits
transmitting data into and out of colocation at the MDC by adding FIDS
as the 17th provider of such circuits, in addition to the 16 Telecoms
that also sell such circuits to Users. The proposed FIDS circuits do
not have any latency, bandwidth, or other advantage over the Telecoms'
circuits. The proposal would not burden competition in the sale of such
circuits, but rather, enhance it by providing Users with an additional
choice for their circuit needs.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \18\ and Rule 19b-4(f)(6) thereunder.\19\
Because the proposed rule change does not: (i) significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \20\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-NYSE-2023-48 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-2023-48. 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 website (https://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 website 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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-NYSE-2023-48 and should be
submitted on or before January 9, 2024.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
---------------------------------------------------------------------------

    \21\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-27807 Filed 12-18-23; 8:45 am]
BILLING CODE 8011-01-P