[Federal Register: May 24, 2007 (Volume 72, Number 100)]
[Notices]
[Page 29151-29152]
[DOCID:fr24my07-63]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

May 16, 2007.
    Take notice that the Commission received the following electric
corporate filings:

    Docket Numbers: EC07-90-000.
    Applicants: Orange and Rockland Utilities, Inc.
    Description: Orange and Rockland Utilities submit an application
under section 203 for order authorizing the purchase or acquisition of
short-term debt of Rockland Electric Co not in excess of $30 million at
any one time outstanding.
    Filed Date: 5/14/2007.
    Accession Number: 20070514-5017.
    Comment Date: 5 p.m. Eastern Time on Monday, June 4, 2007.

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER00-2187-002.
    Applicants: CMS Distributed Power, L.L.C.
    Description: CMS Distributed Power LLC submits a Notice of Non-
Material Change in Status.
    Filed Date: 5/11/2007.
    Accession Number: 20070515-0330.
    Comment Date: 5 p.m. Eastern Time on Friday, June 1, 2007.

    Docket Numbers: ER01-2159-000.
    Applicants: Hermiston Generating Company, L.P.
    Description: Hermiston Generating Company, LP advises FERC that it
had no purchasers (as defined under 18 CFR, Section 46.3) for power in
2006.
    Filed Date: 5/8/2007.
    Accession Number: 20070514-0088.
    Comment Date: 5 p.m. Eastern Time on Tuesday, May 29, 2007.

    Docket Numbers: ER04-157-020; ER04-714-010.
    Applicants: Central Maine Power Company; Bangor Hydro-Electric
Company.
    Description: Central Maine Power Company submits a regional Refund
Report.
    Filed Date: 5/8/2007.
    Accession Number: 20070507-5107.
    Comment Date: 5 p.m. Eastern Time on Tuesday, May 29, 2007.

    Docket Numbers: ER04-708-003.
    Applicants: Horsehead Corp.
    Description: Notification of Change in Status.
    Filed Date: 5/14/2007.
    Accession Number: 20070514-5113.
    Comment Date: 5 p.m. Eastern Time on Monday, June 4, 2007.

    Docket Numbers: ER04-1003-007; ER04-1007-007.
    Applicants: American Electric Power Service Corp.
    Description: American Electric Power Service Corp submits an
amendment to its filing in compliance with FERC's 4/18/07 Order.
    Filed Date: 5/11/2007.
    Accession Number: 20070515-0332.
    Comment Date: 5 p.m. Eastern Time on Friday, June 1, 2007.

    Docket Numbers: ER05-522-004; ER06-1382-004.
    Applicants: Bluegrass Generation Company, L.L.C.
    Description: Electric Refund Compliance Report.
    Filed Date: 5/15/2007.
    Accession Number: 20070515-5051.
    Comment Date: 5 p.m. Eastern Time on Tuesday, June 5, 2007.

    Docket Numbers: ER06-278-006.
    Applicants: Nevada Hydro Company, Inc.
    Description: Comments of California Independent System Operator
Corp in Response to Nov. 17, 2006 Order on rate Request.
    Filed Date: 5/1/2007.
    Accession Number: 20070501-5066.
    Comment Date: 5 p.m. Eastern Time on Tuesday, May 22, 2007.

    Docket Numbers: ER07-614-001.
    Applicants: American Transmission Systems, Inc.
    Description: American Transmission Systems, Inc's response to
FERC's deficiency letter dated 4/12/07.
    Filed Date: 5/11/2007.
    Accession Number: 20070515-0337.
    Comment Date: 5 p.m. Eastern Time on Friday, June 1, 2007.

    Docket Numbers: ER07-888-000.
    Applicants: PJM Interconnection, L.L.C.
    Description: PJM Interconnection, LLC submits amendments to
Schedule 12 of Amended and Restated Operating Agreement etc.
    Filed Date: 5/11/2007.
    Accession Number: 20070515-0336.
    Comment Date: 5 p.m. Eastern Time on Friday, June 1, 2007.

    Docket Numbers: ER07-889-000.
    Applicants: Westar Energy, Inc.
    Description: Westar Energy, Inc submits the Wholesale Electric
Energy and Capacity Agreement with the City of Alma, Kansas and request
for waiver.
    Filed Date: 5/11/2007.
    Accession Number: 20070515-0335.
    Comment Date: 5 p.m. Eastern Time on Friday, June 1, 2007.

    Docket Numbers: ER07-890-000.
    Applicants: Waterbury Generation LLC.
    Description: Waterbury Generation LLC request for Expedited
Consideration and Temporary Waiver of Qualification Process
Reimbursement Deposit Due Date under Market Rule 1.
    Filed Date: 5/14/2007.
    Accession Number: 20070515-0334.
    Comment Date: 5 p.m. Eastern Time on Monday, June 4, 2007.

    Docket Numbers: ER07-891-000.
    Applicants: PJM Interconnection L.L.C.
    Description: PJM Interconnection, LLC submits revisions to the
chart in Schedule 2 to adjust downward the zonal revenue requirements
of Reliant Energy Electric Solutions, LLC.
    Filed Date: 5/14/2007.
    Accession Number: 20070515-0333.
    Comment Date: 5 p.m. Eastern Time on Monday, June 4, 2007.

    Docket Numbers: ER07-893-000.
    Applicants: Cleco Power LLC.
    Description: Cleco Power LLC submits amendment to its Open Access
Transmission Tariff to reflect the current list of point-to-point
transmission customers.
    Filed Date: 5/10/2007.
    Accession Number: 20070514-0093.
    Comment Date: 5 p.m. Eastern Time on Thursday, May 31, 2007.

    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to be taken, but will not serve to
make protestants parties to the proceeding. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,

interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov.
 To facilitate electronic service, persons with Internet

access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed dockets(s). For assistance
with any FERC Online service, please e-mail<EMAIL_ADDRESS>
or call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-9988 Filed 5-23-07; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 140 (Monday, July 26, 2021)]
[Notices]
[Pages 40097-40101]
[FR Doc No: 2021-15812]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92445; File No. SR-CboeEDGX-2021-033]

Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Fee Schedule

July 20, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on July 13, 2021, Cboe EDGX Exchange, Inc. (``Exchange'' or
``EDGX'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. 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\ 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

    Cboe EDGX Exchange, Inc. (the ``Exchange'' or ``EDGX'' or ``EDGX
Equities'') proposes to amend its Fee Schedule. The text of the
proposed rule change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://markets.cboe.com/us/options/regulation/rule_filings/edgx/), at the Exchange's Office of the Secretary, 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 Exchange 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 these 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 aspects 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 amend its Fee Schedule applicable to its
equities trading platform (``EDGX Equities'') to (1) modify the
standard rate for securities priced at or above $1.00 that remove
liquidity, (2) remove certain fee codes in connection with
internalization, (3) adopt a new tier under each of the Growth Tiers,
the Non-Displayed Step-Up Volume Tier, and the Remove Volume Tiers,
and, as a result, define the term ``Step-Up ADAV'', and (4) eliminate a
Remove Volume Tier and a Retail Volume Tier.\3\
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    \3\ The Exchange initially filed the proposed fee changes July
1, 2021 (SR-CboeEDGX-2021-031). On July 13, 2021 the Exchange
withdrew that filing and submitted this proposal.
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    The Exchange first notes that it operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. More specifically, the
Exchange is only one of 16 registered equities exchanges, as well as a
number of alternative trading systems and other off-exchange venues
that do not have similar self-regulatory responsibilities under the
Exchange Act, to which market participants may direct their order flow.
Based on publicly available information,\4\ no single registered
equities exchange has more than 16% of the market share. Thus, in such
a low-concentrated and highly competitive market, no single equities
exchange possesses significant pricing power in the execution of order
flow. The Exchange in particular operates a ``Maker-Taker'' model
whereby it pays rebates to members that add liquidity and assesses fees
to those that remove liquidity. The Exchange's Fee Schedule sets forth
the standard rebates and rates applied per share for orders that
provide and remove liquidity, respectively. Currently, for orders in
securities priced at or above $1.00, the Exchange provides a standard
rebate of $0.00160 per share for orders that add liquidity and assesses
a fee of $0.00280 per share for orders that remove liquidity. For
orders in securities priced below $1.00, the Exchange provides a
standard rebate of $0.00009 per share for orders that add liquidity and
assesses a fee of 0.30% of total dollar value for orders that remove
liquidity. Additionally, in response to the competitive environment,
the Exchange also offers tiered pricing which provides Members
opportunities to qualify for higher rebates or reduced fees where
certain volume criteria and thresholds are met. Tiered pricing provides
an incremental incentive for Members to strive for higher tier levels,
which provides increasingly higher benefits or discounts for satisfying
increasingly more stringent criteria.
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    \4\ See Cboe Global Markets, U.S. Equities Market Volume
Summary, Month-to-Date (June 23, 2021), available at https://markets.cboe.com/us/equities/market_statistics/.
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Standard Rate: Securities at or Above $1.00 That Remove Liquidity
    As stated above, the Exchange currently assesses a standard rate of
$0.00280 per share for orders that remove liquidity in securities
priced at $1.00 or more. The Exchange proposes to amend the standard
rate for orders that remove liquidity in securities priced at $1.00 or
more from a fee of $0.00280 per share to $0.00285 per share and
reflects this change in the Fee Codes and Associated Fee where
applicable (i.e., corresponding to

standard fee codes N, W, 6, BB and ZR). The Exchange notes that the
proposed standard rate is in line with, yet also competitive with,
rates assessed by other equities exchanges on orders in securities
priced at $1.00 or more.\5\
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    \5\ See Nasdaq Pricing 7, Section 118(a)(1), which, for example,
assesses a charge of $0.0030 for member orders that execute against
resting midpoint liquidity, and that that execute in the Nasdaq
Market Center generally, in securities priced at $1.00 or more; and
NYSE American Equities Price List, NYSE American Trading Fees and
Credits, Section I.A.1.a, Standard Rates, which assesses a standard
rate of $0.0030 per share (unless member adds ADV of at least 10,000
shares) for orders in securities priced at or above $1 that remove
liquidity.
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Eliminate Internalization Fee Codes
    The Fee Codes and Associate Fees section of the Fee Schedule lists
all available fee codes for orders on EDGX. In particular, current fee
code EA is appended to internalization \6\ orders that add displayed
liquidity and current fee code ER is appended to internalization orders
that remove displayed liquidity. Orders that yield fee code EA and ER
are assessed a fee of $0.0005 per share in securities priced at or
above $1.00 and 0.15% of the dollar value in securities priced below
$1.00.\7\ The Exchange now proposes to eliminate these fee codes. The
Exchange notes that a majority of other equities exchanges do not
assess different rates for internalization orders, and therefore, in
order to remain competitive with rates assessed on orders that add or
remove liquidity on most other equities exchanges, the Exchange wishes
to also not apply a different rate for such orders that are
internalized. Internalization orders that add or remove liquidity will
simply yield the applicable existing fee codes for all other orders
that add or remove liquidity and receive the same corresponding rates
that currently apply to all other orders that add or remove liquidity.
For example, an internalization order that adds liquidity in Tape B
securities will yield existing fee code B and receive the current
corresponding rebate of $0.00160 for securities priced at or above
$1.00 or $0.00009 for securities priced below a $1.00. The Exchange
also notes that as a result of the proposed deletion of these fee
codes, the proposed rule change deletes footnote 7 of the Fee Schedule,
which provides that a Member's rate for internalization (fee codes EA
or ER) decreases to ``free'' per share per side if a Member adds an ADV
of at least 10,000,000 shares.
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    \6\ An internalized trade is a trade where the two orders
inadvertently match against each other and share the same Market
Participant Identifier (``MPID'').
    \7\ Additionally, if a Member adds an ADV of at least 10,000,000
shares, then the Member's rate for internalization (fee codes EA or
ER) decreases to FREE per share per side, for securities priced at,
above, or below $1. See EDGX Fee Schedule, Footnote 7.
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New Growth, Non-Displayed Step-Up Volume, and Remove Volume Tier
    Under footnote 1 of the Fee Schedule the Exchange currently offers
various Add/Remove Volume Tiers. Specifically, the Exchange offers two
Growth Tiers that each provide an enhanced rebate for Members'
qualifying orders yielding fee codes B, V, Y, 3 and 4,\8\ where a
Member reaches certain add volume-based criteria, including ``growing''
its volume over a certain baseline month. For example, Growth Tier 1
provides an enhanced rebated of $0.0026 per share on qualifying orders
(i.e., orders yielding fee code B, V, Y, 3 and 4) where a Member (1)
adds an ADV \9\ of greater than or equal to 0.20% of the TCV,\10\ and
(2) has a Step-Up Add TCV \11\ from March 2019 that is greater than or
equal to 0.10%. The Exchange also offers one Non-Displayed Step-Up
Volume Tiers that provides an enhanced rebate for Members' orders
yielding fee codes DM, HA, MM, and RP,\12\ where a Member may receive
an enhanced rebated of $0.0025 per share on qualifying orders (i.e.,
orders yielding fee code DM, HA, MM or RP) where a Member (1) has a
Step-Up Add TCV from January 2021 greater than or equal to 0.10%, (2)
adds an ADV greater than or equal to 0.50% of the TCV, and (3) removes
an ADV greater than or equal to 0.75% of the TCV. Finally, the Exchange
also currently offers two Remove Volume Tiers. For example, Remove
Volume Tier 1 currently offers a reduced fee of $0.0027 per share on
qualifying orders yielding fee codes BB, N and W \13\ in securities
priced at or above $1.00 and 0.28% of total dollar value on qualifying
orders in securities process below $1.00, where a Member (1) has an
ADAV \14\ greater than or equal to 0.25% TCV with displayed orders that
yield fee codes B, V or Y, or (2) adds Retail Order ADV (i.e., yielding
fee code ZA) greater than or equal to 0.45% of the TCV.
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    \8\ B is appended to orders that add liquidity to EDGX in Tape B
securities, V is appended to order that add liquidity to EDGX in
Tape A securities, Y is appended to orders that add liquidity to
EDGX in Tape C securities, 3 is appended to orders that add
liquidity to EDGX in pre and post market in Tape A or C securities,
and 4 is appended to orders that add liquidity to EDGX in pre and
post market in Tape A or C securities. Each is provided the standard
rebate of $0.00160.
    \9\ ADV means average daily volume calculated as the number of
shares added to, removed from, or routed by, the Exchange, or any
combination or subset thereof, per day. ADV is calculated on a
monthly basis.
    \10\ TCV means total consolidated volume calculated as the
volume reported by all exchanges and trade reporting facilities to a
consolidated transaction reporting plan for the month for which the
fees apply.
    \11\ Step-Up Add TCV means ADAV as a percentage of TCV in the
relevant baseline month subtracted from current ADAV as a percentage
of TCV.
    \12\ DM is appended to orders that add liquidity using MidPoint
Discretionary order within discretionary range; HA is appended to
non-displayed orders that add liquidity; MM is appended to non-
displayed orders that add liquidity using Mid-Point Peg; and RP is
appended to non-displayed orders that add liquidity using
Supplemental Peg. Each is provided a rebate of $0.00100.
    \13\ BB is appended to orders that remove liquidity from EDGX in
Tape B securities, N is appended to orders that remove liquidity
from EDGX in Tape C securities, and W is appended to orders that
remove liquidity from EDGX in Tape A securities. Each, as proposed,
is assessed a fee of $0.00285.
    \14\ ADAV means average daily added volume calculated as the
number of shares added per day. ADAV is calculated on a monthly
basis.
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    The Exchange now proposes to adopt a new Growth Tier 2, a new Non-
Displayed Step-Up Volume Tier 2,\15\ and a new Remove Volume Tier
1.\16\ Each new tier provides the same set of additional criteria in
which Members may strive to achieve to receive an enhanced rebate or
reduced fee, as applicable--a Member must (1) add a Step-Up ADAV from
June 2021 greater than or equal to 0.10% of the TCV, or add a Step-Up
ADAV from June 2021 greater than or equal to 8,000,000, (2) and have a
total remove ADV greater than or equal to 0.70% of the TCV. The
proposed rule change also adopts a new definition, under the
definitions section of the Fee Schedule, for the term ``Step-Up ADAV'',
as referenced in each of the proposed new tiers. Specifically, as
proposed ``Step-up ADAV'' means ADAV in the relevant baseline month
subtracted from current ADAV.
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    \15\ As a result, the proposed rule change updates the name of
the current Non-Displayed Step-Up Tier to Non-Displayed Step-Up Tier
1.
    \16\ As a result, the proposed rule change updates the name the
current Remove Volume Tier 1 to Remove Volume Tier 2. Note that
current Remove Volume Tier 3 is being deleted as proposed herein.
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    For achieving the proposed criteria, a Member will receive a
proposed enhanced rebate of $0.0027 per share on qualifying orders
(i.e., yielding fee codes B, V, Y, 3 and 4) pursuant to proposed Growth
Tier 2, a proposed enhanced rebate of $0.0025 per share on qualifying
orders (i.e., yielding fee codes DM, HA, MM and RP) pursuant to
proposed Non-Displayed Step-Up Volume Tier 2, and a proposed reduced
fee of $0.00275 per share on qualifying orders (i.e., yielding fee
codes BB, N and W) in securities priced at or above $1.00 and 0.28% of
total dollar value in

securities priced below $1.00 pursuant to proposed Remove Volume Tier
1.\17\
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    \17\ As a result of the five decimal format of the proposed
reduced fee in proposed Remove Volume Tier 1, the proposed rule
change also updates the decimal format of the reduced fee that
currently corresponds to Remove Volume Tier 2 (current Tier 1) in
order to provide uniformity across the Remove Volume tiers. This
formatting update does not alter the current reduced fee amount
offered under Remove Volume Tier 2 (current Tier 1).
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    Overall, the new Growth, Non-Displayed Step-Up Volume, and Remove
Volume tiers are designed to provide Members with an additional
opportunity to receive an enhanced rebate or reduced fee by increasing
their order flow to the Exchange, which further contributes to a
deeper, more liquid market and provides even more execution
opportunities for active market participants. Incentivizing an increase
in both liquidity adding volume and in liquidity removing volume,
through additional criteria and enhanced rebate opportunities,
encourages liquidity adding Members on the Exchange to contribute to a
deeper, more liquid market, and liquidity executing Members on the
Exchange to increase transactions and take execution opportunities
provided by such increased liquidity, together providing for overall
enhanced price discovery and price improvement opportunities on the
Exchange. As such, increased overall order flow benefits all Members by
contributing towards a robust and well-balanced market ecosystem.
Eliminate a Remove Volume Tier and Retail Volume Tier
    Finally, the Exchange proposes to eliminate Remove Volume Tier 2
and Retail Volume Tier 3. Current Remove Volume Tier 2 provides a
reduced fee of $0.0026 on qualifying orders (i.e., yielding fee codes
BB, N and W) in securities priced at or above $1.00 and 0.28% of total
dollar value in securities priced below $1.00, where a Member (1) has a
Step-Up Add TCV from January 2021 greater than or equal to 0.15%, (2)
has an ADAV greater than or equal to 0.08% of the TCV for Non-Displayed
orders that yield fee codes DM, HA, HI, MM, or RP, and (3) removes an
ADV greater than or equal to 0.75% of the TCV. Current Retail Volume
Tier 3 offers an enhanced rebate of $0.0037 per share on qualifying
orders (i.e., yielding fee code ZA), where a Member (1) has a Retail
Step-Up Add TCV (i.e., yielding fee code ZA) from May 2020 greater than
or equal to 0.10%, and (2) removes an ADV greater than or equal to
0.70% of the TCV. The Exchange proposes to eliminate Remove Volume Tier
2 and Retail Volume Tier 3 as no Members are currently satisfying the
criteria under these tiers, nor have satisfied such criteria over the
last three months. The Exchange no longer wishes to, nor is it required
to, maintain such tiers. More specifically, the proposed rule change
removes these tiers as the Exchange would rather redirect future
resources and funding into other programs and tiers intended to
incentivize increased order flow.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act,\18\ in general, and
furthers the objectives of Section 6(b)(4),\19\ in particular, as it is
designed to provide for the equitable allocation of reasonable dues,
fees and other charges among its Members and issuers and other persons
using its facilities. The Exchange also believes that the proposed rule
change is consistent with the objectives of Section 6(b)(5) \20\
requirements that the rules of an 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, and, particularly, is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \18\ 15 U.S.C. 78f.
    \19\ 15 U.S.C. 78f(b)(4).
    \20\ 15 U.S.C. 78f(b)(5).
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    As described above, the Exchange operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. The proposed rule changes
reflect a competitive pricing structure designed to incentivize market
participants to direct their order flow to the Exchange, which the
Exchange believes would enhance market quality to the benefit of all
Members.
    Regarding the proposed change to the standard rates, the Exchange
believes that amending the standard rate for orders that remove
liquidity in securities priced at or above $1.00 is reasonable because,
as stated above, in order to operate in the highly competitive equities
markets, the Exchange and its competing exchanges seek to offer similar
pricing structures, including assessing comparable standard fees for
orders in securities priced at or above $1.00.\21\ Thus, the Exchange
believes the proposed standard rate change is reasonable as it is
generally aligned with and competitive with the amounts assessed for
the orders in securities at or above $1.00 on other equities exchanges.
The Exchange also believes that amending this standard rate amount
represents an equitable allocation of fees and is not unfairly
discriminatory because they will continue to automatically apply to all
Members' orders that remove liquidity in securities at or above $1.00
uniformly.
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    \21\ See supra note 5.
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    The Exchange also believes the proposed rule change to remove fee
codes EA and ER is reasonable as the Exchange has observed that a
majority of other equities exchanges do not assess a different rate for
internalization orders that add or remove liquidity, and therefore,
seeks to more competitively align its rates assessed on orders that add
or remove liquidity with those assessed on other equities exchanges by
also not applying a different rate for internalized orders. The
Exchange believes that it is reasonable, equitable and not unfairly
discriminatory to assess internalization orders that add or remove
liquidity the same existing corresponding rates currently applied to
orders that add or remove liquidity that are not internalized. Such
current rates will apply automatically and uniformly to internalizing
orders that add or remove liquidity as they do today for all other
orders that add or remove liquidity.
    Also, as described above, the Exchange notes that relative volume-
based incentives and discounts have been widely adopted by
exchanges,\22\ including the Exchange,\23\ and are reasonable,
equitable and non-discriminatory because they are open to all members
on an equal basis and provide additional benefits or discounts that are
reasonably related to (i) the value to an exchange's market quality and
(ii) associated higher levels of market activity, such as higher levels
of liquidity provision and/or growth patterns. Competing equity
exchanges offer similar tiered pricing structures, including schedules
of rebates and fees

that apply based upon members achieving certain volume and/or growth
thresholds, as well as assess similar fees or rebates for similar types
of orders, to that of the Exchange.
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    \22\ See generally NYSE Price List, Transaction Fees; Nasdaq
Equity 7, Section 118(a)(1), Fees for Execution and Routing of
Orders in Nasdaq-Listed Securities; and BZX Equities Fee Schedule,
Footnote 1, Add/Remove Volume Tiers.
    \23\ See EDGX Equities Fee Schedule, Footnote 1, Add/Remove
Volume Tiers.
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    In particular, the Exchange believes the proposed new Growth, Non-
Displayed Step-Up Volume, and Remove Volume tiers are reasonable
because each new tier will be available to all Members, as the existing
tiers currently are, and provide all Members with an additional
opportunity to receive an enhanced rebate or reduced fee, as
applicable. The Exchange further believes the proposed new Growth, Non-
Displayed Step-Up, and Remove Volume tiers are a reasonable means to
encourage overall growth in Members' overall order flow to the Exchange
and to incentivize Members to continue to provide liquidity adding and
liquidity removing to the Exchange by offering them an additional
opportunity to receive an enhanced rebate or reduced fee on qualifying
orders than those opportunities currently under the Add/Remove Volume
Tiers in Footnote 1 of the Fee Schedule. The Exchange believes that the
proposed tiers will generally benefit all market participants by
incentivizing continuous liquidity and thus, deeper more liquid markets
as well as increased execution opportunities. Indeed, the Exchange
notes that greater add volume order flow may provide for deeper, more
liquid markets and execution opportunities at improved prices, and
greater remove volume order flow may increase transactions on the
Exchange, which the Exchange believes incentivizes liquidity providers
to submit additional liquidity and execution opportunities. This
overall increase in activity deepens the Exchange's liquidity pool,
offers additional cost savings, supports the quality of price
discovery, promotes market transparency and improves market quality,
for all investors. The Exchange also believes the proposed rule change
to define the term ``Step-Up ADAV'' is reasonable as it will clarify
terminology used in the Fee Schedule, to the benefit of all Members.
    Further, the Exchange believes that the proposed tiers are
reasonable as they do not represent a significant departure from the
criteria or corresponding rates currently offered in the Fee Schedule,
and that the proposed enhanced rebates or enhanced fee, as applicable,
are commensurate with the new criteria. More specifically, the Exchange
believes that the proposed criteria, which is the same in each new
tier, and corresponding rates are commensurate with surrounding tiers;
in that the proposed criteria in new Growth Tier 2 is incrementally
more difficult than that of Growth Tier 1 and thus appropriately offers
a greater incentive, the proposed criteria in new Remove Volume Tier 1
is incrementally less difficult than that of Remove Volume Tier 2
(current Tier 1) \24\ and thus appropriately offers a lesser incentive,
and the proposed criteria in new Non-Displayed Step-Up Volume Tier 2 is
about the same in difficulty as the current Non-Displayed Step-Up
Volume Tier and thus appropriately offers the same incentive.
---------------------------------------------------------------------------

    \24\ See supra note 16.
---------------------------------------------------------------------------

    The Exchange also believes that the proposal represents an
equitable allocation of fees and rebates and is not unfairly
discriminatory because all Members are eligible for the new Growth,
Non-Displayed Step-Up Volume, and Remove Volume tiers and have the
opportunity to meet the tiers' criteria and receive the applicable
enhanced rebate or reduced fee if such criteria is met. Without having
a view of activity on other markets and off-exchange venues, the
Exchange has no way of knowing whether this proposed rule change would
definitely result in any Members qualifying for the proposed tiers.
While the Exchange has no way of predicting with certainty how the
proposed tiers will impact Member activity, the Exchange anticipates
that at least five Members will be able to satisfy the criteria
proposed under each of the three new tiers. The Exchange also notes
that proposed tiers will not adversely impact any Member's ability to
qualify for reduced fees or enhanced rebate offered under other tiers.
Should a Member not meet the proposed new criteria, the Member will
merely not receive that corresponding enhanced rebate or reduced fee,
as applicable.
    Finally, the Exchange believes the proposed rule change to
eliminate Remove Volume Tier 2 and Retail Volume Tier 3 is reasonable
because the Exchange is not required to maintain this tier or provide
Members an opportunity to receive reduced fees or enhanced rebates. The
Exchange believes the proposal to eliminate these tiers is also
equitable and not unfairly discriminatory because it applies to all
Members (i.e., the tier will not be available for any Member). The
Exchange notes that recently no Members have satisfied the criteria of
Remove Volume Tier 2 nor the criteria of Retail Volume Tier 3. The
Exchange also notes that the proposed rule change to remove these two
tiers merely results in Members not receiving a reduced fee or enhanced
rebate, as applicable, which as noted above, the Exchange is not
required to offer or maintain. Furthermore, the proposed rule change to
eliminate both Remove Volume Tier 2 and Retail Volume Tier 3 enables
the Exchange to redirect resources and funding into other programs and
tiers intended to incentivize increased order flow.

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

    The Exchange does not believe that the proposed rule changes will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. Rather, as discussed above, the
Exchange believes that the proposed change would encourage the
submission of additional order flow to a public exchange, thereby
promoting market depth, execution incentives and enhanced execution
opportunities, as well as price discovery and transparency for all
Members. As a result, the Exchange believes that the proposed change
furthers the Commission's goal in adopting Regulation NMS of fostering
competition among orders, which promotes ``more efficient pricing of
individual stocks for all types of orders, large and small.''
    The Exchange believes the proposed rule change does not impose any
burden on intramarket competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Particularly, the proposed
rule change to update the standard fee applicable to liquidity removing
orders in securities priced at or above a $1.00 does not impose any
burden on intramarket competition because the standard rate will
continue to apply automatically and uniformly to all liquidity removing
orders priced at or above $1.00. Similarly, all Members' internalizing
orders that add or remove liquidity will no longer yield fee codes EA
or ER, and, instead, will automatically and uniformly be assessed the
fees already in place for all other orders generally that add or remove
liquidity. The Exchange also notes that the proposed new Growth, Non-
Displayed Step-Up Volume, Remove Volume tiers applies to all Members
equally in that all Members are eligible for these tiers, have a
reasonable opportunity to meet the tiers' criteria and will receive the
enhanced rebates or reduced fee on their qualifying orders if such
criteria is met. Additionally, the proposed tiers are designed to
attract additional order flow to the Exchange. The Exchange believes
that the new criteria will incentivize market participants to direct
liquidity adding and removing order flow to the Exchange, providing for
additional execution opportunities for market

participants and improved price transparency. Greater overall order
flow, trading opportunities, and pricing transparency benefits all
market participants on the Exchange by enhancing market quality and
continuing to encourage Members to send orders, thereby contributing
towards a robust and well-balanced market ecosystem. Finally, the
Exchange does not believe the proposed rule change to eliminate a
Remove Volume Tier and Retail Volume Tier will impose any burden on
intramarket competition because it applies to all Members uniformly, as
in, the tiers will no longer be available to any Member.
    Next, the Exchange believes the proposed rule change does not
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. As previously
discussed, the Exchange operates in a highly competitive market.
Members have numerous alternative venues that they may participate on
and direct their order flow, including other equities exchanges, off-
exchange venues, and alternative trading systems. Additionally, the
Exchange represents a small percentage of the overall market. Based on
publicly available information, no single equities exchange has more
than 16% of the market share.\25\ Therefore, no exchange possesses
significant pricing power in the execution of order flow. Indeed,
participants can readily choose to send their orders to other exchange
and off-exchange venues if they deem fee levels at those other venues
to be more favorable. Moreover, the Commission has repeatedly expressed
its preference for competition over regulatory intervention in
determining prices, products, and services in the securities markets.
Specifically, in Regulation NMS, the Commission highlighted the
importance of market forces in determining prices and SRO revenues and,
also, recognized that current regulation of the market system ``has
been remarkably successful in promoting market competition in its
broader forms that are most important to investors and listed
companies.'' \26\ The fact that this market is competitive has also
long been recognized by the courts. In NetCoalition v. Securities and
Exchange Commission, the D.C. Circuit stated as follows: ``[n]o one
disputes that competition for order flow is `fierce.' . . . As the SEC
explained, `[i]n the U.S. national market system, buyers and sellers of
securities, and the broker-dealers that act as their order-routing
agents, have a wide range of choices of where to route orders for
execution'; [and] `no exchange can afford to take its market share
percentages for granted' because `no exchange possesses a monopoly,
regulatory or otherwise, in the execution of order flow from broker
dealers' . . . .''.\27\ Accordingly, the Exchange does not believe its
proposed fee change imposes any burden on competition that is not
necessary or appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \25\ Supra note 4.
    \26\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \27\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

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

    The Exchange neither solicited nor received comments on the
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \28\ and paragraph (f) of Rule 19b-4 \29\
thereunder. At any time within 60 days of the filing of the 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 will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78s(b)(3)(A).
    \29\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

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-CboeEDGX-2021-033 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-CboeEDGX-2021-033. 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 (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 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 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CboeEDGX-2021-033, and should be
submitted on or before August 16, 2021.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\30\
---------------------------------------------------------------------------

    \30\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-15812 Filed 7-23-21; 8:45 am]
BILLING CODE 8011-01-P


Because the section 801(m) review must occur prior to arrival, concurrent section 801(a)
and section 801(m) reviews also would have to occur prior to arrival.  FDA also notes that
section 801(a) reviews typically take longer to complete than section 801(m) reviews.  FDA
believes such a concurrent process would be inefficient and impractical and would likely
increase congestion at the ports of arrival.  Thus, FDA generally intends to continue with its
current practice of reviewing prior notice prior to arrival to decide whether to inspect the food at
the time of arrival, based on information that suggests that the food is a potential significant risk
to public health, and to allow shipments to proceed beyond the point of arrival to conduct section
801(a) reviews.
(Comments) One comment asks FDA to clarify expectations at the port regarding “may
proceed” decisions.  The comment notes that the IFR indicates that “the system will transmit a
message back through OASIS to ABI/ACS interface for CBP that the article of food may be
conditionally released.”  The comments continue to state that the IFR indicates that staff
operating š4 hours a day, seven days a week” will
review at the port of arrival or closest
examination site.  The comment notes that this implies decisions were to be made at the port of
entry.  However, companies have reported that since December 12, 2003, conditional release
messages have not consistently been received at entry.  The comment asks that FDA clarify
when this message should be received and the implications for companies that enter the U.S.
within the “release.”
(Response) The IFR states, “If the FDA system does not indicate that further evaluation
of or action on the notice or article of food is necessary for prior notice purposes, the system will
transmit a message back through the OASIS to ABI/ACS interface for CBP that the article of
food `may be conditionally released under section 801(b) of the act.’ However, if additional

299
evaluation of the prior notice information is necessary, FDA headquarters staff, operating 24
hours a day, 7 days a week, will review and assess the information and may initiate an
examination or other action by FDA or CBP of the article of food at the port of arrival or
elsewhere, or in the case of rail shipments, within the confines of the closest appropriate
examination site.”  (68 FR 58974 at 58976)  The IFR clearly states that the conditional release
message is sent from FDA to CBP, not to any other person.  This is to ensure that CBP staff will
know when the food arrives if prior notice has been satisfied and that no further examination by
FDA is necessary.  This conditional release does not provide information about FDA’s section
801(a) admissibility decision.  Further, the IFR clearly states that FDA headquarters staff
operates 24 hours a day/7 days a week and will review the prior notice and make the decision
regarding further action on the prior notice submission.  FDA and CBP do not intend to change
these procedures for implementation of the final rule.
(Comments) One comment encourages FDA to consider low risk status to expedite its
section 801(a) deliberations.
(Response) FDA does use a risk based approach when making prior notice and
admissibility decisions.  FDA screening under section 801(a) is separate from the subject of the
final rule, FDA’s screening under section 801(m) of the act.  Therefore, this comment is outside
the scope of the final rule.
(Final rule) Section 1.283 of the final rule describes the consequences for an article of
food that is imported or offered for import with inadequate prior notice.  The final rule sets out
procedures for resolving the inadequacy as well as for the movement and status of the refused
food.

300
K. What are the Other Consequences of Failing to Submit Adequate Prior Notice or Otherwise
Failing to Comply with this Subpart?  (§ 1.284)
Section 1.284 of the IFR provides that failure of a person who imports or offers for
import an article of food to submit prior notice is a prohibited act under section 301(ee) of the act
(21 U.S.C. 331(ee)) and sets out the civil, criminal, and debarment actions that the United States
may bring against persons who are responsible for the commission of a prohibited act.
(Comments) One comment states that many of the mistakes made during the initial
implementation of the prior notice IFR can be attributed to difficulties with both government and
industry computer systems.  The comment indicates that such mistakes should not be part of an
importer’s record.
(Response) FDA acknowledges that some mistakes in prior notice submissions may have
occurred because changes were needed in PNSI and CBP’s ABI/ACS or because industry needed
to develop appropriate software to facilitate the submission of prior notice.  During the initial
implementation of the IFR that extended for more than 8 months after the IFR took effect, FDA
and CBP exercised enforcement discretion to accommodate that situation.  During this period,
the two agencies focused their resources on education to achieve compliance with the prior
notice requirements, escalating imposition of civil monetary penalties, and ultimately refusal of
shipments.  This final rule will take effect 180 days after today’s publication date to allow
affected parties time to understand the requirements that differ from those in the IFR, and make
appropriate changes, including changes that may be needed to filers’ software.  In enforcing prior
notice, we will continue to take into account the circumstances, such as whether a violation is
due to mistakes that can be attributed to difficulties in government and industry computer
systems during initial implementation.

301
(Comments) Some comments request clarification on the penalties that apply for food
that arrives without proper prior notice.  Some specifically request clarification of civil monetary
penalties and an explanation of the mechanism and criteria for application of these penalties.
One comment notes that, in the absence of clearly defined procedures for assessing penalties, the
current policy of liquidated damages would apply, which has always been unacceptable with the
community and sureties.
(Response) CBP, in consultation with FDA, may assess civil monetary penalties under 19
U.S.C. 1595a(b) against any person who directs, assists, financially or otherwise, or is in any
way concerned in the importation of any merchandise contrary to law.  During the early
implementation phase, FDA recommended to CBP that civil monetary penalties (CMPs) be
assessed only to those parties who failed to submit prior notice.  The parties were notified via e-
mail regarding their failure to submit prior notice before FDA recommended CMPs.  As of May
2008, CBP has pursued CMPs on a total of 29 PNC related cases.  Any CMPs that CBP brings
are subject to the administrative proceedings described in 19 U.S.C. 1618 and 19 CFR part 171.
Furthermore, liquidated damages would not apply in the case of prior notice violations because
no bond obligations would vest under the basic importation bond.
(Comments) Some comments note that there are few options available in the current
penalty structure to assist FDA in enforcing compliance other then civil and criminal charges.
Comments suggest that some form of monetary consequences, in lieu of civil and criminal
charges, should be available to allow FDA more flexibility in application.
(Response) Section 1.284 of the final rule provides consequences of failing to comply
with the requirements for submitting prior notice. These are the primary enforcement options,
aside from refusal of the food, available to FDA under the Federal Food, Drug, and Cosmetic

302
Act.  In addition, CBP can seize goods imported contrary to law, assess civil monetary penalties
or take other enforcement action, including referral to U.S. Immigration and Customs
Enforcement (ICE), as provided for under its laws in lieu of or in addition to refusal of the food
or other civil and criminal penalties.
(Comments) Some comments suggest that failure to provide prior notice in a timely
fashion should result in refused entry and the movement of the food to a secure facility where the
prior notice can be secured.  The comments state that failure to enter U.S. commerce should be
considered a sufficient deterrent and that monetary penalties would be counterproductive. The
comments suggest that this arrangement would avoid instances where businesses find themselves
unable to trade or constantly in situations of being in violation, and consequently subject to
criminal action.
(Response) FDA does not agree that refusal and movement of the food to a secure facility
will provide a sufficient deterrent in all cases.  CBP may assess civil monetary penalties under 19
U.S.C. 1595a(b) and will, in consultation with FDA, continue to assess those penalties when
warranted.  FDA may further use the civil, criminal, and debarment provisions provided by the
Bioterrorism Act.  These statutory penalties are used only when warranted, and to date have been
used relatively infrequently.
(Comments) One comment notes that importers receive conflicting information as to the
enforcement guidelines at individual crossing points and/or from individual FDA and CBP
enforcement officers.  The comment recommends extension of the full enforcement date, which
would allow FDA and CBP to upgrade their current training efforts with the officers at all ports
of entry to ensure uniform and consistent enforcement of the IFR.

303
(Response) FDA and CBP will continue to coordinate staff training and industry outreach
activities to ensure consistent enforcement of the final rule.  FDA believes that the effective date
of 180 days after publication of the final rule provides sufficient time to communicate and
implement changes to the final rule.  As we establish enforcement policies, these will be made
publicly available through our compliance policy guides.  These policies and other information
about the final rule may be found through links on FDA’s Web site at http://www.fda.gov.  FDA
notes that the communication issues experienced when the prior notice IFR initially took effect
have been addressed and we generally have found the prior notice process to be proceeding
smoothly.
(Comments) Some comments state that serious inconsistencies in interpretation or
application of the prior notice requirements at multiple ports have caused confusion, delayed
shipments, and increased shipment costs.  Examples provided by the comments include:  the
shifting percentage of shipments that are physically held at the port due to incomplete or
inaccurate prior notice submissions during the initial phases of enforcement, varying information
regarding whether the carrier must be in possession of the actual prior notice confirmation
number at the time of arrival regardless of whether the submission was made via an ABI
transmission, conflicting information as to whether submissions of bonded freight will be
allowed through the ABI system, and failure to notify importers of specific errors pertaining to
their submissions.  Some comments request that FDA establish a national office with authority to
resolve various field and port interpretations and actions.  Comments note the importance of a
timely resolution to disputes because of the potential financial impact to commerce if food
shipments are detained needlessly.

304
(Response) The initial source for resolving all perceived conflicts is the final rule, and
related information, including the responses to comments in this preamble, the Prior Notice Final
Rule CPG, and the Prior Notice of Imported Food Questions and Answers, which may be found
through links on FDA’s Web site at http://www.fda.gov.  FDA’s PNC, which directs all prior
notice activities, has been operating since the prior notice IFR took effect on December 12, 2003.
The PNC is available 24 hours a day, 7 days a week, and 365 days a year to answer questions
and resolve, as appropriate, operational concerns.  The PNC can be reached at<PHONE_NUMBER> for
calls originating in the United States and<PHONE_NUMBER> for calls originating from outside the
United States.  In addition, FDA notes that based on the current PNC call/inquiry volume levels
as compared to those experienced during the initial 18 months of implementation, repetitive prior
notice submitters have now been experiencing fewer difficulties in submitting prior notice.
(Comments) One comment requests that FDA outline what actions will be taken against a
company that is not complying with prior notice requirements, but has committed the error only
by acting on incorrect advice from an FDA representative.  The comment wants to know what
recourse is available to industry when a company faces large fines due to inaccurate FDA
guidance.
(Response) The PNC is responsible for resolution of these actions, on a case-by-case
basis.  The advice that a submitter may have received from an agency representative is
considered when determining whether an enforcement action is warranted.  FDA notes that under
the proposed enforcement policy in the Prior Notice Final Rule Draft CPG, we intend to take into
consideration the circumstances surrounding a violation, including the seriousness of the
violation and flagrant and repeat violations.

305
(Comments) One foreign government agency requests access to the quantity and identity
of the industries that are not complying with the prior notice IFR so that they could help bring
these industries into compliance.  The comment suggests creating a mechanism to notify foreign
governments of any non-compliance related to the Bioterrorism Act to enable them to provide a
faster and more efficient response.
(Response) FDA has established mechanisms for working cooperatively with foreign
government regulatory authorities on issues of mutual concern, including matters relating to
compliance with the prior notice regulations.  When requested and as resources allow, FDA/PNC
personnel have continued to participate in briefings for foreign governments and organizations
and at industry trade meetings.  These have included presentations to European Community
visitors to the United States, joint FDA-Canadian Food Inspection Agency import meetings, and
other foreign government and industry outreach events widely attended by both industry and
other government agencies, e.g., WESCCON (Western Cargo Conference).  FDA continues to
work with foreign governments to develop more efficient and effective communications.  In
addition, information about compliance with prior notice requirements is posted at
http://www.cfsan.fda.gov/~pn/pnsum.html.
(Comments) Some comments request that FDA provide a sufficient period of time for
implementation of the final rule so that affected parties can prepare for any changes in the rule.
(Response) FDA agrees and is providing 180 days after publication of the final rule,
which should be sufficient time for implementing changes necessary to comply with the final
rule.
(Comments) One comment states that FDA and CBP categorize some articles of food
differently; i.e., some articles that are "drugs" for FDA purposes are classified by CBP as

306
"foods."  The comment indicates that such products should not be denied entry or assessed
monetary penalties and suggests that the final rule provide for immediate release and
cancellation of monetary penalties for such articles that are not "food," as defined by the FDA.
(Response) FDA does not agree that a change in the final rule would alleviate the concern
expressed by the comment.  The scope of the final rule is stated explicitly in § 1.277.  Situations
involving discrepancies between FDA and CBP classification of an imported article as a food or
drug are best resolved on a case-by-case basis as they arise.  However, because FDA and CBP
have worked closely to identify and resolve such issues, the agencies believe that such situations
will be rare.  In cases of doubt, the submitter should contact the PNC to determine whether a
product is an article of food subject to prior notice requirements.
FDA uses a list of HTS codes to indicate which products FDA believes prior notice is or
may be required under the prior notice regulations. FDA has provided this list to CBP so that
CBP can "flag" the HTS codes in its entry systems to screen for foods for which prior notice to
FDA is required and to ensure that, as appropriate, prior notice has been provided.  FDA
publishes this list to inform the food industry which HTS codes have been "flagged" in CBP
entry systems with prior notice indicators.  Guidance about the HTS flags is posted at
http://www.cfsan.fda.gov/~dms/htsguid3.html.
(Comments) One comment suggests that FDA consider the importer’s circumstances
when denying entry or assessing penalties.  The comment states that, although it is reasonable to
expect a company whose principal business is importing food to abide by regulations applicable
to food imports, companies that rarely import food products will likely have greater difficulty in
complying with the requirements.  The comment further states that although these companies

307
should be required to comply before their entries are released, blanket denials of entry or
assessments of monetary penalties are not appropriate.
(Response) Elsewhere in this issue of the FEDERAL REGISTER, we are announcing our
Prior Notice Final Rule Draft CPG which describes our policies for enforcing prior notice.
Under the CPG, we are proposing to take into consideration the circumstances surrounding a
violation, including the seriousness of the violation and flagrant and repeat violations.
(Final rule) Section 1.284 of the final rule states that the importing or offering for import
into the United States of an article of food in violation of the requirements of section 801(m) of
the act, including the requirements of this subpart, is a prohibited act under section 301(ee) of the
act and sets out the civil, criminal, and debarment actions that the United States may bring
against persons who are responsible for the commission of a prohibited act.
L.  What Happens to Food that is Imported or Offered for Import From Unregistered Facilities
That Are Required to Register Under 21 CFR Part 1, Subpart H? (§ 1.285)
Section 1.285 of the IFR outlines the consequences for food arriving at the port of arrival
from facilities that are not registered as required under section 415 of the act and 21 CFR part 1,
subpart H.  These are similar to provisions in the IFR for handling food that is refused for
inadequate prior notice.  The IFR states that if an article of food from a foreign manufacturer that
is not registered as required under section 415 of the act and subpart H is imported or offered for
import into the United States, the food is subject to being held at the port under section 801(l) of
the act and refusal under section 801(m) of the act and § 1.283 for failure to provide adequate
prior notice.  Under the IFR, the failure to provide the correct registration number of the foreign
manufacturer, if registration is required under section 415 of the act and 21 CFR part 1, subpart
H, renders the identity of that facility incomplete for purposes of prior notice.

308
(Comments) Several comments state that FDA should increase inspections of imported
food when they arrive at the port, rather than denying admission based on lack of the
manufacturer's registration number.
(Response) If the prior notice does not include a registration number, it can instead
include the full address of the manufacturer and the reason why the registration number is not
provided.  In this situation, the article of food will not be refused admission solely because of the
lack of the manufacturer's registration number.  We agree with the comments it is appropriate to
consider the fact that the registration number is not provided in determining whether FDA should
inspect the food, either upon arrival or as part of the admissions process.
While an article of food will not be refused admission solely because of the lack of the
manufacturer's registration number, the food is nonetheless subject to being held under section
801(l) of the act if the manufacturer has not registered under section 415 of the act. It may take
FDA more time to determine the registration status of the manufacturer if the name and full
address, but not the registration number, is provided as part of prior notice.  Thus, if the
registration number is not provided, this may delay the food at the border until this verification is
completed.
(Comments) Some comments state that, although the prior notice regulations clearly
indicate that the manufacturer’s registration number is required on the prior notice, even for U.S.
Goods Returned, they do not expressly indicate that refusal will result when the registration
number is not provided.  Rather, according to the comments, § 1.285(a) of the regulations only
indicates that articles of food arriving from an unregistered foreign facility will be subject to
refusal, as will articles of food arriving with an inaccurate registration number in the prior notice.
In more general terms, under § 1.283(a)(1)(ii), articles of food arriving with an "inaccurate" prior

309
notice are subject to the same possibility of refusal upon arrival.  The comments state that the
language of the regulations does not guarantee refusal, but provides for flexibility and
discretionary enforcement.  Comments suggest that FDA should not refuse entries for which the
importer does not know and cannot determine the registration number.
(Response) As discussed in the previous response, if the prior notice does not include a
registration number, it can instead include the full address of the manufacturer and the reason
why the registration number is not provided.  In this situation, the article of food will not be
refused admission solely because of the lack of the manufacturer's registration number, although
the food is nonetheless subject to being held under section 801(l) of the act if the manufacturer
has not registered under section 415 of the act.
Because this is a change from the IFR, in the final rule we have deleted the text in
'
1.285(a) that states that failure to provide the manufacturer's registration number renders the
identity of the facility incomplete for purposes of prior notice.  We have also clarified the text in
'
1.285(b) by removing the phrase "imported or offered for import from a foreign facility that is
not registered as required under section 415 of the act" since it is redundant.
As part of our effort to develop policies for enforcing prior notice and section 801(l) of
the act, we are publishing the Prior Notice Final Rule Draft CPG, announced elsewhere in this
issue of the FEDERAL REGISTER.
(Final rule) Section 1.285 of the final rule describes the consequences and processes for
food imported or offered for import in the United States that is from a facility that is not
registered under section 415 of the act and 21 CFR part 1, subpart H.  The food is subject to
being held and cannot be delivered to any importer, owner, or consignee.
FDA also made other minor changes in this section.

310
•
We revised the requirement in § 1.285(c)(2) to notify FDA of the location where the
food has been or will be moved from within 24 hours of refusal to before the food is
moved to the hold location. FDA needs this information before the food is moved to
verify that the facility where the food is to be held is a secure facility.  Moreover,
because refused food shall not be delivered to the importer, owner, or ultimate
consignee, before the food is moved, FDA needs to verify that the hold location is not
owned by any of these parties.  In addition, § 1.285(c)(2) of the IFR states that food
under hold must be moved under appropriate custodial bond.  We have revised this
paragraph in the final rule to state that the refused food must be moved under
appropriate custodial bond, unless immediately exported under CBP supervision.  The
final rule also clarifies that the refused food may be held at the port of entry or at a
secure facility.
•
We revised § 1.285(g) for clarity by adding the word, “number,” after the word,
“registration.”  We also changed the last phrase of § 1.285(g) from “* * * except that
the article may only be sold for export or destroyed as agreed to by CBP and FDA” to
“* * * except that, unless otherwise agreed to by CBP and FDA, the article may only
be sold for export or destroyed.”  Similar to § 1.283(a)(6), this change was needed
because concurrence from CBP and FDA is not needed whenever an article of food
placed under hold under section 801(l) of the act is sold for export or destroyed, and
no registration number or request for FDA review is submitted.  We are adding the
phrase “unless otherwise agreed to by CBP and FDA” to allow for the improbable
(but not impossible) scenario when such a shipment would need to be transferred to

311
another agency for examination or investigation; in these cases, we would want
concurrence from both FDA and CBP.
•
In § 1.285(h), we added the phrase, “is not for personal use,” after the phrase, “food
carried by or otherwise accompanying an individual arriving in the United States,”
because if it is for personal use, then it is not subject to prior notice as provided by §
1.277(b)(1).
•
We deleted references and provisions in § 1.285(i) and (l) relating to refusals, since
the process for resolving a prior notice submission for an article of food from a
facility that is not registered as required is based on holds under section 801(l) of the
act and not refusals under section 801(m) (see discussion above for § 1.285(a)).
Under § 1.285(i)(2), we are allowing submission of the notification resolving the hold
by fax and e-mail only, and deleting the option to submit the notification by mail and
express courier. We also made other minor revisions to this § 1.285 to simplify the
text.
•
We revised § 1.285(j)(2) of the final rule to allow the carrier to submit a request for
review after hold.  Under § 1.285(j)(3), we revised the final rule to allow submission
of the request for review after hold by fax and e-mail only, and deleted the option to
submit the notification by mail and express courier.
M. Outreach and Enforcement
As discussed in the IFR, FDA directed outreach to both domestic and international
stakeholders after publication of the IFR (68 FR 58974). Our outreach activities included many
methods of communication:

312
•
Dissemination of materials to guide affected domestic and international food
facilities through the new processes established to implement prior notice
requirements;
•
Numerous domestic and international outreach meetings to the food industry,
trade organizations, and State and foreign government regulators;
•
A series of videoconferences and a satellite downlink video broadcast to more
than 1,000 sites around the world;
•
Materials provided for and events targeted to the media;
•
Presentations by FDA officials and exhibits at professional and trade conferences
and meetings to inform industry and state and local government representatives of
the new requirements;
•
Presentations by USDA’s Foreign Agricultural Service (FAS) and U.S. embassy
officials who disseminated materials and answered questions in various countries;
•
Cooperative arrangements with CBP and other Federal agencies to ensure that
information on the interim final regulations and their requirements is disseminated
to affected companies and individuals; and
•
Issuance of several guidance documents (all available on the Internet) that explain
the prior notice requirements, including, “Prior Notice of Imported Food:
Questions and Answers,” “What You Need to Know About Prior Notice of
Imported Food Shipments,” and numerous web-based tutorials for PNSI.  Many
of these guidance documents are available in foreign languages; e.g., Arabic,
French, Hindi, Japanese, Malay, Portuguese, and Spanish.

313
Specifics regarding each of these activities are included on FDA’s Web site. In addition,
FDA also provided training in new or revised procedures for its field personnel, as well as CBP
field personnel.  FDA included an initial transition period in the December 2003 prior notice
CPG for more than eight months, during which the agencies emphasized education to achieve
compliance, rather than refusal of articles of food with inadequate prior notice.
Shortly after publication of the IFR, FDA began disseminating at U.S. ports flyers and
posters summarizing the new requirements and informing representatives of affected entities
how to provide prior notice to FDA.  We also provided (and continue to provide) online
assistance and the FDA Help Desk to deal with technical issues involving PNSI after the IFR
became effective.
When FDA reopened the comment period on the IFR in the FEDERAL REGISTER of
April 14, 2004, under discussion of Flexible Alternatives in question 7, we asked: “Should FDA
offer a prior notice submission training program for submitters and transmitters, including
brokers, to ensure the accuracy of the data being submitted?”  Many comments address various
issues concerning outreach and enforcement.  Discussion of these issues by subject follows,
proceeded by a discussion of general issues.
1. General Outreach and Enforcement Issues
(Comments) Several comments acknowledge that the outreach activities conducted by
FDA and CBP were of tremendous assistance to affected persons with the implementation of the
PNSI and encourage continued communication between the trade community and FDA and
CBP.   Several other comments state that FDA and CBP’s outreach efforts were ineffective and
encourage continued efforts toward education and outreach.

314
(Response) FDA received praise from the Small Business Administration for our efforts
to address regulatory flexibility and the impact on small business of the interim final rule.  FDA
and CBP will continue outreach efforts to affected industry and other governments, as resources
allow. These efforts will focus on changes to and implementation of the final rule.  The PNC also
will continue to answer questions and provide technical assistance upon request, and FDA and
CBP will issue and update guidance as policies change or need clarification.
2. Prior Notice Submission Training Program from Flexible Alternative Question 7
(Comments) Many comments believe that a training program will improve the accuracy
of the data being submitted under the regulations and that a training program would resolve
many of the other problems being encountered with the present rules.  One comment suggests
that, following a detailed analysis of compliance issues, FDA should target its training to specific
problems and their solutions, and to entities new to the process.  One comment suggests that
FDA offer a training program for brokers and other transmitters and submitters.  Other
comments recommend that specific outreach and training should be conducted for each mode of
transportation.  Another comment cautions that the FDA and CBP should have resources to
implement an educational campaign before initiating another training and outreach program.
(Response) FDA and CBP will conduct training focused on changes between the final
rule and the IFR.  Depending on resources, the education and outreach may take the form of
public meetings, web-based interactive training, or posting on our websites of guidance and other
outreach materials.  As resources permit, we also may translate our guidance and other outreach
materials into other languages.

315
3. Requests for Additional Outreach
(Comments) There were many comments that request additional outreach and training, as


[Federal Register: October 19, 2005 (Volume 70, Number 201)]
[Notices]
[Page 60810]
[DOCID:fr19oc05-57]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP06-14-000]

Northern Natural Gas Company; Notice of Proposed Changes in FERC
Gas Tariff

October 12, 2005.
    Take notice that on October 7, 2005, Northern Natural Gas Company
(Northern) tendered for filing to become part of its FERC Gas Tariff,
Fifth revised Volume No. 1, the following tariff sheets proposed to be
effective on November 7, 2005 as follows:

23 Revised Sheet No. 54.
Seventh Revised Sheet No. 300.
Fifth Revised Sheet No. 301A.
Third Revised Sheet No. 301B.
Fourth Revised Sheet No. 301C.
Sixth Revised Sheet No. 302.
First Revised Sheet No. 302A.

    Northern states that the above tariff sheets are being filed to
revise the timing of the effective date of the Field Area Field fuel
rate, the Field Area Mainline fuel rate, the Storage fuel rate, the
Unaccounted For (UAF) rate and the electric compression charge from
each June 1 to each April 1.
    Northern further states that copies of the filing have been mailed
to each of its customers and interested State commissions.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible online at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
[FR Doc. E5-5771 Filed 10-18-05; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 76, Number 6 (Monday, January 10, 2011)]
[Notices]
[Pages 1423-1424]
[FR Doc No: 2011-197]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings No. 1

January 04, 2011.
    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:

    Docket Numbers: RP11-1678-000.
    Applicants: Gulf Crossing Pipeline Company LLC.
    Description: Gulf Crossing Pipeline Company LLC submits tariff
filing per 154.204: BP Energy Amendment to be effective 1/1/2011
    Filed Date: 01/03/2011.
    Accession Number: 20110103-5122.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Docket Numbers: RP11-1679-000.
    Applicants: Gulf South Pipeline Company, LP.
    Description: Gulf South Pipeline Company, LP submits tariff filing
per 154.204: HK to Texla Cap Release Negotiated Rate Filing to be
effective 1/1/2011.
    Filed Date: 01/03/2011.
    Accession Number: 20110103-5151.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Docket Numbers: RP11-1680-000.
    Applicants: Gulf South Pipeline Company, LP.
    Description: Gulf South Pipeline Company, LP submits tariff filing
per 154.204: BG Energy Negotiated Rate to be effective 1/1/2011.
    Filed Date: 01/03/2011.
    Accession Number: 20110103-5168.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Docket Numbers: RP11-1681-000.
    Applicants: Gulf South Pipeline Company, LP.
    Description: Gulf South Pipeline Company, LP submits tariff filing
per 154.204: HK to Texla Negotiated Rate Capacity Release Filing
2 to be effective 1/1/2011.
    Filed Date: 01/03/2011.
    Accession Number: 20110103-5185.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Docket Numbers: RP11-1682-000.
    Applicants: Gulf South Pipeline Company, LP.
    Description: Gulf South Pipeline Company, LP submits tariff filing
per 154.204: JW to Q-West to be effective 1/1/2011.
    Filed Date: 01/03/2011.
    Accession Number: 20110103-5216.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Docket Numbers: RP11-1683-000.
    Applicants: Gulf South Pipeline Company, LP.
    Description: Gulf South Pipeline Company, LP submits tariff filing
per 154.204: JW to Q-West 2 to be effective 1/1/2011.
    Filed Date: 01/04/2011.
    Accession Number: 20110104-5001.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Docket Numbers: RP11-1684-000.
    Applicants: Gulf South Pipeline Company, LP.
    Description: Gulf South Pipeline Company, LP submits tariff filing
per 154.204: Enerquest to Sequent to be effective 1/1/2011.
    Filed Date: 01/04/2011.
    Accession Number: 20110104-5021.
    Comment Date: 5 p.m. Eastern Time on Tuesday, January 18, 2011.

    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to be taken, but will not serve to
make protestants parties to the proceeding. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic

service, persons with Internet access who will eFile a document and/or
be listed as a contact for an intervenor must create and validate an
eRegistration account using the eRegistration link. Select the eFiling
link to log on and submit the intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St. NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please e-mail<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011-197 Filed 1-7-11; 8:45 am]
BILLING CODE 6717-01-P