[Federal Register Volume 88, Number 241 (Monday, December 18, 2023)]
[Notices]
[Pages 87468-87476]
[FR Doc No: 2023-27674]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-99142; File No. SR-ISE-2023-35]

Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change to Amend ISE
Options 7

December 12, 2023.
    Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 1, 2023, Nasdaq ISE, LLC (``ISE'' or ``Exchange'') filed
with the Securities and Exchange Commission (``SEC'' or ``Commission'')
the proposed rule change as described in Items I and II below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend the Exchange's Pricing Schedule at
Options 7.
    The text of the proposed rule change is available on the Exchange's
website at https://listingcenter.nasdaq.com/rulebook/ise/rules, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to amend the Exchange's
Pricing Schedule at Options 7 to: (i) decrease the Fees for Crossing
Orders,\3\ except Price Improvement Mechanism or ``PIM'' Orders,\4\ in
Sections 3 and 4, (ii) eliminate the Crossing Fee Cap in Section 6.H
and reserve certain footnotes related to the cap, (iii) increase the
Facilitation \5\ and Solicitation \6\ Break-Up Rebates in Sections 3
and 4, (iv) eliminate the Fees for Crossing Orders applicable to
Professional Customers \7\ for Qualified Contingent Cross or ``QCC''
Orders \8\ and SOM Orders in Sections 3 and 4, (v) amend the
Solicitation Rebate in Section 6.A, and (vi) amend the QCC

Rebate Program in Section 6.B. Each change is discussed in detail
below.
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    \3\ A ``Crossing Order'' is an order executed in the Exchange's
Facilitation Mechanism, Solicited Order Mechanism (``SOM''), Price
Improvement Mechanism (``PIM'') or submitted as a Qualified
Contingent Cross (``QCC'') order. For purposes of the Pricing
Schedule, orders executed in the Block Order Mechanism are also
considered Crossing Orders. See Options 7, Section 1(c).
    \4\ The PIM is a process by which an Electronic Access Member
can provide price improvement opportunities for a transaction
wherein the Electronic Access Member seeks to facilitate an order it
represents as agent, and/or a transaction wherein the Electronic
Access Member solicited interest to execute against an order it
represents as agent. See Options 3, Section 13.
    \5\ The Facilitation Mechanism is a process by which an
Electronic Access Member can execute a transaction wherein the
Electronic Access Member seeks to facilitate a block-size order it
represents as agent, and/or a transaction wherein the Electronic
Access Member solicited interest to execute against a block-size
order it represents as agent. Electronic Access Members must be
willing to execute the entire size of orders entered into the
Facilitation Mechanism. See Options 3, Section 11(b). Complex
Facilitation is described in Options 3, Section 11(c).
    \6\ The Solicited Order Mechanism or ``SOM'' is a process by
which an Electronic Access Member can attempt to execute orders of
500 or more contracts it represents as agent (the ``Agency Order'')
against contra orders that it solicited. Each order entered into the
Solicited Order Mechanism shall be designated as all-or-none. See
Options 3, Section 11(d). The Complex Solicited Order Mechanism is
described in Options 3, Section 11(e).
    \7\ A ''Professional Customer'' is a person or entity that is
not a broker/dealer and is not a Priority Customer. See Options 7,
Section 1(c).
    \8\ A QCC Order is comprised of an originating order to buy or
sell at least 1000 contracts that is identified as being part of a
qualified contingent trade, as that term is defined in Supplementary
Material .01 to Options 3, Section 7, coupled with a contra-side
order or orders totaling an equal number of contracts. See Options
3, Section 7(j).
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Fees for Crossing Orders, Except PIM Orders, and Crossing Fee Cap
    Today, the Exchange assesses all Non-Priority Customers \9\ a $0.20
per contract Regular Order \10\ Fee for Crossing Orders, which fee does
not apply to PIM Orders, in Select \11\ and Non-Select \12\ Symbols,
excluding Index Options.\13\ Priority Customers \14\ are not assessed a
Regular Order Fee for Crossing Orders, except PIM Orders, in Select and
Non-Select Symbols. The Regular Order Fees for Crossing Orders, except
PIM Orders, apply to the originating and contra orders.\15\ Today,
Regular Order Firm Proprietary \16\ contracts traded are subject to the
Crossing Fee Cap, as provided in Options 7, Section 6.H.\17\ With the
Crossing Fee Cap, fees are capped at $200,000 per month, per Member on
all Firm Proprietary transactions that are part of the originating or
contra side of a Crossing Order. Once a Member exceeds the fee cap
level, the Member is subject to a reduced transaction fee of $0.02 per
capped contract, unless the Member also qualifies for free executions.
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    \9\ ``Non-Priority Customers'' include Market Makers, Non-Nasdaq
ISE Market Makers (FarMMs), Firm Proprietary/Broker-Dealers, and
Professional Customers. See Options 7, Section 1(c).
    \10\ A ``Regular Order'' is an order that consists of only a
single option series and is not submitted with a stock leg. See
Options 7, Section 1(c).
    \11\ ``Select Symbols'' are options overlying all symbols listed
on the Nasdaq ISE that are in the Penny Interval Program. See
Options 7, Section 1(c).
    \12\ ``Non-Select Symbols'' are options overlying all symbols
excluding Select Symbols. See Options 7, Section 1(c).
    \13\ For all executions in regular NDX, XND and NQX orders, the
applicable index options fees in Section 5 will apply. See note 7 of
Options 7, Section 3.
    \14\ A ``Priority Customer'' is a person or entity that is not a
broker/dealer in securities, and does not place more than 390 orders
in listed options per day on average during a calendar month for its
own beneficial account(s), as defined in Nasdaq ISE Options 1,
Section 1(a)(37). Unless otherwise noted, when used in this Pricing
Schedule the term ``Priority Customer'' includes ``Retail'' as
defined below. See Options 7, Section 1(c).
    \15\ See note 2 of Options 7, Section 3.
    \16\ A ``Firm Proprietary'' order is an order submitted by a
member for its own proprietary account. See Options 7, Section 1(c).
    \17\ See note 1 of Options 7, Section 3.
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    The Exchange proposes to decrease the Non-Priority Customer Regular
Order Fee for Crossing Orders, except for PIM Orders, from $0.20 to
$0.17 per contract in Select and Non-Select Symbols. Priority Customers
will continue to not be assessed a Regular Order Fee for Crossing
Orders, except for PIM Orders, in Select and Non-Select Symbols. The
Exchange proposes to no longer offer the Crossing Fee Cap for Firm
Proprietary contracts and would therefore reserve note 1 of Options 7,
Section 3. The Exchange is also reserving the Regular Order Crossing
Fee Cap in Options 7, Section 6.H for Select and Non-Select Symbols as
the Crossing Fee Cap would not apply to pricing in Options 7, Section 4
as explained below. Despite the elimination of the Crossing Fee Cap,
the Exchange believes that the decreased Regular Order Fees for
Crossing Orders, except PIM Orders, in Select and Non-Select Symbols
will continue to attract certain Crossing Orders to the Exchange.
    Similarly, today, the Exchange assesses Non-Priority Customers a
$0.17 per contract Complex Order Fee for Crossing Orders, except PIM
Orders, for Select and Non-Select Symbols. Priority Customers are
assessed no Complex Order Fee for Crossing Orders, except PIM Orders,
for Select and Non-Select Symbols. The Complex Order Fees for Crossing
Orders, except PIM Orders, apply to the originating and contra
orders.\18\ Today, Complex Order Firm Proprietary contracts traded are
subject to the Crossing Fee Cap, as provided in Options 7, Section
6.H.\19\ Also, other than for Priority Customer orders, the Complex
Order Fee for Crossing Orders is reduced to $0.05 per contract for
orders executed by Members that execute an average daily volume
(``ADV'') of 7,500 or more contracts in the PIM in a given month.\20\
Further, Members that execute an ADV of 12,500 or more contracts in the
PIM will not be charged a fee.\21\
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    \18\ See note 11 of Options 7, Section 4.
    \19\ See note 6 of Options 7, Section 4.
    \20\ See note 10 of Options 7, Section 4. The discounted fees
are applied retroactively to all eligible PIM volume in that month
once the threshold has been reached.
    \21\ Id.
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    Similar to Regular Orders, the Exchange proposes to decrease the
Non-Priority Customer Complex Order Fee for Crossing Orders, except PIM
Orders, from $0.20 to $0.17 per contract for Select and Non-Select
Symbols. Priority Customers will continue to not be assessed a Complex
Order Fee for Crossing Orders, except PIM Orders, in Select and Non-
Select Symbols. Similar to Regular Orders, the Exchange proposes to no
longer offer the Crossing Fee Cap for Firm Proprietary contracts and
would therefore reserve note 6 of Options 7, Section 4. As mentioned
herein, the Exchange is also reserving the Crossing Fee Cap in Options
7, Section 6.H. Despite the elimination of the Crossing Fee Cap, the
Exchange believes that the decreased Complex Order Fees for Crossing
Orders, except PIM Orders, in Select and Non-Select Symbols will
continue to attract Crossing Orders to the Exchange.
Facilitation and Solicitation Break-Up Rebates
    Today, pursuant to Options 7, Section 3, the Exchange pays Non-
Nasdaq ISE Market Makers (FarMM),\22\ Firm Proprietary \23\/Broker
Dealers,\24\ Professionals and Priority Customers a Regular Order
Facilitation and Solicitation Break-up Rebate of $0.15 per contract in
Select and Non-Select Symbols. Market Makers \25\ are not paid a
Regular Order Facilitation and Solicitation Break-up Rebate in Select
and Non-Select Symbols. The Exchange proposes to increase the Regular
Order Facilitation and Solicitation Break-up Rebate from $0.15 to $0.20
per contract in Select and Non-Select Symbols for Non-Nasdaq ISE Market
Makers (FarMM), Firm Proprietary/Broker Dealers, Professionals and
Priority Customers. Market Makers would continue to not be paid a
Regular Order Facilitation and Solicitation Break-up Rebate in Select
and Non-Select Symbols. The Exchange believes that the increase to the
Regular Order Facilitation and Solicitation Break-up Rebate will
attract ISE Members to utilize the Facilitation and Solicitation
Mechanisms.
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    \22\ A ``Non-Nasdaq ISE Market Maker'' is a market maker as
defined in section 3(a)(38) of the Securities Exchange Act of 1934,
as amended, registered in the same options class on another options
exchange. See Options 7, Section 1(c).
    \23\ A ``Firm Proprietary'' order is an order submitted by a
member for its own proprietary account. See Options 7, Section 1(c).
    \24\ A ``Broker-Dealer'' order is an order submitted by a member
for a broker-dealer account that is not its own proprietary account.
See Options 7, Section 1(c).
    \25\ The term ``Market Makers'' refers to ``Competitive Market
Makers'' and ``Primary Market Makers'' collectively. See Options 1,
Section 1(a)(21).
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    Today, pursuant to Options 7, Section 4, the Exchange pays Non-
Nasdaq ISE Market Makers (FarMM), Firm Proprietary/Broker Dealers,
Professionals and Priority Customers a Complex Order Facilitation and
Solicitation Break-up Rebate of $0.15 per contract in Select and Non-
Select Symbols. Market Makers are not paid a Complex Order Facilitation
and Solicitation Break-up Rebate in Select and Non-Select Symbols. The
Exchange proposes to increase the Complex Order Facilitation and
Solicitation Break-up Rebate from $0.15 to $0.20 per contract in Select
and Non-Select Symbols for Non-Nasdaq ISE Market Makers (FarMM), Firm
Proprietary/Broker Dealers, Professionals and Priority Customers.
Market Makers would

continue to not be paid a Complex Order Facilitation and Solicitation
Break-up Rebate in Select and Non-Select Symbols. The Exchange believes
that the increase to the Complex Order Facilitation and Solicitation
Break-up Rebate will attract ISE Members to utilize the Facilitation
and Solicitation Mechanisms.
    Today, Facilitation and Solicitation Break-up Rebates for Regular
Order and Comple Order Select and Non-Select Symbols are provided for
contracts that are submitted to the Facilitation and Solicited Order
Mechanisms that do not trade with their contra order except when those
contracts trade against pre-existing orders and quotes on the Exchanges
order books.\26\ The applicable fee is applied to any contracts for
which a rebate is provided.\27\ The Exchange proposes to amend this
sentence in note 4 of Options 7, Section 3 and note 2 of Options 7,
Section 4 to more specifically provide, ``The applicable Fee for
Responses to Crossing Orders is applied to any contracts for which a
rebate is provided.'' The Exchange believes that this proposed change
to the wording of the sentence does not substantively amend the
sentence, rather it conforms the reference to the Fee for Crossing
Orders to the title of the fees in the tables of Options 7, Sections 3
and 4, which is the Fee for Responses to Crossing Orders for Regular
Orders and Complex Orders in Select and Non-Select Symbols. This
amendment adds clarity to the fee being referenced.
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    \26\ See note 4 in Options 7, Section 3 and note 2 in Options 7,
Section 4.
    \27\ Id.
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Professional Customer QCC and SOM Fees For Crossing Orders
    As noted above, today, Professional Customers are assessed a $0.20
per contract Regular Order and Complex Order Fee for Crossing Orders,
except PIM Orders, in Select and Non-Select Symbols. Also, today,
transaction fees applicable to Professional Customers for an order
submitted as a QCC Order and orders executed in the Solicited Order
Mechanism would be assessed a $0.10 per contract Regular Order and
Complex Order Fee for Crossing Orders, except PIM Orders, instead of
$0.20 per contract, in Select and Non-Select Symbols.\28\
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    \28\ See note 16 of Options 7, Section 3 and note 14 of Options
7, Section 4.
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    At this time, the Exchange proposes to amend note 16 of Options 7,
Section 3 and note 14 of Options 7, Section 4 to provide, ``Fees for
Crossing Orders applicable to Professional Customers for an order
submitted as a Qualified Contingent Cross order and orders executed in
the Exchange's Solicited Order Mechanism will be $0.00 per contract.''
The Exchange proposes to substitute the words ``Transaction fees'' with
``Fees for Crossing Orders'' to conform to the title of the fees in the
tables in Options 7, Sections 3 and 4, thereby providing additional
clarity. The Exchange also proposes to eliminate the Professional
Customer Regular Order and Complex Order Fee for Crossing Orders,
except PIM Orders, in Select and Non-Select Symbols, when the order is
submitted as a QCC Order or a SOM Order. The Exchange believes that
reducing the Professional Customer Regular Order and Complex Order Fee
for Crossing Orders, except PIM Orders, in Select and Non-Select
Symbols, when the order is submitted as a QCC Order or a SOM Order from
$0.10 to $0.00 per contract will attract additional Professional
Customer QCC and SOM Orders to the Exchange.
Solicitation Rebate
Background
    Today, the Exchange offers a Solicitation Rebate program in Options
7, Section 6.A whereby Members using QCC and/or other solicited orders
executed in the Solicited Order Mechanism or Facilitation Mechanism
receive rebates for solicited orders executed in the Solicited Order or
Facilitation Mechanisms (``Solicited Orders'') according to the table
in Section 6.A for each originating contract side in all symbols traded
on the Exchange. Volume associated with QCC executions are aggregated
in calculating the Solicitation Rebate volume tiers in Section 6.A, but
Members that execute QCC volume receive the QCC Rebate in Section 6.B
instead.
    Once a Member reaches a certain volume threshold in combined QCC
and Solicited Orders during a month, the Exchange provides rebates to
that Member for all of its Solicited Order traded contracts for that
month.\29\ Today, Members receive the rebate for all Solicited Orders
except for Solicited Orders between two Priority Customers. Solicited
Orders between two Priority Customers do not receive any rebates under
the Solicitation Rebate program. The volume threshold and corresponding
rebates in Section 6.A are currently as follows:
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    \29\ All eligible volume from affiliated Members will be
aggregated in determining the combined QCC and Solicited Order
volume totals, provided there is at least 75% common ownership
between the Members as reflected on each Member's Form BD, Schedule
A.

------------------------------------------------------------------------
                                 Originating contract
                                        sides                Rebate
------------------------------------------------------------------------
Tier 1........................  0 to 99,999..........              $0.00
Tier 2........................  100,000 to 199,999...             (0.05)
Tier 3........................  200,000 to 499,999...             (0.07)
Tier 4........................  500,000 to 749,999...             (0.09)
Tier 5........................  750,000 to 999,999...             (0.10)
Tier 6........................  1,000,000+...........             (0.11)
------------------------------------------------------------------------

    Volume resulting from all QCC and Solicited Orders is aggregated in
determining the applicable volume tier set forth above. For Members
that achieve the highest volume threshold of 1,000,000 or more
originating contract sides (i.e., tier 6), the Exchange also currently
provides an additional rebate of $0.01 per originating contract side on
Solicited Orders that qualify for the Solicitation Rebate program if
the Member achieves in a given month: (i) combined QCC and Solicited
Order volume of more than 1,750,000 originating contract sides and (ii)
Priority Customer Complex Tier 6 or higher in Section 4 (the ``note *
incentive'').\30\ In addition, the Exchange provides an additional
rebate of $0.01 per originating contract side on Solicited Orders that
qualify for the Solicitation Rebate program, which is applied to each
Solicitation Rebate volume tier where the Member receives the rebate
(i.e., tier 2 or higher), if the Member also achieves Priority Customer
Complex Tier 2 or higher in a given

month (the ``note & incentive''). Thus, qualifying Members may receive
up to $0.06 in tier 2, $0.08 in tier 3, $0.10 in tier 4, $0.11 in tier
5, and $0.13 in tier 6 (i.e., the $0.11 base rebate, the $0.01 note *
incentive, and the $0.01 note & incentive).
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    \30\ As set forth in Options 7, Section 4, Priority Customer
Complex Tiers are based on Total Affiliated Member or Affiliated
Entity complex order volume (excluding Crossing Orders and Responses
to Crossing Orders) calculated as a percentage of Customer Total
Consolidated Volume.
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Proposal
    The Exchange now proposes to amend the Solicitation Rebate program
in a number of ways. First, the Exchange proposes to no longer provide
any rebates under this program when both sides of the Solicited Order
transaction are between two Professional Customers or between a
Priority Customer and a Professional Customer. This will be in addition
to the current restriction that Solicited Orders between two Priority
Customers will not receive any rebate under the Solicitation Rebate
program. As such, the Exchange will only provide the Solicitation
Rebate when at least one side of the Solicited Order is neither a
Priority Customer nor Professional Customer (i.e., when at least one
side is a Market Maker, Non-ISE Market Maker, or Firm Proprietary/
Broker-Dealer). As amended, the language governing the Solicitation
Rebate program in Section 6.A will provide:

    Members will receive the rebate for all Solicited Orders when at
least one side of the Solicited Order is neither a Priority Customer
nor Professional Customer. Solicited Orders between two Priority
Customers, two Professional Customers, or a Priority Customer and a
Professional Customer will not receive any rebate.

    The Exchange is proposing to exclude Professional Customers from
the Solicitation Rebate in the manner described above because it is
also proposing to eliminate the fees applicable to Professional
Customers for orders executed in the Solicited Order Mechanism (which
are included as Solicited Orders for purposes of qualifying for and
receiving the Solicitation Rebate).\31\ As such, the Exchange believes
that Members will continue to be incentivized to send Professional
Customer Solicited Orders to the Exchange without the added incentive
of the Solicitation Rebate.
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    \31\ As discussed above, the Exchange is proposing to eliminate
the fees applicable to Professional Customers for SOM Orders and for
QCC Orders. See proposed note 16 of Options 7, Section 3 and
proposed note 14 of Options 7, Section 4.
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    The Exchange also proposes to amend the volume thresholds and
rebate amounts described above as follows:

------------------------------------------------------------------------
                 Originating contract sides                     Rebate
------------------------------------------------------------------------
0 to 749,999................................................     ($0.10)
750,000 to 1,499,999........................................      (0.11)
1,500,000+..................................................      (0.12)
------------------------------------------------------------------------

    As described above, the Exchange is proposing to condense the
current Solicitation Rebate volume tiers 1-4 into one new base volume
tier, and increase the rebate to $0.10 for all qualifying Members.\32\
The current Solicitation Rebate volume tier 5 will be amended as the
second highest volume tier, and expanded to be capped at a higher level
of volume (1,499,999 versus the current 999,999 originating contract
sides). The Exchange is also increasing the rebate to $0.11 per
contract for this tier.\33\ As it relates to the highest volume tier
under this proposal (i.e., 1,500,000+ originating contract sides), the
Exchange is likewise increasing the rebate to $0.12 per contract.\34\
As such, Members would generally receive higher rebates under this
proposal for achieving the same amount of volume as they do today.\35\
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    \32\ Today, the rebates in tiers 1--4 range from $0.00 to $0.09
per contract for qualifying Members.
    \33\ Today, the tier 5 rebate is $0.10 per contract for
qualifying Members.
    \34\ Today, the highest tier 6 rebate is $0.11 per contract for
qualifying Members.
    \35\ The Exchange notes that if a Member reaches a volume
threshold between 1,000,000 to 1,499,999 originating contract sides
in a given month, they would continue to receive the same rebate
amount (i.e., $0.11 per contract) under this proposal as they do
currently.
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    Lastly, the Exchange proposes to apply the note & incentive to the
new base volume tier such that qualifying Members may be eligible to
receive an additional rebate of $0.01 per originating contract side in
addition to the $0.10 rebate.\36\ Today, Members in the current base
Solicitation Rebate tier are not eligible to receive this additional
rebate. With the proposed extension to the new base tier, the Exchange
seeks to encourage Members to send more order flow, particularly
Solicited Order and complex order flow, to ISE.
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    \36\ As discussed above, Members may qualify for the note &
incentive if they qualify for the Solicitation Rebate program and
they also achieve Priority Customer Complex Tier 2 or higher in a
given month.
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QCC Rebate
Background
    Today, the Exchange offers a QCC Rebate program in Options 7,
Section 6.B whereby Members that submit QCC Orders when at least one
side of the QCC transaction is a Non-Priority Customer receive the QCC
Rebates in Section 6.B. By implication, the QCC Rebates are not
available when both sides of the QCC transaction are Priority
Customers. QCC Rebates are paid to each originating contract side
(``QCC Agency Side'') in all symbols traded on the Exchange.
Specifically:
     When only one side of the QCC transaction is a Non-
Priority Customer, the Member would receive a $0.14 per contract rebate
for each QCC Agency Side (``QCC Rebate 1'')
     When both sides of the QCC transaction are Non-Priority
Customers, the Member would receive a $0.22 per contract rebate for
each QCC Agency Side today (``QCC Rebate 2'').
    In addition, the Exchange currently offers an additional incentive
of $0.03 per contract for each QCC Agency Side that qualifies for the
QCC Rebate program if they achieve Priority Customer Complex Tier 2 or
higher in a given month. The additional incentive is applied to each
QCC Rebate and is cumulative of the QCC Rebates so that qualifying
Members could receive up to $0.17 per contract for each QCC Agency Side
when only one side of the QCC transaction is a Non-Priority Customer,
and up to $0.25 per contract for each QCC Agency Side when both sides
of the QCC transaction are Non-Priority Customers.
Proposal
    The Exchange now proposes to no longer provide any rebates under
this program when both sides of the QCC transaction are between two
Professional Customers or between a Priority Customer and a
Professional Customer. This will be in addition to the current
restriction that QCC Orders between two Priority Customers would not
receive any rebates. Specifically, Section 6.B will be amended to
provide that Members that submit QCC Orders when at least one side of
the QCC transaction is neither a Priority Customer nor Professional
Customer will receive the QCC Rebates in Section 6.B. This is similar
to the proposed changes in the Solicitation Rebate program where the
Exchange is likewise proposing to exclude Professional Customers from
the Solicitation Rebate in the manner described above. Similar to the
Solicitation Rebate changes, the Exchange is proposing to exclude
Professional Customers from the QCC Rebates because it is also
proposing to eliminate the fees applicable to Professional Customers
for QCC Orders.\37\ As such, the Exchange believes that Members will
continue to be incentivized to send Professional Customer QCC Orders to
the Exchange

without the added incentive of the QCC Rebates.
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    \37\ As discussed above, the Exchange is proposing to eliminate
the fees applicable to Professional Customers for QCC Orders and for
SOM Orders. See proposed note 16 of Options 7, Section 3 and
proposed note 14 of Options 7, Section 4.
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    The Exchange also proposes to amend QCC Rebate 1 and QCC Rebate 2
to similarly exclude Professional Customers and to increase the rebate
amounts. Specifically, QCC Rebate 1 will be amended to provide that
when only one side of the QCC transaction is neither a Priority
Customer nor Professional Customer, the Member will receive a $0.15 per
contract rebate for each QCC Agency Side. QCC Rebate 2 will be amended
to provide that when both sides of the QCC transaction are not any
combination of Priority Customers and/or Professional Customers, the
Member will receive a $0.23 per contract rebate for each QCC Agency
Side. The Exchange also proposes to specifically delineate the QCC
Rebates into two separate sections titled ``QCC Rebate 1'' and ``QCC
Rebate 2.''
    Further, the Exchange proposes to amend the additional QCC
incentive by decreasing the amount from $0.03 to $0.01 per contract as
applied to QCC Rebate 1. The qualifications for this incentive will
remain unchanged. Accordingly, the Exchange will add the following
language in the QCC Rebate 1 section: ``Members will receive an
additional rebate of $0.01 per contract for each QCC Agency Side that
qualifies for QCC Rebate 1 if they achieve Priority Customer Complex
Tier 2 or higher in a given month.''
    The Exchange also proposes to amend additional incentive as applied
to QCC Rebate 2 by increasing the amount from $0.03 to $0.04 per
contract. As noted above, the incentive qualifications will remain
unchanged. Accordingly, the Exchange will add the following language in
the QCC Rebate 2 section: ``Members will receive an additional rebate
of $0.03 per contract for each QCC Agency Side that qualifies for QCC
Rebate 2 if they achieve Priority Customer Complex Tier 2 or higher in
a given month.''
    The additional incentives will continue to be cumulative of the QCC
Rebates so that qualifying Members could receive up to $0.16 per
contract for each QCC Agency Side when only one side of the QCC
transaction is neither a Priority Customer nor Professional Customer,
and up to $0.27 per contract for each QCC Agency Side when both sides
of the QCC transaction are not any combination of Priority Customers
and/or Professional Customers.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with section
6(b) of the Act,\38\ in general, and furthers the objectives of
sections 6(b)(4) and 6(b)(5) of the Act,\39\ in particular, in that it
provides for the equitable allocation of reasonable dues, fees, and
other charges among members and issuers and other persons using any
facility, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
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    \38\ 15 U.S.C. 78f(b).
    \39\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

    The Exchange's proposed changes to its Pricing Schedule are
reasonable in several respects. As a threshold matter, the Exchange is
subject to significant competitive forces in the market for options
securities transaction services that constrain its pricing
determinations in that market. The fact that this market is competitive
has long been recognized by the courts. In NetCoalition v. Securities
and Exchange Commission, the D.C. Circuit stated as follows: ``[n]o one
disputes that competition for order flow is `fierce.' . . . As the SEC
explained, `[i]n the U.S. national market system, buyers and sellers of
securities, and the broker-dealers that act as their order-routing
agents, have a wide range of choices of where to route orders for
execution'; [and] `no exchange can afford to take its market share
percentages for granted' because `no exchange possesses a monopoly,
regulatory or otherwise, in the execution of order flow from broker
dealers'. . . .'' \40\
---------------------------------------------------------------------------

    \40\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

    The Commission and the courts have repeatedly expressed their
preference for competition over regulatory intervention in determining
prices, products, and services in the securities markets. In Regulation
NMS, while adopting a series of steps to improve the current market
model, the Commission highlighted the importance of market forces in
determining prices and SRO revenues and, also, recognized that current
regulation of the market system ``has been remarkably successful in
promoting market competition in its broader forms that are most
important to investors and listed companies.'' \41\
---------------------------------------------------------------------------

    \41\ Securities Exchange Act Release No. 51808 (June 9, 2005),
70 FR 37496, 37499 (June 29, 2005) (``Regulation NMS Adopting
Release'').
---------------------------------------------------------------------------

    Numerous indicia demonstrate the competitive nature of this market.
For example, clear substitutes to the Exchange exist in the market for
options security transaction services. The Exchange is only one of
seventeen options exchanges to which market participants may direct
their order flow. Within this environment, market participants can
freely and often do shift their order flow among the Exchange and
competing venues in response to changes in their respective pricing
schedules. As such, the proposal represents a reasonable attempt by the
Exchange to increase its liquidity and market share relative to its
competitors.
Fees for Crossing Orders Except PIM Orders and Crossing Fee Cap
    The Exchange's proposal to decrease the Non-Priority Customer
Regular Order and Complex Order Fees for Crossing Orders, except for
PIM Orders, from $0.20 to $0.17 per contract, in Select and Non-Select
Symbols, is reasonable because the reduction in these fees should
attract additional Crossing Orders to the Exchange. Priority Customers
will continue to not be assessed a Regular Order or Complex Order Fee
for Crossing Orders in Select and Non-Select Symbols.
    The Exchange's proposal to decrease the Non-Priority Customer
Regular Order and Complex Order Fees for Crossing Orders, except for
PIM Orders, from $0.20 to $0.17 per contract, in Select and Non-Select
Symbols, is equitable and not unfairly discriminatory as all Non-
Priority Customer Regular Order and Complex Order Fees for Crossing
Orders will be reduced in Select and Non-Select Symbols. The Exchange
believes that it is equitable and not unfairly discriminatory to not
assess Priority Customers a Regular Order or Complex Order Fee for
Crossing Orders in Select and Non-Select Symbols. Priority Customer
liquidity benefits all market participants by providing more trading
opportunities, which attracts Market Makers. An increase in the
activity of these market participants in turn facilitates tighter
spreads, which may cause an additional corresponding increase in order
flow from other market participants.
    The Exchange's proposal to no longer offer the Crossing Fee Cap for
Firm Proprietary contracts is reasonable because the Exchange is
lowering Non-Priority Customer Regular Order and Complex Order Fees for
Crossing Orders, except for PIM Orders, from $0.20 to $0.17 per
contract, in Select and Non-Select Symbols. Despite the elimination of
the Crossing Fee Cap, the Exchange believes that the decreased Regular
Order and Complex Order Fees for Crossing Orders, except PIM Orders, in
Select and Non-Select Symbols will continue to attract Crossing Orders
to the Exchange.
    The Exchange's proposal to no longer offer the Crossing Fee Cap for
Firm

Proprietary contracts is equitable and not unfairly discriminatory
because no Member would be offered an opportunity to cap their Firm
Proprietary transactions.
Facilitation and Solicitation Break-Up Rebates
    The Exchange's proposal to increase the Regular Order and Complex
Order Facilitation and Solicitation Break-up Rebates from $0.15 to
$0.20 per contract, in Select and Non-Select Symbols, for Non-Nasdaq
ISE Market Makers (FarMM), Firm Proprietary/Broker Dealers,
Professionals and Priority Customers is reasonable because the increase
will attract ISE Members to utilize the Facilitation and Solicitation
Mechanisms. Specifically, the Exchange believes that the increased
Facilitation and Solicitation Break-up Rebates will encourage increased
originating Regular Order and Complex Order Non-Nasdaq ISE Market
Maker, Firm Proprietary/Broker-Dealer, Professional Customer, and
Priority Customer order flow to the Facilitation and Solicited Order
Mechanisms, thereby potentially increasing the initiation of and volume
executed through such auctions. Additional auction order flow provides
market participants with additional trading opportunities at
potentially improved prices. Market Makers would continue to not be
paid a Regular Order Facilitation and Solicitation Break-up Rebate in
Select and Non-Select Symbols.
    The Exchange's proposal to increase the Regular Order and Complex
Order Facilitation and Solicitation Break-up Rebates from $0.15 to
$0.20 per contract, in Select and Non-Select Symbols, for Non-Nasdaq
ISE Market Makers (FarMM), Firm Proprietary/Broker Dealers,
Professionals and Priority Customers is equitable and not unfairly
discriminatory because the increased Facilitation and Solicitation
Break-up Rebates will apply equally to all non-Market Maker originating
orders submitted to the Facilitation and Solicited Order Mechanisms
that do not trade with their contra orders (except when those
originating contracts trade against pre-existing orders and quotes on
the Exchange's order books). While Market Makers will continue to not
receive Regular Order and Complex Order Facilitation and Solicitation
Break-up Rebates for Select and Non-Select Symbols, the Exchange
believes that the application of the rebate is equitable and not
unfairly discriminatory because Market Makers are not eligible for
Facilitation and Solicitation Break-up Rebates today. In addition, the
Exchange currently offers Market Makers other rebate programs that do
not apply to non-Market Makers, such as the Market Maker Plus Program.
    The Exchange's proposal to amend note 4 of Options 7, Section 3 and
note 2 of Options 7, Section 4 to more specifically provide, ``The
applicable Fee for Responses to Crossing Orders is applied to any
contracts for which a rebate is provided'' is reasonable, equitable and
not unfairly discriminatory because the amendment conforms the
reference to the Fees for Crossing Orders for Regular Orders and
Complex Orders to the title of the fee in the tables of Options 7,
Sections 3 and 4, which is the Fee for Responses to Crossing Orders.
This amendment adds clarity to the fee being referenced.
Professional Customer QCC and SOM Fees for Crossing Orders
    The Exchange's proposal to amend note 16 of Options 7, Section 3
and note 14 of Options 7, Section 4 to provide, ``Fees for Crossing
Orders applicable to Professional Customers for an order submitted as a
Qualified Contingent Cross order and orders executed in the Exchange's
Solicited Order Mechanism will be $0.00 per contract'' is reasonable
because reducing the Professional Customer Regular Order and Complex
Order Fees for Crossing Orders, except PIM Orders, in Select and Non-
Select Symbols, when the order is submitted as a QCC Order or a SOM
Order from $0.10 to $0.00 per contract will attract additional
Professional Customer QCC and SOM Orders to the Exchange. The proposed
fee is designed to be attractive to Professional Customers that trade
on ISE, and the fee is lower than the Regular Order and Complex Order
Fees for Crossing Orders, except PIM Orders, in Select and Non-Select
Symbols, except for Priority Customers. Additional auction order flow
provides market participants with additional trading opportunities at
potentially improved prices.
    The Exchange's proposal to amend note 16 of Options 7, Section 3
and note 14 of Options 7, Section 4 to provide, ``Fees for Crossing
Orders applicable to Professional Customers for an order submitted as a
Qualified Contingent Cross order and orders executed in the Exchange's
Solicited Order Mechanism will be $0.00 per contract'' is equitable and
not unfairly discriminatory because providing Professional Customers a
lower Fee for Crossing Orders in Regular Orders and Complex Orders in
Select and Non-Select Symbols submitted as a QCC or SOM Order will
allow other market participants the opportunity to interact with those
orders in the applicable auctions. The Exchange does not believe that
it is unfairly discriminatory to offer Professional Customers lower
Fees for Crossing Orders for QCC and SOM Orders because differentiated
pricing encourages different segments of order flow. For instance, the
Exchange generally provides Priority Customer orders more favorable
pricing through lower or no transaction fees, including Priority
Customer Crossing Orders that are presently assessed no fees.
Professional Customer orders are presently charged a lower transaction
fee for QCC and SOM Orders ($0.10 for Professional Customers versus
$0.20 for all other non-Priority Customers). Additionally, Broker-
Dealer and Firm Proprietary orders are incentivized in the Exchange's
PIM and Facilitation Rebate program.\42\ Market Makers are offered
rebates through the Exchange's Market Maker Plus program.\43\ The
Exchange further believes there is nothing impermissible about offering
Professional Customers lower transaction fee for QCC and SOM Orders
given that this practice is consistent with lower Professional Fees for
QCC on other options exchanges.\44\ To the extent the amended lower
transaction fee for QCC and SOM Orders offered to Professional
Customers continues to encourage market participants to send additional
QCC and SOM Orders to ISE, such increased order flow brings increased
liquidity and additional opportunities for interaction with this order
flow, which ultimately benefits all market participants.
---------------------------------------------------------------------------

    \42\ See Options 7, Sections 6.C.
    \43\ See note 5 at Options 7, Sections 3.
    \44\ See Nasdaq Phlx LLC (``Phlx'') Options 7, Section 4. Phlx
does not assess a QCC Transaction Fee to Customers and
Professionals. See also BOX Exchange LLC's (``BOX'') Fee Schedule at
Section IV, D. BOX does not assess a QCC Transaction Fee to
Customers and Professionals.
---------------------------------------------------------------------------

    Amending note 16 of Options 7, Section 3 and note 14 of Options 7,
Section 4 to specifically refer to ``Fees for Crossing Orders'' is
reasonable, equitable and not unfairly discriminatory because it will
conform the wording to the title of the fees in the tables in Options
7, Sections 3 and 4 for Regular Orders and Complex Orders, thereby
adding clarity.
Solicitation Rebate
    The Exchange believes that the proposed changes to the Solicitation
Rebate program are reasonable for the reasons that follow. The Exchange
believes it is reasonable to exclude Professional Customers from the
Solicitation Rebate program in the manner described above because it is

simultaneously proposing to eliminate the fees applicable to
Professional Customers for SOM Orders (which are included as Solicited
Orders for purposes of qualifying for and receiving the Solicitation
Rebate). As such, the Exchange believes that Members will continue to
be incentivized to send more Professional Customer Solicited Orders to
the Exchange without the added incentive of the Solicitation Rebate.
    The Exchange also believes that the proposed volume thresholds and
rebate amounts for the Solicitation Rebate program are set at
reasonable levels that would encourage additional Solicited Order flow
to ISE. As described above, Members would generally receive higher
rebates under this proposal for achieving the same amount of volume as
they do today.\45\ As such, more Members may seek to qualify for the
proposed Solicitation Rebates by sending additional Solicited Order
flow to ISE, which benefits all market participants through quality of
order interaction and increased trading opportunities.
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    \45\ As noted above, if a Member reaches a volume threshold
between 1,000,000 to 1,499,999 originating contract sides in a given
month, they would continue to receive the same rebate amount (i.e.,
$0.11 per contract) under this proposal as they do currently.
---------------------------------------------------------------------------

    The Exchange further believes that its proposal to apply the note &
incentive to the new base volume tier is reasonable as it is intended
to encourage Members to send more Solicited Order and complex order
flow to the Exchange. Today, Members in the current base volume tier
are not eligible for the note & incentive. Under this proposal, Members
may now be eligible to receive an additional rebate of $0.01 per
originating contract side in addition to the $0.10 base rebate on their
Solicited Orders that qualify for the Solicitation Rebate program if
the Member also achieves Priority Customer Complex Tier 2 or higher in
a given month. To the extent the proposal incentivizes Members to send
more order flow (particularly Solicited Order and complex order flow)
to ISE, all market participants will benefit from increased order
interaction when more order flow is available on the Exchange.
    The Exchange believes that the proposed changes to the Solicitation
Rebate program in Options 7, Section 6.A are equitable and not unfairly
discriminatory because all Members will be eligible for the proposed
rebates by sending Solicited Order and complex order flow to the
Exchange. Further, the Exchange believes that excluding Professional
Customers from the Solicitation Rebate program in the manner described
above and applying the proposed rebates only where at least one party
to the Solicited Order is neither a Priority Customer nor Professional
Customer is equitable and not unfairly discriminatory because the
Exchange is simultaneously eliminating the transaction fees for
Professional Customer SAM Orders (which are included as Solicited
Orders for purposes of qualifying for and receiving the Solicitation
Rebate) under this proposal. As such, the Exchange believes that
Members will continue to be incentivized to send Professional Customer
Solicited Orders to the Exchange without the added incentive of the
proposed rebates. In addition, to the extent the proposed Solicitation
Rebate program encourages Members to send more Solicited Order and
complex order flow to ISE, all market participants will benefit from
the resulting additional liquidity and trading opportunities on ISE.
QCC Rebate
    The Exchange believes that the proposed changes to the QCC Rebate
program are reasonable for the reasons that follow. The Exchange
believes it is reasonable to exclude Professional Customers from the
QCC Rebate program in the manner described above because it is
simultaneously proposing to eliminate the fees applicable to
Professional Customers for their QCC Orders. As such, the Exchange
believes that Members will continue to be incentivized to send more
Professional Customer QCC Orders to the Exchange without the added
incentive of the QCC Rebates.
    The Exchange also believes that the proposed changes to QCC Rebate
1 and QCC Rebate 2 are reasonable because the rebate amounts are
increasing. As discussed above, QCC Rebate 1 will be amended to provide
that when only one side of the QCC transaction is neither a Priority
Customer nor Professional Customer, the Member will receive a $0.15 per
contract rebate for each QCC Agency Side (increased from $0.14 per
contract). QCC Rebate 2 will be amended to provide that when both sides
of the QCC transaction are not any combination of Priority Customers
and/or Professional Customers, the Member will receive a $0.23 per
contract rebate for each QCC Agency Side (increased from $0.22 per
contract). With the proposed changes, more Members may seek to qualify
for proposed QCC Rebate 1 and proposed QCC Rebate 2 by sending
additional QCC Order flow to ISE, which benefits all market
participants through quality of order interaction and increased trading
opportunities.
    The Exchange further believes that the proposed changes to the
additional QCC incentives are reasonable. As applied to QCC Rebate 1,
the Exchange is proposing to lower the additional incentive amount from
$0.03 to $0.01 per contract. As applied to QCC Rebate 2, the Exchange
is proposing to increase the additional incentive amount from $0.03 to
$0.04 per contract.\46\ With the additional incentives, Members will be
eligible to receive up to $0.16 per contract if they also qualify for
QCC Rebate 1, and up to $0.27 per contract if they also qualify for QCC
Rebate 2. The Exchange believes that the proposed additional incentives
are structured at appropriate levels that would continue to encourage
additional QCC and complex order flow to ISE, which benefits all market
participants in the quality of order interaction and through increased
trading opportunities.
---------------------------------------------------------------------------

    \46\ As described above, Members are eligible to receive the
additional incentives for each QCC Agency Side that qualifies for
the QCC Rebate program if they achieve Priority Customer Complex
Tier 2 or higher in a given month. These qualifications are not
changing under this proposal.
---------------------------------------------------------------------------

    The Exchange believes that the proposed changes to the QCC Rebate
program in Options 7, Section 6.B are equitable and not unfairly
discriminatory because all Members will be eligible for the proposed
rebates by sending more QCC and complex order flow to the Exchange. The
Exchange further believes that excluding Professional Customers from
the QCC Rebate program in the manner described above and applying the
proposed rebates only where at least one party to the QCC transaction
is neither a Priority Customer nor Professional Customer is equitable
and not unfairly discriminatory because the Exchange is simultaneously
eliminating transaction fees for Professional Customer QCC Orders under
this proposal. As such, the Exchange believes that Members will
continue to be incentivized to send Professional Customer QCC Orders to
the Exchange without the added incentive of the proposed rebates. In
addition, to the extent the proposed QCC Rebate program encourages
Members to send more QCC Order and complex order flow to ISE, all
market participants will benefit from the resulting additional
liquidity and trading opportunities.

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

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

necessary or appropriate in furtherance of the purposes of the Act.
    In terms of intra-market competition, the Exchange does not believe
that this proposal will place any category of market participant at a
competitive disadvantage.
Fees for Crossing Orders Except PIM Orders and Crossing Fee Cap
    The Exchange's proposal to decrease the Non-Priority Customer
Regular Order and Complex Order Fees for Crossing Orders, except for
PIM Orders, from $0.20 to $0.17 per contract, in Select and Non-Select
Symbols, does not impose an undue burden on competition because all
Non-Priority Customer Regular Order and Complex Order Fees for Crossing
Orders will be reduced in Select and Non-Select Symbols. Priority
Customer liquidity benefits all market participants by providing more
trading opportunities, which attracts Market Makers. An increase in the
activity of these market participants in turn facilitates tighter
spreads, which may cause an additional corresponding increase in order
flow from other market participants.
    The Exchange's proposal to no longer offer the Crossing Fee Cap for
Firm Proprietary contracts does not impose an undue burden on
competition because no Member would be offered an opportunity to cap
their Firm Proprietary transactions.
Facilitation and Solicitation Break-Up Rebates
    The Exchange's proposal to increase the Regular Order and Complex
Order Facilitation and Solicitation Break-up Rebates from $0.15 to
$0.20 per contract, in Select and Non-Select Symbols, for Non-Nasdaq
ISE Market Makers (FarMM), Firm Proprietary/Broker Dealers,
Professionals and Priority Customers does not impose an undue burden on
competition because the increased Facilitation and Solicitation Break-
up Rebates will apply equally to all non-Market Maker originating
orders submitted to the Facilitation and Solicited Order Mechanisms
that do not trade with their contra orders (except when those
originating contracts trade against pre-existing orders and quotes on
the Exchange's order books). Today, Market Makers are not eligible for
Facilitation and Solicitation Break-up Rebates. Conversely, the
Exchange currently offers Market Makers other rebate programs that do
not apply to non-Market Makers, such as the Market Maker Plus Program.
    The Exchange's proposal to amend note 4 of Options 7, Section 3 and
note 2 of Options 7, Section 4 to more specifically provide, ``The
applicable Fee for Responses to Crossing Orders is applied to any
contracts for which a rebate is provided'' does not impose an undue
burden on competition because the amendment conforms the reference to
the Fees for Crossing Orders for Regular Orders and Complex Orders to
the title of the fee in the tables of Options 7, Sections 3 and 4,
which is the Fee for Responses to Crossing Orders. This amendment adds
clarity to the fee being referenced.
Professional Customer QCC and SOM Fees for Crossing Orders
    The Exchange's proposal to amend note 16 of Options 7, Section 3
and note 14 of Options 7, Section 4 to provide, ``Fees for Crossing
Orders applicable to Professional Customers for an order submitted as a
Qualified Contingent Cross order and orders executed in the Exchange's
Solicited Order Mechanism will be $0.00 per contract'' does not impose
an undue burden on competition because providing Professional Customers
a lower Fee for Crossing Orders in Regular Orders and Complex Orders in
Select and Non-Select Symbols submitted as a QCC or SOM Order will
allow other market participants the opportunity to interact with those
orders in the applicable auctions. The Exchange believes that offering
Professional Customers lower Fees for Crossing Orders for QCC and SOM
Orders does not impose an undue burden on competition because
differentiated pricing encourages different segments of order flow. For
instance, the Exchange generally provides Priority Customer orders more
favorable pricing through lower or no transaction fees, including
Priority Customer Crossing Orders that are presently assessed no fees.
Professional Customer orders are presently charged a lower transaction
fee for QCC and SOM Orders ($0.10 for Professional Customers versus
$0.20 for all other non-Priority Customers). Additionally, Broker-
Dealer and Firm Proprietary orders are incentivized in the Exchange's
PIM and Facilitation Rebate program.\47\ Market Makers are offered
rebates through the Exchange's Market Maker Plus program.\48\ The
Exchange further believes there is nothing impermissible about offering
Professional Customers lower transaction fee for QCC and SOM Orders
given that this practice is consistent with lower Professional Fees for
QCC on other options exchanges.\49\ To the extent the amended lower
transaction fee for QCC and SOM Orders offered to Professional
Customers continues to encourage market participants to send additional
QCC and SOM Orders to ISE, such increased order flow brings increased
liquidity and additional opportunities for interaction with this order
flow, which ultimately benefits all market participants.
---------------------------------------------------------------------------

    \47\ See Options 7, Sections 6.C.
    \48\ See note 5 at Options 7, Sections 3.
    \49\ See Nasdaq Phlx LLC (``Phlx'') Options 7, Section 4. Phlx
does not assess a QCC Transaction Fee to Customers and
Professionals. See also BOX Exchange LLC's (``BOX'') Fee Schedule at
Section IV, D. BOX does not assess a QCC Transaction Fee to
Customers and Professionals.
---------------------------------------------------------------------------

    Amending note 16 of Options 7, Section 3 and note 14 of Options 7,
Section 4 to specifically refer to ``Fees for Crossing Orders'' does
not impose an undue burden on competition because it will conform the
wording to the title of the fees in the tables in Options 7, Sections 3
and 4 for Regular Orders and Complex Orders, thereby adding clarity.
Solicitation Rebate
    The Exchange believes that the proposed changes to the Solicitation
Rebate program in Options 7, Section 6.A do not impose an undue burden
on intra-market competition because all Members will be eligible for
the proposed rebates by sending Solicited Order and complex order flow
to the Exchange. As discussed above, the Exchange is proposing to
exclude Professional Customers from the Solicitation Rebate program in
the manner described above and to apply the proposed rebates only where
at least one party to the Solicited Order is neither a Priority
Customer nor Professional Customer because the Exchange is
simultaneously eliminating the transaction fees for Professional
Customer SAM Orders (which are included as Solicited Orders for
purposes of qualifying for and receiving the Solicitation Rebate) under
this proposal. As such, the Exchange believes that Members will
continue to be incentivized to send Professional Customer Solicited
Orders to the Exchange without the added incentive of the proposed
rebates. In addition, to the extent the proposed Solicitation Rebate
program encourages Members to send more Solicited Order and complex
order flow to ISE, all market participants will benefit from the
resulting additional liquidity and trading opportunities on ISE.
QCC Rebate
    The Exchange believes that the proposed changes to the QCC Rebate
program in Options 7, Section 6.B do

not impose an undue burden on competition because all Members will be
eligible for the proposed rebates by sending more QCC and complex order
flow to the Exchange. The Exchange is proposing to exclude Professional
Customers from the QCC Rebate program in the manner described above and
to apply the proposed rebates only where at least one party to the QCC
transaction is neither a Priority Customer nor Professional Customer
because the Exchange is simultaneously eliminating transaction fees for
Professional Customer QCC Orders under this proposal. As such, the
Exchange believes that Members will continue to be incentivized to send
Professional Customer QCC Orders to the Exchange without the added
incentive of the proposed rebates. In addition, to the extent the
proposed QCC Rebate program encourages Members to send more QCC Order
and complex order flow to ISE, all market participants will benefit
from the resulting additional liquidity and trading opportunities.
    In terms of inter-market competition, the Exchange notes that it
operates in a highly competitive market in which market participants
can readily favor competing venues if they deem fee levels at a
particular venue to be excessive, or rebate opportunities available at
other venues to be more favorable. In such an environment, the Exchange
must continually adjust its fees to remain competitive with other
exchanges. Because competitors are free to modify their own fees in
response, and because market participants may readily adjust their
order routing practices, the Exchange believes that the degree to which
fee changes in this market may impose any burden on competition is
extremely limited. In sum, if the changes proposed herein are
unattractive to market participants, it is likely that the Exchange
will lose market share as a result. Accordingly, the Exchange does not
believe that the proposed changes will impair the ability of members or
competing order execution venues to maintain their competitive standing
in the financial markets.

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

    No written comments were either solicited or received.

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

    The foregoing rule change has become effective pursuant to section
19(b)(3)(A)(ii) of the Act \50\ and Rule 19b-4(f)(2) \51\ thereunder.
At any time within 60 days of the filing of the proposed rule change,
the Commission summarily may temporarily suspend such rule change if it
appears to the Commission that such action is: (i) necessary or
appropriate in the public interest; (ii) for the protection of
investors; or (iii) 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.
---------------------------------------------------------------------------

    \50\ 15 U.S.C. 78s(b)(3)(A)(ii).
    \51\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-ISE-2023-35 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-ISE-2023-35. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-ISE-2023-35 and should be
submitted on or before January 8, 2024.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\52\
---------------------------------------------------------------------------

    \52\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-27674 Filed 12-15-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Rules and Regulations]
[Pages 84206-84207]
[FR Doc No: 2020-28552]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2020-0924; Airspace Docket No. 20-ANE-1]
RIN 2120-AA66

Revocation of Class E Airspace; Newburyport, MA

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: This action removes Class E airspace at Newburyport, MA, as
Plum Island Airport no longer has instrument approaches and controlled
airspace is no longer required. This action would enhance the safety
and management of controlled airspace within the national airspace
system.

DATES: Effective 0901 UTC, February 25, 2021. The Director of the
Federal Register approves this incorporation by reference action under
Title 1 Code of Federal Regulations part 51, subject to the annual
revision of FAA Order 7400.11 and publication of conforming amendments.

ADDRESSES: FAA Order 7400.11E, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can
contact the Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; Telephone: (202) 267-
8783. The Order is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of FAA Order 7400.11E at NARA, email<EMAIL_ADDRESS>or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT: John Fornito, Operations Support
Group, Eastern Service Center, Federal Aviation Administration, 1701
Columbia Avenue, College Park, GA 30337; Telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it removes Class E airspace extending upward from 700 feet above the
surface at Plum Island Airport, Newburyport, MA, due to the
cancellation of all instrument flight rules approaches into the
airport.

History

    The FAA published a notice of prosed rulemaking in the Federal
Register (85 FR 69279, November 2, 2020) for Docket No. FAA-2020-0924
to remove Class E airspace extending upward from 700 feet above the
surface at Plum Island Airport, Newburyport, MA. Interested parties
were invited to participate in this rulemaking effort by submitting
written comments on the proposal to the FAA. No comments were received.
    Class E airspace designations are published in Paragraph 6005 of
FAA Order 7400.11E, dated July 21, 2020, and effective September 15,
2020, which is incorporated by reference in 14 CFR 71.1. The Class E
airspace designations listed in this document will be published
subsequently in the Order.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order 7400.11E, Airspace Designations and
Reporting Points, dated July 21, 2020, and effective September 15,
2020. FAA Order 7400.11E is publicly available as listed in the
ADDRESSES section of this document. FAA Order 7400.11E lists Class A,
B, C, D, and E airspace areas, air traffic routes, and reporting
points.

The Rule

    This amendment to Title 14 Code of Federal Regulations (14 CFR)
part 71 removes Class E airspace extending upward from 700 feet above
the surface at Plum Island Airport, Newburyport, MA, as the airport no
longer has instrument approaches. Therefore, the airspace is no longer
necessary. This action would enhance the safety and management of
controlled airspace within the national airspace system.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
only affects air traffic procedures and air navigation, it is certified
that this rule, when promulgated, does not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this action qualifies for categorical
exclusion under the National Environmental Policy Act in accordance
with FAA Order 1050.1F, ``Environmental Impacts: Policies and
Procedures,'' paragraph 5-6.5a. This airspace action is not expected to
cause any potentially significant environmental impacts, and no
extraordinary circumstances exist that warrant preparation of an
environmental assessment.

Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1   [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11E,
Airspace Designations and Reporting Points, dated July 20, 2020,
effective September 15, 2020, is amended as follows:

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.

* * * * *

ANE MA E5 Newburyport, MA [Removed]

    Issued in College Park, Georgia, on December 17, 2020.
Andreese C. Davis,
Manager, Airspace & Procedures Team South, Eastern Service Center, Air
Traffic Organization.
[FR Doc. 2020-28552 Filed 12-23-20; 8:45 am]
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Advisory Committee on Construction Safety and Health (ACCSH)
Minutes of May 7-8, 2014 Meeting

U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, N.W.
Washington, DC 20210
The meeting of the Advisory Committee on Construction Safety and Health (ACCSH) was called to order by Chairman Erich J. (Pete) Stafford at 9 am on Thursday, May 8, 2014. The following members and OSHA staff were present:
                                     NAME
                              SECTOR REPRESENTED
                           TITLE & ORGANIZATION
Kristi Barber
Employer Representative
President, GBA Construction, Inc., Glenn C. Barber & Associates, Inc.
Jeremy Bethancourt
Public Representative
Co-Owner and Program Director, Arizona Construction Training Alliance
Christine Branch
Federal Representative
Director, CDC- NIOSH, Office of Construction Safety and Health
Kevin R. Cannon
Employer Representative
Director of Safety and Health Services, The Associated General Contractors of America
Sarah Coyne
Employee Representative
Executive Assistant Director, International Union of Painters and Allied Trades/Finishing Trades Institute
Letitia K. Davis
Public Representative
Director, Occupational Health Surveillance Program, Massachusetts Department of Public Health
Steven Hawkins
State Representative
Administrator, Tennessee Occupational Safety and Health Administration
Walter Jones
Employee Representative
Associate Director, Occupational Safety & Health, Laborers' Health and Safety Fund
Thomas Marrero, Jr.
Employer Representative
National Safety Director, Tradesmen International, Inc.
Jerry Rivera
Employer Representative
Regional Safety Director, Power Design Inc.
Donald L. Pratt
Employer Representative
President & CEO, Construction Education and Consulting Services of Michigan
Laurie A. Shadrick
Employee Representative
Training Specialist, United Association of Plumbers and Pipefitters
Erich J. (Pete) Stafford
Employee Representative
Director of Safety and Health, Building and Construction Trades Department of the AFL-CIO; Executive Director, CPWR-The Center for Construction Research and Training
Charles Stribling
State Representative
OSH Federal-State Coordinator, Kentucky Labor Cabinet, Department of Workplace Standards
Lisa A. Wilson
ACCSH Counsel
Office of the Solicitor, U.S. Dept. of Labor
Dean McKenzie
Designated Federal Official
Deputy Director, Directorate of Construction, DOL- OSHA
Opening Remarks
Speaker: Chairman Pete Stafford
Chairman Stafford welcomed the attendees and provided an overview of the meeting agenda. He informed the audience that if they wanted to address the committee, they must sign up to be recognized during the public comment period at the conclusion of the day.
Office of Assistant Secretary for Occupational Safety and Health presentation
Speaker: Ms. Deborah Berkowitz, Senior Policy Advisor
Ms. Berkowitz welcomed ACCSH members and all others in attendance and thanked them for their participation in the ACCSH workgroups and for their involvement in the Workers Memorial OSHA event in DC. She informed them that the Agency had been particularly busy over the last several months, and provided brief updates on OSHA regulatory activities, general outreach activities, and enforcement activities.
Directorate of Construction Regulatory Update
Speaker: Mr. Dean McKenzie, Deputy Director, OSHA Directorate of Construction
Using the "DOC Updates 2014" PowerPoint presentation, Dean McKenzie presented the update, which included statistics, some of the more significant issues involving current and proposed construction standards, pre-rule initiatives and outreach, and the 2014 Fall Prevention Campaign Stand Down.
For the Power Point presentation: "DOC Updates 2014," refer to Exhibit 7 of May 8, 2014.
Training and Outreach Workgroup Report
Speaker: Mr. Jerry Rivera, Employer Representative
Mr. Rivera read the Training and Outreach Workgroup Report, which reflected the group's May 7, 2014 discussion of possible amendments to the OSHA 502 course, Update for Construction Industry Outreach Trainers. The workgroup emphasized that it was not able to make a strong recommendation because there was no OSHA OTI representation during the workgroup meeting.
Motion#1: Walter Jones moved that ACCSH approve the Training and Outreach Work Group report. The motion was seconded by Donald Pratt. It passed unanimously.
Motion #2: Jerry Rivera moved that the Training and Outreach Workgroup recommend that ACCSH and OTI staff meet to evaluate current training and enabling objectives of the OSHA #502. Letitia Davis amended the motion to add "and alternatives to meet those objectives" at the end of the motion. The amended motion was seconded by Donald Pratt. It passed unanimously.
For the Training and Outreach Workgroup Report, refer to Exhibit 8 of May 8, 2014.
Temporary Worker Workgroup Report
Speaker: Mr. Jeremy Betancourt, Public Representative
Mr. Betancourt presented the workgroup report. On May 7, 2014 the workgroup members heard a presentation from Mr. Steven Dwyer and Ms. La Tonia James Rouse of the American Staffing Association, who provided information about their program, how they train temporary workers, and their existing OSHA Alliance. In addition, the workgroup discussed the OSHA Temporary Worker Initiative (TWI) and the challenges that OSHA is experiencing in developing several best practice documents for this specific group of employees. Because of the unique aspects of the construction industry (highly mobile and rapidly changing), the group believes that there should be a separate guidance document for temporary workers in the construction industry, and ACCSH should consider inviting host employers and temporary workers to the next meeting to provide input on this topic. The workgroup also would like to invite stakeholders to review temporary workers documents developed by the Agency. They also would like an ACCSH representative to be part of the OSHA Temporary Worker Initiative group. Lastly, they would like to be informed about decisions and information that has been discussed in other NACOSH and NIOSH groups dealing with temporary workers.
Motion: Christine Branche moved that ACCSH approve the Temporary Worker Work Group report. The motion was seconded by Laurie Shadrick. It passed unanimously.
For the Temporary Worker Workgroup report, refer to Exhibit 9 of May 8, 2014.
Proposed Rule to Update OSHA Standard on Eye and Face Protection in Construction
Speaker: Mr. Kenneth Stevanus, OSHA/DSG, accompanied by SOL representative Kimberly Robinson.
Mr. Stevanus's presentation reviewed the recent (2009 and 2012) updates in eye-and-face protection, head protection, and foot protection standards for general industry, shipyard/marine terminals and longshoring. OSHA is proposing to update its personal protective equipment standards for eye and face protection including the construction standard as well as the standards for general industry, shipyard/marine terminals and longshoring.
Mr. Stevanus reviewed the two options with ACCSH for changing the construction standard. He then asked the Committee to provide its recommendation for proceeding with either Option One or Option Two. He said OSHA intends to propose one option as a Notice of Public Rulemaking.
The options presented were:
   1.       Option one is to update the construction standard for eye and face protection, 1926.102, by replacing the provisions of 1926.102(a)(1) through (a)(3), and (a)(7) with the provisions found in general industry standard at 1910.133(a)(1) through (a0(4) and 1810.133(b).
   2.       Option Two is similar to Option 1, except OSHA would substitute only current 1926.102(a)(2) with the list of updated consensus standards from 1910.133(b)(1) and the equivalent-protection provision in paragraph (b)(2) of the general industry standard.
Motion: Walter Jones moved that ACCSH support option #1 for the update to the eye and face protection standard in construction. Thomas Marrero seconded. The motion passed unanimously.
For further details about Mr. Stevanus's presentation, refer to Exhibit 10 of May 8, 2014 (Proposed Rule to Update OSHA Standard on Eye and Face Protection in Construction)
Health Hazards, Emerging Issues and Prevention through Design Workgroup Report
Speaker: Mr. Walter Jones, Employee Representative, Associate Director, Occupational Safety & Health, Laborers' Health and Safety Fund
Mr. Jones presented the workgroup report and pointed out that the work group discussed what a focus four for health for construction might look like. He pointed out that the majority of construction incidents are safety related rather than health related. Although health hazards can take a lengthy period of time to manifest, they are as important as safety hazards. He reported examples of health hazard issues that occurred in construction, e.g. respiratory, hearing, dermal absorption, and musculoskeletal. He discussed the possibility of adding a focus four for health to the OSHA 10 or 30 training. Most of the workgroup members believe there should be a construction health awareness campaign utilizing the OSHA website to help raise the profile of health hazards. Some members expressed their opinion that increasing the hours of the OSHA 10 was not advisable, even though adding health hazards would be a good change to the OSHA 10 training. Christine Branche reminded the group that funding for NIOSH's Adult Blood Lead Epidemiological and Surveillance (ABLES) program had been eliminated.
Motion: Donald Pratt moved that ACCSH approve the Health Hazards, Emerging Issues, and Prevention Through Design Work Group report. Thomas Marrero seconded. The motion passed unanimously.
For the Health Hazards, Emerging Issues and Prevention through Design Workgroup report, refer to exhibit 11 of May 8, 2014.
OSHA's Proposed Rule for Beryllium: Alternatives for Construction
Speaker: Ms. Tiffany DeFoe, accompanied by Ms. Maureen Ruskin, Directorate of Standards and Guidance (DSG).
Ms. DeFoe reported that the proposal for the new beryllium standard is nearly complete, and OSHA is now in the final stages of preparing the Notice of Proposed Rulemaking to send to OMB for review prior to publication in the Federal Register. She recapped some of the information presented during the last meeting and presented a few specific regulatory options for ACCSH consideration.
The options presented were:
   1.       Option One is to reduce the construction industry exposure limit to 0.1 or 0.2 micrograms per cubic meter and introduce a STEL. This would improve protection for helpers, cleanup workers, and other workers who might be working in the vicinity of a blasting operation, as well as provide better protection for operators in instances where respiratory equipment isn't functioning correctly.
   2.       Option Two is to reduce the TWA PEL, add a STEL, and also add a medical surveillance requirement for the construction industry, which would make physical exams and testing for beryllium sensitization available to workers depending on their beryllium exposure, and would offer screening for chronic beryllium disease (CBD) to workers who are found to be sensitized.
   3.       Lastly, Option Three would include construction in the scope of the proposed rule, and the construction protections would include all the ancillary provisions applicable in general industry. The provisions OSHA is considering include the reduced PEL, a STEL, exposure assessment, regulated areas, methods of compliance including a written exposure control plan, respiratory protection and PPE, hygiene areas, housekeeping, medical surveillance, medical removal, communication of hazards, and recordkeeping.
Some of the ACCSH members asked OSHA for more information concerning the proposed new requirements, including the draft regulatory text, and their impact on construction employers, saying they needed this information to provide OSHA with a formal recommendation. One member noted that impact in the construction industry would be primarily with abrasive blasters and those working near the blasters and thus exposed, including clean-up workers. Most of the hazards and problems are encountered in general industry. Outside abrasive blasters including helpers, OSHA doesn't expect much risk at all in construction industry. Ms. Defoe asked that if any ACCSH member has any information/data, to please provide it to OSHA. Option One and Option Two would lower the PEL, and Option Three would lower the PEL and require additional activities.
Public comments presented were:
   1.       Paul Mellon compared beryllium, silica, sand/glass exposures and toxicity. He referenced an OSHA study that beryllium exposures routinely exceed current PEL. Employers always have option to use non-beryllium containing abrasive materials, for example, crushed glass. Option Three brings beryllium in line with protections for asbestos, lead, and other exposures.
   2.       Dominic DeAngelo, VP of Sales and Marketing, Harsco Metals and Minerals, formerly Reed Minerals, the largest U.S. manufacturer of coal slag abrasives for the surface preparation market. He was unaware of any direct correlation between their Black Beauty brand of coal slag abrasives and beryllium disease or beryllium sensitization. Concern with Option Three's impact on the abrasive market: how to monitor/control at thousands of work sites? Option Three's costs are excessive and unwarranted. ACCSH Sarah Coyne asked, "Do you support a lower PEL?" Mr. DeAngelo responded there was need to enforce proper PPE. Ms. Coyne said that PPE does not eliminate exposure. In her experience, she would start blasting and immediately be covered in dust.
   3.       Keith Wrightson, Worker Safety and Health Advocate with Public Citizen's Congress Watch Division. In 2001 Public Citizen petitioned OSHA to lower the beryllium PEL to 0.2. The process has been stalled for 13 years. Public Citizen strongly supports Option Three. Public Citizen now recommends a PEL of 0.1 and the Option Three provisions.
Christine Branche moved that ACCSH vote on the options OSHA presented today for the beryllium rulemaking. Jeremy Bethancourt seconded. The motion passed unanimously.
Ten members then voted for Option #3, and four members abstained.
Walter Jones moved that ACCSH recommend that OSHA proceed with Option #3 for the NPRM in the beryllium rulemaking. Steven Hawkins seconded. The motion passed by a vote of ten for and four against.
Ms. DeFoe's presentation, "OSHA's Proposed Rule for Beryllium," can be found in exhibit 12 of May 8, 2014.
Proposed Standards Improvements Project (SIP) IV Rulemaking
Speakers: Paul Bolon and Dayton Eckerson, OSHA Directorate of Construction
Mr. Eckerson reported the proposed regulatory text changes under SIP-IV for several OSHA standards. The SIP-IV candidates presented for revision under 1926 are Subpart G- Signs, Signals, and Barricades; Proposed revision to 1926.605 Marine Operations and Equipment; and Subpart S - Underground Construction, Caissons, Cofferdams and Compressed Air.
Mr. Stribling wants OSHA to insert the chimney variance into SIP-IV and/or address this issue as a non-mandatory standard. An SOL representative stated that companies are already complying with the chimney variance. Mr. Bolon stated that DOC would reconsider this issue.
Christine Branche moved that ACCSH recommend that OSHA proceed with the proposed amendments to § 1926.200(g), 1926.800(k)(10), and 1926.605(a) in the Standards Improvement Project - Phase IV rulemaking. Walter Jones seconded. The motion was seconded and passed unanimously.
For further details about the SIP-IV candidates, refer to Exhibit 16 of May 8, 2014.
Proposed Technical Amendments and Corrections to OSHA's Cranes and Derricks Standards
Speakers: Paul Bolon and Ashley Briefel, OSHA Directorate of Construction, and Richard Ewell, SOL
Ms. Briefel discussed crane amendments that OSHA recommends for the existing crane standard. The recommended amendments include changes regarding the digger derrick definition, multi-purpose machines, stabilizer position sensor/monitors on articulating cranes, and proximity alarms and insulating links.
Public Comments
Lance Burney, Executive Director, SIG ALARM, Sanford, FL. Mr. Burney identified his company, SIG ALARM, as one of a very few manufacturers in the United States of proximity alarms. He stated there are a few other manufacturers elsewhere in the world. His position was that an added requirement for NRTL approval or additional criteria was unnecessary. There have been no accidents on equipment using proximity alarms. NRTL approval is an extremely expensive process, and there is a lack of interest to pursue. He suggested there be language addressing two concerns: 1) operating the equipment with a boom angle and length significantly different than that used for the device's last sensitivity adjustment; and 2) operating the equipment on sites with multiple overhead power lines, especially where those power lines had differing voltages or involved intersecting installations.
Art Sapper, representing theCrane Power Line Safety Organization. Mr. Sapper focused on the issue of insulating links. He said that since no NRTL can approve insulating links, OSHA is recommending removing insulating links from the standard. Mr. Sapper believes that there are alternatives that should be considered before eliminating insulating links from the standard. These include certification by qualified testing laboratory, e.g. 1926.449; and certification by manufacturer, e.g., 1926.105(d), 1926.453(a)(2). In addition, other regulations under the crane standard require employers to follow manufacturer recommendations.
Mr. Sapper then discussed the issue of insulating links that work when wet or dirty and whether self-checks are not needed when using gloves. If OSHA removes insulating links from the standard because NRTL approval is not available, it will degrade employee safety for no reason.
Motion: Steven Hawkins moved that ACCSH recommend to the agency that they proceed with rulemaking to pursue the changes in the Cranes and Derricks construction standard for the definition of digger derricks, to multi-purpose machines, and to stabilizer position sensors and monitors on articulated cranes, and that they maintain options for employers to use proximity alarms and insulated links in a safe manner. Christine Branche seconded. The motion was seconded and passed unanimously.


[Federal Register: March 14, 2006 (Volume 71, Number 49)]
[Notices]
[Page 13118]
[DOCID:fr14mr06-72]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP05-418-002]

Tennessee Gas Pipeline Company; Notice of Compliance Filing

March 7, 2006.
    Take notice that on February 17, 2006, Tennessee Gas Pipeline
Company (Tennessee) tendered for filing as part of its FERC Gas Tariff,
Original Volume No. 2 Forty-Seventh Revised Sheet No. 5 and First
Revised Sheet No. 1187, with an effective date of February 10, 2006.
    Any person desiring to protest this filing must file in accordance
with Rule 211 of the Commission's Rules of Practice and Procedure (18
CFR 385.211). Protests to this filing will be considered by the
Commission in determining the appropriate action to be taken, but will
not serve to make protestants parties to the proceeding. Such protests
must be filed on or before the date as indicated below. Anyone filing a
protest must serve a copy of that document on all the parties to the
proceeding.
    The Commission encourages electronic submission of protests in lieu
of paper using the ``eFiling'' link at http://www.ferc.gov. Persons

unable to file electronically should submit an original and 14 copies
of the protest to the Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
    This filing is accessible online at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on March 17, 2006.

Magalie R. Salas,
Secretary.
[FR Doc. E6-3613 Filed 3-13-06; 8:45 am]

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