SUPPORTING STATEMENT FOR EPA INFORMATION COLLECTION REQUEST NUMBER 1637.06 " GENERAL CONFORMITY OF FEDERAL ACTIONS TO STATE IMPLEMENTATION PLANS"

April 4, 2005 ii TABLE OF CONTENTS 1. IDENTIFICATION OF THE INFORMATION COLLECTION ............................ 1 1( a) Title and Number of the Information Collection ......................................... 1 1( b) Characterization of the Information Collection ........................................... 1 2. NEED FOR AND USE OF THE COLLECTION ................................................. 4 2( a) Need and Authority for the Collection ....................................................... 4 2( b) Use and Users of the Data ........................................................................ 4 3. NON DUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA ............................................................................................. 5 3( a) Non Duplication ...................................................................................... 5 3( b) Consultations ........................................................................................... 5 3( c) Effects of Less Frequent Collection ........................................................... 6 3( d) General Guidelines ................................................................................... 6 3( e) Confidentiality ......................................................................................... 6 3( f) Sensitive Questions .................................................................................. 6 4. THE RESPONDENTS AND THE INFORMATION COLLECTED ..................... 6 4( a) Respondents and SIC Codes ..................................................................... 6 4( b) Information Requested ............................................................................. 7 5. THE INFORMATION COLLECTED  AGENCY ACTIONS, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT ........................... 12 5( a) Agency Activities ................................................................................... 12 5( b) Collection Methodology and Management ............................................... 16 5( c) Small Entity Flexibility ........................................................................... 16 5( d) Collection Schedule ............................................................................... 16 6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION ............... 16 6( a) Estimating Respondent Burden ............................................................... 16 6( b) Estimating Respondent Costs ................................................................. 18 6( c) Estimated Agency Burden and Cost ........................................................ 19 6( d) Bottom Line Burden Hours and Costs ..................................................... 20 6( e) Reasons for Change in Burden ................................................................ 20 6( f) Burden Statement .................................................................................. 20 APPENDIX A .............................................................................................................. 21 1 The part 93 requirements are identical to the part 51 requirements with one exception. The latter contains a provision requiring a State to revise its implementation plan. To avoid duplication, we will cite only the part 51 sections; however, the relevant part 51 discussion also applies to the equivalent part 93 rules.

1 1. IDENTIFICATION OF THE INFORMATION COLLECTION 1( a) Title and Number of the Information Collection This information collection request ( ICR) is entitled " General Conformity of Federal Actions to State Implementation Plans," ICR number 1637.06.

1( b) Characterization of the Information Collection The Clean Air Act Amendments of 1990 strengthened the conformity provisions of the Clean Air Act ( CAA). Prior to the 1990 Amendments, the conformity provisions provided that no Federal department shall ( 1) engage in, ( 2) support in any way or provide financial assistance for, ( 3) license or permit, or ( 4) approve any action which does not conform to a State implementation plan ( SIP) after it has been approved or promulgated. Because the Act contained no specific definition of conformity, some Federal agencies interpreted these provisions to mean that actions supported or approved by agencies had to conform only with the measures contained in a SIP. The 1990 Amendments clarified and expanded the conformity provisions by defining conformity to a SIP as conformity to the plan's purpose of attaining and maintaining the national ambient air quality standards ( NAAQS) or emission reduction progress plans leading to attainment. Section 176( c)( 1) of the 1990 Amendments further establishes that Federal agencies and departments cannot support or approve an action that does any of the following:

  Causes or contributes to new violations of any standard in any area;

  Increases the frequency or severity of any existing violation of any standard in any area; or   Delays timely attainment of any standard or any required interim emission reductions or other milestones in any area.

The Environmental Protection Agency ( EPA) promulgated the general conformity regulations at 40 CFR part 51, subpart W and 40 CFR part 93, subpart B on November 30, 1993 under the authority of CAA, as amended. 1 Section 51.850 of the rule establishes that no instrumentality of the Federal government shall " engage in, support in any way or provide financial assistance for, license or permit, or approve any action which does not conform to an applicable implementation plan." The general conformity rule ensures that general Federal actions conform to the appropriate SIPs and sets forth the requirements a Federal agency must comply with to make a conformity determination. 2 Such Federal actions must meet the procedures established at 40 CFR part 51, subpart T ( Transportation Conformity), in lieu of the procedures set forth in subpart W.

2 The general conformity requirements in subpart W apply to those Federal actions in nonattainment or maintenance areas that satisfy one of the following two conditions:

  The action's direct and indirect emissions have the potential to emit one or more of the six criteria pollutants at rates equal to or exceeding those established in paragraph ( b)( 1) ( see Table 1( a)) or ( b)( 2) ( see Table 1( b)) of § 51.853, for Federal actions in nonattainment and maintenance areas, respectively; or   The action's direct and indirect emissions of any criteria pollutant represent 10 percent or more of a nonattainment or maintenance area's total emissions inventory for that pollutant.

Examples of Federal actions that may require a conformity determination include leasing of Federal land, private construction on Federal land, reuse of military bases, and construction of Federal office buildings. The general conformity requirements do not apply to Federal actions that:

  Do not satisfy either one of the above conditions;

  Occur in an attainment area;

  Are covered by transportation plans, programs, and projects developed, funded, or approved under the Federal Transit Act ( 49 U. S. C. 1601); 2 or   Qualify for exemptions established at § 51.853 ( e. g., judicial and legislative proceedings; rulemaking and policy development; electric power marketing activities that involve the acquisition, sale, and transmission of electric energy; prescribed burning; and continuing responses to an emergency or disaster). 3 TABLE 1( a) Emissions Rates for Criteria Pollutants in Nonattainment Areas ( NAAs)

Pollutant Tons/ year Ozone ( VOC or NO x): Serious NAAs 50 Severe NAAs 25 Extreme NAAs 10 Other ozone NAAs outside an ozone transport region 100 Marginal and moderate NAAs inside an ozone transport region: VOC 50 NO x 100 Carbon monoxide: All NAAs 100 SO 2 or NO 2: All NAAs 100 PM 10: Moderate NAAs 100 Serious NAAs 70 Pb: All NAAs 25 TABLE 1( b) Emissions Rates for Criteria Pollutants in Maintenance Areas Pollutant Tons/ year Ozone ( NO x), SO 2 or NO 2: All maintenance areas: Ozone ( VOC) 100 Maintenance areas inside an ozone transport region 50 Maintenance areas outside an ozone transport region 100 Carbon monoxide: All maintenance areas 100 PM 10: All maintenance areas 100 Pb: All maintenance areas 25 The head of each Federal agency is responsible for ensuring that the agency's actions conform to the SIPs. States, local agencies, and private industry also may participate in a proposed Federal action. Under this scenario, the Federal agency overseeing the action can 3 This type of agreement would apply, for example, to companies obtaining licenses or permits, receiving financial assistance, or engaging in other actions with the Federal government. 4 Accounting for these actions represents no extra burden to the agencies because the work will be a part of the normal SIP revision process stipulated under section 110 of the CAA.

4 arrange for the other proponents ( e. g, private industry3) of the action to complete the analysis supporting a conformity determination. In general, however, respondents under the general conformity rule are Federal agencies.

This ICR is a comprehensive description of all information collection requirements contained at 40 CFR part 51, subpart W and 40 CFR part 93, subpart B. This ICR includes the costs to States and local agencies for assisting in the release of data, as well as the cost of the information collection burden on Federal agencies and other proponents of actions that require Federal support or approval. It should be noted that most Federal actions involving a large air component already would conduct air quality analyses in accordance with the requirements of the National Environmental Policy Act ( NEPA); therefore, the costs attributable to the general conformity requirements will be incremental.

2. Need for and Use of the Collection 2( a) Need and Authority for the Collection The EPA promulgated the general conformity regulations at 40 CFR part 51, subpart W under the authority of section 176( c)( 1) of the CAA, as amended, as described in section 1( b) of this document. The Federal government needs information collected under subpart W to ensure that Federal actions conform to a SIP, thereby " eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards, and that such activities will not: ( 1) cause or contribute to any new violation of any standard in any area, ( 2) increase the frequency or severity of any existing violation of any standard in any area, ( 3) or delay timely attainment of any standard or any required interim emission reductions or other milestones in any area ( CAA Section 176( c)( 1))." The Agency needs this information to guarantee that Federal actions do not impede the goal of attaining and maintaining the NAAQS throughout the US.

2( b) USE AND USERS OF THE DATA The Federal government uses information collected under 40 CFR part 51, subpart W to ensure that general Federal actions conform to applicable provisions of the SIP and that the Federal action does not impede the goal of attaining and maintaining the NAAQS throughout the country. The State and local air agencies use the results from conformity determinations to account for Federal actions in their SIPs. In order to attain and maintain the NAAQS, the State and local air agencies want accurate data forecasting the impacts of major Federal actions on their regions. 4 The primary users of the data, however, will be the proponents of the Federal actions. Federal agencies, and/ or the private sponsors of a Federal action, responding 5 to Subpart W requirements use information they collect for several reasons: ( i) to determine applicability of the general conformity requirements; ( ii) to demonstrate that their actions satisfy both the emissions and air quality criteria stipulated in the regulation; and ( iii) to demonstrate that their actions conform to applicable provisions of the SIP.

3. NON DUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA 3( a) Non Duplication This regulation has tried to avoid duplicating the collection efforts required from Federal agencies and private industry under other regulatory programs. The New Source Review ( NSR) program under section 173 of the CAA, the Operating Permit Program under title V of the CAA, and the Toxic Release Inventory ( TRI) Program under EPCRA 313 all generate extensive air quality data. This regulation assumes that the actions regulated by these other programs conform to the SIP. Furthermore, the conformity regulation ensures that conformity analyses do not duplicate the air quality analyses performed for EISs under the NEPA regulations, 40 CFR part 1500 1508. If an air quality analysis in an EIS uses the most recent data available from the State and/ or local air quality agency, and reveals that the major Federal action will not violate the goal of assuring conformity to the local SIP, then a conformity analysis is not necessary for the action. Some EISs will require further analysis in order to conform to the SIP, and some EAs will require conformity analysis. The regulation also assumes that a proposed Federal action whose criteria pollutant emissions have already been included in the local SIP's attainment or maintenance demonstrations conforms to the SIP.

3( b) Consultations The EPA made every effort to consult with the appropriate Federal agencies to prepare this ICR. The EPA solicited specific burden information by conducting a survey of the Federal agencies identified as most significantly affected by the rule to collect the following types of information concerning general conformity determinations:

( i) Estimated incremental burdens for completing a general conformity determination according to the requirements of 40 CFR part 51, subpart W.

( ii) The annual number of Federal actions that are subject to the general conformity rule.

The EPA received limited responses to its inquiries to the other Federal agencies and had to prepare its draft supporting document based upon responses from four Federal agencies and three EPA Regional offices. On February 5, 2005 EPA published a notice of proposed information collection request and announced the availability of the draft supporting document. The EPA did not receive any comments on the draft statement. 6 The estimates presented in this ICR are based on a survey of Federal agency respondents and on estimates found in the General Conformity ICR completed on September 27, 2001. Appendix A provides a list of the Federal agencies contacted and a summary of the data submitted by participating Federal agencies.

3( c) Effects of less Frequent Consultations Under the regulation, the conformity status of a major Federal action lapses every 5 years from the date the determination is made unless the action is completed or is part of a continuous program. Since SIPs generally change over time, reducing the determinations to less frequently than every 5 years would compromise the goal of section 176 ( c)( 1) of the CAA, which encourages Federal agencies to conform to the SIP.

3( d) General Guidelines This ICR adheres to the guidelines stated in the 1995 Paperwork Reduction Act, OMB's implementing regulations, EPA's Information Collection Request Handbook, and other applicable OMB guidance.

3( e) Confidentiality Any information submitted to the EPA for which a claim of confidentiality is made will be safeguarded according to the EPA's policies set forth in Title 40, Chapter 1, part 2, subpart B  Confidentiality of Business Information ( see 40 CFR part 2; 41 FR 36902, September 1, 1976; amended by 43 FR 39999, September 8, 1978; 43 FR 42251, September 28, 1978; and 44 FR 17674, March 23, 1979).

3( f) SENSITIVE QUESTIONS No questions of a sensitive nature are included in any of the information collection requirements.

4. THE RESPONDENTS AND THE INFORMATION REQUESTED 4( a) Respondents and SIC/ NAICS Codes In the general conformity process, the respondent is either a Federal agency or a State, local agency, or private sponsor of a proposed Federal action. Because section 176( c)( 1) of the CAA states that Federal agencies cannot "... support in any way or provide financial assistance for, license or permit, or approve, any action that does not conform to an implementation plan," the range of Federal actions affected by the regulation is broad. In addition, there are many different types of private industries that could be affected by the regulations ( e. g., those seeking licenses or permits from the Federal government). 7 Thus, the following is a representative list of SIC and NAICS codes for the government and private industries that could be affected by the regulation. Major SIC Groups 91 97 indicate executive, legislative, judicial, administrative, and regulatory branches of Federal, State, and local governments. Government owned and government or contractoroperated business establishments, however, are classified in Major Groups 1 89 according to the activity in which they are engaged.

SIC NAICS Industry 1541 236220, 236210 General Contractors  Industrial Buildings and Warehouses 1542 236220 General Contractors  Nonresidential Buildings, Other Than Industrial Buildings and Warehouses 1623 237120, 237130, 237110 Water, Sewer, Pipeline, and Communications and Power Line Construction 1629 237110, 237990, 236210, 237120 Heavy Construction, Not Elsewhere Classified 4512 237130, 238910 Air Transportation, Scheduled 4513 492110 Air Courier Services 4581 488119, 488190 Airports, Flying Fields, and Airport Terminal Services 9511 924110 Air and Water Resource and Solid Waste Management 9532 925120 Administration of Urban Planning and Community and Rural Development 9631 926130 Regulation and Administration of Communications, Electric, Gas, and Other Utilities 9711 928110 National Security 5 According to Section 51.852, " regionally significant" means a Federal action for which the direct and indirect emissions of any pollutant represent 10 percent or more of a nonattainment or maintenance area's total emissions inventory for that pollutant.

8 4( b) Information Requested The EPA requires Federal agencies taking actions to perform certain steps to ensure conformity of the action to the SIP. Figure 1 lists the typical tasks by the respondent in the conformity process. This section describes information collection requirements associated with the general conformity process established at 40 CFR part 51, subpart W. The general conformity process may include two main components: ( 1) determine applicability and ( 2) perform conformity analysis.

( 1) Applicability Before beginning a conformity analysis, the Federal agency or responsible entity must determine whether or not the conformity requirements of 40 CFR part 51, subpart W apply to the proposed action. Section 51.853 of the subpart lists exemptions to the general conformity provisions. If the action cannot be exempted categorically, the respondent will have to complete a brief emissions analysis to determine whether or not the action will be " regionally significant" 5 or the total direct and indirect emissions of criteria pollutants in a nonattainment or maintenance area caused by the proposed action would equal or exceed any of the rates set forth in paragraphs ( b)( 1) or ( 2) of § 51.853 ( Tables 1( a) and ( b)). If the action is not considered to be regionally significant or does not exceed the specified emission rates, the action is considered to conform to the SIP, and the general conformity process can stop at this point.

( i) Data items Information collection activities include the following items:   Determine applicability.

( ii) Respondent actions To determine applicability, respondents ( generally Federal agencies) perform the following activities:   The respondent must read the regulations to understand the conformity requirements.

  The respondent must compare the action to the list of categorical exemptions.

  For actions not exempted, the respondent must calculate total emissions. 9 Negotiate mitigation measures Prepare draft determination Provide notice of draft determination Perform air quality test  Calculate emission estimates  Do regional or local scale emissions modeling  Perform mitigation analysis Figure 1. Typical Respondent Tasks in General Conformity Process Become familiar with conformity process Determine applicability Consult with regulatory agencies: EPA, State, local air agency, or MPO Collect data from State, local air agency, or MPO Receive and consider comments on draft determination Prepare final determination 10 The respondent must determine whether or not the activity will be " regionally significant."

  The respondent must determine whether its emissions will be above the levels specified in § 51.853( b)( 1) and ( 2) ( Tables 1( a) and ( b)).

( 2) Conformity Determination Federal actions that exceed de minimis thresholds or that are regionally significant are subject to the requirements of Subpart W; therefore, these respondents must conduct their own conformity determination. Sections 51.855, 51.856, 51.859, and 51.860 establish procedures and information collection requirements for conducting conformity determinations. In general, the level of information collection requirements for completing a conformity determination will vary with the complexity of the proposed Federal activity.

( i) Data Items Information collection requirements include the following:

  Conduct conformity determination.

( ii) Respondent actions To conduct the conformity determination, respondents ( generally Federal agencies) perform the following activities.

  The respondent may consult with regulatory agencies.

  Once the respondent determines that the conformity requirements apply to the proposed action, the respondent may consult with the EPA Regional Office and/ or the State or local air agency ( e. g., to provide information regarding the action and determine the level of analysis necessary for the determination).

  The respondent needs to collect data from the State and/ or local air agencies and other appropriate offices ( e. g., National Weather Service).

  The respondent will need to arrange meetings and consult with appropriate persons at the State and/ or other local agencies to collect the most recent data ( e. g., air quality trends, meteorological data, sitespecific emission data) for the analysis. 11   The respondent needs to perform air quality analysis.

  The respondent will determine if the proposed action has been accounted for in the current SIP or if its emissions increases could be offset by emission reductions from existing sources in the area.

  If the proposed activity is complex, the respondent might have to perform hot spot and/ or regional air quality modeling for the relevant criteria pollutants to demonstrate that the emissions from the proposed activity would not cause violations of the NAAQS or would not increase the frequency or severity of existing violations.

  The respondent may need to develop a mitigation plan. If a mitigation plan is necessary:

  The respondent must develop a mitigation plan, identifying the mitigation measures, process, and schedule for implementing it.

  The respondent must guarantee financial resources for implementing the mitigation plan.

  The respondent must prepare a draft determination on the conformity assessment.

  The respondent must present a draft determination.

  The responsible Federal agency must notify the appropriate EPA Regional Office( s), State and local air quality agencies, other Federal agencies if appropriate, and the MPO ( if applicable).

  For those actions that are presumed to conform because they meet one of the above criteria for establishing exemption, the responsible Federal agency must publish a notice for comment in the Federal Register. The notice must specify the action and the basis for the determination.

  The responsible Federal agency must provide at least 30 days for public comment. The agency must receive, consider, and document the response to comments.

  The responsible Federal agency must publish a final list of actions in the Federal Register. 12 5. THE INFORMATION COLLECTED AGENCY ACTIONS, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT 5( a) Agency Activities ( 1) EPA Activities The EPA Regional Office is involved in the general conformity process if the Federal agency taking action requests EPA's guidance or if it wishes to comment on a determination. Figure 2 illustrates an EPA Regional Office's involvement with the conformity process.

The extent of EPA's involvement with the process will depend on the level of communication between the respondent and the Regional Office. If the respondent and the Regional Office reach an understanding on the contents of the determination early in the planning process of a proposed action, EPA's involvement could be limited to a quick review of the results in the draft determination. However, if the respondent does not contact the Regional Office and does an inadequate air quality analysis for the determination, EPA could become involved in protracted negotiations with the respondent.

The complexity of the proposed action will also influence the extent of EPA's involvement with the process. The Regional Office will not have to consult extensively with a respondent whose proposed action only requires the calculation of emissions estimates. The Regional Office might only have to direct the respondent to the correct State or local officials for obtaining the data for the determination. However, if the proposed action requires calculating emissions estimates, modeling, and mitigation analysis, the Regional Office might have to review the results and provide written comment on each tier of the analysis. The Regional office would expend more labor hours for this type of conformity determination than the previous one.

The following is an outline of the potential tasks for an EPA Regional Office during the conformity process:

  Obtain information from respondent about the proposed Federal action. The EPA Regional Office needs to learn about the action and its potential impact on air quality. The EPA will receive this information in initial consultations with the respondent. 13   Consult with other regulatory agencies about the level of analysis necessary for the conformity determination. Once the EPA Regional Office knows about the action, it might meet with the State and local air agencies to reach a consensus on the contents of the determination. Potential subjects of discussion are outputs of the 14 Obtain information about proposed activity from respondent Figure 2. EPA Regional Offices Participation in Conformity Process * The Regional Office's participation in the process is not required, and will occur if the respondent requests EPA's guidance or if EPA wishes to comment on a determination. Consult with other regulatory agencies  State and/ or local air agency about level of analysis necessary for determination Transmit recommendations to respondent Work with consultants during air quality analysis Review draft determination 15   Consult with other regulatory agencies about the level of analysis necessary for the conformity determination. Once the EPA Regional Office knows about the action, it might meet with the State and local air agencies to reach a consensus on the contents of the determination. Potential subjects of discussion are outputs of the analysis, the pollutants to be covered, the emissions factors, or the appropriate modeling protocol. These consultations can take place over the phone or in a meeting.

  Transmit recommendations to respondent. After the regulatory agencies have reached a consensus on the level of analysis for the determination, the EPA Regional Office will communicate the recommendations to the respondent. This could involve a letter and a follow up meeting.

  Work with consultants on air quality analysis. The respondent is likely to hire private consultants to complete the air quality analysis. The EPA Regional Office can work with the consultants to help them obtain data from the State or local air quality agency, determine the correct emissions factors to use, and decide upon different modeling techniques. The EPA's involvement with the consultants ranges from a phone conversation to several meetings.

  Review draft conformity determination. If there has been adequate communication during the steps above, the review should be a formality. The Regional Office will often send a letter to the respondent stating that the air quality analysis has been reviewed and that a finding of conformity can be made based on the results.

It should be emphasized that for many determinations, EPA's participation in the last four steps is possible but not probable.

( 2) State and Local Air Agency Activities The States are required to develop and promulgate regulations for general conformity. In addition, like the EPA Regional offices, the State and local air agencies will participate in the conformity process if their guidance is requested by the respondent or if they wish to comment on a determination. The extent of their participation will vary from State to State. In places where the State or local air agency works closely with the EPA Regional office, the air agency may take part in all of the same actions that the EPA does. Those actions are listed above in section 4( a). In other areas where the State or local air agency does not work as closely with the Regional office, the air agency may limit its participation to the initial consultations with the EPA. Moreover, the agency may participate in fewer conformity determinations than the Regional Office does.

5( b) Collection Methodology and Management 16 The respondent will need to collect emissions data from the State or local air agency. For some conformity determinations, the respondent will hire a private consultant to collect the data. The consultant will make arrangements with the staff from the State or local air agency to have the data sent on computer disk or tape, if possible.

The emissions data from the State or local air agency should be very accessible. The respondent will need emissions factors and perhaps information on different modeling techniques. For most determinations, the respondent will not have to pay a fee for the data. However, the respondent will be billed by the consultant ( if applicable) for the hours spent collecting the data and conducting the air quality modeling.

5( c) Small Entity Flexibility This section is not applicable because the regulation directly affects only Federal agencies. In addition, the emissions levels used to define the Federal actions to which the rule applies are not likely to capture small entities.

5( d) Collection Schedule The information collections described in this ICR must be completed before the action is undertaken. If the action is not part of a continuous Federal program, the determination will be repeated every fifth year from the date the original determination was made. If the action is less than five years in duration or is part of a continuous program, the determination will be a one time burden.

6. ESTIMATING THE BURDEN AND COST OF THE COLLECTION 6( a) Estimating Respondent Burden The burdens and costs associated with information collection requirements under the general conformity regulations vary with the complexity of the proposed Federal action. To encompass these variations, EPA analyzed two scenarios in the conformity process: a straightforward conformity determination and a complex conformity determination.

For a straightforward determination, EPA assumes that the air quality analysis will not require local or regional scale air quality modeling and mitigation analysis. Furthermore, the respondent will receive no adverse public comment regarding the determination. For a complex determination, EPA assumes that the respondent will need to complete an extensive air quality analysis because of the complexity of the proposed activity. The respondent will have to calculate emissions estimates, run local scale emissions models, and perform mitigation analysis. The respondent also must address some adverse public comments before preparing a final determination. These assumptions for the complex determinations may overestimate the resource burden, since respondents would most likely be preparing an environmental 17 assessment/ environmental impact statement under the National Environmental Policy Act which could include air quality modeling and public review.

Determine Applicability To determine the number of applicability reviews per year, EPA requested general conformity activity data from the Federal agencies that are most likely to be subject to the requirements. Data was submitted by the Department of Defense ( DOD), Bureau of Land Management ( BLM) and the U. S. Forest Service ( USFS). The USFS is in the process of revising their estimates, thus they have not been included in this draft ICR. The Mineral Management Service ( MMS) responded to the request but indicated they did not expect to perform a conformity determination during the next three years. To date, information has not been received from the Federal Aviation Administration ( FAA) although FAA has had a significant number of determinations in the past.

The number of straightforward determinations ( as reported by DOD and BLM) was 7.5 complex and 172 straightforward determinations per year. EPA assumed that these agencies represented 90% of the general conformity determinations. Thus, it was estimated that the total number of determinations performed by all Federal agencies was 8 complex and 191 straightforward each year.

Conformity Determination Based on recent data collected, EPA estimates that each year 199 Federal actions will require 8 complex conformity determinations and 191 straightforward conformity determinations. In addition, EPA estimates that, at most, 20 percent ( 1.5) of all complex determinations and 2 percent ( 38) of all straightforward determinations will incur fees for MPO services.

Conformity determinations are one time only activities which are completed before the Federal agency takes the subject action. Therefore, the determinations do not contain any continuing record keeping or reporting requirements for the individual actions. Thus, there is no capital or O& M cost associated with the record keeping and reporting requirements.

6( b) Estimating Respondent Costs The EPA estimates an average hourly respondent labor cost ( including overhead) of $ 73.54 for legal staff, $ 62.52 for managerial staff, $ 33.79 for technical staff, and $ 20.25 for clerical staff. The EPA based these labor rates on those for Federal staff at the following government service levels: 18 Legal staff GS 15, Step 3 Managerial staff GS 14, Step 3 Technical staff GS 10, Step 3 Clerical staff GS 5, Step 3 To obtain the labor rate, EPA divided the annual 2005 GS salary by 2080 ( the number of hours in a work year) and multiplied by the standard government overhead factor of 1.6. Using these labor rates, Exhibit 1 summarizes total annual burdens and labor costs associated with information collection requirements for straightforward conformity determinations, while Exhibits 2 summarizes total annual burdens and labor costs associated with complex determinations.

Exhibit 1 provides the resource estimates for the respondents to conduct straightforward conformity determinations. Also included in the Exhibit 1 are estimates of the resources required to review the actions which are exempt from the regulations. The total annual burden for the respondents to conduct the straightforward determinations and reviewing the exempt actions is 19,477 hours and $ 733,471. Exhibit 2 provides the resource estimates for respondents to conduct complex conformity determinations. The total annual burden for the respondents to conduct 8 complex determinations is 11,374 hours and $ 448,794. The total annual burden for the Federal respondents to implement the general conformity regulations is 30,851 hours and $ 1,182,265.

Exhibit 3 provides the resource estimates for the non Federal agency respondents to conduct conformity determinations. The data presented in this exhibit was taken from the previous General Conformity ICR. The estimate of hours is the same, however the salaries have been revised using the 2005 GS Salary Exhibit 4 summarizes the burden for all Federal agencies and non Federal respondents. The non Federal agency burden is 9,000 hours and $ 569,970. The total burden for all respondents including Federal and non Federal agencies is 39,851 hours and $ 1,752,235.

6( c) Estimating Agency Burden and Cost Exhibits 5 and 6 present the estimated Agency burden and costs associated with all the requirements covered in this ICR. Based on a 2005 GS pay schedule, EPA estimates an average hourly labor cost of $ 73.54 for legal staff, $ 62.52 for managerial staff, $ 33.79 for technical staff, and $ 20.25 for clerical staff. For purposes of this ICR, EPA assigned Agency staff the following government service levels:

Managerial staff GS 14, Step 3 Legal staff GS 15, Step 3 Technical staff GS 10, Step 3 Clerical staff GS 5, Step 3 19 The EPA divided annual compensation estimates by 2,080, the number of hours in a Federal work year, and multiplied the rates by the standard government overhead factor of 1.6 to derive hourly rates.

For this ICR, EPA assumes that the Agency participates in all 8 complex determinations and 96 or 50 percent of the straightforward determinations. These estimates are derived from the 1998 ICR which were based upon consultation with EPA Regions. The total annual burden to EPA for implementing the general conformity regulations is 878 hours and $ 45,936.

Estimating State and Local Agencies' Burdens Exhibit 7 presents the estimated State and local air quality agencies' burden and costs associated with all the requirements covered in this ICR. The EPA estimates an average hourly respondent labor cost ( including overhead) of $ 73.54 for legal staff, $ 62.52 for managerial staff, $ 33.79 for technical staff, and $ 20.25 for clerical staff. The EPA based these labor rates on those for Federal staff at the following government service levels:

Legal staff GS 15, Step 3 Managerial staff GS 14, Step 3 Technical staff GS 10, Step 3 Clerical staff GS 5, Step 3 To obtain the labor rate, EPA divided the annual 2005 GS salary by 2,080 ( the number of hours in a Federal work year) and multiplied by the standard government overhead factor of 1.6.

For this ICR, EPA assumes that the States and local agencies participate in all 8 complex determinations and 38 ( or 20 percent) of the straightforward determinations. The State and local participation rate is lower than EPA's 50 percent rate because State and local participating will vary significantly from State to State, approaching 20 percent on average. The total annual burden to the States and local agencies to implement the general conformity regulations is 435 hours and $ 22,793.

6( d) Bottom Line Burden Hours and Costs Exhibits 8( a) and 8( b) summarize the annual bottom line burden for respondents ( generally Federal agencies), EPA, and States or local agencies.

The bottom line annual burden to Federal agency respondents over the 3 year period covered by this ICR is estimated at 30,851 hours, with a cost of approximately $ 1,182,265. The bottom line burden to non Federal agency respondents is 9,000 hours and $ 569,970. The bottom line burden for the EPA is 878 hours, with a cost of $ 45,936. The bottom line burden for States and local agencies is 435 hours, with a cost of $ 22,793. 20 The number of determinations for non Federal respondents and State/ local agencies ( 674) found in section 13a and 13b of the OMB 83 I form was based on a ratio using the number of responses found in the previously approved OMB 83 I form.

The total annual burden is estimated to be 41,164 hours and $ 1,820,964. For the 3 years covered by this ICR, the total burden is estimated to be 123,492 hours and $ 5,462,892.

6( e) Reasons for Change in Burden This ICR is an exhaustive description of the total respondent burden for all activities related to record keeping and reporting requirements for general conformity. For this ICR, data was obtained directly from the Federal agencies that are mostly likely responsible for the majority of the annual determinations, with the exception of the FAA. The bottom line burden decreased from the previous ICR's estimate and the proposed notice published on February 1, 2005 for this ICR because EPA did not receive information from the FAA and the USFS is revising their original projections.

It should be noted that on the previous ICR, Total Burden Hours included Federal Agency burden. Under the provisions of the PRA, those hours have not been reflected in the Total Hours Requested ( 9,435) for this ICR which represents the burden to State/ Local Agencies and the Non Federal respondent's burden.

6( f) Burden Statement The annual public reporting and recordkeeping burden for this collection of information is estimated to average 35 hours per response. 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.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID No. OAR 2005 0115, which is available for public viewing at the Air and Radiation Docket and Information Center in the EPA Docket Center ( EPA/ DC), EPA West, Room B102, 1301 Constitution Avenue, NW, Washington DC. 21 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 Reading Room is ( 202) 566 1744, and the telephone number for the Air and Radiation Docket and Information Center is ( 202) 566 1742. An electronic version of the public docket is available through EPA Dockets ( EDOCKET) at http:// epa. gov/ edocket. Use EDOCKET to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select " search," then key in the docket ID number identified above. Also, you can send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Please include the EPA Docket ID No. ( OAR 2005 0115) and OMB control number ( 2060 0279) in any correspondence.

APPENDIX A The EPA consulted with Federal agency respondents and EPA Regions to collect information on burdens and associated costs for this ICR. This appendix presents the methodology for collecting and using the data obtained.

Respondent Burdens The EPA consulted Federal agency respondents under the general conformity rule to revise the burden and cost estimates presented in the 2001 general conformity ICR. The EPA contacted the following Federal agencies identified in Table A 1. The EPA asked the Federal agencies contacted to estimate the burdens associated with various tasks in the general conformity process.

For the draft supporting document, EPA revised the previous burden and cost estimates based on input and data received from the U. S. Department of Defense ( DOD), and the Bureau of Land Management ( BLM). The U. S. Forest Service ( USFS) is in the process of revising their estimates, thus these numbers have not been included in this ICR. The data collected in this ICR did not match the burden and cost estimates developed for the previous ICR due to the decreased number of straightforward determinations and complex determinations. 22 Based upon that information presented by three Federal agencies, EPA estimates that approximately 191 Federal actions per year will result in conformity determinations. An estimated 8 of those determinations will be considered complex. The information on the resource burden per determination provided by the other Federal agencies showed a significant variation, therefore EPA used a weighted average to calculate annual burdens.

EPA and State/ Local Air Agencies Burdens The estimates found in this ICR for the burden to the EPA, State and Local air agencies was based on information collected in the previous ICR. 23 Table A 1. General Conformity ICR  Contact List for Federal Agencies.

Agency Phone Number Fax Number Federal Aviation Admin. ( FAA) ( 202) 267 8772 ( 202) 267 8821 FAA ( 202) 493 4875 ( 202) 267 8821 FAA ( 202) 267 3494 ( 202) 267 8821 FAA ( 718) 553 2511 U. S. Army Corps of Engineers ( 202) 761 4614 ( 202) 761 4150 US Army Corps of Engineers ( 410) 436 1213 Department of the Interior ( 202) 208 5465 ( 202) 208 6970 Housing and Urban Development ( 202) 708 0614 Department of Transportation ( DOT) ( 202) 366 1394 DOT ( 292) 366 4866 DOT ( 202) 366 4861 Department of Defense ( DOD) ( 703) 604 8226 ( 703) 604 6990 DOD ( 703) 602 4769 ( 703) 602 5547 DOD ( 703) 602 2568 ( 703) 602 2676 Department of Energy ( DOE) ( 202) 586 7964 U. S. Forest Service ( 202) 205 0800 ( 202) 205 1599 Fish and Wildlife Service ( 703) 358 2183 ( 703) 358 1869 National Park Service ( 303) 969 2809 ( 202) 208 4620 Geologic Survey ( 703) 648 5207 Minerals Management Service ( 703) 787 1735 ( 703) 787 1026 Bureau of Land Management ( 303) 236 6400 ( 303) 236 3508 Office of Surface Mining ( 202) 208 2633


[Federal Register Volume 81, Number 10 (Friday, January 15, 2016)]
[Notices]
[Pages 2273-2275]
[FR Doc No: 2016-00662]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31954; 812-14478]

Investment Managers Series Trust, et al.; Notice of Application

January 11, 2016.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 15(a) of
the Act and rule 18f-2 under the Act, as well as from certain
disclosure requirements in rule 20a-1 under the Act, Item 19(a)(3) of
Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of
Schedule 14A under the Securities Exchange Act of 1934, and Sections 6-
07(2)(a), (b), and (c) of Regulation S-X (``Disclosure Requirements'').
The requested exemption would permit an investment adviser to hire and
replace certain sub-advisers without shareholder approval and grant
relief

from the Disclosure Requirements as they relate to fees paid to the
sub-advisers.

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Applicants: Investment Managers Series Trust (the ``Trust''), a
Delaware statutory trust registered under the Act as an open-end
management investment company with multiple series, on behalf of its
series, the State Street/Ramius Managed Futures Strategy Fund (the
``SS/R Fund''), Ramius Trading Strategies MF Ltd., a Cayman Islands
corporation wholly owned by the SS/R Fund (the ``SS/R Subsidiary''),
and Ramius Trading Strategies LLC, a Delaware limited liability company
registered as an investment adviser under the Investment Advisers Act
of 1940 (``Ramius'' or the ``Advisor,'' and, collectively with the
Trust and the SS/R Subsidiary, the ``Applicants'').

DATES: Filing Dates: The application was filed June 3, 2015, and
amended on September 10, 2015, November 3, 2015, December 18, 2015 and
January 8, 2016.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on February 5, 2016, and should be accompanied by proof of service
on the applicants, in the form of an affidavit or, for lawyers, a
certificate of service. Pursuant to rule 0-5 under the Act, hearing
requests should state the nature of the writer's interest, any facts
bearing upon the desirability of a hearing on the matter, the reason
for the request, and the issues contested. Persons who wish to be
notified of a hearing may request notification by writing to the
Commission's Secretary.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street NE., Washington, DC 20549-1090. Applicants: Gregory S. Rowland,
Esq., Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, NY
10017.

FOR FURTHER INFORMATION CONTACT: Robert Shapiro, Senior Counsel, at
(202) 551-7758, or Mary Kay Frech, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or an applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Summary of the Application

    1. The Advisor will serve as the investment adviser to the Funds
pursuant to an investment advisory agreement with the Trust (the
``Advisory Agreement'').\1\ The Advisor will provide the Funds with
continuous and comprehensive investment management services subject to
the supervision of, and policies established by, each Fund's board of
trustees (``Board''). The Advisory Agreement permits the Advisor,
subject to the approval of the Board, to delegate to one or more sub-
advisers (each, a ``Subadvisor'' and collectively, the ``Subadvisors'')
the responsibility to provide the day-to-day portfolio investment
management of each Fund (either directly or through such Fund's direct
or indirect wholly-owned subsidiary), subject to the supervision and
direction of the Advisor. The primary responsibility for managing the
Funds will remain vested in the Advisor. The Advisor will hire,
evaluate, allocate assets to and oversee the Subadvisors, including
determining whether a Subadvisor should be terminated, at all times
subject to the authority of the Board.
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    \1\ Applicants request relief with respect to any existing and
any future series of the Trust and any other registered open-end
management company or series thereof that: (a) Is advised by Ramius
or its successor or by a person controlling, controlled by, or under
common control with Ramius or its successor (each, also an
``Advisor''); (b) uses the manager of managers structure described
in the application; and (c) complies with the terms and conditions
of the application (any such series, including the SS/R Fund, a
``Fund'' and collectively, the ``Funds''). For purposes of the
requested order, ``successor'' is limited to an entity that results
from a reorganization into another jurisdiction or a change in the
type of business organization.
---------------------------------------------------------------------------

    2. Each Fund may pursue its investment strategies by investing
through a direct wholly-owned subsidiary (each such subsidiary,
including the SS/R Subsidiary, a ``Subsidiary'') or an indirect wholly-
owned subsidiary (each, a ``Trading Entity'').\2\ Ramius has entered
into an investment advisory agreement with the SS/R Subsidiary (the
``SS/R Subsidiary Advisory Agreement''), and any future Subsidiary will
enter into an investment advisory agreement with the respective Advisor
(together with the SS/R Subsidiary Advisory Agreement, the ``Subsidiary
Advisory Agreements'').\3\ The Subsidiary may pursue its investment
strategy by investing some or all of its assets in wholly-owned Trading
Entities managed by Trading Advisors and overseen by the Advisor. In
all cases, an Advisor will be the entity providing general management
services to each Fund, including overall supervisory responsibility for
the general management and investment of the Fund's assets (either
directly or through such Fund's Subsidiary or Trading Entities), and,
subject to review and approval of the Board, will: (a) Set such Fund's
(including its Subsidiary's and Trading Entities') overall investment
strategies; (b) evaluate, select and recommend Subadvisors to manage
all or a part of the Fund's assets (directly or through its Subsidiary
and Trading Entities); (c) allocate and, when appropriate, reallocate
the Fund's assets among one or more Subadvisors (including by
allocating and reallocating assets between and among the Fund, the
Subsidiary and the Trading Entities); (d) monitor and evaluate the
performance of Subadvisors; and (e) implement procedures reasonably
designed to ensure that the Subadvisors comply with the investment
objective, policies and restrictions of the Subsidiary, Trading Entity
and the Fund.
---------------------------------------------------------------------------

    \2\ For purposes of the application, a Subadvisor to a Trading
Entity is referred to as a ``Trading Advisor.''
    \3\ The SS/R Subsidiary Advisory Agreement has been, and any
future Subsidiary Advisory Agreement will be, approved by the Board,
including a majority of the trustees who are not ``interested
persons'' (as defined in section 2(a)(19) of the Act) of the Trust
or the Advisor, and the Fund's shareholders.
---------------------------------------------------------------------------

    3. Applicants request an order exempting Applicants from section
15(a) of the Act and rule 18f-2 thereunder to permit the Trust, on
behalf of a Fund, and/or its Advisor, subject to the approval of the
Board, to enter into and materially amend investment subadvisory
agreements with Subadvisors (``Subadvisory Agreements'') without
obtaining shareholder approval.\4\ Applicants also seek an exemption
from the Disclosure Requirements to permit a Fund to disclose (as both
a dollar amount and a percentage of the Fund's net assets): (a) The
aggregate fees paid to the Advisor and any Excluded Subadvisor; and (b)
the aggregate fees paid to Subadvisors other than Excluded Subadvisors

(collectively, ``Aggregate Fee Disclosure''). For any Fund that employs
an Excluded Subadvisor, the Fund will provide separate disclosure of
any fees paid to the Excluded Subadvisor.
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    \4\ The requested relief will not extend to (i) any sub-adviser
who is an affiliated person, as defined in section 2(a)(3) of the
Act, of a Fund, the Trust or the Advisor, other than by reason of
serving as a sub-adviser to one or more Funds (or the Subsidiary or
Trading Entity) or as an investment adviser or sub-adviser to any
series of the Trust other than the Funds (``Affiliated
Subadvisor''), or (ii) to SSGA Funds Management, Inc., a non-
affiliated sub-adviser of the SS/R Fund, which manages a portion of
the assets of the SS/R Fund and provides services to Ramius with
respect to selecting, monitoring, evaluating and allocating assets
among the other Subadvisors of the SS/R Fund (collectively with any
Affiliated Subadvisor, ``Excluded Subadvisors'').
---------------------------------------------------------------------------

    4. Applicants agree that any order granting the requested relief
will be subject to the terms and conditions stated in the application.
Such terms and conditions provide for, among other safeguards,
appropriate disclosure to Fund shareholders and notification about sub-
advisory changes and enhanced Board oversight to protect the interests
of the Funds' shareholders.
    5. Section 6(c) of the Act provides that the Commission may exempt
any person, security, or transaction or any class or classes of
persons, securities, or transactions from any provisions of the Act, or
any rule thereunder, if such relief is necessary or appropriate in the
public interest and consistent with the protection of investors and
purposes fairly intended by the policy and provisions of the Act.
Applicants believe that the requested relief meets this standard
because, as further explained in the application, the Advisory
Agreements will remain subject to shareholder approval, while the role
of the Subadvisors is substantially similar to that of individual
portfolio managers, so that requiring shareholder approval of
Subadvisory Agreements would impose unnecessary delays and expenses on
the Funds. Applicants believe that the requested relief from the
Disclosure Requirements meets this standard because it will improve the
Advisor's ability to negotiate fees paid to the Subadvisors that are
more advantageous for the Funds.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-00662 Filed 1-14-16; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 78, Number 154 (Friday, August 9, 2013)]
[Notices]
[Pages 48757-48758]
[FR Doc No: 2013-19266]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-70118; File No. SR-CBOE-2013-070]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Offer a New Data Feed

August 5, 2013.
    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 24, 2013, the Chicago Board Options Exchange, Incorporated (the
``Exchange'' or ``CBOE'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change as described in
Items I and II below, which Items have been prepared by the Exchange.
CBOE has designated the proposed rule change as constituting a ``non-
controversial'' rule change under paragraph (f)(6) of Rule 19b-4 under
the Act,\3\ 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.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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

    The Exchange proposes to offer a new data feed. There are no
proposed changes to Exchange rule text.

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
    CBOE proposes to offer a new data feed. CBOE already offers a BBO
Data Feed, which is a real-time, low latency data feed that includes
CBOE ``BBO data'' and last sale data.\4\ The BBO and last sale data
contained in the BBO Data Feed is identical to the data that CBOE sends
to the Options Price Reporting Authority (``OPRA'') for redistribution
to the public.\5\ The BBO Data Feed also includes certain data that is
not included in the data sent to OPRA, namely, (i) totals of customer
versus non-customer contracts at the BBO, (ii) All-or-None contingency
orders priced better than or equal to the BBO, (iii) BBO data and last
sale data for complex strategies (e.g., spreads, straddles, buy-writes,
etc.) (``Spread Data''), (iv) BBO data and last sale data for Flexible
Exchange (``FLEX'') options traded on the CBOE FLEX Hybrid Trading
System, including BBO data and last sale data for FLEX complex
strategies (collectively, ``FLEX BBO data''), and (v) expected opening
price (``EOP'') and expected opening size (``EOS'') information that is
disseminated prior to the opening of the market and during trading
rotations (collectively, ``EOP/EOS data'').\6\
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    \4\ The BBO Data Feed includes the ``best bid and offer,'' or
``BBO'', consisting of all outstanding quotes and standing orders at
the best available price level on each side of the market, with
aggregate size (``BBO data,'' sometimes referred to as ``top-of-book
data''). Data with respect to executed trades is referred to as
``last sale'' data.
    \5\ The Exchange notes that Market Data Express, LLC (``MDX''),
an affiliate of CBOE, makes available to Customers the BBO data and
last sale data that is included in the BBO Data Feed no earlier than
the time at which the Exchange sends that data to OPRA.
    \6\ The Exchange identified the inclusion of FLEX BBO data and
EOP/EOS data in the BBO Data Feed in a proposed rule change filed in
January 2013. See Securities Exchange Act Release No. 68696 (January
18, 2013), 78 FR 5527 (January 25, 2013). MDX also makes the FLEX
BBO data available as a separate data feed at no charge to any
Customer that wishes to subscribe to only that data. EOP/EOS data is
not offered separate from the BBO Data Feed.
---------------------------------------------------------------------------

    The Exchange proposes to offer a new data feed (the ``COB Feed'').
This new COB Feed will provide data regarding the Exchange's Complex
Order Book (``COB'') and related complex order information. The COB
Feed will include BBO quotes and identifying information for all CBOE-
traded complex order strategies, as well as all executed CBOE complex
order trades (and identify whether the trade was a customer trade, or
whether a complex order in the COB is a customer order). All of this
data is also currently included in the BBO Data Feed. At this time, the
Exchange has determined to offer the COB Feed to all market
participants free of charge.\7\
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    \7\ All Exchange market participants will be afforded equal
access to the COB Feed and the Exchange will not discriminate
amongst who may be able to access the COB Feed.
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
Act and the rules and regulations thereunder applicable to the Exchange
and, in particular, the requirements of Section 6(b) of the Act.\8\
Specifically, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \9\ 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.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    In adopting Regulation NMS, the Commission granted self-regulatory
organizations and broker-dealers increased authority and flexibility to
offer new and unique market data to the public. It was believed that
this authority would expand the amount of data available to consumers,
and also spur innovation and competition for the provision of market
data. CBOE believes that this proposal is in keeping with those
principles by promoting increased transparency through the
dissemination of useful data and also by clarifying its availability to
market participants.
    Additionally, CBOE is making a voluntary decision to make this data
available. CBOE is not required by the Act in the first instance to
make the data available, unlike the best bid and offer which must be
made available under the Act. CBOE chooses to make the data available
as proposed in order to improve market quality, to attract order flow,
and to increase transparency. Further, all of the data included in the
COB Feed is already available in the BBO Data Feed, so no new data is
being made available by the introduction of the COB Feed.

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

    CBOE 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. CBOE does not believe that the
proposed rule change will impose any burden on intramarket competition
that is not necessary or appropriate in furtherance of the purposes of
the Act because the

COB Feed is available to all market participants. The Exchange does not
believe that offering the COB Feed will impose any burden on
intermarket competition that is not necessary or appropriate in
furtherance of the purposes of the Act because the COB Feed involves
data that is specific to CBOE. Further, to the extent creating the COB
Feed (and offering it for free) makes CBOE a more attractive
marketplace for market participants on other exchanges, such market
participants may elect to become CBOE market participants. Indeed, this
may enhance competition by spurring other options exchanges to create
more data feeds (and offer such new feeds for free).

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \10\ and Rule 19b-
4(f)(6) thereunder.\11\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
CBOE has satisfied this requirement.
---------------------------------------------------------------------------

    The Exchange has asked the Commission to waive the 30-day operative
delay so that the proposal may become operative immediately upon
filing. The Exchange has stated that it is prepared to offer the COB
Feed immediately and does not intend to assess a fee for such feed at
this time, so waiving the 30-day operative delay would allow Exchange
market participants to begin to receive the data in the COB Feed
immediately instead of having to wait 30 days. The Commission believes
that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest, because such waiver
will enable market participants to receive the COB data free of charge
immediately, which data is otherwise only available to market
participants for a fee (as part of the BBO Data Feed) until the
proposal becomes effective. For this reason, the Commission hereby
waives the 30-day operative delay requirement and designates the
proposed rule change as operative upon filing.\12\
---------------------------------------------------------------------------

    \12\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    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.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2013-070 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-CBOE-2013-070. 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 the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-CBOE-2013-070 and should be
submitted on or before August 30, 2013.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-19266 Filed 8-8-13; 8:45 am]
BILLING CODE 8011-01-P