[Federal Register Volume 80, Number 224 (Friday, November 20, 2015)]
[Rules and Regulations]
[Pages 72581-72585]
[FR Doc No: 2015-29631]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 150

[Docket No. FDA-1997-P-0007 (formerly Docket No. 1997P-0142)]

Artificially Sweetened Fruit Jelly and Artificially Sweetened
Fruit Preserves and Jams; Revocation of Standards of Identity

AGENCY: Food and Drug Administration, HHS.

ACTION: Final rule.

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SUMMARY: The Food and Drug Administration (FDA or we) is revoking the
standards of identity for artificially sweetened jelly, preserves, and
jams. We are taking this action primarily in response to a citizen
petition submitted by the International Jelly and Preserve Association
(IJPA). We also are taking this action because these standards are
obsolete and unnecessary in light of our regulations for foods named by
use of a nutrient content claim and a standardized term. This action
will promote honesty and fair dealing in the interest of consumers.

DATES: The final rule is effective on November 20, 2015.

FOR FURTHER INFORMATION CONTACT: Terri Wenger, Center for Food Safety
and Applied Nutrition (HFS-820), Food and Drug Administration, 5100
Paint Branch Pkwy., College Park, MD 20740,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    For more than 50 years, we have maintained standards of identity
for fruit jelly (jelly) (Sec.  150.140 (21 CFR 150.140)) and fruit
preserves and jams (preserves and jams) (Sec.  150.160). The standards
establish the common or usual name for these products and provide that
these products may contain nutritive sweeteners (e.g., sugar). In 1959,
we added new standards of identity for artificially sweetened fruit
jelly (artificially sweetened jelly) (Sec.  150.141) and artificially
sweetened fruit preserves and jams (artificially sweetened preserves
and jams) (Sec.  150.161) (24 FR 8896; October 31, 1959) that permit
the use of non-nutritive sweeteners (e.g., saccharin). Notably,
Sec. Sec.  150.141 and 150.161 limit the types of non-nutritive
sweeteners that can be used in products that are governed by those
standards of identity. Under Sec. Sec.  150.141 and 150.161, such
products may only use saccharin,

sodium saccharin, calcium saccharin, or any combination thereof, and
may not use newer forms of non-nutritive sweeteners that have been
developed since the standard of identity regulations were issued.
    The Nutrition Labeling and Education Act (NLEA) of 1990 amended the
Federal Food, Drug, and Cosmetic Act (the FD&C Act) to provide for a
number of fundamental changes in food labeling, leading to a new
regulatory framework for the naming of foods that do not fully comply
with the relevant standards of identity. In response to NLEA, we
established in part 101 (21 CFR part 101), among other things,
definitions for specific nutrient content claims using terms such as
``free'', ``low'', ''light'' or ``lite'', and ``less'', and provided
for their use in food labeling (58 FR 2302; January 6, 1993). We also
prescribed, in Sec.  130.10 (21 CFR 130.10), a general definition and
standard of identity for foods named by a nutrient content claim
defined in part 101, such as ``low calorie'' or ``sugar free'', in
conjunction with a traditional standardized food term (58 FR 2431;
January 6, 1993). A nutrient content claim applied to the standardized
food ``grape jelly'', for example, could be ``low calorie grape
jelly''. Section 130.10(d)(1) allows the addition of safe and suitable
ingredients to a food named by use of a nutrient content claim and a
standardized term when these ingredients are used to, among other
things, add sweetness to ensure that the modified food is not inferior
in performance characteristics to the standardized food even if such
ingredients are not specifically provided for by the relevant food
standard. Thus, under certain circumstances, Sec.  130.10 permits
manufacturers to use safe and suitable artificial sweeteners (e.g.,
sucralose) that are not expressly listed in Sec. Sec.  150.141 and
150.161 in the manufacture of jelly, fruit preserves, and jams
(collectively, ``fruit spreads''). Therefore, fruit spread products
named with a nutrient content claim (for example, ``low calorie grape
jelly'') may contain newer artificial sweeteners to add sweetness to
fruit spread products so that they are not inferior in their sweetness
compared to their standardized counterparts (for example, ``grape
jelly''). Section 130.10 does not require these products to declare the
presence of such non-nutritive sweeteners within the name of these
foods. We took this action to help consumers in maintaining healthy
dietary practices by providing for a modified version of a traditional
standardized food to achieve a nutrition goal (e.g., reduction in sugar
consumption or calories) and that has a descriptive name that is
meaningful to consumers. Section 130.10 does not, however, permit the
use of nutrient content claims as part of the name of a food for foods
governed by standards of identity that established the phrase
``artificially sweetened'' as part of the standard of identity.
Accordingly, jelly, preserves, and jams, that use saccharin, sodium
saccharin, calcium saccharin, or any combination thereof as non-
nutritive sweeteners must still include the term ``artificially
sweetened'' in their names and are not permitted to bear a nutrient
content claim as part of the name. However, similar products that use
newer non-nutritive sweeteners are governed by Sec.  130.10 and are not
required to include the term ``artificially sweetened'' in their names.
    In the Federal Register of December 4, 2012, we proposed to revoke
the standards of identity for artificially sweetened jelly, preserves,
and jam in Sec. Sec.  150.141 and 150.161 (77 FR 71746). The proposed
rule was in response to a citizen petition submitted by the IJPA
requesting such a revocation. In issuing the notice of proposed
rulemaking, we stated that we found merit in the argument made in
IJPA's petition that revoking Sec. Sec.  150.141 and 150.161 would
allow manufacturers to more accurately and consistently describe the
attributes of the fruit spreads that currently conform to those
regulations. We therefore tentatively concluded that revoking the
standards of identity for artificially sweetened jelly, preserves, and
jams would promote honesty and fair dealing in the interest of
consumers and was thus appropriate under section 401 of the FD&C Act
(21 U.S.C. 341). We tentatively reached this conclusion because we
found that nutrient content claims such as ``low calorie'' or ``reduced
sugar'' better characterize the nutritional profile of the affected
fruit spreads than does the term ``artificially sweetened''. Further,
we stated that revoking Sec. Sec.  150.141 and 150.161 would provide
manufacturers with the flexibility to use the three non-nutritive
sweeteners listed in those standards while also naming their products
using FDA-defined nutrient content claims, in accordance with Sec.
130.10. We also noted that other safe and suitable artificial
sweeteners that might be developed in the future could be used in these
products under Sec.  130.10 without the need to further revise relevant
standards of identity, and that the proposed rule was consistent with
FDA's proposed general principles for modernizing food standards (70 FR
29214; May 20, 2005).

II. Comments to the Proposed Rule and FDA's Responses

    We received 21 comments to the proposed rule. The comments were
from trade associations, food companies, and individuals. Two comments
were identical, and another comment appeared to have been misdirected
because it pertained to blogs. Most of the comments made general
remarks supporting or opposing the rule and did not focus on a
particular component of the rule.
    Six comments supported the proposed rule. One comment stated that
the proposed rule would provide flexibility to industry to use
artificial sweeteners and to not use the term ``artificially
sweetened'' in the name of their products. The comment also stated that
the proposed rule would provide consistency and uniformity in the
labeling of fruit spreads. Several comments stated that Sec. Sec.
150.141 and 150.161 limit the type of non-nutritive sweeteners, and
that enactment of the NLEA and FDA's regulation in Sec.  130.10 allow
flexibility. One of the comments also stated that the use of nutrient
content claims such as ``reduced sugar'' in accordance with Sec.
130.10 provides a better way to communicate with consumers to meet
their nutritional goals.
    In contrast, other comments opposed the proposed rule. Several
comments said that the rule would remove transparency that allows
consumers to make knowledgeable decisions. Another expressed concern
that the non-nutritive sweeteners would not be labeled and that
consumers would be cheated. Still others stated that removing the term
``artificially sweetened'' is deceitful, would allow harmful chemicals
to be hidden in food, and would not protect consumers.
    The final rule will not result in the declaration of non-nutritive
sweeteners being removed from labels and will not result in substances
being hidden in food. In accordance with Sec.  101.4(a) (21 CFR
101.4(a)), ingredients (including non-nutritive sweeteners) must be
declared by common or usual name on either the principal display panel
or the information panel of the label. Thus, for example, the
ingredient panel must list any non-nutritive sweeteners, including, for
example, the three saccharin products currently subject to Sec. Sec.
150.141 and 150.161 and any of the newer non-nutritive sweeteners such
as sucralose. What the final rule will do is require any food products
currently subject to Sec. Sec.  150.141 and 150.161 to instead be
subject to Sec.  130.10. Although Sec.  130.10 does not require
products to declare the

presence of non-nutritive sweeteners within the name of these foods
(e.g., Sec.  130.10 does not require a jam made with a non-nutritive
sweetener to be named ``artificially sweetened jam''), it does require
foods subject to that provision to be named by use of a nutrient
content claim defined in part 101 (e.g., ``reduced calorie'' or ``no
sugar added''). Nutrient content claims such as ``low calorie'' or ``no
sugar added'' better characterize the nutritional profile of the fruit
spreads currently subject to Sec. Sec.  150.141 and 150.161 than does
the term ``artificially sweetened.'' The final rule will also allow
better comparison to other jams, jellies, and preserves currently
modified under the provisions of Sec.  130.10. For example, under
current requirements, a jelly that is sweetened with saccharin must be
called ``artificially sweetened jelly'' (in accordance with Sec.
150.141), whereas a similar jelly sweetened with sucralose may be named
as ``reduced sugar jelly'' (in accordance with Sec.  130.10 and
provided it meets the requirements for the nutrient content claim
``reduced sugar'' in Sec.  101.60(c)(5) to distinguish it from the
standardized food (jelly in Sec.  150.140). Revoking the standards will
provide consistency and uniformity among such products because all
fruit spreads sweetened with non-nutritive sweeteners will be subject
to the same requirements. For these reasons, the final rule will
promote honesty and fair dealing in the interest of consumers
consistent with section 401 of the FD&C Act.
    As for the comment that artificial sweeteners are ``toxic'' or
``dangerous,'' that comment does not address the merits of revoking
Sec. Sec.  150.141 and 150.161.

III. Analysis of Impacts

    We have examined the impacts of the final rule under Executive
Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5
U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4). Executive Orders 12866 and 13563 direct Agencies to assess all
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity). The Agency believes that this final rule is not a significant
regulatory action under Executive Order 12866.
    The Regulatory Flexibility Act requires Agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because we have concluded, as set forth in this
document, that this rule will not generate significant compliance
costs, we certify that the final rule will not have a significant
economic impact on a substantial number of small entities.
    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires
that Agencies prepare a written statement, which includes an assessment
of anticipated costs and benefits, before proposing ``any rule that
includes any Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any one year.'' The current threshold after adjustment
for inflation is $144 million, using the most current (2014) Implicit
Price Deflator for the Gross Domestic Product. We do not expect this
final rule to result in any 1-year expenditure that would meet or
exceed this amount.

A. Need for This Regulation

    We are revoking the standards of identity for artificially
sweetened jelly, preserves, and jams because these standards are
obsolete and unnecessary. The current standards of identity for
artificially sweetened jelly (Sec.  150.141) and artificially sweetened
preserves and jams (Sec.  150.161) provide that they may be
manufactured only with specific, non-nutritive artificial sweeteners:
Saccharin, sodium saccharin, calcium saccharin, or any combination
thereof. These standards of identity, therefore, do not permit the use
of newer, safe, and suitable artificial sweeteners, such as sucralose.
    The development of newer artificial sweeteners and the enactment of
the NLEA have made the current standards of identity for artificially
sweetened jelly, preserves, and jams obsolete. The NLEA and Sec.
130.10 permit the modification of a traditional standardized food to
achieve a nutrition goal, such as a reduction in calories. Section
130.10(d)(1) allows the addition of safe and suitable ingredients to a
food named by use of a nutrient content claim and a standardized term
when these ingredients are used to, among other things, add sweetness
to ensure that the modified food is not inferior in performance
characteristic to the standardized food, even if such ingredients are
not specifically provided for by the relevant food standard.
    Standardized jelly and standardized preserves and jams products
modified under Sec.  130.10 must use nutrient content claims to
communicate the modified standardized product's nutritional profile to
consumers. Under Sec.  130.10, nonspecific, safe, and suitable
artificial sweeteners other than the three named in Sec. Sec.  150.141
and 150.161 can be used to make reduced calorie or reduced sugar
products labeled with a nutrient content claim that is established in
FDA regulations. Revoking the standards of identity means that any
product subject to Sec. Sec.  150.141 and 150.161 will instead be
subject to Sec.  130.10. This will allow consumers to better compare
any fruit spreads currently covered by Sec. Sec.  150.141 and 150.161
with other spreads that are named and modified under the provisions of
Sec.  130.10. Revoking the standards also gives manufacturers the
flexibility to use the three non-nutritive sweeteners listed in
Sec. Sec.  150.141 and 150.161, while naming their products under Sec.
130.10 using a defined nutrient content claim.

B. Regulatory Options

    In assessing our regulatory options, we considered the option of
taking no action and the option of implementing this final rule. We
conclude that the rule is not an economically significant regulatory
action. We are not quantitatively estimating the benefits and costs of
the regulatory alternatives to the rule. In the following paragraphs,
we qualitatively compare the costs and benefits of the regulatory
options to the costs and benefits of the rule.
1. The Option of Taking No Action
    By convention, we treat the option of taking no new regulatory
action as the baseline for determining the costs and benefits of the
other options. Therefore, we associate neither costs nor benefits with
this option. The consequences of taking no action are reflected in the
costs and benefits associated with taking the action set forth in this
rule.
2. The Option of Implementing the Final Rule
    By revoking Sec. Sec.  150.141 and 150.161, products that are
currently subject to the requirements of these standards of identity
will no longer be required to use the phrase ``artificially sweetened''
as part of their product name. Furthermore, revoking Sec. Sec.  150.141
and 150.161 means that these same products will be permitted to bear
nutrient content claims along with a standardized term (e.g., ``reduced
calorie jelly'' or ``no sugar added jam''), in accordance with Sec.
130.10.
    The costs of this rule result from the need to relabel any existing
jelly, preserves, and jams that conform with Sec. Sec.  150.141 and
150.161. Any products currently manufactured in accordance with the
standards in Sec. Sec.  150.141 and

150.161 will have to be relabeled in order to comply with Sec.  130.10.
Our review of supermarket scanner data for the years 2001 through 2010,
however, revealed that no such products are currently being sold. Sales
for products manufactured and labeled in accordance with Sec. Sec.
150.141 and 150.161 were last reported in 2002. A memorandum
summarizing the results of this scanner data can be found in Reference
1. The data support our conclusion that most manufacturers most likely
have discontinued production of jelly, preserves, and jams that must be
labeled as ``artificially sweetened,'' presumably because of a
perception that the phrase ``artificially sweetened'' is unattractive
to consumers. The data also support our conclusion that it is unlikely
that the rule will generate significant compliance costs due to the
need to relabel products. In fact, removal of the artificially
sweetened standards of identity will allow manufacturers to re-
introduce products covered under Sec. Sec.  150.141 and 150.161 to be
sold as products covered by Sec.  130.10. That is, such products would
be named by use of a nutrient content claim in conjunction with a
standardized term (e.g., ``reduced calorie jelly'' or ``no sugar added
jam''), in accordance with Sec.  130.10. Therefore, we conclude that
any relabeling compliance costs will be negligible.
    We do not classify as anticipated costs of this rule any expenses
that firms might voluntarily incur if they choose to change their
product formulas or manufacturing practices. Any such costs are not
costs that would be required by the rule. Instead, these costs would
result from voluntary business decisions made by manufacturers.
    We conclude that the principal benefits that will result from the
rule derive from increased information and flexibility. Revoking the
artificially sweetened standards of identity will provide producers of
jelly, preserves, and jams with the flexibility to use saccharin,
sodium saccharin, calcium saccharin, or any combination thereof, in
their formulations without having to include the term ``artificially
sweetened'' in their product names. Manufacturers could instead name
their products in accordance with approved nutrient content claims, as
provided for under Sec.  130.10, thus providing consumers with
additional information about the nutritional profile of affected
products. Additionally, revoking Sec. Sec.  150.141 and 150.161 will
help consumers compare products covered by the standards with other
similar jelly, preserves, and jams manufactured in accordance with
Sec.  130.10.
    Accordingly, while we do not quantify the costs and benefits of the
rule, we conclude that potential benefits will outweigh any potential
costs associated with the rule.

C. Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act requires Agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because compliance costs, if any, generated by this
rule are expected to be negligible, we conclude that this rule will not
have a significant economic impact on a substantial number of small
entities. The following analysis, in conjunction with the discussion in
this document, constitutes our final regulatory flexibility analysis as
required by the Regulatory Flexibility Act.
    The rule revokes the standards of identity for artificially
sweetened jelly, preserves, and jams. The revocation of these
artificially sweetened standards of identity gives small fruit spread
firms the flexibility to use the three non-nutritive sweeteners listed
in Sec. Sec.  150.141 and 150.161 and to name their products with FDA-
defined nutrient content claims in accordance with Sec.  130.10, as is
currently done for fruit spread products manufactured with other non-
nutritive sweeteners.
    We do not classify as costs of this rule any expenses that some
small firms might voluntarily incur because they choose to change their
product formulas or manufacturing practices. As discussed in this
document, any such costs would not be costs required by this rule.

IV. Federalism

    We have analyzed this final rule in accordance with the principles
set forth in Executive Order 13132. Section 4(a) of the Executive Order
requires Agencies to ``construe a Federal statute to preempt State law
only where the statute contains an express preemption provision or
there is some other clear evidence that the Congress intended
preemption of State law, or where the exercise of State authority
conflicts with the exercise of Federal authority under the Federal
statute.''
    Section 403A of the FD&C Act (21 U.S.C. 343-1) is an express
preemption provision. Section 403A(a) of the FD&C Act provides that no
State or political subdivision of a State may directly or indirectly
establish under any authority or continue in effect as to any food in
interstate commerce any requirement for a food which is the subject of
a standard of identity established under section 401 (of the FD&C Act)
that is not identical to such standard of identity or that is not
identical to the requirement of section 403(g) of the FD&C Act (21
U.S.C. 343(g)). The express preemption provision of section 403A(a) of
the FD&C Act does not preempt any State or local requirement respecting
a statement in the labeling of food that provides for a warning
concerning the safety of the food or component of the food (section
6(c)(2) of the NLEA, Pub. L. 101-535, 104 Stat. 2353, 2364 (1990)).
    This final rule will impose requirements that fall within the scope
of section 403A(a) of the FD&C Act.

V. Environmental Impact

    We have determined under 21 CFR 25.32(a) that this action is of a
type that does not individually or cumulatively have a significant
effect on the human environment. Therefore, neither an environmental
assessment nor an environmental impact statement is required.

VI. Paperwork Reduction Act

    This final rule contains no collection of information. Therefore,
clearance by Office of Management and Budget under the Paperwork
Reduction Act of 1995 is not required.

VII. Reference

    The following reference is on display in the Division of Dockets
Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852 and is available for viewing by
interested persons between 9 a.m. and 4 p.m., Monday through Friday; it
is also available electronically at http://www.regulations.gov. FDA has
verified the Web site address, as of the date this document publishes
in the Federal Register, but Web sites are subject to change over time.

    1. A.C. Nielsen Scantrack data, (2001-2010). The Nielsen
Company, 770 Broadway, New York, NY 10003-9595 (http://www.acnielsen.com/).

List of Subjects in 21 CFR Part 150

    Food grades and standards, Fruits.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
150 is amended as follows:

PART 150--FRUIT BUTTERS, JELLIES, PRESERVES, AND RELATED PRODUCTS

0
1. The authority citation for 21 CFR part 150 continues to read as
follows:

    Authority:  21 U.S.C. 321, 341, 343, 348, 371, 379e.

Sec.  150.141  [Removed]

0
2. Remove Sec.  150.141.

Sec.  150.161  [Removed]

0
3. Remove Sec.  150.161.

    Dated: November 16, 2015.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2015-29631 Filed 11-19-15; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Notices]
[Pages 22502-22507]
[FR Doc No: 2020-08488]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88666; File No. SR-NASDAQ-2020-020]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Relating to the First Trust Tactical High Yield ETF

April 16, 2020.
    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 April 15, 2020, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') 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 principally 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 a rule change relating to the First Trust
Tactical High Yield ETF (formerly known as the First Trust High Yield
Long/Short ETF) (the ``Fund'') of First Trust Exchange-Traded Fund IV
(the ``Trust''), the shares of which have been approved by the
Commission for listing and trading under Nasdaq Rule 5735 (``Managed
Fund Shares''). The shares of the Fund are collectively referred to
herein as the ``Shares.''
    The text of the proposed rule change is available on the Exchange's
website 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
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Commission has approved the listing and trading of Shares under
Nasdaq Rule 5735, which governs the listing and trading of Managed Fund
Shares on the Exchange.\3\ The Exchange believes the proposed rule
change reflects no significant issues not previously addressed in the
Prior Release.
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    \3\ The Commission approved Nasdaq Rule 5735 in Securities
Exchange Act Release No. 57962 (June 13, 2008), 73 FR 35175 (June
20, 2008) (SR-NASDAQ-2008-039). The Commission previously approved
the listing and trading of the Shares of the Fund. See Securities
Exchange Act Release Nos. 68581 (January 4, 2013), 78 FR 2295
(January 10, 2013) (``2013 Notice'') and 68972 (February 22, 2013),
78 FR 13721 (February 28, 2013) (``2013 Order'' and, together with
the 2013 Notice, the ``2013 Release'') (SR-NASDAQ-2012-147).
Subsequently, the Commission approved a proposed rule change
relating to the Fund in order to modify the description of the
measures First Trust Advisors L.P. (the ``Adviser'') would use to
implement the Fund's investment objectives and to modify certain
representations included in the 2013 Release. See Securities
Exchange Act Release Nos. 71473 (February 4, 2014), 79 FR 7728
(February 10, 2014) (``2014 Notice'') and 72141 (May 9, 2014), 79 FR
27944 (May 15, 2014) (``2014 Notice and Order'' and, together with
the 2014 Notice, the ``2014 Release'') (SR-NASDAQ-2014-009). The
2013 Release, together with the 2014 Release, are referred to
collectively as the ``Prior Release''.
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    The Fund is an actively-managed exchange-traded fund (``ETF''). The
Shares are offered by the Trust, which was established as a
Massachusetts business trust on September 15, 2010. The Trust, which is
registered with the Commission as an investment company under the
Investment Company Act of 1940 (the ``1940 Act''), has filed a
registration statement on Form N-1A (``Registration Statement'')
relating to the Fund with the Commission.\4\ The Fund is a series of
the Trust. The Adviser is the investment adviser to the Fund. First
Trust Portfolios L.P. is the principal underwriter and distributor of
the Fund's Shares. The Bank of New York Mellon acts as the
administrator, custodian, and fund accounting and transfer agent to the
Fund.
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    \4\ See Post-Effective Amendment No. 170 to Registration
Statement on Form N-1A for the Trust, dated February 28, 2020 (File
Nos. 333-174332 and 811-22559). The descriptions of the Fund and the
Shares contained herein are based, in part, on information in the
Registration Statement, as amended. The Adviser represents that it
will not implement the changes described herein until the instant
proposed rule change is operative.
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    The purpose of this proposed rule change is (1) to expand the
Fund's ability to hold certain fixed income, equity and equity-like
securities, positions and interests, and (2) to expand the Fund's
ability to invest in derivatives.
(1) Proposed Changes To Expand the Fund's Ability To Hold Certain Fixed
Income, Equity and Equity-Like Securities, Positions and Interests
    As described in the 2013 Order, under normal market conditions, the
Fund invests at least 80% of its net assets (plus the amount of any
borrowing for investment purposes) in high-yield debt securities that
are rated below investment grade at the time of purchase, commonly
referred to as ``junk'' bonds, or unrated securities deemed by the
Adviser to be of comparable quality (collectively referred to as
``Primary Investments'') (the ``80% Requirement'').\5\ In addition to
Primary Investments, the Fund may invest up 20% of its net assets (in
the aggregate)

in certain other permitted investments as described in the Prior
Release (``Non-Primary Investments''). Going forward, the Exchange is
proposing that the Fund's ability to hold certain fixed income, equity
and equity-like securities, positions and interests be expanded as
described below.
---------------------------------------------------------------------------

    \5\ See infra under the heading ``(2) Proposed Changes to Expand
the Fund's Ability to Invest in Derivatives'' regarding the 80%
Requirement in relation to proposed changes to the Fund's ability to
invest in derivatives.
---------------------------------------------------------------------------

    Under the heading ``Other Investments,'' the 2013 Order stated that
the Fund may receive equity, warrants, corporate bonds, and ``other
such securities'' (i.e., equity and fixed income securities; and
``equity, warrants, corporate bonds, and other such securities'' are,
collectively, ``Received Instruments'' \6\) as a result of the
restructuring of the debt of an issuer, or a reorganization of a bank
loan or bond, or as part of a package of securities acquired together
with a high-yield bond or senior loan(s) of an issuer. Further, the
2013 Order stated that such investments (i.e., the Received
Instruments) would be subject to the Fund's investment objectives,
restrictions and strategies, as described therein. The Adviser believes
that under certain circumstances, a limited ability to retain Received
Instruments beyond the parameters set forth in the 2013 Order may serve
to benefit shareholders to the extent it helps the Fund to pursue its
investment objectives by retaining an investment interest, which the
Adviser believes has merit, relating to a particular issuer.\7\
However, the Adviser's overall approach to managing the Fund (which, as
described in the 2013 Order, incorporates a combination of thorough and
continuous credit risk analysis, market evaluation, diversification,
and the ability to reallocate investments) would not change.
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    \6\ For the avoidance of doubt, ``Equity-Based Received
Instruments'' (as defined below) are included within the meaning of
the term ``Received Instruments.''
    \7\ For example, a situation may arise where in lieu of a bond,
loan, or other debt instrument that the Adviser originally selected,
the Fund would be presented with new equity of or relating to the
applicable issuer, but, in light of certain restrictions and
representations in the 2013 Order, would be precluded from retaining
the instrument and would therefore be required to dispose of the
instrument despite its perceived benefit to shareholders of the
Fund, in order to maintain compliance with the continued listing
standards of the Exchange.
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    To provide the Fund with additional flexibility with respect to its
ability to retain Received Instruments, going forward, the Exchange is
proposing that certain restrictions set forth in the 2013 Order be
modified, as described below.\8\ The Exchange believes that concerns
related to manipulation should be mitigated given that the proposed
changes (a) would be limited in scope, and (b) would be subject to the
limits described below. In this regard, the Exchange notes the
Adviser's expectation that generally, over time, significantly less
than 20% of the Fund's net assets would be comprised of Equity-Based
Received Instruments (as defined below) (which means that significantly
less than 20% of the Fund's net assets are expected to be comprised of
instruments that do not satisfy the ``ISG Restriction'' (as defined
below)).
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    \8\ The Exchange notes that the Commission has previously
approved a similar proposal with respect to another ETF for which
the Adviser serves as investment adviser. See Securities Exchange
Act Release No. 84425 (October 15, 2018), 83 FR 53124 (October 19,
2018) (SR-NASDAQ-2018-050) (relating to the First Trust Senior Loan
Fund) (the ``Senior Loan Fund Approval'').
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    Going forward, the Exchange is proposing that the definition of
Received Instruments be modified to allow the Fund to receive equity,
warrants, corporate bonds, and other such securities received (a) in
conjunction with the restructuring or reorganization, as applicable, of
an issuer or any debt issued by an issuer, whether accomplished within
or outside of a bankruptcy proceeding under 11 U.S.C. 101 et seq. (or
any other similar statutory restructuring or reorganization proceeding)
or (b) together with (i.e., as part of a unit or package that includes)
one or more Primary Investments (or other debt instruments) of an
issuer.\9\ The Fund's ability to retain Received Instruments would be
subject to the Fund's investment objectives, restrictions and
strategies, as described in the Prior Release, subject to the
modifications set forth in this filing. The Fund's aggregate holdings
in Equity-Based Received Instruments (as defined below) would continue
to not qualify as Primary Investments and, accordingly, together with
other Non-Primary Investments, would be limited to 20% of the Fund's
net assets.
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    \9\ For example, incidental to the Fund's purchase of a Primary
Investment, the Fund may from time to time receive warrants and/or
other equity securities as part of a unit or package combining a
Primary Investment and such warrants and/or other equity securities.
---------------------------------------------------------------------------

    The 2013 Order stated that the equity securities in which the Fund
may invest (including any that have converted from convertible debt)
would be limited to securities that trade in markets that are members
of the Intermarket Surveillance Group (``ISG''), which includes all
U.S. national securities exchanges and certain foreign exchanges, or
are parties to a comprehensive surveillance sharing agreement with the
Exchange (the ``ISG Restriction''). In light of the many types of
interests that may be received and variations in nomenclature, the
Exchange is proposing that, going forward, the Fund may retain, without
regard to the ISG Restriction, equity and equity-like securities,
positions and interests that would be Received Instruments (``Equity-
Based Received Instruments'').\10\ For the avoidance of doubt, for
purposes of this filing, such Equity-Based Received Instruments shall
mean any one or more of the following (whether received individually or
as part of a unit or package of securities and/or other instruments):
(i) Common and preferred equity interests in corporations; (ii)
membership interests (e.g., in limited liability companies),
partnership interests, and interests in other types of entities (e.g.,
state law business trusts and real estate investment companies); (iii)
warrants; (iv) Tax Receivable Agreement (TRA) rights; (v) claims
(generally, rights to payment, which can come in various forms,
including without limitation claims units and claims trusts); (vi)
trust certificates representing an interest in a trust established
under a confirmed plan of reorganization; (vii) interests in
liquidating, avoidance or other types of trusts; (viii) interests in
joint ventures; and (ix) rights to acquire any of the Equity-Based
Received Instruments described in clauses (i) through (viii).\11\
---------------------------------------------------------------------------

    \10\ For the avoidance of doubt, the Fund may also hold U.S. and
non-U.S. Received Instruments that are not Equity-Based Received
Instruments. Further, Received Instruments may include both Primary
Investments and Non-Primary Investments but, as mentioned above,
Equity-Based Received Instruments would not qualify as Primary
Investments and, together with other Non-Primary Investments, would
be limited to 20% of the Fund's net assets.
    \11\ The Fund may be entitled to acquire additional Equity-Based
Received Instruments by exercising warrants (included in clause
(iii)) and/or rights (included in clause (ix)). For the avoidance of
doubt, the Fund's ability to retain Equity-Based Received
Instruments that it acquires by exercising such warrants and/or
rights will be the same as its ability to retain Equity-Based
Received Instruments that it otherwise receives. In addition, for
the avoidance of doubt, Received Instruments may include convertible
securities and Equity-Based Received Instruments may include
positions and interests resulting from the conversion of convertible
securities.
---------------------------------------------------------------------------

    Except as described in this filing, the Fund's ability to retain
Received Instruments would continue to be subject to the Fund's
investment objectives, restrictions and strategies, as described in the
Prior Release. As indicated above, the Fund would not hold more than
20% of its net assets in Equity-Based Received Instruments

(among other Non-Primary Investments).\12\
---------------------------------------------------------------------------

    \12\ In this regard, however, the Adviser expects that,
generally, over time, significantly less than 20% of the Fund's net
assets would be comprised of Equity-Based Received Instruments. In
addition, for the avoidance of doubt, Equity-Based Received
Instruments would not be taken into account for purposes of
compliance with the 80% Requirement.
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(2) Proposed Changes To Expand the Fund's Ability To Invest in
Derivatives
    The 2013 Order included a representation that the Fund would not
invest in options contracts, futures contracts or swap agreements.
However, the 2014 Notice and Order deleted this representation and
provided that under normal market conditions, the Fund would be
permitted to invest up to 30% of the value of its net assets in U.S.
exchange-traded options on futures contracts and U.S. exchange-traded
futures contracts (the ``Derivatives Provision'').\13\ Going forward,
the Exchange is proposing that to provide the Fund with additional
flexibility, the Derivatives Provision would be deleted and, instead,
the Fund would be permitted to invest in listed and over-the-counter
(``OTC'') derivatives (collectively, ``Derivative Instruments'') to the
extent permitted by the generic listing provisions of Nasdaq Rules
5735(b)(1)(D),\14\ (E) \15\ and (F) \16\ (collectively, the
``Derivatives GLS''). The Adviser believes that expanding the listed
derivatives in which the Fund may invest and permitting it to invest in
OTC derivatives may enhance the Fund's ability to utilize derivatives
for the purposes set forth in the 2014 Notice and Order.\17\ Further,
for purposes of complying with the 80% Requirement, in addition to
investing directly in Primary Investments, going forward, the Fund
would be permitted to invest in Derivative Instruments with economic
characteristics that are comparable to those of Primary
Investments.\18\
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    \13\ The Derivatives Provision also included footnote 15 of the
2014 Notice and Order which stated, among other things, that the
Fund would limit its direct investments in futures and options on
futures to the extent necessary for the Adviser to claim the
exclusion from regulation as a ``commodity pool operator'' with
respect to the Fund under Rule 4.5 promulgated by the Commodity
Futures Trading Commission (``CFTC''), as such rule may be amended
from time to time, and described certain related tests.
    \14\ Under Nasdaq Rule 5735(b)(1)(D), a portfolio may hold
listed derivatives, including futures, options and swaps on
commodities, currencies and financial instruments (e.g., stocks,
fixed income, interest rates, and volatility) or a basket or index
of any of the foregoing. There shall be no limitation to the
percentage of the portfolio invested in such holdings, subject to
the following requirements: (i) In the aggregate, at least 90% of
the weight of such holdings invested in futures, exchange-traded
options, and listed swaps shall, on both an initial and continuing
basis, consist of futures, options, and swaps for which the Exchange
may obtain information via the ISG, from other members or affiliates
of the ISG, or for which the principal market is a market with which
the Exchange has a comprehensive surveillance sharing agreement.
(For purposes of calculating this limitation (referred to herein as
the ``90% Requirement''), a portfolio's investment in listed
derivatives will be calculated as the aggregate gross notional value
of the listed derivatives.); and (ii) the aggregate gross notional
value of listed derivatives based on any five or fewer underlying
reference assets shall not exceed 65% of the weight of the portfolio
(including gross notional exposures), and the aggregate gross
notional value of listed derivatives based on any single underlying
reference asset shall not exceed 30% of the weight of the portfolio
(including gross notional exposures). In light of the 90%
Requirement, the provision set forth in the 2014 Notice and Order
requiring that at least 90% of the Fund's net assets that are
invested in the derivative instruments specified therein would be
invested in derivative instruments that trade in markets that are
members of the ISG or are parties to a comprehensive surveillance
sharing agreement with the Exchange would be deleted.
    \15\ Nasdaq Rule 5735(b)(1)(E) provides that a portfolio may
hold OTC derivatives, including forwards, options, and swaps on
commodities, currencies and financial instruments (e.g., stocks,
fixed income, interest rates, and volatility) or a basket or index
of any of the foregoing; however, on both an initial and continuing
basis, no more than 20% of the assets in the portfolio may be
invested in OTC derivatives. For purposes of calculating this
limitation, a portfolio's investment in OTC derivatives will be
calculated as the aggregate gross notional value of the OTC
derivatives.
    \16\ Nasdaq Rule 5735(b)(1)(F) provides that to the extent that
listed or OTC derivatives are used to gain exposure to individual
equities and/or fixed income securities, or to indexes of equities
and/or indexes of fixed income securities, the aggregate gross
notional value of such exposure shall meet the criteria set forth in
Nasdaq Rules 5735(b)(1)(A) and 5735(b)(1)(B), respectively.
    \17\ In this regard, the 2014 Notice and Order indicated that
the use of the derivative instruments specified therein may allow
the Fund to seek to enhance return, to hedge some of the risks of
its investments in securities, to substitute derivatives for a
position in an underlying asset, to reduce transaction costs, to
maintain full market exposure (which means to adjust the
characteristics of its investments to more closely approximate those
of the markets in which it invests), to manage cash flows, to
preserve capital, or to manage its foreign currency exposures. For
the avoidance of doubt, the Fund's use of derivatives would not be
limited to the foregoing purposes.
    \18\ As indicated above, the Fund would comply with the
Derivatives GLS.
---------------------------------------------------------------------------

    The Exchange does not believe that the proposed changes regarding
the Fund's ability to invest in derivatives should raise concerns given
that, going forward, the Fund would invest in Derivative Instruments in
accordance with the parameters of the Derivatives GLS. In addition,
certain related representations included in the 2014 Notice and Order
would continue to apply.\19\
---------------------------------------------------------------------------

    \19\ First, although the Fund's investments in Derivative
Instruments could potentially be used to enhance leverage, the
Fund's investments in Derivative Instruments would be consistent
with the Fund's investment objectives and would not be used to seek
to achieve a multiple or inverse multiple of an index. Second,
investments in Derivative Instruments would be made in accordance
with the 1940 Act and consistent with the Fund's investment
objectives and policies. Third, the Fund would continue to comply
with the regulatory requirements of the Commission to maintain
assets as ``cover,'' maintain segregated accounts, and/or make
margin payments when it takes positions in Derivative Instruments
involving obligations to third parties (i.e., instruments other than
purchase options). If the applicable guidelines prescribed under the
1940 Act so require, the Fund would continue to earmark or set aside
cash, U.S. government securities, high-grade liquid debt securities,
and/or other liquid assets in a segregated custodial account in the
amount prescribed. Fourth, the Fund would continue to include
appropriate risk disclosure in its offering documents, including
leveraging risk. As indicated in footnote 17 of the 2014 Notice and
Order, to mitigate leveraging risk, the Fund would continue to
segregate or ``earmark'' liquid assets or otherwise cover the
transactions that may give rise to such risk.
---------------------------------------------------------------------------

    The 2014 Notice and Order indicated that the derivative instruments
specified therein would typically be valued at the closing price in the
market where such instruments are principally traded. Going forward,
exchange-listed Derivative Instruments would typically be valued at the
closing price in the market where such instruments are principally
traded and OTC Derivative Instruments would typically be valued using
information provided by independent pricing services.
Availability of Information
    The Fund's Disclosed Portfolio, as defined in Nasdaq Rule
5735(c)(2), would include the Received Instruments and Derivative
Instruments held by the Fund. Intra-day executable price quotations for
the Received Instruments held by the Fund would be available from major
broker-dealer firms and/or market data vendors (and/or, if applicable,
on the exchanges on which

they are traded). Intra-day price information for the Received
Instruments would be available through subscription services, such as
Markit, Bloomberg and Thomson Reuters, which can be accessed by
authorized participants and other investors, and/or from independent
pricing services. Pricing information for Derivative Instruments would
be available from major broker-dealer firms and/or through subscription
services and, if applicable, from the exchanges on which they are
traded. Further, for the Fund, an estimated value, defined in Nasdaq
Rule 5735(c)(3) as the ``Intraday Indicative Value'' that reflects an
estimated intraday value of the Fund's portfolio, including, among
other things, Received Instruments and Derivative Instruments, would
continue to be disseminated.\20\
---------------------------------------------------------------------------

    \20\ With respect to the Fund's other permitted investments,
statements regarding availability of pricing information included in
the Prior Release would continue to apply.
---------------------------------------------------------------------------

Surveillance
    The Financial Industry Regulatory Authority (``FINRA''), on behalf
of the Exchange, or the Exchange, or both, would communicate as needed,
and may obtain trading information, regarding trading in the exchange-
listed Equity-Based Received Instruments (if any) and exchange-listed
Derivative Instruments held by the Fund with other markets and other
entities that are members of ISG.\21\ The Exchange may also obtain
information regarding trading such exchange-listed instruments held by
the Fund from markets and other entities with which the Exchange has in
place a comprehensive surveillance sharing agreement. Moreover, with
respect to Received Instruments that are fixed income securities,
FINRA, on behalf of the Exchange, would be able to access, as needed,
trade information for such securities held by the Fund to the extent
reported to FINRA's Trade Reporting and Compliance Engine
(``TRACE'').\22\
---------------------------------------------------------------------------

    \21\ For a list of the current members of ISG, see
www.isgportal.org. The Exchange notes that not all components of the
Disclosed Portfolio may trade on markets that are members of ISG or
with which the Exchange has in place a comprehensive surveillance
sharing agreement.
    \22\ With respect to trading information relating to the Fund's
other permitted investments, statements regarding surveillance
included in the Prior Release would continue to apply.
---------------------------------------------------------------------------

Continued Listing Representations
    All statements and representations made in this filing regarding
(a) the description of the portfolio or reference assets, (b)
limitations on portfolio holdings or reference assets, (c)
dissemination and availability of the reference asset or intraday
indicative values, or (d) the applicability of Exchange listing rules
shall constitute continued listing requirements for listing the Shares
on the Exchange. In addition, the issuer has represented to the
Exchange that it will advise the Exchange of any failure by the Fund to
comply with the continued listing requirements, and, pursuant to its
obligations under Section 19(g)(1) of the Act, the Exchange will
monitor for compliance with the continued listing requirements. If the
Fund is not in compliance with the applicable listing requirements, the
Exchange will commence delisting procedures under the Nasdaq 5800
Series.
    The Adviser represents that there would be no change to the Fund's
investment objectives. Except as provided herein, all representations
made in the Prior Release regarding (a) the description of the
portfolio or reference assets, (b) limitations on portfolio holdings or
reference assets, (c) dissemination and availability of the reference
asset or intraday indicative values, or (d) the applicability of
Exchange listing rules (collectively, ``Prior Release Continued Listing
Representations'') would remain unchanged.\23\ Except for the generic
listing provisions of Nasdaq Rule 5735(b)(1) (the ``generic listing
standards'') \24\ and as otherwise provided in this filing, the Fund
and the Shares would comply with the requirements applicable to Managed
Fund Shares under Nasdaq Rule 5735.
---------------------------------------------------------------------------

    \23\ Certain provisions of the Prior Release, however, were
based on information as of a particular date and there has not been
an undertaking to update such information for purposes of this
filing. In addition, the Exchange notes that the current name of the
Fund's benchmark (defined in the 2013 Order as the ``Index'') is ICE
BofA US High Yield Constrained Index.
    \24\ In particular, the Fund may not meet the criteria of Nasdaq
Rule 5735(b)(1)(B). Additionally, the Fund's investments in equity
securities are not generally expected to meet the criteria set forth
in Nasdaq Rule 5735(b)(1)(A) and, to the extent the Fund invests in
cash equivalents, such investments may not necessarily satisfy the
criteria set forth in Nasdaq Rule 5735(b)(1)(C) (for example, the
requirement that maturities be less than three months). As described
in this filing, the Fund's investments in Derivative Instruments
would meet the criteria set forth in the Derivatives GLS. For the
avoidance of doubt, Equity-Based Received Instruments (including
without limitation warrants and rights referenced above in footnote
11 and the accompanying text) will not be considered to be options
or any other type of derivative.
---------------------------------------------------------------------------

2. Statutory Basis
    Nasdaq believes that the proposal is consistent with Section 6(b)
of the Act in general and Section 6(b)(5) of the Act, in particular, in
that it is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, and to remove impediments to and perfect
the mechanism of a free and open market and, in general, to protect
investors and the public interest. The purposes of the proposed rule
change are (1) to expand the Fund's ability to hold certain fixed
income, equity and equity-like securities, positions and interests, and
(2) to expand the Fund's ability to invest in derivatives. Except as
provided herein, the Prior Release Continued Listing Representations
would remain unchanged. Except for the generic listing standards and as
otherwise provided in this filing, the Fund and the Shares would comply
with the requirements applicable to Managed Fund Shares under Nasdaq
Rule 5735.
    The Exchange believes that the proposed rule change is designed to
prevent fraudulent and manipulative acts and practices in that the
Shares would continue to be listed and traded on the Exchange pursuant
to Nasdaq Rule 5735. FINRA, on behalf of the Exchange, or the Exchange,
or both, would communicate as needed, and may obtain trading
information, regarding trading in the exchange-listed Equity-Based
Received Instruments (if any) and exchange-listed Derivative
Instruments held by the Fund with other markets and other entities that
are members of ISG. The Exchange may also obtain information regarding
trading in such exchange-listed instruments held by the Fund from
markets and other entities with which the Exchange has in place a
comprehensive surveillance sharing agreement. Moreover, with respect to
Received Instruments that are fixed income securities, FINRA, on behalf
of the Exchange, would be able to access, as needed, trade information
for such securities held by the Fund to the extent reported to FINRA's
TRACE. Further, the Exchange notes that although the proposed changes
in this filing would permit the Fund to retain, without regard to the
ISG Restriction, Equity-Based Received Instruments, the Fund would not
hold more than 20% of its net assets in Equity-Based Received
Instruments (which would not be taken into account for purposes of
compliance with the 80% Requirement), and the Adviser expects that
generally, over time, significantly less than 20% of the Fund's net
assets would be comprised of Equity-Based Received Instruments.
    The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the

public interest in that the Adviser represents that the primary purpose
of the proposed changes is to provide it with greater flexibility in
meeting the Fund's investment objectives by modifying certain
provisions in the Prior Release. Notwithstanding the proposed changes,
however, the Adviser's overall approach to managing the Fund (which, as
described in the 2013 Order, incorporates a combination of thorough and
continuous credit risk analysis, market evaluation, diversification,
and the ability to reallocate investments) would not change.
Additionally, the Fund would continue to invest 85% or more of its
portfolio in securities that the Adviser deems to be sufficiently
liquid at the time of investment in accordance with Commission guidance
and, in addition, the Adviser would continue to monitor portfolio
liquidity on an ongoing basis to determine whether, in light of current
circumstances, an adequate level of liquidity is being maintained.
    With respect to the proposed changes relating to Received
Instruments, the Adviser believes that under certain circumstances, a
limited ability to retain Received Instruments beyond the parameters
set forth in the 2013 Order may serve to benefit shareholders to the
extent it helps the Fund to pursue its investment objectives by
retaining an investment interest, which the Adviser believes has merit,
relating to a particular issuer. The Exchange believes that concerns
related to manipulation should be mitigated given that the proposed
changes (a) would be limited in scope, and (b) would be subject to the
limits described above. As indicated above, the Fund's aggregate
holdings in Equity-Based Received Instruments would continue to not
qualify as Primary Investments and, accordingly, together with other
Non-Primary Investments, would be limited to 20% of the Fund's net
assets. Additionally, the Exchange notes the Adviser's expectation that
generally, over time, significantly less than 20% of the Fund's net
assets would be comprised of Equity-Based Received Instruments (which
means that significantly less than 20% of the Fund's net assets are
expected to be comprised of instruments that do not satisfy the ISG
Restriction). Further, Equity-Based Received Instruments would not be
taken into account for purposes of compliance with the 80% Requirement.
Based on the foregoing, the Exchange does not believe that the proposed
changes will adversely affect investors or Exchange trading.
    With respect to the proposed changes relating to the Fund's ability
to invest in derivative instruments, the Exchange does not believe that
the proposed changes raise concerns under Section 6(b) of the Act given
that, going forward, the Fund would invest in Derivative Instruments in
accordance with the parameters of the Derivatives GLS.
    In addition, a large amount of information would continue to be
publicly available regarding the Fund and the Shares, thereby promoting
market transparency. For example, the Intraday Indicative Value,
available on the Nasdaq Information LLC proprietary index data service,
would continue to be widely disseminated and broadly displayed at least
every 15 seconds during the Regular Market Session. On each business
day, before commencement of trading in Shares in the Regular Market
Session on the Exchange, the Fund would continue to disclose on the
applicable website \25\ the Disclosed Portfolio that will form the
basis for the Fund's calculation of net asset value (``NAV'') at the
end of the business day. In addition, the Fund's Disclosed Portfolio
would include the Received Instruments and Derivative Instruments held
by the Fund. Intra-day executable price quotations for the Received
Instruments held by the Fund would be available from major broker-
dealer firms and/or market data vendors (and/or, if applicable, on the
exchanges on which they are traded). Intra-day price information for
the Received Instruments would be available through subscription
services, such as Markit, Bloomberg and Thomson Reuters, which can be
accessed by authorized participants and other investors, and/or from
independent pricing services. Pricing information for Derivative
Instruments would be available from major broker-dealer firms and/or
through subscription services and, if applicable, from the exchanges on
which they are traded.
---------------------------------------------------------------------------

    \25\ www.ftportfolios.com.
---------------------------------------------------------------------------

    The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that the additional flexibility to be afforded to
the Adviser under the proposed rule change is intended to enhance its
ability to meet the Fund's investment objectives, to the benefit of
investors. In addition, consistent with the Prior Release, NAV per
Share would continue to be calculated daily, and NAV and the Disclosed
Portfolio would continue to be made available to all market
participants at the same time. Further, as noted above and/or in the
Prior Release, investors would continue to have ready access to
information regarding the Fund's holdings, the Intraday Indicative
Value, the Disclosed Portfolio, and quotation and last sale information
for the Shares.
    For the above reasons, Nasdaq believes the proposed rule change is
consistent with the requirements of Section 6(b)(5) of the Act.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange believes that
the proposed rule change would provide the Adviser with additional
flexibility, thereby helping the Fund to achieve its investment
objectives. As such, it is expected that the Fund may become a more
attractive investment product in the marketplace and, therefore, that
the proposed rule change would not impose any burden on competition
that is not necessary or appropriate in furtherance of the purposes of
the Act.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \26\ and Rule 19b-
4(f)(6) thereunder.\27\
---------------------------------------------------------------------------

    \26\ 15 U.S.C. 78s(b)(3)(A).
    \27\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    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 change should be approved or disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NASDAQ-2020-020 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-NASDAQ-2020-020. 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-NASDAQ-2020-020 and should be submitted
on or before May 13, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
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    \28\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-08488 Filed 4-21-20; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 88, Number 186 (Wednesday, September 27, 2023)]
[Notices]
[Page 66492]
[FR Doc No: 2023-20989]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4497-DR; Docket ID FEMA-2023-0001]

Kentucky; Amendment No. 9 to Notice of a Major Disaster
Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the Commonwealth of Kentucky (FEMA-4497-DR), dated March 28, 2020,
and related determinations.

DATES: This change occurred on June 29, 2023.

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

SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA) hereby gives notice that pursuant to the authority vested in the
Administrator, under Executive Order 12148, as amended, Robert D.
Samaan, of FEMA is appointed to act as the Federal Coordinating Officer
for this disaster.
    This action terminates the appointment of Gracia B. Szczech as
Federal Coordinating Officer for this disaster.

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

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2023-20989 Filed 9-26-23; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register: May 14, 2009 (Volume 74, Number 92)]
[Proposed Rules]
[Page 22714-22717]
[DOCID:fr14my09-17]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2008-0517; Notice No. 09-03]
RIN 2120-AJ48

Congestion Management Rule for John F. Kennedy International
Airport and Newark Liberty International Airport

AGENCY: Federal Aviation Administration (FAA).

ACTION: Notice of proposed rescission.

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SUMMARY: The FAA proposes to rescind the final rule Congestion
Management Rule for John F. Kennedy International Airport and Newark
Liberty International Airport. The final rule established procedures to
address congestion in the New York City area by assigning slots at John
F. Kennedy (JFK) and Newark Liberty (Newark) International Airports,
assigning to existing operators the majority of slots at the airports,
and creating a market by annually auctioning off a limited number of
slots in each of the first five years of the rule. The final rule also
contained provisions for minimum usage, capping unscheduled operations,
and withdrawal for operational need. The rule was scheduled to sunset
in ten years.

DATES: Send your comments on or before June 15, 2009.

ADDRESSES: You may send comments identified by Docket Number FAA-2008-
0517 using any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Bring 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>.
For more information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information you
provide. Using the search function of our docket Web site, anyone can
find and read the electronic form of all comments received into any of
our dockets, including the name of the individual sending the comment
(or signing the comment for an association, business, labor union,
etc.). You may review the Department of Transportation's complete
Privacy Act Statement in the Federal Register published on April 11,
2000 (65 FR 19477-78) or you may visit http://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to
http://www.regulations.gov at any time and 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: For questions concerning this
rulemaking, contact: Molly W. Smith, Office of Aviation Policy and
Plans, APO-200, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone<PHONE_NUMBER>; e-mail
<EMAIL_ADDRESS>For legal questions concerning this rulemaking,
contact: Rebecca MacPherson, FAA Office of the Chief Counsel, 800
Independence Ave., SW., Washington, DC 20591; telephone<PHONE_NUMBER>;
e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Later in this preamble, under the Additional
Information section, we discuss how you can comment on this proposal
and how we will handle your comments. Included in this discussion is
related information about the docket and the handling of proprietary or
confidential business information. We also discuss how you can get a
copy of this proposal and related rulemaking documents.

Authority for This Rulemaking

    The FAA has broad authority under 49 U.S.C. 40103 to regulate the
use of the navigable airspace of the United States. This section
authorizes the FAA to develop plans and policy for the use of navigable
airspace and to assign the use that the FAA deems necessary for its
safe and efficient utilization. It further

directs the FAA to prescribe air traffic rules and regulations
governing the efficient utilization of the navigable airspace.

I. Background

    The final rule Congestion Management Rule for John F. Kennedy
International Airport and Newark Liberty International Airport was
published in the Federal Register on October 10, 2008 (73 FR 60544).
The final rule established procedures to address congestion in the New
York City area by assigning slots at John F. Kennedy (JFK) and Newark
Liberty (Newark) International Airports, assigning to existing
operators the majority of slots at the airports, and creating a market
by annually auctioning off a limited number of slots in each of the
first five years of the rule. The final rule also contained provisions
for minimum usage, capping unscheduled operations, and withdrawal for
operational need. The rule was scheduled to sunset in ten years and was
to become effective December 9, 2008.
    The rulemaking was highly controversial. Thirty-eight interested
parties filed comments to the docket addressing the NPRM. The majority
of comments were consistent in rejecting the proposal. Many commenters
said that the FAA had failed to demonstrate how the proposal would
achieve any significant relief from congestion. Rather, according to
the commenters, a final rule would impose an untested and unproven
auction process on airlines that would not address the fundamental
airspace congestion issues in the New York metro area.
    The final rule was challenged by several parties before it could
take effect. Petitioners included the Port Authority of New York and
New Jersey, the Air Transport Association of America, Inc. (ATA), the
International Air Transport Association (IATA), Continental, and U.S.
Airways. The petitioners sought a stay of the final rule pending
judicial review, arguing that they would likely succeed on the merits
of the underlying litigation, they would suffer irreparable harm, a
stay would not harm other parties, and a stay was in the public
interest. On December 8, 2008, the United States Court of Appeals for
the District of Columbia Circuit determined that the petitioners had
satisfied the standards for a stay and issued an order staying the
rule. Accordingly, the rule has never been implemented. On January 22,
2009, the ATA requested that the Secretary of Transportation, Ray
LaHood, withdraw the final rule in light of the court's stay.
    At present, operations at both airports remain capped by order at
81 scheduled operations per hour until October 2009. Order Limiting
Scheduled Operations at John F. Kennedy International Airport (73 FR
3519 (Jan. 18, 2008), as amended 73 FR 8737 (Feb. 14, 2008)); Order
Limiting Scheduled Operations at Newark Liberty International Airport
(73 FR 29550 (May 21, 2008)). The FAA is in the process of considering
its options with regard to managing congestion at the airport in ways
that provide a means for carriers to either commence or expand
operations at the airport, thereby introducing more competition and
service options to benefit the traveling public.
    On March 11, 2009, the President signed Public Law 111-8, Omnibus
Appropriations Act, 2009. That legislation provides several departments
within the executive branch, including the Department of
Transportation, with the funds to operate until the end of this fiscal
year. That legislation also contains a provision in Division I, section
115 that states in pertinent part:

    No funds provided in this Act may be used by the Secretary of
Transportation to promulgate regulations or take any action
regarding the scheduling of airline operations at any commercial
airport in the United States if such regulation or action involves:
    (1) the auctioning by the Secretary or the FAA Administrator of
rights or permission to conduct airline operations at such an
airport, * * *
    (3) either:
    (A) withdrawal by the Secretary or Administrator of a right or
permission to conduct operations at such an airport (except when the
withdrawal is for operational reasons or pursuant to the terms or
conditions of such operating right or permission), * * *

    At the same time, the nation's economy has continued to suffer
under the current recession, which is both deeper and longer than was
first assumed. In recognition of the extent of the economic emergency,
President Obama recently signed the American Recovery and Reinvestment
Act of 2009 \1\ (ARRA), which provides an extraordinary amount of
emergency funds to address the unprecedented global recession and to
promote economic recovery.
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    \1\ Public Law 111-5, 123 Stat. 115 (Feb. 17, 2009).
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    The Omnibus Appropriations Act prevents the FAA from implementing
the slot auction rule or conducting slot auctions. However, we
recognize that the restriction in section 115 of the Act applies only
until the end of this fiscal year, or September 30, 2009. The
restriction in section 115 means the rule adopted last year can no
longer operate in the way that the agency had planned. The halt in
funding for this fiscal year makes it impossible for the rule to have
the 10-year life originally contemplated, even without considering the
challenging and widespread change in current economic conditions that
led to the adoption of ARRA.
    Because of the complexity of the issues, the uncertainty caused by
the Omnibus Appropriations Act, and the possible impact of the
significantly changed economic circumstances on the slot auction
program, the FAA believes it would be better to rescind the rule rather
than propose to extend it. Rescission would also eliminate the
potential for wasting resources of all parties in the pending
litigation. We specifically request comments and data from affected
interests on whether and how the changed circumstances bear on this
proposed rescission.
    The current orders for JFK and Newark airports presently address
congestion and delay associated with scheduled operations. However, the
orders do not address all issues associated with market access at
capped airports. Accordingly, the FAA believes it may need further work
to address these concerns and limit operations at the two airports.
    The FAA seeks comment on this proposal. DOT's Regulatory Policies
and Procedures contemplate at least a 60-day comment period for a
significant rulemaking, unless otherwise justified. The final rule was
subject to notice and comment less than 12 months ago, and those
comments were fully considered by the agency in issuing that rule.
Since comments should be limited to any change in circumstances,
including the statutory restriction discussed above, the FAA believes
that a 30-day comment period is sufficient in this instance.

II. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. 4 2531-2533) prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, to be the basis of U.S. standards. Fourth, the

Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation). The FAA currently
uses an inflation-adjusted value of $136.1 million in lieu of $100
million.
    The FAA conducted all of these analyses when it originally issued
the final rule. This proposed rescission is not economically
significant under Executive Order 12866.
    The paperwork burden anticipated under the rule would not be
imposed on any parties. The FAA determined that the original final rule
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act. Rescission of the
rule would likewise impose no such burden. The FAA has assessed the
potential effect of this proposal and determined that it would impose
no costs on international entities and thus would have no trade impact.
Nor would the rescission impose a Federal mandate that may result in an
expenditure of $100 million or more (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector, and the requirements of Title II
of the Unfunded Mandate Reform Act of 1995 do not apply.
    The proposed rescission of the final rule is not an economically
``significant regulatory action'' under Executive Order 12866; however,
it is ``significant'' as defined in DOT's Regulatory Policies and
Procedures. Accordingly, it has been reviewed by OST and OMB.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rescission under the principles
and criteria of Executive Order 13132, Federalism. We have determined
that this action would not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and, therefore, would not have federalism
implications.

Environmental Analysis

    FAA Order 1050.1E, ``Environmental Impacts: Policies and
Procedures'' identifies FAA actions that are normally categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA
previously determined that the final rule qualified for the categorical
exclusions identified in paragraph 312d ``Issuance of regulatory
documents (e.g., Notices of Proposed Rulemaking and issuance of Final
Rules) covering administration or procedural requirements (does not
include Air Traffic procedures; specific Air traffic procedures that
are categorically excluded are identified under paragraph 311 of this
Order)'' and paragraph 312f, ``Regulations, standards, and exemptions
(excluding those which if implemented may cause a significant impact on
the human environment.'' It has further been determined that no
extraordinary circumstances exist that may cause a significant impact
and therefore no further environmental review is required. The FAA
documented this categorical exclusion determination. A copy of the
determination and underlying documents has been included in the Docket
for the rule. The FAA has determined that the rescission of the final
rule would also qualify for a categorical exclusion since it would have
no impact on the environment.

Regulations that Significantly Affect Energy Supply, Distribution, or
Use

    The FAA has analyzed this notice under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
is not a ``significant energy action'' under executive order 12866
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.

Additional Information

Comments Invited

    The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, please send only one copy of written comments, or
if you are filing comments electronically, please submit your comments
only one time.
    The FAA will file in the docket all comments we receive, as well as
a report summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. Before acting on this proposal,
the agency will consider all comments received on or before the closing
date for comments. The FAA will consider comments filed after the
comment period has closed if it is possible to do so without incurring
expense or delay.

Proprietary or Confidential Business Information

    Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD-ROM, mark the outside of the disk or
CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when the FAA is aware of proprietary
information filed with a comment, it does not place it in the docket.
The agency holds it in a separate file to which the public does not
have access, and places a note in the docket that it has received it.
If the FAA receives a request to examine or copy this information, it
is treated as any other request under the Freedom of Information Act (5
U.S.C. 552) and such requests are processed under the DOT procedures
found in 49 CFR part 7.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://
www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies Web page at http://
www.faa.gov/regulations_policies/; or
    3. Accessing the Government Printing Office's Web page at http://
www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the docket number, notice number, or amendment number
of this rulemaking.
    You may access all documents the FAA considered in developing this
proposed rule, including economic analyses and technical reports, from
the

internet through the Federal eRulemaking Portal referenced in paragraph
(1).

List of Subjects in 14 CFR Part 93

    Air traffic control, Airports, Navigation (air), Recordkeeping and
reporting requirements.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend Chapter I of Title 14, Code of Federal
Regulations, as follows:

PART 93--SPECIAL AIR TRAFFIC RULES

    1. The authority citation for part 93 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44719, 46301.

Subpart N--[Removed and Reserved]

    2. Remove and reserve Subpart N.

    Issued in Washington, DC, on May 7, 2009.
Nan Shellabarger,
Director of Aviation Policy and Plans.
 [FR Doc. E9-11293 Filed 5-13-09; 8:45 am]

BILLING CODE 4910-13-P


[Federal Register: July 18, 2007 (Volume 72, Number 137)]
[Notices]
[Page 39397-39398]
[DOCID:fr18jy07-51]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. OR07-14-000]

SFPP, L.P., Calnev Pipe Line LLC, Operating Limited Partnership
D, Kinder Morgan Energy Partners, L.P., Kinder Morgan Management LLC,
Kinder Morgan General Partner, Inc., Knight Holdeo, LLC, SFPP, L.P.;
Notice of Complaint

July 10, 2007.
    Take notice that on July 5, 2007, pursuant to Rule 206 of the Rules
and Practice and Procedure and Sections 205 and 206 of the Federal
Power Act, 16 U.S.C. 824d and 824e, BP West Coast Products LLC and
Chevron Products Company filed a formal complaint against SFPP, L.P.
and Calnev Pipe Line LLC and their respective affiliates and owners,
challenging their compliance with the Commission's Cash Management Plan
regulations and renewing a prior motion for payment of reparations.
    Complainants state that copies of the Complaint were served on
SFPP, L.P. and Calnev Pipe Line LLC.
    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, 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.
The Respondent's answer and all interventions, or protests must be
filed on or before the comment date. The Respondent's answer, motions
to intervene, and protests must be served on the Complainants.
    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 on-line 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>.
    Comment Date: 5 p.m. Eastern Time on July 25, 2007.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-13857 Filed 7-17-07; 8:45 am]

BILLING CODE 6717-01-P