[Federal Register Volume 88, Number 108 (Tuesday, June 6, 2023)]
[Rules and Regulations]
[Pages 36950-36951]
[FR Doc No: 2023-12064]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2023-0457]
RIN 1625-AA00

Safety Zone; Lake of the Ozarks MM .5-1, Approximately 500 Feet
Off the Bagnell Dam, Lake of the Ozarks, MO

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all navigable waters of the Lake of the Ozarks at mile marker .5 to
mile marker 1 approximately 500 feet southwest of the Bagnell Dam. The
safety zone is needed to protect personnel, vessels, and the marine
environment from potential hazards created by a series of fireworks
displays. Entry of vessels or persons into this zone is prohibited
unless specifically authorized by the Captain of the Port Sector Upper
Mississippi River or a designated representative.

DATES: This rule is effective June 17, 2023, through September 2, 2023.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2023-0457 in the search box and click ``Search.'' Next, in the Document
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email MSTC Nathaniel Dibley, Sector Upper Mississippi River
Waterways Management Division, U.S. Coast Guard; telephone 314-269-
2550, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because publishing an NPRM would be
impractical and contrary to the public interest due to the date the
event is taking place. It is impracticable and contrary to the public
interest to publish an NPRM because we must establish this safety zone
by June 17, 2023, to guard against potential hazards associated with
this series of events. Potential safety hazards include the accidental
discharge of fireworks, dangerous projectiles, and falling hot embers
or other debris.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable and contrary to the public interest
due to the date the event is taking place and the need to protect
against associated potential hazards. It would be impracticable to wait
30 days after publishing because we must establish this safety zone by
June 17, 2023.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034. The Captain of the Port Sector Upper Mississippi River (COTP)
has determined that potential hazards associated with Celebrations
Cruise fireworks, on June 17, July 1, July 8, July 15, July 22, July
29, August 5, August 19, and September 2, 2023, will be a safety
concern for anyone within the fallout zone. This rule is needed to
protect personnel, vessels, and the marine environment in the navigable
waters within the safety zone during the fireworks displays.

IV. Discussion of the Rule

    This rule establishes a safety zone from June 17, 2023, through
September 2, 2023. The zone will be enforced from 8:45 p.m. until 10:15
p.m. on each of the following days in 2023: June 17, July 1, July 8,
July 15, July 22, July 29, August 5, August 19, and September 2. The
safety zone will cover all navigable waters within the outlined fallout
zone, on the Lake of the Ozarks, between Mile Markers .5 to 1
approximately 500 feet southwest of the Bagnell Dam. The duration of
enforcement of the zone is intended to protect personnel, vessels, and
the marine environment in these navigable waters during the fireworks
display. No vessel or person will be permitted to transit the safety
zone without obtaining permission from the COTP or a designated
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, this
rule has not been reviewed by the Office of Management and Budget
(OMB).
    This regulatory action determination is based on a series of
fireworks displays that impact a one half mile stretch of the Lake of
the Ozarks mile marker .5 to mile marker 1 approximately 500 feet
southwest of the Bagnell Dam on June 17, July 1, July 8, July 15, July
22, July 29, August 5, August 19, and September 2, 2023 from 8:45 p.m.
to 10:15 p.m. Moreover, the Coast Guard will issue a Broadcast Notice
to Mariners via VHF-FM marine channel 16 about the safety zone,
mariners may seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
call or email the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.

E. Unfunded Mandates Reform Act

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

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves a
safety zone that will be enforced from 8:45 p.m. to 10:15 p.m. on June
17, July 1, July 8, July 15, July 22, July 29, August 5, August 19, and
September 2, 2023, that will prohibit entry on the Lake of the Ozarks
between MM .5 to MM 1 approximately 500 feet southwest of the Bagnell
Dam. It is categorically excluded from further review under paragraph
L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01,
Rev. 1. A Record of Environmental Consideration supporting this
determination is available in the docket.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email the person listed in the FOR
FURTHER INFORMATION CONTACT section to coordinate protest activities so
that your message can be received without jeopardizing the safety or
security of people, places, or vessels.

List of Subjects in 33 CFR Part 165

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

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
00170.1, Revision No. 01.3.

0
2. Add Sec.  165.T08-0457 to read as follows:

Sec.  165.T08-0457  Safety Zone[s]; Safety Zone, Lake of the Ozarks,
Mile Markers .5-1, Lake of the Ozarks, MO.

    (a) Location. The following area is a safety zone: all navigable
waters of the Lake of the Ozarks at mile marker .5 to mile marker 1
approximately 500 feet southwest of the Bagnell Dam.
    (b) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or the
COTP's designated representative. A designated representative is a
commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG)
assigned to units under the operational control of the USCG Sector
Upper Mississippi River.
    (2) To seek permission to enter, contact the COTP or the COTP's
representative via VHF-FM channel 16, or through USCG Sector Upper
Mississippi River at<PHONE_NUMBER>. Those in the safety zone must comply
with all lawful orders or directions given to them by the COTP or the
COTP's designated representative.
    (c) Enforcement period. This safety zone will be enforced from 8:45
p.m. to 10:15 p.m. each of the following days in 2023: June 17, July 1,
July 8, July 15, July 22, July 29, August 5, August 19, and September
2, 2023.

    Dated: May 31, 2023.
A.R. Bender,
Captain, U.S. Coast Guard, Captain of the Port Sector Upper Mississippi
River.
[FR Doc. 2023-12064 Filed 6-5-23; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 76, Number 200 (Monday, October 17, 2011)]
[Notices]
[Pages 64158-64162]
[FR Doc No: 2011-26672]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-65525; File No. SR-NASDAQ-2011-139]

Self-Regulatory Organizations; The NASDAQ Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Establish a Fee for the NASDAQ MatchView Feed

October 11, 2011.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on September 29, 2011, The NASDAQ Stock Market LLC (``NASDAQ'' or
``Exchange'') filed with the Securities and Exchange Commission
(``SEC'' or ``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

    The Exchange proposes to establish a fee for the NASDAQ MatchView
Feed (the ``Feed''). The Feed provides a view of how the Exchange views
the Best Bid and Offer (``BBO'') available from away market centers for
each individual security the Exchange trades. The text of the proposed
rule change is available on the Exchange's Web site at http://nasdaq.cchwallstreet.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 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 the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    This proposal regards the NASDAQ MatchView Feed (formerly known as
the NASDAQ Ouch BBO Feed). The Feed is currently available to all
Exchange members and market participants equally at no charge, offering
all participants transparent, real-time data concerning the Exchange's
view of the BBO data. NASDAQ is proposing to establish the following
monthly distributor fees for internal distribution:

------------------------------------------------------------------------
             Entitlement name                        Monthly fee
------------------------------------------------------------------------
NASDAQ MatchView..........................  $5,000 per firm for 1st
                                             server.
NASDAQ MatchView Enterprise License.......  $10,000 per firm for 2+
                                             servers.
------------------------------------------------------------------------

    This new Distributor fee for the MatchView Feed is completely
separate from the underlying fees associated with each data feed
product used to calculate the MatchView data. The Exchange makes the
Feed available on a subscription basis to market participants that are
connected to the Exchange whether through extranets, direct connection,
or Internet-based virtual private networks.
    MatchView reflects the Exchange's view of the BBO data, at any
given time, based on orders executed on the Exchange and on quote
information from the network processors and individual exchange bids
and offers received either from the network processor or directly from
an exchange that disseminates bids and offers to vendors via a
proprietary data feed.\3\ The Feed contains the following data
elements: symbol, bid price, and ask price.\4\ Unlike the Nasdaq
TotalView feed, the MatchView feed does not contain information about
individual orders, either those residing within the Exchange system or
those executed or routed by the Exchange. Unlike the network processor
feeds containing the National Best Bid and Offer (``NBBO''), the
MatchView Feed does not identify either the market center quoting the
BBO or the size of the BBO quotes. It merely contains the symbol and
bid and offer prices.
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    \3\ For a more detailed description of the contents of the
MatchView Feed, see Securities Exchange Act Release No. 65159 (Aug.
18, 2011); 76 FR 53007 (Aug. 24, 2011) (SR-NASDAQ-2011-118). NASDAQ
is proposing no changes to the MatchView Feed from the existing,
filed feed.
    \4\ The Feed also contains a time stamp and message type field
for reference.
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    NASDAQ has continued to enhance the Feed to increase market
transparency and foster competition among orders and markets. NASDAQ
believes the Feed is valuable to member firms in that they may use the
Feed to more accurately price their orders based on the information
within this product, including bids and offers received via proprietary
data feeds. As a consequence, member firms may more accurately price
their orders on the Exchange, thereby avoiding price adjustments by the
Exchange based on a quote that is no longer available. Additionally,
members can use the Feed to price orders more aggressively to narrow
the BBO and provide better reference prices for investors.
2. Statutory Basis
    NASDAQ believes that the proposed rule change is consistent with
the provisions of Section 6 of the Act,\5\ in general, and with Section
6(b)(4) of the Act,\6\ in particular, in that it provides an equitable
allocation of reasonable fees among users and recipients of the data.
In adopting Regulation NMS, the Commission granted self-regulatory
organizations (``SROs'') and broker-dealers (``BDs'') increased
authority and flexibility to offer new and unique market data to the
public. It was believed that this authority would expand the amount of
data available to consumers, and also spur innovation and competition
for the provision of market data.
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    \5\ 15 U.S.C. 78f.
    \6\ 15 U.S.C. 78f(b)(4).
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    NASDAQ believes that its MatchView data products are precisely the
sort of market data product that the Commission envisioned when it
adopted Regulation NMS. The Commission concluded that Regulation NMS--
by lessening regulation of the market in proprietary data--would itself
further the Act's goals of facilitating efficiency and competition:

    [E]fficiency is promoted when broker-dealers who do not need the
data beyond the prices, sizes, market center identifications of the
NBBO and consolidated last sale information are not required to
receive (and pay for) such data. The Commission also believes that
efficiency is promoted when broker-dealers may choose to receive
(and pay for) additional market data based on their own internal
analysis of the need for such data.\7\
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    \7\ Securities Exchange Act Release No. 51808 (June 9, 2005), 70
FR 37496 (June 29, 2005).

By removing unnecessary regulatory restrictions on the ability of
exchanges to sell their own data, Regulation NMS

advanced the goals of the Act and the principles reflected in its
legislative history. If the free market should determine whether
proprietary data is sold to BDs at all, it follows that the price at
which such data is sold should be set by the market as well.
    The recent decision of the United States Court of Appeals for the
District of Columbia Circuit in NetCoaliton v. SEC, 615 F.3d 525 (D.C.
Cir. 2010), upheld the Commission's reliance upon competitive markets
to set reasonable and equitably allocated fees for market data. ``In
fact, the legislative history indicates that the Congress intended that
the market system `evolve through the interplay of competitive forces
as unnecessary regulatory restrictions are removed' and that the SEC
wield its regulatory power `in those situations where competition may
not be sufficient,' such as in the creation of a `consolidated
transactional reporting system.' NetCoaltion, at 535 (quoting H.R. Rep.
No. 94-229, at 92 (1975), as reprinted in 1975 U.S.C.C.A.N. 321, 323).
    The court agreed with the Commission's conclusion that ``Congress
intended that `competitive forces should dictate the services and
practices that constitute the U.S. national market system for trading
equitysecurities.' '' \8\
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    \8\ NetCoaliton, at 535.
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    The Court in NetCoalition, while upholding the Commission's
conclusion that competitive forces may be relied upon to establish the
fairness of prices, nevertheless concluded that the record in that case
did not adequately support the Commission's conclusions as to the
competitive nature of the market for NYSEArca's data product at issue
in that case. As explained below in NASDAQ's Statement on Burden on
Competition, however, NASDAQ believes that there is substantial
evidence of competition in the marketplace for data that was not in the
record in the NetCoalition case, and that the Commission is entitled to
rely upon such evidence in concluding that the fees established in this
filing are the product of competition, and therefore in accordance with
the relevant statutory standards.\9\ Moreover, NASDAQ further notes
that the product at issue in this filing--a NASDAQ quotation data
product that replicates a subset of the information available through
``core'' data products whose fees have been reviewed and approved by
the SEC--is quite different from the NYSEArca depth-of-book data
product at issue in NetCoalition. Accordingly, any findings of the
court with respect to that product may not be relevant to the product
at issue in this filing.
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    \9\ It should also be noted that Section 916 of Dodd- Frank Wall
Street Reform and Consumer Protection Act of 2010 (``Dodd-Frank
Act'') has amended paragraph (A) of Section 19(b)(3) of the Act, 15
U.S.C. 78s(b)(3) to make it clear that all exchange fees, including
fees for market data, may be filed by exchanges on an immediately
effective basis. Although this change in the law does not alter the
Commission's authority to evaluate and ultimately disapprove
exchange rules if it concludes that they are not consistent with the
Act, it unambiguously reflects a conclusion that market data fee
changes do not require prior Commission review before taking effect,
and that a formal proceeding with regard to a particular fee change
is required only if the Commission determines that it is necessary
or appropriate to suspend the fee and institute such a proceeding.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    NASDAQ does not believe that the proposed rule change will result
in any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended. NASDAQ's ability to
price its MatchView Data Products is constrained by (1) Competition
between exchanges and other trading platforms that compete with each
other in a variety of dimensions; (2) the existence of inexpensive
real-time consolidated data and market-specific data and free delayed
consolidated data; and (3) the inherent contestability of the market
for proprietary quotation data.
    The market for proprietary quotation data products is currently
competitive and inherently contestable because there is fierce
competition for the inputs necessary to the creation of proprietary
data and strict pricing discipline for the proprietary products
themselves. Numerous exchanges compete with each other for listings,
trades, and market data itself, providing virtually limitless
opportunities for entrepreneurs who wish to produce and distribute
their own market data. This proprietary data is produced by each
individual exchange, as well as other entities, in a vigorously
competitive market.
    Transaction execution and proprietary data products are
complementary in that market data is both an input and a byproduct of
the execution service.\10\ In fact, market data and trade execution are
a paradigmatic example of joint products with joint costs. The decision
whether and on which platform to post an order will depend on the
attributes of the platform where the order can be posted, including the
execution fees, data quality and price and distribution of its data
products. Without trade executions, exchange data products cannot
exist. Moreover, data products are valuable to many end users only
insofar as they provide information that end users expect will assist
them or their customers in making trading decisions.
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    \10\ See Exhibit 3, Statement of Janusz Ordover and Gustavo
Bamberger, Compass Lexecon LLC, dated December 29, 2010.
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    The costs of producing market data include not only the costs of
the data distribution infrastructure, but also the costs of designing,
maintaining, and operating the exchange's transaction execution
platform and the cost of regulating the exchange to ensure its fair
operation and maintain investor confidence. The total return that a
trading platform earns reflects the revenues it receives from both
products and the joint costs it incurs. Moreover, the operation of the
exchange is characterized by high fixed costs and low marginal costs.
This cost structure is common in content and content distribution
industries such as software, where developing new software typically
requires a large initial investment (and continuing large investments
to ``upgrade'' the software), but once the software is developed, the
incremental cost of providing that software to an additional user is
typically small, or even zero (e.g., if the software can be downloaded
over the Internet after being purchased).\11\ In NASDAQ's case, it is
costly to build and maintain a trading platform, but the incremental
cost of trading each additional share on an existing platform, or
distributing an additional instance of data, is very low. Market
information and executions are each produced jointly (in the sense that
the activities of trading and placing order are the source of the
information that is distributed) and are each subject to significant
scale economies. In such cases, marginal cost pricing is not feasible
because if all sales were priced at the margin, NASDAQ would be unable
to defray its platform costs of providing the joint products.
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    \11\ See William J. Baumol and Daniel G. Swanson, ``The New
Economy and Ubiquitous Competitive Price Discrimination: Identifying
Defensible Criteria of Market Power,'' Antitrust Law Journal, Vol.
70, No. 3 (2003).
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    An exchange's BD customers view the costs of transaction executions
and of data as a unified cost of doing business with the exchange. A BD
will direct orders to a particular exchange only if the expected
revenues from executing trades on the exchange exceed net transaction
execution costs and the cost of data that the BD chooses to buy to
support its trading decisions (or those of its customers). The choice
of data products is, in turn, a product of the value of the products in
making profitable trading decisions. If the cost

of the product exceeds its expected value, the BD will choose not to
buy it. Moreover, as a BD chooses to direct fewer orders to a
particular exchange, the value of the product to that BD decreases, for
two reasons. First, the product will contain less information, because
executions of the BD's trading activity will not be reflected in it.
Second, and perhaps more important, the product will be less valuable
to that BD because it does not provide information about the venue to
which it is directing its orders. Data from the competing venue to
which the BD is directing orders will become correspondingly more
valuable.
    Similarly, in the case of products such as MatchView that are
distributed through market data vendors, the vendors provide price
discipline for proprietary data products because they control the
primary means of access to end users. Vendors impose price restraints
based upon their business models. For example, vendors such as
Bloomberg and Reuters that assess a surcharge on data they sell may
refuse to offer proprietary products that end users will not purchase
in sufficient numbers. Internet portals, such as Google, impose a
discipline by providing only data that will enable them to attract
``eyeballs'' that contribute to their advertising revenue. Retail BDs,
such as Schwab and Fidelity, offer their customers proprietary data
only if it promotes trading and generates sufficient commission
revenue. Although the business models may differ, these vendors'
pricing discipline is the same: they can simply refuse to purchase any
proprietary data product that fails to provide sufficient value. NASDAQ
and other producers of proprietary data products must understand and
respond to these varying business models and pricing disciplines in
order to market proprietary data products successfully. Moreover,
NASDAQ believes that products such as MatchView can enhance order flow
to NASDAQ by providing more widespread distribution of information
about transactions in real time, thereby encouraging wider
participation in the market by investors with access to the Internet or
television. Conversely, the value of such products to distributors and
investors decreases if order flow falls, because the products contain
less content.
    Analyzing the cost of market data distribution in isolation from
the cost of all of the inputs supporting the creation of market data
will inevitably underestimate the cost of the data. Thus, because it is
impossible to create data without a fast, technologically robust, and
well-regulated execution system, system costs and regulatory costs
affect the price of market data. It would be equally misleading,
however, to attribute all of the exchange's costs to the market data
portion of an exchange's joint product. Rather, all of the exchange's
costs are incurred for the unified purposes of attracting order flow,
executing and/or routing orders, and generating and selling data about
market activity. The total return that an exchange earns reflects the
revenues it receives from the joint products and the total costs of the
joint products.
    Competition among trading platforms can be expected to constrain
the aggregate return each platform earns from the sale of its joint
products, but different platforms may choose from a range of possible,
and equally reasonable, pricing strategies as the means of recovering
total costs. NASDAQ pays rebates to attract orders, charges relatively
low prices for market information and charges relatively high prices
for accessing posted liquidity. Other platforms may choose a strategy
of paying lower liquidity rebates to attract orders, setting relatively
low prices for accessing posted liquidity, and setting relatively high
prices for market information. Still others may provide most data free
of charge and rely exclusively on transaction fees to recover their
costs. Finally, some platforms may incentivize use by providing
opportunities for equity ownership, which may allow them to charge
lower direct fees for executions and data.
    In this environment, there is no economic basis for regulating
maximum prices for one of the joint products in an industry in which
suppliers face competitive constraints with regard to the joint
offering. Such regulation is unnecessary because an ``excessive'' price
for one of the joint products will ultimately have to be reflected in
lower prices for other products sold by the firm, or otherwise the firm
experience a loss in the volume of its sales that will be adverse to
its overall profitability. In other words, an increase in the price of
data will ultimately have to be accompanied by a decrease in the cost
of executions, or the volume of both data and executions will fall.
    The level of competition and contestability in the market is
evident in the numerous alternative venues that compete for order flow,
including thirteen SRO markets, as well as internalizing BDs and
various forms of alternative trading systems (``ATSs''), including dark
pools and electronic communication networks (``ECNs''). Each SRO market
competes to produce transaction reports via trade executions, and two
FINRA-regulated Trade Reporting Facilities (``TRFs'') compete to
attract internalized transaction reports. It is common for BDs to
further and exploit this competition by sending their order flow and
transaction reports to multiple markets, rather than providing them all
to a single market. Competitive markets for order flow, executions, and
transaction reports provide pricing discipline for the inputs of
proprietary data products.
    The large number of SROs, TRFs, BDs, and ATSs that currently
produce proprietary data or are currently capable of producing it
provides further pricing discipline for proprietary data products. Each
SRO, TRF, ATS, and BD is currently permitted to produce proprietary
data products, and many currently do or have announced plans to do so,
including NASDAQ, NYSE, NYSE Amex, NYSEArca, BATS, and Direct Edge.
    Any ATS or BD can combine with any other ATS, BD, or multiple ATSs
or BDs to produce joint proprietary data products. Additionally, order
routers and market data vendors can facilitate single or multiple BDs'
production of proprietary data products. The potential sources of
proprietary products are virtually limitless.
    The fact that proprietary data from ATSs, BDs, and vendors can by-
pass SROs is significant in two respects. First, non-SROs can compete
directly with SROs for the production and sale of proprietary data
products, as BATS and Arca did before registering as exchanges by
publishing proprietary book data on the Internet. Second, because a
single order or transaction report can appear in a core data product,
an SRO proprietary product, and/or a non-SRO proprietary product, the
data available in proprietary products is exponentially greater than
the actual number of orders and transaction reports that exist in the
marketplace. Indeed, in the case of MatchView, the data provided
through that product appears both in (i) Real-time core data products
offered by the SIPs for a fee, and (ii) free SIP data products with a
15-minute time delay, and finds a close substitute in quotation
products of competing venues.
    In addition to the competition and price discipline described
above, the market for proprietary data products is also highly
contestable because market entry is rapid, inexpensive, and profitable.
The history of electronic trading is replete with examples of entrants
that swiftly grew into some of the largest electronic trading platforms
and proprietary data producers:

Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN,
BATS Trading and Direct Edge. Today, BATS and Direct Edge provide data
at no charge in order to attract order flow, and use market data
revenue rebates from the resulting executions to maintain low execution
charges for their users. A proliferation of dark pools and other ATSs
operate profitably with fragmentary shares of consolidated market
volume.
    Regulation NMS, by deregulating the market for proprietary data,
has increased the contestability of that market. While BDs have
previously published their proprietary data individually, Regulation
NMS encourages market data vendors and BDs to produce proprietary
products cooperatively in a manner never before possible. Multiple
market data vendors already have the capability to aggregate data and
disseminate it on a profitable scale, including Bloomberg and Thomson
Reuters.
    Moreover, consolidated data provides two additional measures of
pricing discipline for proprietary data products that are a subset of
the consolidated data stream. First, the consolidated data is widely
available in real-time at $1 per month for non-professional users.
Second, consolidated data is also available at no cost with a 15- or
20- minute delay. Because consolidated data contains marketwide
information, it effectively places a cap on the fees assessed for
proprietary data (such as quotation data) that is simply a subset of
the consolidated data. The mere availability of low-cost or free
consolidated data provides a powerful form of pricing discipline for
proprietary data products that contain data elements that are a subset
of the consolidated data, by highlighting the optional nature of
proprietary products.
    The competitive nature of the market for products such as MatchView
is borne out by the performance of the market. One example is the
NASDAQ Last Sale product, set forth in NASDAQ Rule 7039. In May 2008,
the internet portal Yahoo! began offering its Web site viewers real-
time last sale data (as well as best quote data) provided by BATS
Trading. In response, in June 2008, NASDAQ launched NLS, which was
initially subject to an ``enterprise cap'' of $100,000 for customers
receiving only one of the NLS entitlements (including only NASDAQ
Listed securities), and $150,000 for customers receiving both
entitlements (NASDAQ and NYSE/AMEX Listed securities. The majority of
NASDAQ's sales were at the capped level. In early 2009, BATS expanded
its offering of free data to include depth-of-book data. Also in early
2009, NYSEArca announced the launch of a competitive last sale product
with an enterprise price of $30,000 per month. In response, NASDAQ
combined the enterprise cap for the NLS products and reduced the cap to
$50,000 (i.e., a reduction of $100,000 per month). Although each of
these products offers only a specific subset of data available from the
SIPs, NASDAQ believes that the products are viewed as substitutes for
each other and for core data, rather than as products that must be
obtained in tandem. For example, while the internet portal Yahoo!
continues to disseminate only the BATS last sale product, Google
disseminates only NASDAQ's product.
    In this environment, a super-competitive increase in the fees
charged for either transactions or data has the potential to impair
revenues from both products. ``No one disputes that competition for
order flow is `fierce'.'' NetCoalition at 24. The existence of fierce
competition for order flow implies a high degree of price sensitivity
on the part of BDs with order flow, since they may readily reduce costs
by directing orders toward the lowest-cost trading venues. A BD that
shifted its order flow from one platform to another in response to
order execution price differentials would both reduce the value of that
platform's market data and reduce its own need to consume data from the
disfavored platform. If a platform increases its market data fees, the
change will affect the overall cost of doing business with the
platform, and affected BDs will assess whether they can lower their
trading costs by directing orders elsewhere and thereby lessening the
need for the more expensive data. Similarly, increases in the cost of
MatchView would impair the willingness of distributors to take a
product for which there are numerous alternatives, impacting MatchView
data revenues, the value of MatchView as a tool for attracting order
flow, and ultimately, the volume of orders routed to NASDAQ and the
value of its other data products.
    In establishing the price for the MatchView Products, NASDAQ
considered the competitiveness of the market for quotation data and all
of the implications of that competition. NASDAQ believes that it has
considered all relevant factors and has not considered irrelevant
factors in order to establish a fair, reasonable, and not unreasonably
discriminatory fees and an equitable allocation of fees among all
users. The existence of numerous alternatives to MatchView, including
real-time consolidated data, free delayed consolidated data, and
proprietary data from other sources ensures that NASDAQ cannot set
unreasonable fees, or fees that are unreasonably discriminatory,
without losing business to these alternatives. Accordingly, NASDAQ
believes that the acceptance of the MatchView product in the
marketplace demonstrates the consistency of these fees with applicable
statutory standards.

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

    No written comments were either solicited or received.

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)(ii) of the Act.\12\ 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 shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2011-139 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2011-139. This
file number should be included on the subject line if e-mail is used.
To help the

Commission process and review your comments more efficiently, please
use only one method. The Commission will post all comments on the
Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street, NE., Washington,
DC 20549, on official business days between the hours of 10 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. All comments received
will be posted without change; the Commission does not edit personal
identifying information from submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NASDAQ-2011-139 and should be submitted
on or before November 7, 2011.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
---------------------------------------------------------------------------

    \13\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-26672 Filed 10-14-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 160 (Monday, August 19, 2019)]
[Proposed Rules]
[Pages 42842-42847]
[FR Doc No: 2019-17697]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. FAA-2019-0330; Notice No. 25-19-05-SC]

Special Conditions: The Boeing Company Model 777-9 Series
Airplane; Overhead Flight Attendant Rest Compartment

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed special conditions.

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SUMMARY: This action proposes special conditions for The Boeing Company
(Boeing) Model 777-9 series airplane. This airplane will have a novel
or unusual design feature when compared to the state of technology
envisioned in the airworthiness standards for transport category
airplanes. This design feature is associated with the installation of
an overhead flight attendant rest (OFAR) compartment. The applicable
airworthiness regulations do not contain adequate or appropriate safety
standards for this design feature. These proposed special conditions
contain the additional safety standards that the Administrator
considers necessary to establish a level of safety equivalent to that
established by the existing airworthiness standards.

DATES: Send comments on or before October 3, 2019.

ADDRESSES: Send comments identified by Docket No. FAA-2019-0330 using
any of the following methods:
     Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending
your comments electronically.
     Mail: Send comments to Docket Operations, M-30, U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov/, including any personal
information the commenter provides. Using the search function of the
docket website, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478).
    Docket: Background documents or comments received may be read at
http://www.regulations.gov/ at any time. Follow the online instructions
for accessing the docket or go to Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Shannon Lennon, Airframe and Cabin
Safety Section, AIR-675, Transport Standards Branch, Policy and
Innovation Division, Aircraft Certification Service, Federal Aviation
Administration, 2200 South 216th Street, Des Moines, Washington 98198;
telephone and fax<PHONE_NUMBER>; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite interested people to take part in this rulemaking by
sending written comments, data, or views. The most helpful comments
reference a specific portion of the special conditions, explain the
reason for any recommended change, and include supporting data.
    We will consider all comments we receive by the closing date for
comments. We may change these special conditions based on the comments
we receive.

Background

    On April 24, 2018, The Boeing Company applied for an amendment to
Type Certificate No. T00001SE to include the new Model 777-9 series
airplane. The Boeing Model 777-9 series airplane, which is a derivative
of the 777-300ER currently approved under Type Certificate No.
T00001SE, is a twin-engine, transport category airplane with seating
for up to 495 passengers depending upon airplane configuration, and a
maximum takeoff weight of approximately 775,000 lbs.

Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14
CFR) 21.101, Boeing must show that the Model 777-9 series airplane
continues to meet the applicable provisions of part 25, as amended by
amendments 25-1 through 25-139, and parts 26, 34, and 36, and the
regulations listed in Type Certificate No. T00001SE or the applicable
regulations in effect on the date of application for the change, except
for earlier amendments as agreed upon by the FAA.
    If the Administrator finds that the applicable airworthiness
regulations (i.e., 14 CFR part 25) do not contain adequate or
appropriate safety standards for the Boeing Model 777-9 series airplane
because of a novel or unusual design feature, special conditions are
prescribed under the provisions of Sec.  21.16.
    Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same novel or
unusual design feature, these special conditions would also apply to
the other model under Sec.  21.101.
    In addition to the applicable airworthiness regulations and special
conditions, the Boeing Model 777-9 series airplane must comply with the
fuel vent and exhaust emission requirements of 14 CFR part 34 and the
noise certification requirements of 14 CFR part 36.
    The FAA issues special conditions, as defined in 14 CFR 11.19, in
accordance with Sec.  11.38, and they become part of the type
certification basis under Sec.  21.101.

Novel or Unusual Design Features

    The Boeing Model 777-9 series airplane will incorporate the
following novel or unusual design features:
    This airplane will have an installation of an OFAR compartment. The
OFAR compartment of the Boeing Model 777-9 series airplane is unique to
part 25 due to its design, location, and use on the airplane. This
compartment is particularly unique in that it is located in the
overhead area of the passenger compartment and crewmembers may occupy
this compartment for crew rest purposes during flight.

Discussion

    Boeing has previously installed certified OFAR compartments on
Boeing Model 777 series airplanes in varied locations, such as the main
passenger seating area, the overhead space above the main passenger
cabin seating area, and below the passenger cabin seating area within
the cargo compartment. In each case, the Administrator determined that
the applicable regulations did not provide all of the necessary
requirements because each installation had unique features by virtue of
its design, location, and use on the airplane.
    When the Administrator finds that the applicable airworthiness
regulations do not contain adequate or appropriate safety standards
because of a novel or unusual design feature, special conditions are
prescribed under the provisions of Sec.  21.16. The special conditions
contain safety standards that the Administrator considers necessary to
establish a level of safety equivalent to that established by the
existing airworthiness standards.
    For the Boeing Model 777-9 series airplane, the OFAR compartment is
located in the overhead space, above the main passenger cabin seating
area, adjacent to Door 5. The OFAR compartment will contain six, eight,
or ten private berths depending upon customer configuration.
Additionally, only trained crewmembers will occupy the OFAR compartment
in flight, not during taxi, takeoff, or landing. Crewmembers will
access the OFAR compartment from the main deck by stairs through a
vestibule. In addition, a secondary evacuation route, which opens
directly into the main passenger seating area, will be available as an
alternate route for evacuating occupants of the compartment. The
compartment will provide a smoke detection system, an oxygen system,
and occupant amenities.
    This Boeing Model 777-9 series airplane OFAR compartment is unique
to part Sec.  25.853 (a), (e), and (h) due to its design, location, and
use on the airplane. This compartment is particularly unique in that it
is located in the overhead area of the passenger compartment and
crewmembers may occupy this compartment for crew rest purposes during
flight. Due to the novel or unusual features associated with the
installation of this compartment, the FAA considers special conditions
necessary to provide a level of safety equal to that established by the
airworthiness regulations incorporated by reference in the G-1 Issue
Paper for the Boeing Model 777-9 series airplane.
    Boeing originally requested that Special Conditions No. 25-230-SC
(68 FR 17513, April 9, 2003) for the OFAR compartment be made
applicable to the Boeing Model 777-9 series airplane via collector
issue paper. Subsequent to the issuance of Special Conditions No. 25-

230-SC, the FAA issued Special Conditions No. 25-419-SC (76 FR 10482,
February 25, 2011), for OFAR compartments allowed to be occupied during
flight on Boeing Model 787 series airplanes. In consideration of these
special conditions, which reflect the current methodology for
addressing remote OFAR compartments, new special conditions are
proposed for the Boeing Model 777-9 series airplanes.
    The proposed special conditions contain the additional safety
standards that the Administrator considers necessary to establish a
level of safety equivalent to that established by the existing
airworthiness standards.

Applicability

    As discussed above, these special conditions are applicable to the
Boeing Model 777-9 series airplane. Should Boeing apply at a later date
for a change to the type certificate to include another model
incorporating the same novel or unusual design feature, these special
conditions would apply to that model as well.

Conclusion

    This action affects only certain novel or unusual design features
on one model series airplane. It is not a rule of general
applicability.

List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements.

Authority Citation

    The authority citation for these special conditions is as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.

The Proposed Special Conditions

    Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for Boeing Model 777-9 series airplane.

Overhead Flight Attendant Rest (OFAR) Special Conditions

    1. OFAR Compartment Occupancy. Occupancy of the OFAR compartment is
limited to the total number of installed bunks and seats in each
compartment. An approved seat or berth--able to withstand the maximum
flight loads when occupied for each occupant permitted in the OFAR
compartment--must be available. Maximum occupancy in the OFAR
compartment is six, eight, or ten crewmembers during flight depending
upon customer configuration.
    a. Appropriate placards must be located inside and outside each
entrance to the OFAR compartment to indicate:
    (1) The maximum number of occupants allowed during flight.
    (2) Occupancy is restricted to crewmembers who are trained in the
evacuation procedures for the OFAR compartment.
    (3) Occupancy is prohibited during taxi, take-off, and landing.
    (4) Smoking is prohibited in the OFAR compartment.
    (5) That stowage in the OFAR compartment must be limited to
emergency equipment, airplane-supplied equipment (e.g., bedding), and
crew personal luggage; the stowage of cargo and passenger baggage is
not allowed.
    b. At least one ashtray must be located on both the inside and the
outside of any entrance to the OFAR compartment.
    c. A limitation in the airplane flight manual, or other means, must
be established to restrict occupancy to crewmembers, which the pilot in
command has determined to be trained in the emergency procedures for
the OFAR compartment.
    d. A limitation in the airplane flight manual, or other means, must
be established to restrict occupancy to crewmembers that have received
training to be able to rapidly use the evacuation routes of the OFAR
compartment.
    e. A means must be in place for any door installed between the OFAR
compartment and the passenger cabin to be quickly opened from inside
the compartment, even when crowding occurs at each side of the door.
    f. For all doors installed in the OFAR compartment, a means must be
in place that precludes anyone from being trapped inside the OFAR
compartment. If a manufacturer or operator installs a locking mechanism
on a door, it must be capable of being unlocked from the outside
without the aid of special tools. The lock must not prevent opening
from the inside of the OFAR compartment at any time.
    g. The means of opening doors and hatches to the OFAR compartment
must be simple and obvious. Crewmembers must be able to close OFAR
compartment doors and hatches from the main passenger cabin. Doors or
hatches that separate the OFAR compartment from the main deck must not
adversely affect evacuation of occupants on the main deck, for example,
by slowing evacuation by encroaching into aisles, or causing injury to
those occupants during opening of doors, or while doors are opened.
    2. Emergency Evacuation Routes. At least two emergency evacuation
routes must be available for occupants of the OFAR compartment to
evacuate rapidly to the main cabin. OFAR compartment doors must be able
to close these evacuation routes from the main passenger cabin after
evacuation. In addition--
    a. These routes must be located with sufficient separation within
the OFAR compartment to minimize the possibility of an event either
inside or outside of the OFAR compartment rendering both routes
inoperative.
    b. The routes must be designed to minimize the possibility of
blockage, which might result from fire, mechanical or structural
failure, or persons standing below or against the OFAR compartment
outlets.
    c. One of the two OFAR evacuation routes should not be located
where egress from the OFAR compartment may be impeded, during times
when normal movement or occupancy is allowed, or evacuation by
passengers occurs (for example, the main aisle, cross aisle, or galley
complex). If an evacuation route is in an area where normal movement of
passengers occurs, it must be demonstrated that passengers would not
impede egress to the main deck.
    d. If low headroom is at or near the evacuation route, provisions
must be made to prevent or to protect occupants of the OFAR compartment
from head injury.
    e. Use of evacuation routes must not depend on any powered device.
    f. If an OFAR compartment outlet is over an area of passenger
seats, a maximum of five passengers may be displaced from their seats
temporarily during the process of evacuating an incapacitated
person(s).
    g. If an evacuation procedure involves the evacuee stepping on
seats, the seats must not be damaged to the extent that they would not
be acceptable for occupancy during an emergency landing.
    h. OFAR compartment emergency evacuation procedures--including
procedures for emergency evacuation of an incapacitated occupant from
the OFAR compartment--must be established. The applicant must transmit
all of these procedures to each operator for incorporation into its
training programs and appropriate operational manuals
    i. A limitation must be included in the airplane flight manual, or
other suitable means, to require that crewmembers are trained in the
use of the OFAR compartment evacuation routes.

    3. Evacuation of Incapacitated Person. A means must be available
for evacuating an incapacitated person (representative of a 95th
percentile male) from the OFAR compartment to the passenger cabin
floor.
    4. Exit Signs and Placards. The applicant must provide the
following exit signs and placards in the OFAR compartment, which meet
the following criteria:
    a. At least one exit sign, located near each OFAR compartment
outlet, meeting the emergency lighting requirements of Sec.
25.812(b)(1)(i).
    b. One allowable exception is an exit sign having a reduced
background area of no less than 5.3 square inches (excluding the
letters) that is installed where the material surrounding the exit sign
is light in color (such as white, cream, or light beige).
    c. If the material surrounding the exit sign is not light in color,
a sign with a minimum of a one-inch-wide background border around the
letters is acceptable. Another allowable exception in an OFAR
compartment is a sign with a symbol that the FAA has determined to be
equivalent for use as an exit sign that meets Sec.  25.811(d).
    d. An appropriate placard for general access located conspicuously
on or near each OFAR compartment door or hatch that defines the
location and the operating instructions for access to and operation of
the outlet door or hatch.
    e. Placards must be readable from a distance of 30 inches under
emergency lighting conditions.
    f. The door handles, hatch handles, and operating-instruction
placards required by Special Condition 4(d) of these special conditions
must be illuminated to at least 160 micro lamberts under emergency
lighting conditions.
    5. Emergency Illumination. A means must be available, in the event
of failure of the aircraft's main power system, and of the normal OFAR
compartment lighting system, for emergency illumination to be
automatically provided for the OFAR compartment.
    a. This emergency illumination must be powered independent of the
main lighting system.
    b. The sources of general cabin illumination may be common to both
the emergency and the main lighting systems, if the power supply to the
emergency lighting system is independent of the power supply to the
main lighting system.
    c. The emergency illumination level must be sufficient to allow
occupants of the OFAR compartment to locate and move to the main
passenger cabin floor by means of each evacuation route.
    d. The emergency illumination level must be sufficient, with the
privacy curtains in the closed position, for each occupant of the OFAR
compartment to locate a deployed oxygen mask required by Special
Condition 13 of these special conditions.
    6. Two-Way Voice Communications. A means must be available for two-
way voice communications between crewmembers on the flight deck and
occupants of the OFAR compartment.
    a. Two-way communications must also be available between occupants
of the OFAR compartment and each flight attendant station in the
passenger cabin that is required per Sec.  25.1423(g) to have a
microphone for the public address system.
    b. The public address system must be able to communicate the
relevant safety information to the crewmembers in the OFAR compartment
(for example, fire in flight, aircraft depressurization, and
preparation of the compartment for landing).
    7. Emergency Alarm System. A means must be available for manual
activation of an aural emergency alarm system, audible during normal
and emergency conditions that enable crewmembers on the flight deck and
at each pair of the required floor-level emergency exits to alert
occupants of the OFAR compartment of an emergency. The use of a public
address or crew interphone system is acceptable, provided an adequate
means of differentiating between normal and emergency communications is
incorporated. The system must be powered in flight and after the
shutdown or failure of all engines and auxiliary power units for a
period of at least ten minutes.
    8. Seatbelt Fasten Signal. A signal, readily detectable by seated
or standing occupants of the OFAR compartment, must be in place to
indicate when seat belts should be fastened.
    a. If the OFAR compartment has no seats, at least one means must be
provided to cover anticipated turbulence (e.g., sufficient handholds).
    b. Seatbelt-type restraints must be provided for berths and must be
compatible for the sleeping position during cruise conditions.
    c. A placard on each berth must require that these restraints be
fastened when occupied.
    d. If compliance with any of the other requirements of these
special conditions predicates a specific head position, a placard must
identify that head position.
    9. Protective Breathing Equipment (PBE). In lieu of the
requirements specified in Sec.  25.1439(a) pertaining to PBE in
isolated compartments, and to provide a level of safety equivalent that
is provided to occupants of an isolated galley, the following equipment
must be provided in the OFAR compartment:
    a. Two PBE devices suitable for firefighting, or one PBE for each
hand-held fire extinguisher, whichever is greater. All PBE devices must
be approved to Technical Standard Order (TSO)-C116 or equivalent.
    b. At least one approved, hand-held fire extinguisher appropriate
for the kinds of fires likely to occur.
    c. One flashlight.

    Note: Additional PBE devices and fire extinguishers in specific
locations, beyond the minimum numbers prescribed in Special
Condition 9, may be required as a result of the egress analysis
accomplished to satisfy Special Condition 2(a) of these special
conditions.

    10. Smoke and fire detection system. Smoke and fire detection
system(s) must be provided that monitor each occupiable area within the
OFAR compartment, including those areas partitioned by curtains or
doors. The applicant must conduct flight tests to show compliance with
this requirement. Each smoke or fire detection system(s) must provide:
    a. A visual indication to the flight deck within one minute after
the start of a fire.
    b. An aural warning in the OFAR compartment.
    c. An aural or visual warning in the main passenger cabin. This
warning must be readily detectable by a flight attendant, taking into
consideration the locations of flight attendants throughout the main
passenger compartment during various phases of flight.
    11. Built-in fire suppression system. The OFAR compartment must be
designed such that fires within the compartment can be controlled
without a crewmember having to enter the compartment (i.e., built-in
fire suppression system), or the design of the access provisions must
allow crewmembers equipped for firefighting to have unrestricted access
to the compartment. The time for a crewmember on the main deck to react
to the fire alarm, to don the firefighting equipment, and to gain
access must not exceed the time for the compartment to become smoke-
filled, making it difficult to locate the fire source. The acceptable
duration that a built-in fire suppression system can be maintained must
be verified by certification flight-testing.
    12. Hazardous Smoke and Extinguishing Agent. The applicant must
provide a means to prevent hazardous quantities of smoke or
extinguishing agent originating in the OFAR compartment from entering
the

flight deck, passenger cabin, or any other occupiable compartment.
    a. Small quantities of smoke may penetrate from the OFAR
compartment into other occupied areas during the one-minute smoke
detection time.
    b. Firefighting procedures must ensure that crewmembers close all
doors and hatches at the OFAR compartment outlets after evacuation of
the compartment and during firefighting to minimize smoke and
extinguishing agent entering other occupiable compartments.
    c. Hazardous quantities of smoke may not enter any occupied
compartment while a crewmember accesses an OFAR compartment to manually
fight a fire there. The amount of smoke entrained by a crewmember
exiting the OFAR compartment is not considered a hazardous amount.
    d. Smoke entering any occupiable compartment, when access to the
OFAR compartment is open for evacuation, must dissipate within five
minutes after the access to the OFAR compartment is closed.
    e. The applicant must conduct flight tests to show compliance with
this requirement.
    13. Supplemental Oxygen System. A supplemental oxygen system within
the OFAR compartment that supplies oxygen in the event of decompression
must provide the following:
    a. At least one oxygen mask for each seat and berth in the OFAR
compartment.
    b. If a destination area, such as a changing area, is provided in
the OFAR compartment, an oxygen mask must be readily available for each
occupant who can reasonably be expected to be in the destination area.
The maximum number of required oxygen masks within the destination area
is limited to the placarded maximum occupancy of the OFAR compartment.
    c. An oxygen mask must be readily accessible to each occupant who
can reasonably be expected to be moving from the main cabin into the
OFAR compartment, moving around within the OFAR compartment, or moving
from the OFAR compartment to the main cabin.
    d. The supplemental oxygen system must provide an aural and visual
alert to warn occupants of the OFAR compartment to don oxygen masks in
the event of decompression.
    (1) The aural and visual alerts must activate concurrently with
deployment of the oxygen masks in the passenger cabin.
    (2) To compensate for sleeping occupants, the aural alert must be
heard in each section of the OFAR compartment and must sound
continuously for a minimum of five minutes or until a reset switch
within the OFAR compartment is activated.
    (3) A visual alert that informs occupants that they must don an
oxygen mask must be visible in each section.
    e. A means must be in place by which oxygen masks in the OFAR
compartment can be manually deployed from the flight deck.
    f. The applicant must establish approved procedures for OFAR
occupants in the event of decompression. The applicant must transmit
these procedures must be transmitted to the operator for incorporation
into its training programs and appropriate operational manuals.
    g. The supplemental oxygen system for the OFAR compartment must
meet the same 14 CFR part 25 regulations for the supplemental oxygen
system for the passenger cabin occupants, except for the 10 percent
additional masks requirement of 14 CFR 25.1447(c)(1).
    h. The illumination level of the normal OFAR compartment lighting
system must automatically be sufficient for each occupant of the
compartment to locate a deployed oxygen mask.
    14. Divided OFAR Compartments. The following requirements apply to
OFAR compartments that are divided into several sections by the
installation of curtains or partitions:
    a. A placard is required adjacent to each curtain that visually
divides or separates, for example, for privacy purposes, the OFAR
compartment into smaller sections. The placard must require that the
curtain(s) remains open when that section is unoccupied. The vestibule
section adjacent to the stairway is not considered a private section
and, therefore, does not require a placard.
    b. For each section of the OFAR compartment created by the
installation of a curtain, the following requirements of these special
conditions must be met with the curtain open or closed:
    (1) No-smoking placard (Special Condition 1),
    (2) Emergency illumination (Special Condition 5),
    (3) Aural emergency alarm system (Special Condition 7),
    (4) Seatbelt-fasten signal or return-to-seat signal as applicable
(Special Condition 8),
    (5) Smoke or fire detection system requirement (Special Condition
10), and
    (6) Oxygen system (Special Condition 13).
    c. OFAR compartments that are divided by curtains to the extent
that evacuation could be adversely affected must have exit signs
directing occupants to the primary stairway outlet. The exit signs must
be provided in each separated section of the OFAR compartment, except
for curtained bunks, and must meet requirements of Sec.
25.812(b)(1)(i). An exit sign with reduced background area or a
symbolic exit sign, as described in Special Condition 4(a), may be used
to meet this requirement.
    d. For OFAR compartments that are divided using an installation of
a rigid partition with a door separating the sections, the following
requirements of these special conditions must be met with the door open
or closed:
    (1) A secondary evacuation route from each section to the main deck
is required, or alternatively, the applicant must show that any door
between the sections precludes anyone from being trapped inside a
section of the compartment. The applicant must consider removal of an
incapacitated occupant from within this area. A secondary evacuation
route from a small room designed for only one occupant for a short time
duration, such as a changing area or lavatory, is not required, but the
applicant must consider removal of an incapacitated occupant from
within such a small room.
    (2) Any door between the sections must be shown to be openable when
crowded against, even when crowding occurs at each side of the door.
    (3) No more than one door may be located between any seat or berth
and the primary stairway door.
    (4) In each section, exit signs meeting requirements of Sec.
25.812(b)(1)(i), or shown to have an equivalent level of safety, must
direct occupants to the primary stairway outlet. An exit sign with
reduced background area or a symbolic exit sign, as described in
Special Condition 4(a), may be used to meet this requirement.
    (5) Special Conditions 1 (no-smoking placards), 5 (emergency
illumination), 7 (emergency alarm system), 8 (fasten-seatbelt signal or
return to seat signal as applicable), 10 (smoke or fire detections
system), and 13 (oxygen system) must be met with the door open or
closed.
    (6) Special Condition 6 (two-way voice communication) and 9
(Emergency firefighting and protective equipment) must be met
independently for each separate section except for lavatories or other
small areas that are not intended to be occupied for extended periods
of time.
    15. Waste Disposal Receptacle. If a waste-disposal receptacle is
fitted in the OFAR compartment, it must be equipped with an automatic
fire

extinguisher that meets the performance requirements of Sec.
25.854(b).
    16. OFAR Compartment Materials. Materials (including finishes or
decorative surfaces applied to the materials) of OFAR compartments must
comply with flammability requirements of Sec.  25.853(a) as amended by
Amendment 25-116. Seat cushions and mattresses must comply with the
flammability requirements of Sec.  25.853(c) as amended by Amendment
25-116 and the test requirements of part 25, appendix F, part II, or
other equivalent methods.
    17. OFAR Compartment Lavatory. An addition of a lavatory within the
OFAR compartment requires the lavatory to meet the same requirements as
a lavatory installed on the main deck except with regard to Special
Condition 10 for smoke detection.
    18. OFAR Compartment Stowage. Each stowage compartment in the OFAR
compartment, except for under seat compartments for occupant
convenience, must be completely enclosed. All enclosed stowage
compartments within the OFAR compartment that are not limited to
stowage of emergency equipment or airplane-supplied equipment (e.g.,
bedding) must meet the design criteria described in table 1 of these
special conditions. Enclosed stowage compartments greater than 200
ft\3\ in interior volume are not addressed by this special condition.
The in-flight accessibility of very large, enclosed, stowage
compartments and the subsequent impact on the crewmembers' ability to
effectively reach any part of the compartment with the contents of a
hand-held fire-extinguishing system will require additional fire-
protection considerations similar to those required for inaccessible
compartments such as Class C cargo compartments.

              Table 1--Design Criteria for Enclosed Stowage Compartments Not Limited to Stowage of Emergency or Airplane-Supplied Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Applicability of fire protection requirements by interior volume
                                    --------------------------------------------------------------------------------------------------------------------
      Fire protection features                                               25 cubic feet to less than 57 cubic
                                            Less than 25 cubic feet                          feet                     57 cubic feet to 200 cubic feet
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compliant Materials of Construction  Yes..................................  Yes..................................  Yes.
 \a\.
Smoke or Fire Detectors \b\........  No...................................  Yes..................................  Yes.
Liner \c\..........................  No...................................  Conditional..........................  Yes.
Fire Location Detector \d\.........  No...................................  Yes..................................  Yes.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    a. Materials of Construction: The material used in constructing
each enclosed stowage compartment must at least be fire resistant and
must meet the flammability standards established for interior
components (i.e., 14 CFR part 25 Appendix F, Parts I, IV, and V) per
the requirements of Sec.  25.853. For compartments less than 25 ft.\3\
in interior volume, the design must ensure the ability to contain a
fire likely to occur within the compartment under normal use.
    b. Smoke or Fire Detectors: Enclosed stowage compartments equal to
or exceeding 25 ft.\3\ in interior volume must be provided with a smoke
or fire detection system to ensure that a fire can be detected within a
one-minute detection time. The applicant must conduct flight tests to
show compliance with this requirement. Each smoke or fire detection
system(s) must provide:
    (1) A visual indication to the flight deck within one minute after
the start of a fire.
    (2) An aural warning in the OFAR compartment.
    (3) A warning in the main passenger cabin. This warning must be
readily detectable by a flight attendant, taking into consideration the
locations of flight attendants throughout the main passenger
compartment during various phases of flight.
    c. Stowage compartment liner.
    (1) If the material used in constructing the stowage compartment
meets the flammability requirements of a liner for a Class B cargo
compartment (Sec.  25.855 at Amendment 25-116, and Appendix F, part I,
paragraph (a)(2)(ii)), then no liner is required for enclosed stowage
compartments equal to or greater than 25 ft.\3\, but less than 57
ft.\3\ in interior volume.
    (2) For all enclosed stowage compartments equal to or greater than
57 ft.\3\ in interior volume, but less than or equal to 200 ft.\3\, a
liner must be provided that meets the requirements of Sec.  25.855 for
a Class B cargo compartment.
    d. Fire Location Detector: If an OFAR compartment has enclosed
stowage compartments exceeding 25 ft.\3\ interior volume that are
located separately from the other stowage compartments central
location, such as the entry to the OFAR compartment or other common
area, that OFAR compartment requires additional fire protection
features and devices to assist a firefighter in determining the
location of that fire.

    Issued in Des Moines, Washington, on August 13, 2019.
Mary A. Schooley,
Acting Manager, Transport Standards Branch, Policy and Innovation
Division, Aircraft Certification Service.
[FR Doc. 2019-17697 Filed 8-16-19; 8:45 am]
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[Federal Register Volume 75, Number 212 (Wednesday, November 3, 2010)]
[Notices]
[Pages 67719-67720]
[FR Doc No: 2010-27767]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9220-1]

Proposed Consent Decree, Clean Air Act Citizen Suit

AGENCY: Environmental Protection Agency.

ACTION: Notice of Proposed Consent Decree; Request for public comment.

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

SUMMARY: In accordance with section 113(g) of the Clean Air Act, as
amended (CAA or the Act), 42 U.S.C. 7413(g), notice is hereby given of
a proposed consent decree to address a lawsuit filed by Comite Civico
Del Valle, Inc. in the United States District Court for the Northern
District of California: Comite Civico Del Valle, Inc. v. Jackson, No.
10-cv-02859-PJH (N.D. Cal.). Plaintiff filed a deadline suit to compel
the Administrator to take final action under section 110(k) of the Act
on Imperial County Air Pollution Control District (ICAPCD) Rules 201,
202 and 217 submitted to the Environmental Protection Agency (EPA) on
or about August 24, 2007 as revisions to the state implementation plan.
The proposed consent decree establishes deadlines for EPA's action on
ICAPCD Rules 201, 202 and 217.

DATES: Written comments on the proposed consent decree must be received
by December 3, 2010.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-HQ-
OGC-2010-0900, online at http://www.regulations.gov (EPA's preferred
method); by e-mail to<EMAIL_ADDRESS>by mail to EPA Docket Center,
Environmental

Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; or by hand delivery or courier to EPA Docket
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC, between 8:30 a.m. and 4:30 p.m. Monday through Friday, excluding
legal holidays. Comments on a disk or CD-ROM should be formatted in
Word or ASCII file, avoiding the use of special characters and any form
of encryption, and may be mailed to the mailing address above.

FOR FURTHER INFORMATION CONTACT: Geoffrey Wilcox, Air and Radiation Law
Office (2344A), Office of General Counsel, U.S. Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone:<PHONE_NUMBER>; fax number<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Additional Information About the Proposed Consent Decree

    The proposed consent decree requires EPA to sign for publication in
the Federal Register no later than April 15, 2011 a notice of the
Agency's final action on ICAPCD Rules 201 and 202 pursuant to section
110(k) of the CAA. Rules 201 and 202 includes permitting requirements
and exemptions within the Imperial Valley. The proposed consent decree
also requires EPA to sign for publication in the Federal Register no
later than September 15, 2011 a notice of the Agency's final action on
ICAPCD Rule 217 pursuant to section 110(k) of the CAA. Rule 217
includes measures to control particulate matter emissions from large
confined animal facilities within the Imperial Valley.
    This proposed consent decree would resolve a lawsuit seeking to
compel action by the Administrator to take final action under section
110(k) of the Act on ICAPCD Rules 201, 202 and 217 submitted to EPA as
revisions to the state implementation plan. The proposed consent decree
provides that EPA will sign for publication in the Federal Register
notice of the Agency's final action pursuant to CAA section 110(k) on
Rules 201, 202 and 217 by April 15, 2011 and September 13, 2011
respectively. If EPA fulfills its obligations, Plaintiff has agreed to
dismiss this suit with prejudice.
    For a period of thirty (30) days following the date of publication
of this notice, the Agency will accept written comments relating to the
proposed consent decree from persons who were not named as parties or
intervenors to the litigation in question. EPA or the Department of
Justice may withdraw or withhold consent to the proposed consent decree
if the comments disclose facts or considerations that indicate that
such consent is inappropriate, improper, inadequate, or inconsistent
with the requirements of the Act. Unless EPA or the Department of
Justice determines that consent to this consent decree should be
withdrawn, the terms of the decree will be affirmed.

II. Additional Information About Commenting on the Proposed Consent
Decree

A. How can I get a copy of the consent decree?

    The official public docket for this action (identified by Docket ID
No. EPA-HQ-OGC-2010-0900) contains a copy of the proposed consent
decree. The official public docket is available for public viewing at
the Office of Environmental Information (OEI) Docket in the EPA Docket
Center, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington,
DC. The EPA Docket Center 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 OEI Docket is<PHONE_NUMBER>.
    An electronic version of the public docket is available through
http://www.regulations.gov. You may use http://www.regulations.gov to
submit or view public comments, access the index listing of the
contents of the official public docket, and to access those documents
in the public docket that are available electronically. Once in the
system, key in the appropriate docket identification number then select
``search''.
    It is important to note that EPA's policy is that public comments,
whether submitted electronically or in paper, will be made available
for public viewing online at http://www.regulations.gov without change,
unless the comment contains copyrighted material, CBI, or other
information whose disclosure is restricted by statute. Information
claimed as CBI and other information whose disclosure is restricted by
statute is not included in the official public docket or in the
electronic public docket. EPA's policy is that copyrighted material,
including copyrighted material contained in a public comment, will not
be placed in EPA's electronic public docket but will be available only
in printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the EPA Docket
Center.

B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section.
Please ensure that your comments are submitted within the specified
comment period. Comments received after the close of the comment period
will be marked ``late.'' EPA is not required to consider these late
comments.
    If you submit an electronic comment, EPA recommends that you
include your name, mailing address, and an e-mail address or other
contact information in the body of your comment and with any disk or
CD-ROM you submit. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. Any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. If EPA cannot
read your comment due to technical difficulties and cannot contact you
for clarification, EPA may not be able to consider your comment.
    Use of the http://www.regulations.gov Web site to submit comments
to EPA electronically is EPA's preferred method for receiving comments.
The electronic public docket system is an ``anonymous access'' system,
which means EPA will not know your identity, e-mail address, or other
contact information unless you provide it in the body of your comment.
In contrast to EPA's electronic public docket, EPA's electronic mail
(e-mail) system is not an ``anonymous access'' system. If you send an
e-mail comment directly to the Docket without going through http://www.regulations.gov, your e-mail address is automatically captured and
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.

    Dated: October 28, 2010.
Richard B. Ossias,
Associate General Counsel.
[FR Doc. 2010-27767 Filed 11-2-10; 8:45 am]
BILLING CODE 6560-50-P