[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Notices]
[Pages 92966-92974]
[FR Doc No: 2016-30660]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[No. DOT-OST-2016-0239]

Update to U.S. Department of Transportation's NEPA Implementing
Procedures

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of availability and request for comment.

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SUMMARY: The United States Department of Transportation (Department) is
issuing a proposed update to its National Environmental Policy Act
(NEPA) implementing procedures, DOT Order 5610.1D, Procedures for
Considering Environmental Impacts. Consistent with the Council on
Environmental Quality's regulations implementing NEPA, the Department
is proposing this update and seeking public review and comment on the
proposals.

DATES: Submit comments on or before January 10, 2017.

ADDRESSES: To ensure you do not duplicate your docket submissions,
please submit them by only one of the following means:
    Federal eRulemaking Portal: Go to http://www.regulations.gov and
follow the online instructions for submitting comments.
    Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
    Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New
Jersey Ave. SE., between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The telephone number is<PHONE_NUMBER>.
    Instructions: You must include the agency name and docket number at
the beginning of your comments. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.

FOR FURTHER INFORMATION CONTACT: Amy Coyle, Senior Attorney Advisor,
U.S. Department of Transportation, Office of the General Counsel, 1200
New Jersey Avenue SE., Washington, DC 20590,<PHONE_NUMBER>,
<EMAIL_ADDRESS>or Camille Mittelholtz, Environmental Policies Team
Leader, U.S. Department of Transportation, Office of the Assistant
Secretary for Transportation Policy, 1200 New Jersey Avenue SE.,
Washington, DC 20590,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Introduction

    The U.S. Department of Transportation (Department or DOT) is
proposing to update its National Environmental Policy Act (NEPA)
implementing procedures. The Department last updated its current
procedures, DOT Order 5610.1C, Procedures for Considering Environmental
Impacts, in 1985 (5610.1C).\1\ The proposed Order, DOT Order 5610.1D,
Procedures for Considering Environmental Impacts (updated NEPA Order)
seeks to achieve the following objectives: (1) Ensure a full and fair
NEPA process that includes meaningful public involvement throughout,
and the balanced consideration of a reasonable range of alternatives
and their impacts on the human environment; (2) improve efficiency and
expedite project delivery; (3) provide good customer service to
stakeholders through consistent implementation of NEPA across the
Department; (4) provide the requisite flexibility for the Department's
Operating Administrations (OAs) to apply their NEPA implementing
procedures to their specific programs; and (5) balance the needs of all
OAs, from those with well-established NEPA programs to those seeking
more guidance.
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    \1\ 44 FR 56420, Oct. 1, 1979, available at https://www.transportation.gov/office-policy/transportation-policy/procedures-considering-environmental-impacts-dot-order-56101c.
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    Additionally, the updated NEPA Order addresses relevant project
delivery provisions of the Fixing America's Surface Transportation Act
(FAST Act) that apply Department-wide, including the following:
    [ssquf] Section 1301 directs the Secretary to align, to the maximum
extent practicable, the requirements of Section 4(f) (23 U.S.C. 138/49
U.S.C. 303), Section 106 of the Historic Preservation Act (54 U.S.C.
306108), and NEPA.

Section 23 of the updated NEPA Order addresses section 1301.
    [ssquf] Section 1310 amends 49 U.S.C. 304, which was created by
section 1314 of the Moving Ahead for Progress in the 21st Century Act
(MAP-21). Under 49 U.S.C. 304 provision, one OA may apply the
categorical exclusion established in the procedures of another OA for
multimodal projects as defined in 23 U.S.C. 139(a)(5). Section 10(d) of
the updated NEPA Order addresses section 1310.
    [ssquf] Section 1311 creates 49 U.S.C. 304a, which provides for use
of errata sheets for final environmental impact statements (FEISs),
directs the Department to issue a combined FEIS and record of decision
(ROD) (FEIS/ROD) to the maximum extent practicable, and provides
discretionary processes for incorporation by reference and for one OA
to adopt environmental assessments (EAs) and EISs prepared by another
OA. Paragraphs 14(b) and 15(c) of the updated NEPA Order address the
combined FEIS/ROD. Paragraph 20(g) of the updated NEPA Order addresses
adoption. Paragraph 15(b) of the updated NEPA Order addresses errata
sheets. The Department does not address incorporation by reference in
the updated NEPA Order. However, the Department welcomes comments on
whether to add a paragraph to address it.
    [ssquf] Section 1313 creates 49 U.S.C. 310, Aligning Federal
Environmental Reviews, which directs the Department to perform several
activities: Develop a coordinated and concurrent environmental review
and permitting process for transportation projects as well as a program
to measure and report on progress towards alignment of Federal reviews
and reducing permitting and project delivery timelines; develop a
checklist to help project sponsors identify potential natural,
cultural, and historic resources in the area of a proposed project; and
facilitate annual interagency collaboration sessions. While the
Department has undertaken efforts to implement this provision,
including developing a checklist \2\ and engaging in several
interagency collaboration sessions, the Department has not addressed
this provision in the updated NEPA Order. In light of the savings
provision in 49 U.S.C. 310(g), which makes this section inapplicable to
projects subject to 23 U.S.C. 139 (most highway, transit, and railroad
projects requiring an EIS), the Department is requesting comment on how
it might further implement the provisions of 49 U.S.C. 310 in the
updated NEPA Order.
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    \2\ Available at https://www.transportation.gov/administrations/office-policy/checklist-environmental-requirements-and-resources-1313-and-appendix.
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    [ssquf] Section 1432 provides for exemptions and expedited
procedures for certain environmental review processes during
emergencies. Section 19 of the updated NEPA Order references the
availability of this provision.
    [ssquf] Section 9001 establishes the National Surface
Transportation and Innovative Finance Bureau, known as the Build
America Bureau (Bureau). The Bureau streamlines credit opportunities
and grants and provides access to the credit and grant programs with
more speed and transparency, while also providing technical assistance
and encouraging innovative best practices in project planning,
financing, delivery, and monitoring. It also administers several
transportation financial assistance programs, including the
Transportation Infrastructure Finance and Innovation Act (TIFIA) and
Railroad Rehabilitation and Improvement Financing (RRIF) credit
programs. The Bureau is a Secretarial Office. As the proposed Order
explains, a Secretarial Office may in some situations rely on the OA
with the most expertise on the potential environmental impacts of a
project to conduct the environmental review process on the Secretarial
Office's behalf.
    Consistent with the Council on Environmental Quality's (CEQ's)
Regulations for Implementing the Procedural Provisions of NEPA, 40 CFR
parts 1500-1508 (CEQ regulations), the Department consulted with CEQ on
the preparation of the updated NEPA Order. See 40 CFR 1507.3(a). In
accordance with 40 CFR 1507.3(a), the Department is proposing this
updated NEPA Order and seeking public review and comment on the
proposals. To facilitate this process, the following section summarizes
the general updates made throughout the updated NEPA Order and then the
changes or additions by section.
    The Department requests comments on the updated NEPA Order, which
is available in the docket (DOT-OST-2016-0239) at www.regulations.gov.
The docket also contains the ``Administrative Record to Update Existing
and Support New Categorical Exclusions under the National Environmental
Policy Act'' file (supporting information). DOT will respond to
comments received on the proposed NEPA Order revisions in a future
Federal Register notice, to be published after the close of the comment
period. That notice will also announce the availability of the final
NEPA Order, reflecting any changes implemented as a result of comments
received, should a final NEPA Order be issued.

II. Section-by-Section Analysis

General Updates

    As a general principle, the Department strived to draft the updated
NEPA Order at a high level to apply to the Department's diverse
programs and actions, and to the extent possible, avoid creating direct
conflicts with existing OA programs and actions. To that end, the
Department eliminated the more detailed guidance set forth in
Attachment 2 of 5610.1C. Instead, the Department will issue a ``Desk
Reference'' that provides more specific guidance on particular
provisions of the updated NEPA Order. This will allow the Department to
update the Desk Reference when appropriate without having to update the
updated NEPA Order. This approach is consistent with CEQ's
recommendation that agencies issue ``explanatory guidance'' on their
implementing procedures. See 40 CFR 1507.3(a).
    Another overall goal of the updated NEPA Order is to improve
clarity. This includes rephrasing to make clear who is responsible for
taking the actions specified in the updated NEPA Order. To improve
readability, the updated NEPA Order uses ``OA'' as the entity
responsible, and defines ``OA'' to include a Secretarial Office that
carries out its own NEPA responsibilities (as opposed to that office
relying on an OA's expertise to prepare the NEPA document). The updated
NEPA Order also updates the names of the relevant offices that have
responsibilities, including the Office of Policy and Office of the
General Counsel (and relevant subdivisions thereof). Finally, the
updated NEPA Order updates terminology to be consistent with modern
NEPA practice and the Department's current operations.
Section 1: Introduction
    Section 1 of the updated NEPA Order is a new section added to
reflect the historical context of how past transportation decisions
impacted communities. The new text further discusses the role of NEPA
as a tool to make future transportation decisions that expand
opportunity, support socio-economic mobility, and are inclusive of,
responsive to, and reflective of communities they impact. It reflects
the Department's intent to engage stakeholders earlier in the NEPA

process to achieve better outcomes that serve all users and to improve
the efficiency of the project delivery process.
Section 2: Policy and Intent
    The Department made significant revisions to 5610.1C section 2,
Policy and Intent. This section emphasizes the Department's goal to
achieve an optimal process that equitably considers impacts and
provides opportunity for meaningful public involvement throughout the
process. Paragraph (a) emphasizes the goals of the updated NEPA Order
are to facilitate a collaborative process to achieve optimal outcomes
while protecting and enhancing the environment, addressing climate
change, and engaging the public, as well as to use the NEPA process as
an umbrella to achieve a single environmental review process. Paragraph
(b) sets forth the Department's overarching environmental policy,
including the need to connect people to opportunity through a safe,
efficient, and accessible transportation system. Finally, paragraph (c)
sets forth the goals the Department seeks to achieve through the NEPA
process, including meaningful public participation and collaboration
and consideration of climate change effects.
Section 3: Definitions
    The Department is adding a Definitions section to provide further
clarity on the meaning of certain terms used in the updated NEPA Order.
The Definitions section incorporates by reference the CEQ regulatory
definitions set forth in 40 CFR part 1508, and then supplements those
definitions where the Department found additional clarity was needed.
    Action: In addition to relying upon the definition of action in 40
CFR 1508.18, the Department includes a list of examples of typical DOT
actions. Among these are ``policies and plans (including those
submitted to DOT by State, tribal, or local agencies, or other public
or private applicants, unless otherwise exempted).'' This would not
include, for example, transportation improvement plans (TIPs) and
statewide improvement plans (STIPs) conducted pursuant to 23 U.S.C. 134
and 135, respectively; STIPs and TIPs are specifically statutorily
exempted (23 U.S.C. 134(q) and 23 U.S.C. 135(k), respectively).
Additionally, the definition clarifies that a proposal is not an action
subject to NEPA if it does not allow for agency discretion to consider
environmental impacts in decision making or is not subject to DOT
control and responsibility.
    Administrator: Recognizing that the responsibilities of the
Administrator are often delegated, the updated NEPA Order defines the
Administrator as the head of an OA or his/her designee.
    Applicant: The updated NEPA Order defines applicant broadly to
reflect the variety of applicants encountered across the Department.
The updated NEPA Order also recognizes that some OA NEPA implementing
procedures (OA Procedures) provide that the applicant will carry out
the responsibilities of the OA on its behalf, and therefore could
conduct activities under this Order on behalf of that OA.
    Class of action: The Department is adopting this term, consistent
with its use in 40 CFR 1507.3(b)(2), to mean the level of NEPA review
required for a particular action (i.e., a categorical exclusion (CE),
an EA, or an EIS).
    Council on Environmental Quality (CEQ): The updated NEPA Order
makes reference to CEQ on several occasions so the Department is
identifying it in the Definitions section.
    Cumulative impact: The updated NEPA Order incorporates the
definition of cumulative impact from the CEQ regulation with a minor
edit to correct an error in the original drafting. This edit was made
at the recommendation of CEQ.
    Environment: The Department included a definition of environment
consistent with the CEQ definition of ``human environment'' at 40 CFR
1508.14 to emphasize the holistic nature of the term.
    Environmental review process: The updated NEPA Order includes this
term to emphasize that the Department strives to comply not just with
NEPA, but all applicable environmental requirements in a single process
to ensure efficient project delivery.
    Multimodal project: The updated NEPA Order includes both a broad
definition of ``multimodal project'' as well as a reference to
multimodal project as defined in 23 U.S.C. 139, where this term is used
in that context, because this narrower definition is not appropriate
for all references to multimodal projects in the updated NEPA Order.
    NEPA: The updated NEPA Order provides the full statutory citation
for NEPA.
    NEPA Document: The updated NEPA Order uses the term NEPA Document
in lieu of environmental document as used in the CEQ regulations, and
defines it more broadly to include an EIS, record of decision (ROD),
EA, finding of no significant impact (FONSI), or any documentation that
may be prepared in the application of a CE to a proposed action.
    Operating Administration (OA): The updated NEPA Order defines OA to
mean any agency established within the Department, and lists the
current OAs. As noted in General Updates above, to improve readability
of the updated NEPA Order, OA would also include a Secretarial Office
where that office is carrying out its own NEPA responsibilities.
    Shared Use Corridor: The updated NEPA Order defines shared use
corridor to provide clarity on its distinction from a multimodal
project.
Section 4: Implementation of the Order
    This new section addresses the operations of the updated NEPA
Order. It updates certain paragraphs from 5610.1C section 1,
Background, regarding cancellation and authority, and pulls in the
effective date of the updated NEPA Order, which 5610.1C listed
separately in section 18.
    Paragraph (a)(1) establishes that the updated NEPA Order serves as
the overarching procedures for the Department as well as the specific
procedures for any Secretarial Office carrying out its own NEPA
responsibilities. For example, if the Office of Facilities, which is a
Secretarial Office, was constructing a new building, it would rely on
the updated NEPA Order for its NEPA implementing procedures. In
contrast, if for example, the Federal Railroad Administration (FRA)
were delegated or otherwise assigned responsibility to conduct a NEPA
review on behalf of the Build America Bureau on a project applying for
a RRIF loan, the FRA's NEPA procedures would guide FRA's work on the
environmental review for the Bureau.
    Consistent with 40 CFR 1507.3(a), paragraph (a)(2) reminds OAs that
the updated NEPA Order supplements rather than supplants the CEQ
regulations, and that they must comply with the CEQ regulations, the
updated NEPA Order, and their own OA Procedures. Because some OAs have
unique statutory authorities that govern the environmental review
process, the paragraph also acknowledges that those statutes and their
implementing regulations govern any conflicts with the updated NEPA
Order.
    Paragraph (a)(3) provides that OAs may establish in their own OA
Procedures more specific processes and standards than those set forth
in the updated NEPA Order. Further OA Procedures may contain more
stringent timeframes or standards, but the OA

must follow the process set forth in paragraph 30(c) to obtain
concurrence from the Office of Policy and Office of the General
Counsel.
    Paragraph (a)(4) provides clarity on the use of the terms ``must''
and ``should'' in the updated NEPA Order. ``Must'' denotes mandatory
activities; ``should'' indicates that the OA has discretion to
determine whether the activity is practicable or appropriate.
    Paragraph (b) explains the intended treatment of the term ``Office
of Policy'' as used throughout the updated NEPA Order. In particular,
it specifies that whenever an OA must consult or notify the Office of
Policy, the Office of Policy must in turn consult or notify the Office
of the General Counsel. This streamlined approach means the OAs only
need to make one notification and is consistent with the Department's
current practice.
    Paragraph (c) provides the authority under which the Department is
issuing the updated NEPA Order. Paragraph (d) cancels 5610.1C. Finally,
paragraph (e) makes the updated NEPA Order effective upon final
publication.
Section 5: General Provisions
    The updated NEPA Order includes a new section 5, General
Provisions, which provides general direction on the NEPA process,
irrespective of the class of action. This section updates and builds
upon several provisions from 5610.1C, including section 2, Policy and
Intent, paragraphs (b), which addresses the purpose and (c), which
addresses the administrative record; and section 7, Preparation and
Processing of Draft Environmental Statements, paragraphs (b) Timing of
Preparation of Draft Statements and (c) Interdisciplinary Approach and
Responsibilities of EIS Preparation.
    Paragraph (a) of the updated NEPA Order addresses the timing of the
environmental review process, encouraging OAs to begin it as early as
possible in the development of the action. It also includes the CEQ
regulatory prohibition against taking actions that would have adverse
impacts or limit alternatives, including notifying applicants,
consistent 40 CFR 1506.1(a)-(b) and 1502.2(f)-(g). Paragraph (b)
requires OAs to use an interdisciplinary approach, consistent with 40
CFR 1502.6, and provides that they may use professional services but
must have staff with the capacity to evaluate these services and take
responsibility for the final content of their NEPA documents,
consistent with 40 CFR 1506.5 and 1507.2. Paragraph (c) directs OAs to
coordinate all applicable environmental reviews with the NEPA process,
and lists the most common examples of other applicable environmental
laws, regulations, and Executive Orders for DOT actions. Paragraph (d)
sets forth general requirements for NEPA documents including that they
be written in plain language and address impacts in proportion to their
significance.
    Paragraph (e) reminds OAs of the requirement to consider
environmental justice, where appropriate, in their NEPA documents,
including compliance with Executive Order (E.O.) 12898 and DOT Order
5610.2(a), Department of Transportation Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations. It specifically notes the requirement's applicability
regardless of NEPA class of action, noting the need to consider whether
the proposed action, individually or cumulatively with other past and
present infrastructure decisions, would have disproportionately high
and adverse effects on minority or low income populations.
    Paragraph (f) reminds OAs of the differences between NEPA and Title
VI of the Civil Rights Act, and that fulfilment of the NEPA process
does not necessarily result in compliance with Title VI. Paragraph (f)
also notes that compliance with the updated NEPA Order can sometimes
play a role in supporting compliance with Title VI.
    Paragraph (g) reminds OAs of their responsibility to maintain an
administrative record. Paragraph (h) addresses use of contractors in
preparing NEPA documents and sets forth requirements consistent with 40
CFR 1506.5. This provision expands upon language in 5610.1C section 13,
Responsibility, to emphasize the responsibility of the OA to use
flexibilities to ensure contractors are unbiased and produce quality
work. It also expressly notes the requirement that OAs assess
contractors' adequacy of performance, taking into account how the work
product ensures the process adequately considers impacts.
    Paragraph (i) addresses tracking of NEPA documents. Consistent with
23 U.S.C. 139(o) and current DOT policy guidance, all OAs must post
information for all infrastructure projects requiring an EA or EIS on
the Permitting Dashboard, www.permits.performance.gov. Consistent with
40 CFR 1506.6(e), paragraph (j) identifies where an outside party may
request additional information about the environmental process.
Section 6: Planning and Early Coordination
    Section 6 of the updated NEPA Order significantly revises 5610.1C
section 3, Planning and Early Coordination. Paragraph (a) encourages
early and ongoing coordination with all relevant parties including
other OAs, Federal, State and local resource and regulatory agencies,
stakeholders, and the public. Paragraph (b) directs OAs to consider
impacts of a proposed action as early as reasonably possible,
preferably during the planning stages of a proposed action. Note that
while the updated NEPA Order encourages consideration of environmental
impacts during transportation planning, as noted above, this process is
explicitly exempted from NEPA pursuant to 23 U.S.C. 134(q) and 135(k).
Paragraph (c) encourages reliance on information developed during the
planning process so as to avoid duplicating efforts in the NEPA
process. Paragraph (d) directs OAs to ensure that their applicants are
aware of environmental analysis and review requirements.
    Paragraph (e) discusses the scoping process and how it must inform
the development of reasonable alternatives. New language emphasizes
that the selection of a range of alternatives for further study, where
applicable, be thorough and objective, and include reasonable and
comparable best estimates of cost, as appropriate. Consistent the CEQ
regulations, paragraph (e) notes the selection of a range of
alternatives for further study must not predetermine a particular
outcome. Paragraphs (f) and (g) encourage tools to improve early
coordination, including Memoranda of Understanding (MOUs) and the use
of conflict resolution. Finally, paragraph (h) addresses the
requirement in 42 U.S.C. 4332(2)(D) to provide early notice to and
solicit the views of State or Federal land management entities when a
State's proposed action may have significant impacts on another State
or a Federal land management entity.
Section 7: Operating Administration Coordination
    The Department is adding this new section to specifically address
and improve coordination within the Department. Paragraph (a) requires
OAs to coordinate if it is reasonably foreseeable that more than one OA
may have an action on the same project. Paragraph (b) encourages OAs to
determine their respective roles, though the Office of Policy may
resolve any disputes. Finally, paragraph (c)

encourages use of conflict resolution to resolve any disputes between
OAs.
Section 8: Lead and Cooperating Agencies
    Section 8 of the updated NEPA Order revises, but is generally
consistent with 5610.1C section 6, Lead Agencies and Cooperating
Agencies. This section outlines the responsibilities of lead, joint
lead, and cooperating agencies consistent with the CEQ regulations and
provides best practices for OAs with respect to working with or serving
as a cooperating agency. Finally, paragraph (d) recommends engaging
other agencies that do not otherwise meet the definition of a joint
lead or cooperating agency to participate in the environmental review
process. This is similar to the participating agency role as provided
in 23 U.S.C. 139(d).
Section 9: Class of Action Determination
    Section 9 of the updated NEPA Order builds upon section 4,
Environmental Processing Choice, while moving and expanding the
paragraphs on CEs and EAs to their own sections. Paragraph (a) sets
forth the standard for determining the appropriate class of action,
which is the significance of the impacts on the human environment,
including consideration of their context and intensity. See 40 CFR
1508.27. Paragraph (b) requires OAs to establish the scope of the
action, consistent with 40 CFR 1508.25, in order to determine the
appropriate class of action. Paragraph (c) expands on the issue of
scope to ensure that the proposed action has independent utility or
significance; does not restrict consideration of alternatives for other
reasonably foreseeable actions; and where applicable, connects logical
termini or is of sufficient length to address environmental impacts on
a broad scope. Paragraph (d) requires OAs to consider potential impacts
of the proposed action on the human and natural environment. This
includes consideration of the potential for the proposed action, either
individually or cumulatively with other actions, including the impacts
of other past or present Federal, State or local actions, to
significantly affect communities protected by E.O. 12898 and DOT Order
5610.2(a). Paragraph (d) also reminds OAs that they may engage the
public to help identify potential impacts. Finally, paragraph (d)
reiterates the requirement to consider extraordinary circumstances
before determining a CE is the appropriate class of action.
Section 10: Categorical Exclusions (CEs)
    Section 10 is a new section that updates 5610.1C paragraph (c),
Categorical Exclusions, within section 4, Environmental Processing
Choice. CEQ's guidance, Establishing, Applying, and Revising
Categorical Exclusions Under the National Environmental Policy Act,\3\
recommends that agencies periodically review their existing CEs to
ensure they remain current and appropriate. The Department undertook
such a review. Paragraph 10(c) provides the results of this review of
the list of categories of actions that DOT has determined do not
normally individually or cumulatively have a significant effect on the
human environment, and therefore normally do not require the
preparation of an EA or EIS. Consistent with CEQ's guidance, the
Department also developed an Administrative Record to document its
conclusions to remove, revise, or establish new CEs. This document is
available for public review in the docket.
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    \3\ 75 FR 8045, Apr. 9, 2010, available at https://ceq.doe.gov/ceq_regulations/NEPA_CE_Guidance_Nov232010.pdf.
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    Paragraph (a) provides the definition of CEs, consistent with 40
CFR 1508.4, as well as the requirement to consider whether
extraordinary circumstances are present requiring the preparation of an
EA or EIS. Paragraph (a) instructs OAs to conduct environmental studies
to determine whether application of the CE is appropriate or whether
the OA must prepare an EA or EIS when significant environmental effects
could exist.
    Paragraph (b) provides a list of extraordinary circumstances that
OAs must consider before applying a CE listed in this Order. Among such
circumstances are the potential for the action to be inconsistent with
applicable Federal, State, Tribal, or local requirements relating to
protection of the environment; the potential to have impacts on
protected species, lands or other resources; and the potential to have
disproportionately high and adverse impacts on minority and low-income
populations. This list is only applicable to the CEs listed in the
updated NEPA Order. However, when updating OA Procedures, OAs must
consider whether any of the extraordinary circumstances provided in
paragraph (b) are appropriate to add to their list.
    Paragraph (c) provides the list of CEs. Based on its review, the
Department proposes to add 10 new CEs, modify five of the existing CEs,
and eliminate one CE and part of a CE no longer deemed useful or
appropriate. Modifications to existing CEs provide clarity and reflect
DOT experience with these activities.
    Of the new proposed new CEs, DOT has identified routine operational
activities including training and educational activities (c)(3);
leasing of space in existing buildings (c)(6); remodeling existing
facilities (c)(7); landscaping and landscape maintenance that does not
cause introduction or spread of invasive species (c)(8); hearings and
public meetings (c)(12); and Administrative actions and proceedings
(c)(13).
    Paragraph (c)(5) updates existing CE 5 in 5610.1C, which
incorporates by reference CEs identified in OA Procedures, and would
now allow one OA to apply the CE of another OA. In order to effectively
apply the CE of an OA to an action being administered by another OA,
the OA making the CE determination must ensure the application of the
CE is appropriate and that the action to which the CE is being applied
was contemplated when the CE was established. Therefore, the Department
has revised the CE to read, ``Action categorically excluded in an OA's
Procedures where the action is administered by another OA. The OA with
the CE must provide a written determination that the CE applies to the
action proposed by the other OA and provide expertise in reviewing the
action being categorically excluded.''
    Over the last decade, the Department has seen a number of new
programs and projects that go beyond the bounds of a particular OA.
This updated CE will allow the Department the flexibility to administer
its projects and programs more effectively and efficiently, taking
advantage of multiple OAs' resources and expertise, while ensuring that
CEs are appropriately applied to proposed actions. For example, the
Department may ask one OA to administer a grant because it has
extensive experience with that type of grantee, but the underlying
project falls within the environmental expertise of another OA. The
latter OA would determine whether application of its CE to the project
is appropriate because it is contemplated within that category of
action and no extraordinary circumstances are present such that
preparation of an EA or EIS is required. The Department does not intend
for this CE to be used to apply a CE to an action that the OA never
contemplated when establishing the CE. The Department plans to issue
guidance to the OAs to ensure efficient and effective use of this CE.
    DOT proposes two new CEs relating to rulemaking and policy
activities. The

first is the promulgation, modification, or revocation of rules and
development of policies, notices, and other guidance documents that are
strictly administrative, organizational, or procedural in nature; or
are corrective, technical, or minor ((c)(10)). A second is the
promulgation, modification, revocation, or interpretation of safety
standards, rules, and regulations that do not result in a substantial
increase in emissions of air or water pollutants, noise, or traffic
congestion, or increase the risk of reportable release of hazardous
materials or toxic substances ((c)(11)). Finally, DOT proposes to list
financial assistance to an applicant solely for the purpose of
refinancing outstanding debt, where the debt funds an action that is
already completed as a categorically excluded activity ((c)(14)).
    Paragraph (d) recognizes the process created in 49 U.S.C. 304 for
the application of another OA's CE for projects that meet the
``multimodal project'' definition in 23 U.S.C. 139(a). The Department
is working on an update to its existing guidance on this provision.
    Finally, paragraph (e) reminds OAs that they are responsible for
complying with all other applicable environmental requirements related
to a proposed action when processing the action as a CE. It also cross
references to paragraph 5(c), which lists many of the most common
requirements.
Section 11: Environmental Assessments (EAs)
    Section 11 is a new section to address the preparation of
environmental assessments; it updates paragraph (d) of 5610.1C section
4, Environmental Processing Choice, which sets forth situations where
the Department must prepare an EA or an EIS. In the updated NEPA Order,
paragraph (a) provides the definition of an EA and addresses the
requirement to independently evaluate the EA when an applicant prepares
it. Paragraph (b) sets forth when an OA must prepare an EA, but
paragraph (d) notes that an OA need not prepare an EA if it has
determined to prepare an EIS. Paragraph (c) provides examples of
typical classes of actions that normally require an EA, consistent with
40 CFR 1507.3(b)(2)(iii). Paragraph (e) addresses public notice and
paragraph (f) addresses public involvement for EAs. Paragraph (g)
provides the required elements for an EA consistent with 40 CFR 1508.9.
Paragraph (h) addresses the alternatives analysis for EAs. To avoid any
indication of bias toward a particular alternative where there is more
than one alternative, paragraph (h) emphasizes the need to objectively
evaluate each alternative at comparable levels of detail and to
include, where appropriate, best estimates of costs using consistent
methodologies. Paragraph (i) notes that EAs should reflect compliance
or plans for compliance with other applicable environmental
requirements. Paragraph (j) provides OAs the discretion to solicit
public comments on an EA, but requires them to address comments
received. Finally, paragraph (k) cross-references to section 18, which
addresses re-evaluation and supplemental EAs.
Section 12: Findings of No Significant Impact (FONSIs)
    Section 12 updates 5610.1C section 5, Finding of No Significant
Impact, continuing to focus on the CEQ regulatory requirements for a
FONSI set forth in 40 CFR 1508.13, 1501.7(a)(5), 1506.6, and 1501.4(e).
It also addresses mitigated FONSIs, consistent with CEQ guidance,
Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact.\4\
Paragraph (c) sets forth the basic requirements for relying on a
mitigated FONSI, including identifying the mitigation measures
necessary to reduce the potential impacts below significance; ensuring
the existence of sufficient legal authority and adequate commitment and
resources to execute the mitigation measures; requiring implementation
of the mitigation measures in any agreement with an outside party; and
where appropriate, providing for monitoring and further action when
there is a failure to implement mitigation measures or a failure in
their effectiveness.
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    \4\ 76 FR 3843, Jan. 21, 2011, available at https://ceq.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.
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Section 13: Environmental Impact Statements (EISs)
    Sections 13 through 15 address the requirements for EISs. To
improve clarity, the Department includes the requirements that apply to
both draft and final EISs in Section 13, and then addresses those
requirements specific to draft environmental impact statements (DEISs)
in Section 14, and FEISs in Section 15. Generally, these sections
articulate the requirements from the CEQ regulations, including those
in part 1502, as well as those set forth in 5610.1C section 7,
Preparation and Processing of Draft Environmental Statements, section
8, Inviting Comments on the Draft EIS, and section 11, Final
Environmental Impact Statements. However, as noted above, some of these
paragraphs are now addressed in General Provisions where the concepts
apply more broadly than to EISs only.
    Section 13, paragraph (a) sets forth when NEPA requires an EIS, as
well as the requirement to prepare a combined FEIS/ROD pursuant to 49
U.S.C. 304a(b)/23 U.S.C. 139(n). Consistent with 40 CFR
1507.3(b)(2)(i), paragraph (b) provides examples of typical classes of
actions that normally require an EIS. Paragraph (c) sets forth scoping
requirements pursuant to 40 CFR 1501.7 and emphasizes that project
scoping includes opportunities to receive input from the public,
Federal agencies, State and local governments, and tribes on issues,
including alternatives to be evaluated in the EIS. Paragraph (d)
addresses the format and content of EISs, including purpose and need,
alternatives, affected environment, environmental consequences, and
mitigation. Paragraph (d)(2)(a) emphasizes the requirement that the
alternatives analysis describe criteria used to identify the range of
alternatives and how public and agency input was considered to
determine which alternatives to evaluate and which to eliminate. The
paragraph also notes that alternatives should be evaluated fully at
comparable levels of detail, except where legally permitted to develop
a preferred alternative to a higher level of detail, and, where
appropriate, include best estimates of cost that are reasonable,
comparable, and developed using consistent methodologies. Paragraph
(d)(2)(b) addresses the need for the EIS to include information
regarding the process used to eliminate alternatives. Paragraph (e)
addresses public notice and notice of availability requirements
consistent with 40 CFR 1506.6. Paragraph (f) addresses review of EISs
prepared pursuant to NEPA Section 102(2)(D). Paragraph (g) sets forth
the requirement to file EISs with the Environmental Protection Agency
(EPA) pursuant to 40 CFR 1506.9 and notes EPA's guidance on filing.
Paragraph (h) sets forth the timing requirements, including the ability
to reduce or extend time periods.
Section 14: Draft Environmental Impact Statements (DEISs)
    As noted above, Section 14 only addresses those requirements
specific to the preparation of DEISs. Paragraph (a) encourages early
preparation of the DEIS to ensure the decision maker can meaningfully
consider the analysis in the decision-making process. Paragraph (b)
encourages OAs to indicate in the DEIS when they intend to issue a

combined FEIS/ROD pursuant to 49 U.S.C. 304a(b)/23 U.S.C. 139(n).
Finally, paragraph (c) sets forth the specific circulation and request
for comment requirements for DEISs.
Section 15: Final Environmental Impact Statements (FEISs)
    As noted above, Section 15 only addresses those requirements
specific to the preparation of FEISs. Consistent with 40 CFR 1503.4,
paragraph (a) provides guidance on responding to comments on the DEIS
in the FEIS. Paragraph (b) provides for the use of errata sheets
consistent with 49 U.S.C. 304a(a)/23 U.S.C. 139(n) and 40 CFR
1503.4(c). Paragraph (c) sets forth the 49 U.S.C. 304a(b)/23 U.S.C.
139(n) requirement to issue a combined FEIS/ROD to the maximum extent
practicable, unless the FEIS makes substantial changes to the proposed
action that are relevant to environmental or safety concerns; or there
is a significant new circumstance or information relevant to
environmental concerns that bears on the proposed action or the impacts
of the proposed action. Paragraph (d) directs the FEIS to reflect
compliance or plans for compliance with other environmental
requirements. Paragraph (e) reiterates existing delegations for
approval of FEISs. Paragraph (f) sets forth requirements to notify the
Office of Policy for certain FEISs (e.g., highly controversial
actions). Finally, paragraph (g) addresses circulation requirements for
the FEIS.
Section 16: Record of Decision
    This new section sets forth the topics to be addressed in the ROD,
including alternatives, factors balanced in decision making, and
mitigation measures. Paragraph (b) sets forth the 30-day waiting period
required by 40 CFR 1506.10(b)(2) in those instances where the OA
determines it is not practicable to issue a combined FEIS/ROD pursuant
to 49 U.S.C. 304a(b)/23 U.S.C. 139(n). Finally, paragraph (c) provides
that OAs may develop a single ROD for multimodal actions.
Section 17: Tiering and Programmatic Approaches
    While 5610.1C section 7(g) addresses tiering, the Department finds
tiering and programmatic approaches expedite project delivery, and
therefore is devoting a separate section of the updated NEPA Order to
this topic. Paragraph (b) defines tiering and emphasizes when use of
tiering may be appropriate. Paragraph (c) addresses when programmatic
EAs or EISs might be helpful. Finally, paragraph (d) encourages the use
of Programmatic Agreements to streamline routine actions or
environmental requirements, developing them as broadly as possible to
cover the actions of multiple OAs.
Section 18: Re-evaluation and Supplementation
    Section 18 updates and clarifies the existing practice for re-
evaluation outlined in 5610.1C section 19, Time in Effect of
Statements. Re-evaluation is a longstanding practice of the Department
to determine whether new information triggers the requirement to
supplement an EIS pursuant to 40 CFR 1502.9. Additionally, the
Department is revising its dates for re-evaluation from 3 to 5 years to
be consistent with Question 32 of the Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations (Forty
Questions).\5\ Paragraph (a) encourages the use of re-evaluation when
there are changes to the proposed action or new circumstances or
information relevant to environmental concerns. Additionally, it
encourages OAs to re-evaluate in writing DEISs if the OA has not issued
an FEIS within 5 years of circulation of the DEIS, and FEISs if major
steps toward implementation have not commenced within 5 years of FEIS
approval. Paragraphs (b)(1) and (b)(2) address the CEQ regulatory
criteria for a supplemental EIS, as well as the discretion to
supplement. Paragraph (b)(3) addresses the process for preparing a
supplemental EA or EIS.
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    \5\ 46 FR 18026, Mar. 23, 1981, available at https://ceq.doe.gov/nepa/regs/40/40p3.htm.
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Section 19: Emergency Actions
    The Department added a separate section regarding emergency actions
to address the CEQ regulation on emergencies, 40 CFR 1506.11, and
guidance, Memorandum for Heads of Federal Departments and Agencies
regarding Emergencies and the National Environmental Policy Act,\6\ as
well as section 1432 of the FAST Act. This builds on the existing
paragraph (c) in 5610.1C section 17, Timing of Agency Action, which
details the internal process for consulting with CEQ. The updated NEPA
Order addresses generally emergency situations in paragraph (a) and
then provides mechanisms for NEPA compliance where the OA anticipates
significant impacts in paragraph (b) or non-significant impacts in
paragraph (c). In both instances, the updated NEPA Order provides the
internal coordination process for such compliance.
---------------------------------------------------------------------------

    \6\ Available at https://ceq.doe.gov/ceq_regulations/Emergencies_and_NEPA_Memorandum_12May2010.pdf.
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Section 20: Adoption of EISs and EAs
    The Department added this new section to address adoption of NEPA
documents pursuant to the CEQ regulation, 40 CFR 1506.3, and the
Department's discretionary adoption authority under 49 U.S.C.
304a(c)(2). Paragraphs (a) through (c) outline the same requirements
set forth in 40 CFR 1506.3 for the adoption of EISs. Where the OA was
not a cooperating agency, paragraphs (b) and (c) direct the OA to issue
a combined FEIS/ROD consistent with the directive in 49 U.S.C. 304a/23
U.S.C. 139(n). Paragraph (d) sets forth the adoption process for EAs.
Consistent with Question 32 of the Forty Questions, paragraph (e)
requires OAs to reevaluate an EA or EIS that is more than 5 years old
before adopting another Federal agency's EA or EIS. Paragraph (f)
addresses the notification process. Finally, paragraph (f) acknowledges
the discretionary adoption process under 49 U.S.C. 304a(c)(2). The
Department intends to issue guidance on the application of this
provision, which it will incorporate into the Desk Reference.
Section 21: Mitigation and Monitoring
    The Department added this new section to address generally
mitigation and monitoring in the NEPA process. Consistent with the
approach in 5610.1C, the updated NEPA Order continues to reference
mitigation in the context of specific NEPA documents (e.g., EAs,
FONSIs, EISs, RODSs). This section is based on the CEQ regulations and
guidance, Appropriate Use of Mitigation and Monitoring and Clarifying
the Appropriate Use of Mitigated Findings of No Significant Impact.\7\
Paragraph (a) describes the purpose of mitigation and paragraph (b)
encourages early development of mitigation measures. Paragraph (c)
addresses appropriate documentation of mitigation measures and
paragraph (d) addresses mitigation commitments. The goal of these
provisions is to document the mitigation that the OA both considered
and adopted in the NEPA analysis and decision. Due to the importance of
ensuring implementation of mitigation measures, the Department has
included provisions on ensuring the implementation of mitigation
measures, and related monitoring provisions in paragraphs (e) and (f).
---------------------------------------------------------------------------

    \7\ 76 FR 3843, Jan. 21, 2011, available at https://ceq.doe.gov/current_developments/docs/Mitigation_and_Monitoring_Guidance_14Jan2011.pdf.

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Section 22: Responsible Official for Secretarial Office Actions
    Because the updated NEPA Order serves as the NEPA implementing
procedures for Secretarial Offices that may undertake their own NEPA
review for actions where they are not relying on the NEPA expertise of
an OA, Section 22 provides that the office director serves as the
responsible official for approving NEPA documents. Section 22 also
provides that the Office of Policy, in conjunction with the Assistant
General Counsel for Operations within the Office of the General
Counsel, is responsible for general oversight and advice on
environmental matters. This section maintains the responsible official
set forth in 5610.1C section 21, Responsible Office for Office of the
Secretary Actions, but provides clarity that this only applies when the
Secretarial Office is serving as the lead agency.
Section 23: Determinations Under Section 4(f) and Integration With NEPA
    Section 23 updates 5610.1C's guidance in section 12, Determinations
Under Section 4(f) of the DOT Act. This section reflects the current
statutory language for protection of certain parklands, refuges,
recreation areas, and historic sites under Section 4(f) (49 U.S.C. 303/
23 U.S.C 138). Because the Department intends to issue separate DOT-
wide guidance or regulations for implementation of Section 4(f) to
further reflect current policy and practice in implementing Section
4(f), and because Attachment 2 of 5610.1C would be eliminated, some of
the detailed guidance would no longer be part of the updated NEPA
Order.
    Paragraph 23(a) revises the discussion of findings required by
Section 4(f) previously provided in 5610.1C section 12. It no longer
provides that an action having more than a minimal effect on lands
protected under Section 4(f) normally requires an EIS because DOT
experience has shown that use of Section 4(f) lands is not necessarily
a significant impact.
    Paragraph 23(b) provides that an OA may approve the use of Section
4(f) property if it determines that the proposed action, including any
measures to minimize harm, would have a de minimis impact on the
property. In addition, pursuant to section 1301 of the FAST Act, the
revisions in paragraph 23(c) note opportunities to integrate
requirements for Section 4(f) with those for NEPA and Section 106 of
the National Historic Preservation Act. DOT seeks public comment on the
opportunities identified in paragraph 23(c) and also seeks comment on
additional opportunities for integration of Section 4(f), NEPA, and
Section 106.
Section 24: Review of NEPA Documents Prepared by Other Agencies
    Section 24 revises 5610.1C section 9, Review of Environmental
Statements Prepared by Other Agencies. The level of detail provided in
5610.1C is no longer necessary because the OAs have decades of
experience with these reviews. Therefore, the Department streamlined
this section to summarize its general responsibilities and internal
coordination process.
Section 25: Public Involvement
    Section 25 greatly expands upon 5610.1C section 14, Citizen
Involvement Procedures, to give the Department additional guidance on
the purpose of public involvement in the NEPA process (paragraph (a))
and provide a variety of mechanisms (paragraph (b)) to achieve the goal
of promoting meaningful public involvement early in the process to
ensure an efficient project delivery process that meets the needs of
stakeholders. Paragraph (c) states the OAs' obligation to comply with
E.O. 12372, Intergovernmental Review of Federal Programs, and the
implementing regulations in 49 CFR part 17, when applicable. Paragraph
(d) updates 5610.1C section 14(e) regarding the requirements for public
hearings and public meetings consistent with 40 CFR 1506.6(c). Finally,
paragraph (e) requires posting of NEPA documents online where
appropriate and practicable.
Section 26: Conflict Resolution
    This new section promotes the use of both informal conflict
resolution as well as environmental collaboration and conflict
resolution (ECCR) consistent with the September 7, 2012 CEQ/OMB joint
Memorandum on Environmental Collaboration and Conflict Resolution.\8\
Because the Department has a separate, more detailed Order on conflict
resolution, DOT Order 5611.1a, U.S. Department of Transportation
National Procedures for Elevating Highway and Transit Environmental
Disputes,\9\ the updated NEPA Order only provides a high-level overview
of informal conflict resolution and ECCR, with a cross-reference to
that Order.
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    \8\ Available at https://www.udall.gov/documents/Institute/OMB_CEQ_Memorandum_2012.pdf.
    \9\ Available at https://www.environment.fhwa.dot.gov/strmlng/dot5611_order.asp.
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Section 27: Pre-Decision Referrals to the Council on Environmental
Quality
    Section 27 of the updated NEPA Order revises 5610.1C section 10,
Pre-decision Referrals to the Council on Environmental Quality. This
section addresses the internal process for addressing or making
referrals to CEQ. Overall, the process remains the same, but the
Department revised this section to provide clarity consistent with the
general updates discussed above.
Section 28: Proposal for Legislation
    Section 28 of the updated NEPA Order addresses the requirements for
legislative EISs consistent with 40 CFR 1506.8. The updated NEPA Order
revises 5610.1C section 15, Proposal for Legislation, for clarity
consistent with the general updates discussed above.
Section 29: International Actions
    Section 29 of the updated NEPA Order addresses the implementation
of E.O. 12114, Environmental Effects Abroad of Major Federal Actions.
Section 29 streamlines 5610.1C section 16, International Actions, by
cross referencing to the E.O. rather than repeating the E.O.'s
applicability criteria. It also provides that OAs must prepare any
required EIS consistent with the updated NEPA Order and OA Procedures.
Finally, this section reflects edits for clarity consistent with the
general updates discussed above.
Section 30: Operating Administration Implementing Procedures
    Section 30 updates and supplements 5610.1C section 20, Implementing
Instructions. Consistent with the Department's existing procedures,
Section 30(a) of the updated NEPA Order requires OAs to either issue
their own implementing procedures (OA Procedures) or rely upon the NEPA
Order, but issue supplemental guidance. In addition to setting forth
the basic requirements for OA Procedures, consistent with 40 CFR 1505.1
and 1507.3, Section 30 also details the relationship between the
updated NEPA Order and existing OA Procedures. Consistent with
paragraph (d), once the Department finalizes the updated NEPA Order,
OAs must evaluate their existing procedures to determine whether they
are consistent with the updated NEPA Order. If not, the OAs must
develop a plan and schedule to make revisions and obtain concurrence
from the Office of Policy and Office of the General Counsel on the plan
and schedule. In the interim period, paragraph (e) provides that OAs
may continue to follow their existing OA Procedures, but have the
discretion to rely on new

provisions in the updated NEPA Order. Finally, paragraph (f) sets forth
the internal review and concurrence process for establishing or
updating OA Procedures, and paragraph (g) directs the Office of Policy
to maintain them on a DOT Web site.

    Issued in Washington, DC, on December 15, 2016.
Anthony Foxx,
Secretary of Transportation.
[FR Doc. 2016-30660 Filed 12-19-16; 8:45 am]
 BILLING CODE 4910-9X-P


[Federal Register: February 25, 2010 (Volume 75, Number 37)]
[Proposed Rules]
[Page 8549-8551]
[DOCID:fr25fe10-26]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0171; Directorate Identifier 2009-NM-185-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Model A300 Series Airplanes,
Airbus Model A300 B4-600 Series Airplanes, Airbus Model A300 B4-600R
Series Airplanes, and A310 Series Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for the
products listed above. This proposed AD results from mandatory
continuing airworthiness information (MCAI) originated by an aviation
authority of another country to identify and correct an unsafe
condition on an aviation product. The MCAI describes the unsafe
condition as: During a maintenance check performed by an A310 operator,
the recommended modification of the lower attachment beam of rack 101VU
by accomplishment of Airbus Service Bulletin (SB) A310-53-2076 was
embodied on the aeroplane, leading the operator to find three cracks on
the FR15A crossbeam above the NLG [nose landing gear] box at the
splicing with rack 107VU fitting. This condition, if not detected and
corrected, could degrade the structural integrity of the crossbeam on
NLG FR15A web attachment fitting of rack 107VU. Rack 107VU contains
major airworthiness system components whose functioning could be
adversely affected by the loss of the attachment fitting. As the A300
and A300-600 aeroplanes share this design feature, they are also
affected. The proposed AD would require actions that are intended to
address the unsafe condition described in the MCAI.

DATES: We must receive comments on this proposed AD by April 12, 2010.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
    For service information identified in this proposed AD, contact
Airbus SAS-EAW (Airworthiness Office), 1 Rond Point Maurice Bellonte,
31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61
93 44 51; e-mail<EMAIL_ADDRESS>Internet http://
www.airbus.com. You may review copies of the referenced service
information at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington. For information on the availability of
this material at the FAA, call<PHONE_NUMBER> or<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://
www.regulations.gov; or in person at the Docket Operations office
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this proposed AD, the regulatory
evaluation, any comments received, and other information. The street
address for the Docket Operations office (telephone<PHONE_NUMBER>) is
in the ADDRESSES section. Comments will be available in the AD docket
shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
227-2125; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2010-0171;
Directorate Identifier 2009-NM-185-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD based on those comments.
    We have lengthened the 30-day comment period for proposed ADs that
address MCAI originated by aviation authorities of other countries to
provide adequate time for interested parties to submit comments. The
comment period for these proposed ADs is now typically 45 days, which
is consistent with the comment period for domestic transport ADs.
    We will post all comments we receive, without change, to http://
www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Community, has issued EASA
Airworthiness Directive 2009-0165, dated July 31, 2009 (referred to
after this as ``the MCAI''), to correct an unsafe condition for the
specified products. The MCAI states:

    During a maintenance check performed by an A310 operator, the
recommended modification of the lower attachment beam of rack 101VU
by accomplishment of Airbus Service Bulletin (SB) A310-53-2076 was
embodied on the aeroplane, leading the operator to find three cracks
on the FR15A crossbeam above the NLG [nose landing gear] box at the
splicing with rack 107VU fitting.
    This condition, if not detected and corrected, could degrade the
structural integrity of the crossbeam on NLG FR15A web attachment
fitting of rack 107VU. Rack 107VU contains major airworthiness
system components whose functioning could be adversely affected by
the loss of the attachment fitting.
    As the A300 and A300-600 aeroplanes share this design feature,
they are also affected.

    For the reasons stated above, this AD requires repetitive
inspections for cracks of the crossbeam on NLG FR15A web face
attachment fitting of rack 107VU and corrective action, depending on
findings.

The corrective actions include contacting Airbus for repair
instructions, and doing the repair if any crack is found. You may
obtain further information by examining the MCAI in the AD docket.

Relevant Service Information

    Airbus has issued the following service bulletins:
     Airbus Mandatory Service Bulletin A300-53-0388, including
Appendix 01, dated March 17, 2009;
     Airbus Mandatory Service Bulletin A300-53-6164, including
Appendix 01, dated March 17, 2009; and
     Airbus Mandatory Service Bulletin A310-53-2131, including
Appendix 01, dated March 17, 2009.
    The actions described in this service information are intended to
correct the unsafe condition identified in the MCAI.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of the same
type design.

Differences Between This AD and the MCAI or Service Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have proposed different actions in this AD from those
in the MCAI in order to follow FAA policies. Any such differences are
highlighted in a NOTE within the proposed AD.

Costs of Compliance

    Based on the service information, we estimate that this proposed AD
would affect about 206 products of U.S. registry. We also estimate that
it would take about 2 work-hours per product to comply with the basic
requirements of this proposed AD. The average labor rate is $85 per
work-hour. Based on these figures, we estimate the cost of the proposed
AD on U.S. operators to be $35,020, or $170 per product, per inspection
cycle.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD 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.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979); and
    3. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared a regulatory evaluation of the estimated costs to
comply with this proposed AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

    1. The authority citation for part 39 continues to read as follows:

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

Sec.  39.13  [Amended]

    2. The FAA amends Sec.  39.13 by adding the following new AD:

Airbus: Docket No. FAA-2010-0171; Directorate Identifier 2009-NM-
185-AD.

Comments Due Date

    (a) We must receive comments by April 12, 2010.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to all Airbus Model A300 B2-1A, B2-1C, B2K-
3C, B2-203, B4-2C, B4-103, B4-203, B4-601, B4-603, B4-620, B4-622,
B4-605R, B4-622R, F4-605R, F4-622R, C4-605R Variant F airplanes, and
A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes;
certificated in any category.

Subject

    (d) Air Transport Association (ATA) of America Code 53:
Fuselage.

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:
    During a maintenance check performed by an A310 operator, the
recommended modification of the lower attachment beam of rack 101VU
by accomplishment of Airbus Service Bulletin (SB) A310-53-2076 was
embodied on the aeroplane, leading the operator to find three cracks
on the FR15A crossbeam above the NLG [nose landing gear] box at the
splicing with rack 107VU fitting.
    This condition, if not detected and corrected, could degrade the
structural integrity of the crossbeam on NLG FR15A web attachment
fitting of rack 107VU. Rack 107VU contains major airworthiness
system components whose functioning could be adversely affected by
the loss of the attachment fitting.
    As the A300 and A300-600 aeroplanes share this design feature,
they are also affected.
    For the reasons stated above, this AD requires repetitive
inspections for cracks of the crossbeam on NLG FR15A web face
attachment fitting of rack 107VU and corrective action, depending on
findings.

The corrective actions include contacting Airbus for repair
instructions, and doing the repair if any crack is found.

Compliance

    (f) You are responsible for having the actions required by this
AD performed within

the compliance times specified, unless the actions have already been
done.

Actions

    (g) Unless already done, do the following actions.
    (1) At the later of the times specified in paragraph (g)(1)(i)
and (g)(1)(ii) of this AD: Do a detailed inspection for cracks of
the crossbeam on the nose landing gear FR15A web attachment fitting
of rack 107VU, in accordance with the Accomplishment Instructions in
the applicable service bulletin specified in Table 1 of this AD.
    (i) Before the accumulation of 6,600 total flight cycles.
    (ii) Within 2,300 flight cycles or 30 months after the effective
date of this AD, whichever occurs first.
    (2) Thereafter, at intervals not to exceed 2,300 flight cycles,
repeat the inspection specified in paragraph (g)(1) of this AD.

                                           Table 1--Service Bulletins
----------------------------------------------------------------------------------------------------------------
               Model                              Service Bulletin                            Date
----------------------------------------------------------------------------------------------------------------
Airbus A300 series airplanes.......  Airbus Mandatory Service Bulletin A300-53- March 17, 2009.
                                      0388, including Appendix 01.
Airbus 300-600 series airplanes....  Airbus Mandatory Service Bulletin A300-53- March 17, 2009.
                                      6164, including Appendix 01.
Airbus A310 series airplanes.......  Airbus Mandatory Service Bulletin A310-53- March 17, 2009.
                                      2131, including Appendix 01.
----------------------------------------------------------------------------------------------------------------

    (3) If any crack is found during any inspection required by
paragraphs (g)(1) and (g)(2) of this AD, before further flight
contact Airbus for approved repair instructions and do the repair.
    (4) Submit an inspection report of the inspection required by
paragraph (g)(1) of this AD to Airbus Customer Services Directorate,
1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France,
telephone +33 5 61 93 33 33; fax +33 5 61 93 28 06; e-mail:
<EMAIL_ADDRESS>at the applicable time specified in
paragraph (g)(4)(i) or (g)(4)(ii) of this AD. The report must
include the information specified on the inspection report sheet
provided in Appendix 01 of the applicable service bulletin
identified in Table 1 of this AD.
    (i) If the inspection was done on or after the effective date of
this AD: Submit the report within 30 days after the inspection.
    (ii) If the inspection was done before the effective date of
this AD: Submit the report within 30 days after the effective date
of this AD.

FAA AD Differences

    Note 1: This AD differs from the MCAI and/or service information
as follows: No differences.

Other FAA AD Provisions

    (h) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, FAA, has the authority to approve
AMOCs for this AD, if requested using the procedures found in 14 CFR
39.19. Send information to ATTN: Dan Rodina, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425) 227-2125; fax<PHONE_NUMBER>. Before using any approved AMOC
on any airplane to which the AMOC applies, notify your principal
maintenance inspector (PMI) or principal avionics inspector (PAI),
as appropriate, or lacking a principal inspector, your local Flight
Standards District Office. The AMOC approval letter must
specifically reference this AD.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has
approved the information collection requirements and has assigned
OMB Control Number 2120-0056.

Related Information

    (i) Refer to MCAI European Aviation Safety Agency Airworthiness
Directive 2009-0165, dated July 31, 2009; Airbus Mandatory Service
Bulletin A300-53-0388, including Appendix 01, dated March 17, 2009;
Airbus Mandatory Service Bulletin A300-53-6164, including Appendix
01, dated March 17, 2009; and Airbus Mandatory Service Bulletin
A310-53-2131, including Appendix 01, dated March 17, 2009; for
related information.

    Issued in Renton, Washington, on February 17, 2010.
Stephen P. Boyd,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2010-3816 Filed 2-24-10; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Notices]
[Pages 47199-47201]
[FR Doc No: 2023-15473]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97925; File No. SR-CboeEDGA-2023-011]

Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend Its Fees Schedule Related to Physical Port Fees

July 17, 2023.
    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 July 3, 2023, Cboe EDGA Exchange, Inc. (the ``Exchange'' or
``EDGA'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe EDGA Exchange, Inc. (the ``Exchange'' or ``EDGA Equities'')
proposes to amend its Fees Schedule. The text of the proposed rule
change is provided in Exhibit 5.
    The text of the proposed rule change is also available on the
Exchange's website (http://markets.cboe.com/us/equities/regulation/rule_filings/edga/), at the Exchange's Office of the Secretary, and at
the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its fee schedule relating to
physical connectivity fees, effective July 3, 2023.
    By way of background, a physical port is utilized by a Member or
non-Member to connect to the Exchange at the data centers where the
Exchange's servers are located. The Exchange currently assesses the
following physical connectivity fees for Members and non-Members on a
monthly basis: $2,500 per physical port for a 1 gigabit (``Gb'')
circuit and $7,500 per physical port for a 10 Gb circuit. The Exchange
proposes to increase the monthly fee for 10 Gb physical ports from
$7,500 to $8,500 per port. The Exchange notes the proposed fee change
better enables it to continue to maintain and improve its market
technology and services and also notes that the proposed fee amount,
even as amended, continues to be in line with, or even lower than,
amounts assessed by other exchanges for similar connections.\3\ The
physical ports may also be used to access the Systems for the following
affiliate exchanges and only one monthly fee currently (and will
continue) to apply per port: the Cboe BZX Exchange, Inc. (options and
equities), Cboe EDGX Exchange, Inc. (options and equities platforms),
Cboe BYX Exchange, Inc., and Cboe C2 Exchange, Inc., (``Affiliate
Exchanges'').\4\
---------------------------------------------------------------------------

    \3\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges
charge a monthly fee of $15,000 for each 10Gb Ultra fiber connection
to the respective exchange, which is analogous to the Exchange's
10Gb physical port. See also New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE National,
Inc. Connectivity Fee Schedule, which provides that 10 Gb LX LCN
Circuits (which are analogous to the Exchange's 10 Gb physical port)
are assessed $22,000 per month, per port.
    \4\ The Affiliate Exchanges are also submitting contemporaneous
identical rule filings.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of section 6(b) of the Act.\5\ Specifically, the
Exchange believes the proposed rule change is consistent with the
section 6(b)(5) \6\ requirements that the rules of an exchange be
designed to prevent fraudulent and manipulative acts and

practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
Additionally, the Exchange believes the proposed rule change is
consistent with the section 6(b)(5) \7\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. The Exchange also believes the
proposed rule change is consistent with section 6(b)(4) \8\ of the Act,
which requires that Exchange rules provide for the equitable allocation
of reasonable dues, fees, and other charges among its Members and other
persons using its facilities.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
    \7\ Id.
    \8\ 15 U.S.C. 78f(b)(4)1
---------------------------------------------------------------------------

    The Exchange believes the proposed fee change is reasonable as it
reflects a moderate increase in physical connectivity fees for 10Gb
physical ports. Further, the current 10 Gb physical port fee has
remained unchanged since June 2018.\9\ Since its last increase 5 years
ago however, there has been notable inflation. Particularly, the dollar
has had an average inflation rate of 3.9% per year between 2018 and
today, producing a cumulative price increase of approximately 21.1%
inflation since the fee for the 10 Gb physical port was last
modified.\10\ Accordingly, the Exchange believes the proposed fee is
reasonable as it represents only an approximate 13% increase from the
rates adopted five years ago, notwithstanding the cumulative rate of
21.1%.
---------------------------------------------------------------------------

    \9\ See Securities and Exchange Release No. 83449 (June 15,
2018), 83 FR 28890 (June 21, 2018) (SR-CboeEDGA-2018-010).
    \10\ See https://www.officialdata.org/us/inflation/2010?amount=1.
---------------------------------------------------------------------------

    The Exchange also believes the proposed fee is reasonable as it is
still in line with, or even lower than, amounts assessed by other
exchanges for similar connections.\11\ As noted above, the proposed fee
is also the same as is concurrently being proposed for its Affiliate
Exchanges. Further, Members are able to utilize a single port to
connect to any of the Affiliate Exchanges with no additional fee
assessed for that same physical port. Particularly, the Exchange
believes the proposed monthly per port fee is reasonable, equitable and
not unfairly discriminatory as it is assessed only once, even if it
connects with another affiliate exchange since only one port is being
used and the Exchange does not wish to charge multiple fees for the
same port.
---------------------------------------------------------------------------

    \11\ See e.g., The Nasdaq Stock Market LLC (``Nasdaq''), General
8, Connectivity to the Exchange. Nasdaq and its affiliated exchanges
charge a monthly fee of $15,000 for each 10Gb Ultra fiber connection
to the respective exchange, which is analogous to the Exchange's
10Gb physical port. See also New York Stock Exchange LLC, NYSE
American LLC, NYSE Arca, Inc., NYSE Chicago Inc., NYSE National,
Inc. Connectivity Fee Schedule, which provides that 10 Gb LX LCN
Circuits (which are analogous to the Exchange's 10 Gb physical port)
are assessed $22,000 per month, per port.
---------------------------------------------------------------------------

    The Exchange also believes that the proposed fee change is not
unfairly discriminatory because it would be assessed uniformly across
all market participants that purchase the physical ports. Further,
Members and non-Members will continue to choose the method of
connectivity based on their specific needs and no broker-dealer is
required to become a Member of, let alone connect directly to, the
Exchange. There is also no regulatory requirement that any market
participant connect to any one particular exchange. Moreover, direct
connectivity is not a requirement to participate on the Exchange. The
Exchange also believes substitutable products and services are
available to market participants, including, among other things, other
equities exchanges that a market participant may connect to in lieu of
the Exchange, indirect connectivity to the Exchange via a third-party
reseller of connectivity, and/or trading of any equities product, such
as within the Over-the-Counter (OTC) markets. Indeed, there are
currently 16 registered equities exchanges that trade equities, some of
which have similar or lower connectivity fees.\12\ Based on publicly
available information, no single equities exchange has more than
approximately 16% of the market share.\13\ Further, low barriers to
entry mean that new exchanges may rapidly enter the market and offer
additional substitute platforms to further compete with the Exchange
and the products it offers. For example, in 2020 alone, three new
exchanges entered the market: Long Term Stock Exchange (LTSE), Members
Exchange (MEMX), and Miami International Holdings (MIAX Pearl).
---------------------------------------------------------------------------

    \12\ Id.
    \13\ See Cboe Global Markets, U.S. Equities Market Volume
Summary, Month-to-Date (June 29 2023), available at https://www.cboe.com/us/equities/market_statistics/.
---------------------------------------------------------------------------

    As noted above, there is no regulatory requirement that any market
participant connect to any one equities exchange, nor that any market
participant connect at a particular connection speed or act in a
particular capacity on the Exchange, or trade any particular product
offered on an exchange. Moreover, membership is not a requirement to
participate on the Exchange. A market participant may submit orders to
the Exchange via a Member broker or a third-party reseller of
connectivity. Indeed, the Exchange is unaware of any one equities
exchange whose membership includes every registered broker-dealer. By
way of example, while the Exchange currently has 103 members that trade
equities, Cboe EDGX has 124 members that trade equities, Cboe BYX has
110 members and Cboe BZX has 132 members. There is also no firm that is
a Member of EDGA Equities only. Further, based on publicly available
information regarding a sample of the Exchange's competitors, NYSE has
143 members,\14\ IEX has 129 members,\15\ and MIAX Pearl has 51
members.\16\
---------------------------------------------------------------------------

    \14\ See https://www.nyse.com/markets/nyse/membership,.
    \15\ See https://www.iexexchange.io/membership.
    \16\ See https://www.miaxglobal.com/sites/default/files/page-files/20230630_MIAX_Pearl_Equities_Exchange_Members_June_2023.pdf.
---------------------------------------------------------------------------

    Additionally, the Exchange notes that non-Members such as Service
Bureaus and Extranets resell exchange connectivity. This indirect
connectivity is another viable alternative for market participants to
trade on the Exchange without connecting directly to the Exchange (and
thus not pay the Exchange's connectivity fees), which alternative is
already being used by non-Members and further constrains the price that
the Exchange is able to charge for connectivity to its Exchange. The
Exchange notes that it could, but chooses not to, preclude market
participants from reselling its connectivity. The Exchange also chooses
not to adopt fees that would be assessed to third-party resellers on a
per customer basis (i.e., fee based on number of Members that connect
to the Exchange indirectly via the third-party). Indeed, the Exchange
does not receive any connectivity revenue when connectivity is resold
by a third-party, which often is resold to multiple customers, some of
whom are agency broker-dealers that have numerous customers of their
own.
    Accordingly, the vigorous competition among national securities
exchanges provides many alternatives for firms to voluntarily decide
whether direct connectivity to the Exchange is appropriate and
worthwhile, and as noted above, no broker-dealer is required to become
a Member of the Exchange, let alone connect directly to

it. In the event that a market participant views the Exchange's
proposed fee change as more or less attractive than the competition,
that market participant can choose to connect to the Exchange
indirectly or may choose not to connect to that exchange and connect
instead to one or more of the other 15 equities markets.
Notwithstanding the foregoing, the Exchange still believes that the
proposed fee increase is reasonable, equitably allocated and not
unfairly discriminatory, even for market participants that determine to
connect directly to the Exchange for business purposes, as those
business reasons should presumably result in revenue capable of
covering the proposed fee.

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 proposed fee change will
not impact intramarket competition because it will apply to all
similarly situated Members equally (i.e., all market participants that
choose to purchase the 10 Gb physical port).
    The Exchange's proposed fee is still lower than some fees for
similar connectivity on other exchanges and therefore may stimulate
intermarket competition by attracting additional firms to connect to
the Exchange or at least should not deter interested participants from
connecting directly to the Exchange. Further, if the changes proposed
herein are unattractive to market participants, the Exchange can, and
likely will, see a decline in connectivity via 10 Gb physical ports as
a result. The Exchange operates in a highly competitive market in which
market participants can determine whether or not to connect directly to
the Exchange based on the value received compared to the cost of doing
so.

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

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

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

    The foregoing rule change has become effective pursuant to section
19(b)(3)(A) of the Act \17\ and paragraph (f) of Rule 19b-4 \18\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
---------------------------------------------------------------------------

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

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-CboeEDGA-2023-011 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-CboeEDGA-2023-011. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-CboeEDGA-2023-011 and should
be submitted on or before August 11, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
---------------------------------------------------------------------------

    \19\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2023-15473 Filed 7-20-23; 8:45 am]
BILLING CODE 8011-01-P