36749 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations 3. § 401.35 is amended by: removing the word `` and'' after the semicolon in paragraph ( a); removing the period after paragraph ( b) and replacing it with a semicolon; and adding two new paragraphs ( c) and ( d) to read as follows:

§ 401.35 Navigation underway.

* * * * * ( c) Man the wheelhouse of the vessel at all times by either the master or certified deck officer and by another qualified crewmember; and ( d) Have sufficient well rested crewmembers available for mooring operations and other essential duties.

Issued at Washington, DC on June 16, 2003. Albert S. Jacquez, Administrator, Saint Lawrence Seaway Development Corporation. [ FR Doc. 03   15537 Filed 6   18   03; 8: 45 am]

BILLING CODE 4910   61   P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 125 [ FRL   7514   9]

RIN 2040   AD85 National Pollutant Discharge Elimination System   Amendment of Final Regulations Addressing Cooling Water Intake Structures for New Facilities AGENCY: Environmental Protection Agency ( EPA). ACTION: Final rule. SUMMARY: Today's final rule makes minor changes to EPA's final rule published December 18, 2001, implementing section 316( b) of the Clean Water Act ( CWA) for new facilities that use water withdrawn from rivers, streams, lakes, reservoirs, estuaries, oceans or other waters of the United States for cooling. The December 2001 rule instituted national technology based performance requirements applicable to the location, design, construction, and capacity of cooling water intake structures at new facilities. These national requirements establish the best technology available for minimizing adverse environmental impact associated with the use of these structures. EPA is making several minor changes to the December 2001 rule because, in several instances, the final rule text does not reflect the Agency's intent. DATES: This final rule is effective on July 21, 2003. For judicial review purposes, this final rule is promulgated as of 1 p. m. Eastern Standard Time ( EST) on July 3, 2003, as provided in 40 CFR 23.2 and 23.7. FOR FURTHER INFORMATION CONTACT: Martha Segall, USEPA Office of Water by phone at ( 202) 566   1041 or by e mail at rule. 316b@ epa. gov. SUPPLEMENTARY INFORMATION:

I. General Information A. Regulated Entities This final rule applies to new greenfield and stand alone facilities that use cooling water intake structures to withdraw water from waters of the U. S. and that have or require a National Pollutant Discharge Elimination System ( NPDES) permit issued under section 402 of the CWA. New facilities subject to this regulation include those that have a design intake flow of greater than two ( 2) million gallons per day ( MGD) and that use at least twenty five ( 25) percent of water withdrawn for cooling purposes. Today's rule does not apply to existing facilities, major modifications to existing facilities that would be `` new sources'' under 40 CFR 129.29( b) as that term is used in the effluent guidelines and standards program, or facilities that employ cooling water intake structures in the offshore oil and gas extraction point source category as defined under 40 CFR 435.10 and 40 CFR 435.40. The following table is not intended to be exhaustive; rather, it provides a guide for readers regarding entities likely to be regulated by this action. The table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria at 40 CFR 125.81. If you have questions about the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Category Examples of regulated entities Standard industrial classification codes North American Industry Codes ( NAIC)

Federal, State and Local Government. Operators of steam electric generating point source dischargers that employ cooling water intake structures. 4911 and 493 ............ 221111, 221112, 221113, 221119, 221121, 221122, 221111, 221112, 221113, 221119, 221121, 221122 Industry ............................... Operators of industrial point source dischargers that employ cooling water intake structures. See below ................. See below Steam electric generating ............................................................... 4911 and 493 ............ 221111, 221112, 221113, 221119, 221121, 221122, 221111, 221112, 221113, 221119, 221121, 221122 Agricultural production .................................................................... 0133 .......................... 111991, 11193 Metal mining ................................................................................... 1011 .......................... 21221 Oil and gas extraction ( Excluding offshore and coastal subcategories 1311, 1321 ................ 211111, 211112 Mining and quarrying of nonmetallic minerals ............................... 1474 .......................... 212391 Food and kindred products ............................................................ 2046, 2061, 2062, 2063, 2075, 2085. 311221, 311311, 311312, 311313, 311222, 311225, 31214 Tobacco products ........................................................................... 2141 .......................... 312229, 31221 Textile mill products ........................................................................ 2211 .......................... 31321 VerDate Jan< 31> 2003 15: 48 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1 36750 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations Category Examples of regulated entities Standard industrial classification codes North American Industry Codes ( NAIC)

Lumber and wood products, except furniture ................................ 2415, 2421, 2436, 2493. 321912, 321113, 321918, 321999, 321212, 321219 Paper and allied products .............................................................. 2611, 2621, 2631, 2676. 3221, 322121, 32213, 322121, 322122, 32213, 322291 Chemical and allied products ......................................................... 28 ( except 2895, 2893, 2851, and 2879). 325 ( except 325182, 32591, 32551, 32532) Petroleum refining and related industries ...................................... 2911, 2999 ................ 32411, 324199 Rubber and miscellaneous plastics products ................................. 3011, 3069 ................ 326211, 31332, 326192, 326299 Stone, clay, glass, and concrete products ..................................... 3241 .......................... 32731 Primary metal industries ................................................................. 3312, 3313, 3315, 3316, 3317, 3334, 3339, 3353, 3363, 3365, 3366. 324199, 331111, 331112, 331492, 331222, 332618, 331221, 22121, 331312, 331419, 331315, 331521, 331524, 331525 Fabricated metal products, except machinery and transportation equipment. 3421, 3499 ................ 332211, 337215, 332117, 332439, 33251, 332919, 339914, 332999 Industrial and commercial machinery and computer equipment ... 3523, 3531 ................ 333111, 332323, 332212, 333922, 22651, 333923, 33312 Transportation equipment ............................................................... 3724, 3743, 3764 ...... 336412, 333911, 33651, 336416 Measuring, analyzing, and controlling instruments; photographic, medical, and optical goods; watches and clocks. 3861 .......................... 333315, 325992 Electric, gas, and sanitary services ................................................ 4911, 4931, 4939, 4961. 221111, 221112, 221113, 221119, 221121, 221122, 22121, 22133 Educational services ....................................................................... 8221 .......................... 61131 Engineering, accounting, research, management and related services. 8731 .......................... 54171 B. How Can I Get Copies of This Document and Other Related Information? 1. Docket. EPA has established an official public docket for this action under Docket ID No. OW   2002   0052. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information ( CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, ( EPA/ DC) EPA West, Room B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8: 30 a. m. to 4: 30 p. m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is ( 202) 566   1744, and the telephone number for the Water Docket is ( 202) 566   2426. 2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the `` Federal Register'' listings at http:// www. epa. gov/ fedrgstr/. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http:// www. epa. gov/ edocket/ to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I. B. Once in the system, select `` search,'' then key in the appropriate docket identification number. II. Legal Authority, Purpose, and Scope of Today's Final Rule On December 18, 2001, EPA published a final rule implementing section 316( b) of the Clean Water Act for new facilities that use water withdrawn from rivers, streams, lakes, reservoirs, estuaries, oceans or other waters of the United States for cooling purposes. EPA reviewed the final rule text and believes that the regulatory language did not correctly reflect EPA's intent with respect to three issues. On December 26, 2002, EPA published a direct final rule ( 67 FR 78948) amending the text of the December 2001 final rule. EPA published a companion proposed rule on the same day as the direct final rule ( 67 FR 78956). The proposed rule invited comment on the substance of the direct final rule. The proposed rule stated that if EPA received adverse comment by January 27, 2003, the direct final rule would not take effect and EPA would publish a notice in the Federal Register withdrawing the direct final rule before the March 26, 2003, effective VerDate Jan< 31> 2003 15: 48 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1 36751 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations date. EPA subsequently received adverse comment on the direct final rule, and withdrew the direct final rule on March 19, 2003 ( 68 FR 14164). Today's rulemaking constitutes EPA's final action on the proposed rule. With this final action, EPA is addressing and responding to the adverse comments received on the proposed rule and the direct final rule. The legal authority, background, and basis for the December 2001 rule are discussed in the Federal Register notice of rulemaking ( 66 FR 65256, December 18, 2001). EPA often refers to the final rule implementing section 316( b) for new facilities as the `` Phase I rule.'' This term is used to avoid confusion with other phases of the section 316( b) rulemaking that mainly cover existing facilities.

III. Summary of the Final Rule This rule makes minor changes to the regulations at 40 CFR 125.80, National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities published on December 18, 2001 ( 66 FR 65256). The changes will clarify three technical issues on velocity monitoring, authority to require additional design and construction technologies, and procedures governing requests for less stringent alternative requirements.

A. Velocity Monitoring The first revision to the regulatory text relates to velocity monitoring. In the final rule for cooling water intake structures at new facilities, EPA required that velocity be monitored at cooling water intake structures at least once per quarter. In monitoring velocity, facilities that employ surface intake screens are required to monitor head loss across the intake screens at the `` minimum ambient source water surface elevation.'' EPA qualified that language in the requirement by adding a parenthetical phrase that would allow the minimum ambient source water surface elevation to be determined using the Director's best professional judgment based on available hydrological data. See 40 CFR 125.87( b). However, EPA also defined `` minimum ambient source water surface elevation'' at 40 CFR 125.83 to mean `` the elevation of the 7Q10 flow for freshwater streams or rivers; the conservation pool level for lakes or reservoirs; or the mean low tidal water level for estuaries or oceans.'' EPA further defined each of these low flows in terms of a temporal and hydrological basis. See 66 FR 65339, December 18, 2001. EPA understands that ambient source water surface elevations fluctuate through time, and it would be difficult, if not infeasible, to coordinate the measurements of head loss to the time when these minimum ambient source water surface elevations were occurring in the waterbody. It was EPA's intent that the velocity be measured at a time that is predicted, based on knowledge of the hydrology of the waterbody, to be a time of reasonable low flow representative of the low surface elevations that might occur during the months that comprise each quarter. For example, in tidal waters the velocity measurement should be taken at a low tide. If tide tables and/ or other records indicate that the surface elevations in a particular month are typically lower than in other months, the facility should measure intake velocity at one of the lowest predicted tides during that particular month. In reservoirs where water levels are drawn down at certain parts of the year, the facility should measure intake velocity immediately after a drawdown or release has occurred. In freshwater rivers and streams, the facility should measure intake velocity during the month that typically has the lowest flows. Such monitoring should occur at a time when flows are not temporarily elevated due to recent storm events. The Director should determine and specify the appropriate time of measurement in the facility's NPDES permit based on available existing hydrological information and information submitted by the owner of the facility with its permit application. Accordingly, to conform the regulatory text to EPA's intent, EPA believes that the regulatory language at 40 CFR 125.87 is sufficient and that the definition of `` minimum ambient source water surface elevation'' is no longer needed. Therefore, today's action will only delete the definition of `` minimum ambient source water surface elevation'' at 40 CFR 125.83.

B. Director's Authority to Require Additional Design and Construction Technologies or Operational Measures in Track I The second set of revisions to the regulatory text relates to the Director's authority to require additional design and construction technologies or operational measures in Track I. There are five provisions at issue: 40 CFR 125.84( b)( 4)( ii), ( b)( 4)( iii), ( b)( 5)( ii), ( c)( 3)( ii), and ( c)( 3)( iii). Four of these provisions specify circumstances where design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish are required. At 40 CFR 125.84( b)( 4)( ii) and ( c)( 3)( ii), facilities are required to select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if `` There are migratory and/ or sport or commercial species of impingement concern to the Director or any fishery management agency( ies), which pass through the hydraulic zone of influence of the cooling water intake structure.'' The language should have specified that additional design and construction technologies or operational measures are required if, `` Based on information submitted by any fishery management agency( ies) or other relevant information, there are migratory and/ or sport or commercial species of impingement concern to the Director that pass through the hydraulic zone of influence of the cooling water intake structure.'' Paragraphs ( b)( 4)( iii) and ( c)( 3)( iii) require a facility to select and implement design and construction technologies or operational measures for minimizing impingement mortality if `` It is determined by the Director or any fishery management agency( ies) * * *.'' The language should have specified that those technologies are required if, `` It is determined by the Director, based on information submitted by any fishery management agency( ies) or other relevant information, that * * *.'' The fifth provision, paragraph ( b)( 5)( ii), addresses circumstances where design and construction technologies or operational measures are required for minimizing entrainment of entrainable life stages of fish and shellfish. The language used in this provision was similar to that in paragraphs ( b)( 4)( ii), ( b)( 4)( iii), ( c)( 3)( ii), and ( c)( 3)( iii) and therefore required similar corrections. All of these revisions are necessary because the decision of what to require under section 316( b) of the CWA belongs to the Director. Although EPA did not intend to delegate the decisionmaking to another agency, the Director may obtain information from another agency to make a decision. Therefore, today's action amends the requirements at 40 CFR 125.84( b)( 4)( ii), ( b)( 4)( iii), ( b)( 5)( ii), ( c)( 3)( ii), and ( c)( 3)( iii) to reflect the intent that the information of another agency informs the decision of the Director.

C. Deletion of Inappropriate Cross Reference in the Alternative Requirements Section The third issue relates to drafting errors in the alternative requirements section of the rule. The regulation at 40 CFR 125.85 in paragraphs ( a)( 2) and ( 3) currently refers to local water resources `` not addressed under § 125.84( d)( 1)( i)'' intending to refer to local water resource issues other than impingement or VerDate Jan< 31> 2003 14: 18 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1 36752 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations entrainment. Cross referencing this other section of the regulations is not technically correct, because subsection ( d) of § 125.84 is part of Track II while the alternative requirements provision applies to either Track I or Track II. Therefore, this action deletes the reference to 40 CFR 125.84( d)( 1)( i) and substitutes language referencing `` significant adverse impacts on local water resources other than impingement or entrainment.'' Similarly, to eliminate any uncertainty regarding applicability of the alternative requirements provision at 40 CFR 125.85 to the Track II performance requirements at 40 CFR 125.84( d), this action deletes 40 CFR 125.84( d)( 1)( ii) because it is unnecessary and confusing. In addition, the paragraph 40 CFR 125.84( d)( 1) and the subparagraph ( d)( 1)( i) have been combined with some modifications because a separate subparagraph is no longer needed.

IV. Response to Comments EPA received one set of comments on the direct final and companion proposed rules published on December 26, 2002, ( 67 FR 78948 and 78956) from Riverkeeper, Inc. on behalf of 16 environmental organizations. This group of environmental organizations are petitioners in a suit filed against EPA in the U. S. Court of Appeals in the Second Circuit ( Case No. 02   4005) challenging EPA's final Phase I rule for new facilities. Riverkeeper, et al. submitted as their comments the brief that they filed in their challenge to the December 18, 2001, Phase I final regulations ( Brief for the Environmental Petitioners, December 4, 2002). Riverkeeper et al.' s comments did not specifically object to the technical changes in the direct final rule; rather, they objected to the underlying provisions in the final Phase I rule that are related to the technical corrections. Riverkeeper et al. filed their brief to preserve their ability to have the objectionable provisions remanded to EPA should they succeed in their challenge of the Phase I rule. EPA also understands that Riverkeeper et al. intend to consolidate any petition for review of this rule with the pending litigation in the Second Circuit. EPA believes it responded to Riverkeeper et al.' s comments articulated in their brief in EPA's brief filed in the Second Circuit on April 4, 2003, and in the record for the Phase I rule. Thus, EPA includes in the record for this rule the brief it filed in the Second Circuit in the Phase I litigation, all other briefs filed in that litigation, and the entire public record on the National Pollutant Discharge Elimination System: Regulations Addressing Cooling Water Intake Structures for New Facilities, Final Rule ( Docket ID W   00   03).

V. Statutory and Executive Orders Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866, [ 58 FR 51735, October 4, 1993] the Agency must determine whether the regulatory action is `` significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines `` significant regulatory action'' as one that is likely to result in a rule that may: ( 1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector or the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; ( 2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; ( 3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this rule is not a `` significant regulatory action'' under the terms of Executive Order 12866 and therefore is not subject to OMB review.

B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. This rule merely makes three minor technical revisions to the December 2001 Phase I final regulations for cooling water intake structures. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, impose no additional costs or result in additional benefits beyond those already projected, and would not reduce the level of environmental protection projected. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act ( RFA) The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: ( 1) A small business based on the Small Business Administration's size standards; ( 2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and ( 3) a small organization that is any not forprofit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impact of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule does not substantively change the December 18, 2001, final rule for new facilities ( 66 FR 65256), nor does it impose a significant economic impact on a substantial number of small entities. This rule merely makes three minor technical revisions to the December 2001 rule. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent VerDate Jan< 31> 2003 14: 18 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1 36753 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations alternative requirements. It would affect the same facilities as the December 2001 rule, impose no additional costs or result in additional benefits beyond those already projected, and would not reduce the level of environmental protection projected.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law 104   4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with `` Federal mandates'' that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector, in any one year. This rule merely makes three minor technical revisions to the December 2001 Phase I final regulations for cooling water intake structures. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, would have no additional costs or benefits beyond those already projected, and would not reduce the level of environmental protection projected. Thus, today's rule is not subject to the requirements of section 202 and 205 of the UMRA. For the same reasons, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule is not subject to the requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism Executive Order 13132, entitled `` Federalism'' ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure `` meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' `` Policies that have federalism implications'' is defined in the Executive Order to include regulations that have `` substantial direct effects 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.'' This final rule does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132. This rule merely makes three minor technical revisions to the December 2001 Phase I final regulations for new facilities. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, impose no additional costs or result in additional benefits beyond those already projected, and would not reduce the level of environmental protection projected. Thus Executive Order 13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled `` Consultation and Coordination with Indian Tribal Governments'' ( 65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure `` meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.'' `` Policies that have Tribal implications'' is defined in the Executive Order to include regulations that have `` substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.'' This final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. This rule merely makes three minor technical revisions to the final regulations for cooling water intake structures. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, impose no additional costs or result in additional benefits beyond those already projected, and would not reduce the level of environmental protection projected. This rule will not affect Tribes in any way in the foreseeable future. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045 ( 62 FR 19885, April 23, 1997) applies to any rule that: ( 1) Is determined to be `` economically significant'' as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe might have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not economically significant as defined under Executive Order 12866 and does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. This rule merely VerDate Jan< 31> 2003 14: 18 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1 36754 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations makes three minor technical revisions to the final regulations for cooling water intake structures. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, impose no additional costs or result in the additional benefits beyond those already projected, and would not reduce the level of environmental protection projected. Therefore, it is not subject to Executive Order 13045.

H. Executive Order 13211 ( Energy Effects) This final rule is not subject to Executive Order 13211, `` Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' ( 66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act (`` NTTAA'') of 1995 ( Public Law 104   113, Section12( d), 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This final rule does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency must conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons ( including populations) from participation in, denying persons ( including populations) the benefits of, or subjecting persons ( including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin. EPA does not expect that this final rule would have an exclusionary effect, deny persons the benefit of the NPDES program or subject persons to discrimination because of their race, color, or national origin. This rule merely makes three minor technical revisions to the final regulations for cooling water intake structures. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, would have no additional costs or benefits beyond those already projected, and would not reduce the level of environmental protection projected.

K. Executive Order 13158: Marine Protected Areas Executive Order 13158 ( 65 FR 34909, May 31, 2000) requires EPA to `` expeditiously propose new sciencebased regulations, as necessary, to ensure appropriate levels of protection for the marine environment.'' EPA may take action to enhance or expand protection of existing marine protected areas and to establish or recommend, as appropriate, new marine protected areas. The purpose of the Executive Order is to protect the significant natural and cultural resources within the marine environment, which means ``' those areas of coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands thereunder, over which the United States exercises jurisdiction, consistent with international law.'' Today's final rule will not enhance or expand protection nor reduce the level of environmental protection of existing marine protected areas. This rule merely makes three minor technical revisions to the December 2001 Phase I final regulations for cooling water intake structures. These minor changes will clarify the Agency's intent on velocity monitoring, authority to require additional design and construction technologies, and procedures for seeking less stringent alternative requirements. It would affect the same facilities as the December 2001 rule, impose no additional costs or result in additional benefits beyond those already projected, and would not reduce the level of environmental protection projected.

L. Plain Language Directive Executive Order 12866 encourages agencies to write all rules in plain language. EPA has written this final rule in plain language to make this rule and the final rule at 66 FR 65256, December 18, 2001 easier to understand.

M. Congressional Review Act The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a `` major rule'' as defined by 5 U. S. C. 804( 2). This rule will be effective July 21, 2003.

List of Subjects in 40 CFR Part 125 Environmental protection, Cooling water intake structures, Reporting and recordkeeping requirements, Waste treatment and disposal, Water pollution control.

Dated: June 13, 2003. Christine Todd Whitman, Administrator.

 For the reasons set forth in the preamble, chapter I of title 40 of the Code of Federal Regulations is amended as follows:

PART 125   CRITERIA AND STANDARDS FOR THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM  1. The authority citation for part 125 continues to read as follows:

Authority: The Clean Water Act, 33 U. S. C. 1251 et seq., unless otherwise noted.

§ 125.83 [ Amended]

 2. Section 125.83 is amended by removing the definition for `` Minimum ambient source water surface elevation.''

 3. Section 125.84 is amended by revising paragraphs ( b)( 4)( ii), ( b)( 4)( iii), ( b)( 5)( ii), ( c)( 3)( ii), ( c)( 3)( iii), and ( d)( 1) to read as follows:

VerDate Jan< 31> 2003 14: 18 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1 36755 Federal Register / Vol. 68, No. 118 / Thursday, June 19, 2003 / Rules and Regulations § 125.84 As an owner or operator of a new facility, what must I do to comply with this subpart?

* * * * * ( b) * * * ( 4) * * * ( ii) Based on information submitted by any fishery management agency( ies) or other relevant information, there are migratory and/ or sport or commercial species of impingement concern to the Director that pass through the hydraulic zone of influence of the cooling water intake structure; or ( iii) It is determined by the Director, based on information submitted by any fishery management agency( ies) or other relevant information, that the proposed facility, after meeting the technologybased performance requirements in paragraphs ( b)( 1), ( 2), and ( 3) of this section, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern; ( 5) * * * ( ii) Based on information submitted by any fishery management agency( ies) or other relevant information, there are or would be undesirable cumulative stressors affecting entrainable life stages of species of concern to the Director and the Director determines that the proposed facility, after meeting the technology based performance requirements in paragraphs ( b)( 1), ( 2), and ( 3) of this section, would still contribute unacceptable stress to the protected species , critical habitat of those species, or these species of concern; * * * * * ( c) * * * ( 3) * * * ( ii) Based on information submitted by any fishery management agency( ies) or other relevant information, there are migratory and/ or sport or commercial species of impingement concern to the Director that pass through the hydraulic zone of influence of the cooling water intake structure; or ( iii) It is determined by the Director, based on information submitted by any fishery management agency( ies) or other relevant information, that the proposed facility, after meeting the technologybased performance requirements in paragraphs ( c)( 1) and ( 2) of this section, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern; * * * * * ( d) * * * ( 1) You must demonstrate to the Director that the technologies employed will reduce the level of adverse environmental impact from your cooling water intake structures to a comparable level to that which you would achieve were you to implement the requirements of paragraphs ( b)( 1) and ( 2) of this section. This demonstration must include a showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those which would result if you were to implement the requirements of paragraphs ( b)( 1) and ( 2) of this section. This showing may include consideration of impacts other than impingement mortality and entrainment, including measures that will result in increases in fish and shellfish, but it must demonstrate comparable performance for species that the Director identifies as species of concern. In identifying such species, the Director may consider information provided by any fishery management agency( ies) along with data and information from other sources. * * * * *

 4. Section 125.85 is amended by revising paragraphs ( a)( 2) and ( 3) to read as follows:

§ 125.85 May alternative requirements be authorized?

( a) * * * ( 2) The Director determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets; ( 3) The alternative requirement requested is no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets; and * * * * *

[ FR Doc. 03   15518 Filed 6   18   03; 8: 45 am]

BILLING CODE 6560   50   P VerDate Jan< 31> 2003 14: 18 Jun 18, 2003 Jkt 200001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\ FR\ FM\ 19JNR1. SGM 19JNR1


[Federal Register: November 17, 2009 (Volume 74, Number 220)]
[Notices]
[Page 59297-59298]
[DOCID:fr17no09-120]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60979; File No. SR-NSX-2009-06]

Self-Regulatory Organizations; National Stock Exchange, Inc.;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change to
Amend the Fee and Rebate Schedule to Exclude, for Purposes of
Calculating the Automatic Execution Mode of Order Interaction
(``AutoEx'') Liquidity Adding Displayed Order Rebate, An ETP Holder's
Lowest Full Trading Day's Liquidity Adding Volume From The
Determination of The ETP Holder's ``Liquidity Adding Average Daily
Volume''

November 10, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on October 29, 2009, National Stock Exchange, Inc. 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 comment 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

    National Stock Exchange, Inc. (``NSX[supreg]'' or ``Exchange'') is
proposing to amend the Fee and Rebate Schedule (the ``Fee Schedule'')
issued pursuant to Exchange Rule 16.1(c) in order to exclude, for
purposes of calculating the Automatic Execution Mode of order
interaction (``AutoEx'') liquidity adding displayed order rebate with
respect to each ETP Holder during each measurement period, such ETP
Holder's lowest full trading day's liquidity adding volume from the
determination of the ETP Holder's ``liquidity adding average daily
volume.''
    The text of the proposed rule change is available on the Exchange's
Web site at http://www.nsx.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

 1. Purpose
    With this rule change, the Exchange is proposing to make a change
to the Fee and Rebate Schedule (the ``Fee Schedule'') solely with
respect to calculation of the rebate for Displayed Orders that add
liquidity in AutoEx \3\.
---------------------------------------------------------------------------

    \3\ The Exchange's two modes of order interaction are described
in NSX Rule 11.13(b).
---------------------------------------------------------------------------

    An ETP Holder's liquidity adding average daily volume (``Liquidity
Adding ADV'') is used, among other things, to determine the amount of
an ETP Holder's liquidity adding Displayed Order rebate in AutoEx
(``AutoEx Displayed Order Liquidity Adding Rebate''). Explanatory
Endnote 3 of the Fee Schedule currently defines ``Liquidity Adding
ADV'' as, ``with respect to an ETP Holder \11\, the number of shares
such ETP Holder has executed as a liquidity provider on average per
trading day (excluding partial trading days) across all tapes on NSX
for the calendar month (or partial month, as applicable) in which the
executions occurred.'' The instant rule filing proposes to modify this
definition to exclude from such calculation, solely for purposes of
calculating the AutoEx Displayed Order Liquidity Adding Rebate, an ETP
Holder's lowest full trading day's liquidity adding volume during each
measurement period. Thus, solely for purposes of calculating the AutoEx
Displayed Order Liquidity Adding Rebate, the ratio used to determine an
ETP Holder's Liquidity Adding ADV during each measurement period would
be adjusted by (x) excluding from the numerator the ETP Holder's lowest
full trading day's volume of shares executed as a liquidity provider,
and (y) reducing the denominator by one day.
    The proposed rule change would not modify other calculations of
average daily volume, volume tiers, or associated fees that are
included in the Fee Schedule.

Rationale
    The Exchange has determined that these changes are necessary to
accommodate for situations where, due to unusual circumstances \4\
during a measurement period, an ETP Holder obtains abnormally low
liquidity adding executions at the Exchange. By omitting one day per
measurement period which, as a volume outlier, skews downward an ETP
Holder's average daily volume for purposes of calculating the AutoEx
Displayed Order Liquidity Adding Rebate, the Exchange is responding to
the needs of its customers and the realities of order flow.
---------------------------------------------------------------------------

    \4\ Abnormally low liquidity adding volumes may be caused by a
variety of factors, including internal problems with an ETP Holder's
systems, connections or other technology, as well by occasional
abnormally low overall market volumes.
---------------------------------------------------------------------------

    The Exchange believes that the proposed modification will enhance
the Exchange's reputation within the industry as highly responsive to
its customers' needs, will assist in attracting additional customers,
and will ultimately cause increased volumes of liquidity adding orders
at the Exchange, all of which shall serve to increase the revenue of
the Exchange and its ability to adequately fund its regulatory and
general business functions. The proposed modifications are reasonable
and equitably allocated to those ETP Holders that opt to provide
liquidity adding orders in AutoEx, and are not discriminatory because
such terms apply to all ETP Holders, who are free to elect whether or
not to send such orders. Based upon the information above, the Exchange
believes that the proposed rule change is consistent with the
protection of investors and the public interest.
Operative Date and Notice
    The Exchange intends to utilize the proposed revised definition as
of November 1, 2009. Pursuant to Exchange Rule 16.1(c), the Exchange
will ``provide ETP Holders with notice of all relevant dues, fees,
assessments and charges of the Exchange'' through the issuance of a
Regulatory Circular of the changes to the Fee Schedule and will post a
copy of the rule filing on the Exchange's Web site (http://
www.nsx.com).
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6(b) of the Act,\5\ in general, and
Section 6(b)(4) of the Act,\6\ in particular, in that it is designed to
provide for the equitable allocation of reasonable dues, fees and other
charges among its members and other persons using the facilities of the
Exchange. Moreover, the proposed fee and rebate structure is not
discriminatory in that all ETP Holders are eligible to submit (or not
submit) liquidity adding trades and quotes on the same basis, and may
do so at their discretion in the daily volumes they choose during the
course of the measurement period.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any inappropriate burden on competition.

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

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

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

    The proposed rule change has taken effect upon filing pursuant to
Section 19(b)(3)(A)(ii) of the Act \7\ and subparagraph (f)(2) of Rule
19b-4 \8\ thereunder, because, as provided in (f)(2), it changes ``a
due, fee or other charge applicable only to a member'' (known on the
Exchange as an ETP Holder). At any time within sixty (60) days of the
filing of such proposed rule change, the Commission may summarily
abrogate 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.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \8\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NSX-2009-06 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-NSX-2009-06. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying 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 will also be available for
inspection and copying at the principal office of the self-regulatory
organization. All comments received will be posted without change; the
Commission does not edit personal identifying information from
submissions. You should submit only information that you wish to make
available publicly. All submissions should refer to File Number SR-NSX-
2009-06 and should be submitted on or before December 8, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
Florence E. Harmon,
Deputy Secretary.
---------------------------------------------------------------------------

    \9\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

[FR Doc. E9-27505 Filed 11-16-09; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register Volume 82, Number 108 (Wednesday, June 7, 2017)]
[Notices]
[Pages 26546-26548]
[FR Doc No: 2017-11752]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-80843; File No. SR-FINRA-2017-016]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend FINRA Rule 7620A To Eliminate the No/Was
Corrective Transaction Charge

June 1, 2017.
    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 May 23, 2017, Financial Industry Regulatory Authority, Inc.
(``FINRA'') filed with the Securities and Exchange Commission (``SEC''
or ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by FINRA. FINRA has
designated the proposed rule change as ``establishing or changing a
due, fee or other charge'' under section 19(b)(3)(A)(ii) of the Act \3\
and Rule 19b-4(f)(2) thereunder,\4\ which renders the proposal
effective upon receipt of this filing by the Commission. 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.
    \3\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

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

    FINRA is proposing to amend FINRA Rule 7620A (FINRA/Nasdaq Trade
Reporting Facility Reporting Fees) to eliminate the ``No/Was''
corrective transaction charge from the fee schedule for members that
use the FINRA/Nasdaq Trade Reporting Facility (the ``FINRA/Nasdaq
TRF'') in light of the elimination of No/Was functionality.
    Below is the text of the proposed rule change. Proposed new
language is in italics; proposed deletions are in brackets.
* * * * *
7000. CLEARING, TRANSACTION AND ORDER DATA REQUIREMENTS, AND FACILITY
CHARGES
* * * * *
7600. DATA PRODUCTS AND CHARGES FOR TRADE REPORTING FACILITY SERVICES
7600A. DATA PRODUCTS AND CHARGES FOR FINRA/NASDAQ TRADE REPORTING
FACILITY SERVICES
* * * * *
7620A. FINRA/Nasdaq Trade Reporting Facility Reporting Fees
    The following charges shall be paid by participants for use of the
FINRA/Nasdaq Trade Reporting Facility. In the case of trades where the
same market participant is on both sides of a trade report, applicable
fees assessed on a ``per side'' basis will be assessed once, rather
than twice, and the market participant will be assessed applicable Non-
Comparison/Accept (Non-Match/Compare) Charges as the Executing Party
side only.

------------------------------------------------------------------------
   Non-comparison/accept (Non-match/
           compare) charges:
------------------------------------------------------------------------
Tape...................................  Daily Average Number of Media/
                                          Executing Party Trades During
                                          the Month Needed to Qualify
                                          for Cap.
A......................................  2500
B......................................  2500
C......................................  2500
------------------------------------------------------------------------
                          Media/Executing Party
------------------------------------------------------------------------
Monthly Charge.........................  Maximum Monthly Charge if
                                          Capped.
------------------------------------------------------------------------
($0.018) x (Number of Media/Executing    ($0.018) x (Required Daily
 Party Reports During the Month).         Average Number of Media/EP
                                          Trades for Tape A, B or C) x
                                          (Number of Trading Days During
                                          the Month).
------------------------------------------------------------------------
                        Non-Media/Executing Party
------------------------------------------------------------------------
Monthly Charge.........................  Maximum Monthly Charge if
                                          Capped.
------------------------------------------------------------------------
($0.018) x (Number of Non-Media/         ($0.018) x 2500 for Tape A, B
 Executing Party Reports During the       or C x (Number of Trading Days
 Month).                                  During the Month).
------------------------------------------------------------------------
                              Media/Contra
------------------------------------------------------------------------
Monthly Charge.........................  Maximum Monthly Charge if
                                          Capped.
------------------------------------------------------------------------
($0.013) x (Number of Media/Contra       ($0.013) x 2500 for Tape A, B
 Reports During the Month).               or C x (Number of Trading Days
                                          During the Month).
------------------------------------------------------------------------
                            Media/Contra Cap
------------------------------------------------------------------------
Participants making markets in
 alternative trading systems registered
 pursuant to Regulation ATS will
 qualify for a fee cap applied to all
 trades under Rule 7620A if they meet
 the following criteria on a monthly
 basis:
------------------------------------------------------------------------
 Participant's percentage of
 contra media trades must represent at
 least 35% of their total FINRA/Nasdaq
 Trade Reporting Facility volume.

 Participant must be contra to
 a minimum of 1,000,000 trades in Tape
 A, 500,000 trades in Tape C and
 250,000 trades in Tape B.
 Participant must complete an
 attestation form stating that they
 maintain a two-sided quote in each
 symbol traded on an alternative
 trading system registered pursuant to
 Regulation ATS and display a quotation
 size of at least one normal unit of
 trading (specific for each security)
 thereon. Participants will be audited
 by Nasdaq, Inc. periodically.
------------------------------------------------------------------------
Maximum Monthly Charge if Capped.......  $5,000 per Tape (A, B or C).
------------------------------------------------------------------------
                            Non-Media/Contra
------------------------------------------------------------------------
Monthly Charge.........................  Maximum Monthly Charge if
                                          Capped
------------------------------------------------------------------------
($0.013) x (Number of Non-Media/Contra   ($0.013) x 2500 for Tape A, B
 Reports During the Month).               or C x (Number of Trading Days
                                          During the Month).
Standard Fees:                           ...............................
    Clearing report to transfer a        $0.03/side.
     transaction fee charged by one
     member to another member pursuant
     to Rule 7230A(h).
    Comparison/Accept..................  $0.0144/side per 100 shares
                                          (minimum 400 shares; maximum
                                          7,500 shares).
    Late Report--T+N...................  $0.288/trade (charged to the
                                          Executing Party).
    Query..............................  $0.50/query.
    Corrective Transaction Charge......  $0.25/Cancel, Error, Inhibit,
                                          or Kill[, or ``No'' portion of
                                          No/Was transaction], paid by
                                          reporting side; $0.25/Break,
                                          Decline transaction, paid by
                                          each party.
------------------------------------------------------------------------

       Supplementary Material: ------------
    .01 through .02 No Change.
* * * * *

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

    In its filing with the Commission, FINRA 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. FINRA 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 FINRA/Nasdaq TRF is a facility of FINRA that is operated by
Nasdaq, Inc. and utilizes Automated Confirmation Transaction (``ACT'')
Service technology. In connection with the establishment of the FINRA/
Nasdaq TRF, FINRA and Nasdaq, Inc. entered into a limited liability
company agreement (the ``LLC Agreement'').\5\ Under the LLC Agreement,
FINRA, the ``SRO Member,'' has sole regulatory responsibility for the
FINRA/Nasdaq TRF. Nasdaq, Inc., the ``Business Member,'' is primarily
responsible for the management of the FINRA/Nasdaq TRF's business
affairs, including establishing pricing for use of the FINRA/Nasdaq
TRF, to the extent those affairs are not inconsistent with the
regulatory and oversight functions of FINRA. Additionally, the Business
Member is obligated to pay the cost of regulation and is entitled to
the profits and losses, if any, derived from the operation of the
FINRA/Nasdaq TRF.
---------------------------------------------------------------------------

    \5\ As approved by its board of directors and the Commission,
effective September 8, 2015, The NASDAQ OMX Group, Inc. changed its
legal name to Nasdaq, Inc. See Nasdaq, Inc. Form 8-K Current Report
(filed September 8, 2015) (available at www.sec.gov/Archives/edgar/data/1120193/000119312515314459/d48431d8k.htm). FINRA and Nasdaq,
Inc. are in the process of amending the LLC Agreement to reflect the
name change, and FINRA will file a separate proposed rule change to
update the FINRA manual accordingly.
---------------------------------------------------------------------------

    Pursuant to the FINRA Rule 7600A Series, FINRA members that are
FINRA/Nasdaq TRF participants are charged fees and may qualify for fee
caps (Rule 7620A) and also may qualify for revenue sharing payments for
trade reporting to the FINRA/Nasdaq TRF (Rule 7610A). These rules are
administered by Nasdaq, Inc., in its capacity as the Business Member
and operator of the FINRA/Nasdaq TRF on behalf of FINRA,\6\ and Nasdaq,
Inc. collects all fees on behalf of the FINRA/Nasdaq TRF.
---------------------------------------------------------------------------

    \6\ FINRA's oversight of this function performed by the Business
Member is conducted through a recurring assessment and review of TRF
operations by an outside independent audit firm.
---------------------------------------------------------------------------

    FINRA/Nasdaq TRF participants are required to correct trade reports
that are inaccurate and may use one of several FINRA/Nasdaq TRF
functions (collectively referred to herein as ``Corrective
Transactions'') to do so, including ``No/Was.'' Firms would use a No/
Was submission to correct the details of a trade reported earlier in
the day. Under FINRA Rule 7620A, FINRA/Nasdaq TRF participants are
assessed a fee of $0.25 for Corrective Transactions, including No/Was
submissions. FINRA notes that the Corrective Transaction fee is the
same, irrespective of the functionality used to correct the trade. In
addition to the Corrective Transaction fee, reporting firms are also
assessed the applicable fee for submission of the corrected or
replacement trade report.\7\
---------------------------------------------------------------------------

    \7\ Due to their nature, Corrective Transactions consume system
capacity and staff resources disproportionate to those required for
standard reporting transactions, and disproportionate to the fee
imposed for standard reporting functions. Thus, to cover a portion
of the costs of processing Corrective Transactions, the FINRA/Nasdaq
TRF assesses a Corrective Transaction Charge to such transactions.
---------------------------------------------------------------------------

    On September 15, 2016, Nasdaq, Inc., as the Business Member,
provided notice that effective October 31, 2016, the FINRA/Nasdaq TRF
would no longer support No/Was functionality.\8\ According to Nasdaq,
Inc., the No/Was logic added complexity to the system with no real
benefit, since the

functionality may be replicated by FINRA/Nasdaq TRF participants by
simply cancelling the original report and submitting a corrected
report. Nasdaq, Inc. has advised FINRA that prior to the disablement of
the functionality, the volume of No/Was transactions was de minimis.
For example, there were fewer than 850 No/Was submissions on average
per month during the period from January through July 2016. By
contrast, there were 841,000 total Corrective Transaction submissions
on average per month during that same period (i.e., No/Was submissions
accounted for approximately one tenth of one percent of all Corrective
Transaction submissions).
---------------------------------------------------------------------------

    \8\ See Nasdaq Equity Trader Alert #2016-179 (available at
http://www.nasdaqtrader.com/TraderNews.aspx?id=ETA2016-179).
---------------------------------------------------------------------------

    To ensure that the fee schedule under FINRA rules accurately
reflects current FINRA/Nasdaq TRF functionality, FINRA is proposing to
eliminate the reference to No/Was submissions for purposes of the
Corrective Transaction charge under Rule 7620A.
    FINRA has filed the proposed rule change for immediate
effectiveness. The effective date will be the date of filing, May 23,
2017.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of section 15A(b)(5) of the Act,\9\ which requires, among
other things, that FINRA rules provide for the equitable allocation of
reasonable dues, fees and other charges among members and issuers and
other persons using any facility or system that FINRA operates or
controls. All similarly situated members are subject to the same fee
structure, and access to the FINRA/Nasdaq TRF is offered on fair and
non-discriminatory terms.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78o-3(b)(5).
---------------------------------------------------------------------------

    Nasdaq, Inc., as the Business Member, has advised FINRA that it
eliminated No/Was functionality effective October 31, 2016 to reduce
complexity in the FINRA/Nasdaq TRF system and that such functionality
can readily be replicated by participants. The proposed rule change
merely deletes the reference to No/Was Corrective Transactions in Rule
7620A to ensure that the fee schedule accurately reflects current
FINRA/Nasdaq TRF functionality. As such, the proposed rule change
provides for the equitable allocation of reasonable fees for use of the
FINRA/Nasdaq TRF.

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

    FINRA does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act. The proposed rule change merely
deletes the reference to No/Was Corrective Transactions in Rule 7620A
to ensure that the fee schedule accurately reflects current FINRA/
Nasdaq TRF functionality. As discussed above, No/Was functionality was
eliminated, but may be replicated by FINRA/Nasdaq TRF participants by
simply canceling the incorrect trade report and submitting a corrected
trade report, and firms would incur the same charge, irrespective of
the type of Corrective Transaction submitted.\10\ As such, the proposed
rule change will have no fee impact on firms for Corrective Transaction
submissions to the FINRA/Nasdaq TRF.\11\
---------------------------------------------------------------------------

    \10\ Also, as discussed above, the volume of No/Was transactions
was de minimis prior to the disablement of the functionality,
accounting for approximately one tenth of one percent of all
Corrective Transaction submissions from January through July 2016.
    \11\ FINRA also believes that the elimination of the No/Was
functionality itself had little to no cost impact on firms, and did
not result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to section
19(b)(3)(A)
    of the Act \12\ and paragraph (f)(2) of Rule 19b-4 thereunder.\13\
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings to determine whether
the proposed rule should be approved or disapproved.
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    \12\ 15 U.S.C. 78s(b)(3)(A).
    \13\ 17 CFR 240.19b-4(f)(2).
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Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2017-016 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-FINRA-2017-016. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of FINRA. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-FINRA-2017-016, and should
be submitted on or before June 28, 2017.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
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    \14\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-11752 Filed 6-6-17; 8:45 am]
 BILLING CODE 8011-01-P