[Federal Register Volume 83, Number 87 (Friday, May 4, 2018)]
[Notices]
[Pages 19756-19757]
[FR Doc No: 2018-09321]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9977-51-ORD]

Environmental Laboratory Advisory Board (ELAB) Membership

AGENCY: U.S. Environmental Protection Agency (EPA).

ACTION: Notice soliciting nominations for membership.

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SUMMARY: The U.S. Environmental Protection Agency's (EPA) invites
nominations from a diverse range of qualified candidates to be
considered for appointment to its Environmental Laboratory Advisory
Board (ELAB). The ELAB is a multi-stakeholder federal advisory
committee that provides independent advice and recommendations to the
EPA Administrator and the Science Advisor about cross-cutting issues
related to enhancing EPA's measurement programs, and facilitating the
operation and expansion of national environmental accreditation.
    This notice solicits nominations to fill seven-eight (7-8) new
vacancies. To maintain diverse representation, nominees will be
selected from the following stakeholder work force sectors:

 Academia
 Business and industry
 Environmental laboratory commercial, municipal, small, other
 Environmental laboratory suppliers of services
 State and local Government agencies
 Tribal governments and indigenous groups
 Trade associations

    Within these sectors, EPA is seeking nominees with knowledge in
methods development; measurements; monitoring and regulatory programs;
quality systems; and environmental accreditation. In an effort to
obtain nominations of diverse candidates, the agency encourages
nominations of women and men of all racial and ethnic groups. All
nominations will be fully considered.
    Any interested person or organization may nominate qualified
persons to be considered for appointment to this advisory committee.
Individuals may also self-nominate. Nominees should possess the
following qualifications:

     Demonstrated experience with environmental measurement
programs and environmental laboratory accreditation;
     Demonstrated experience developing organization level
strategy on methods development and validation or quality systems
approaches;
     Willingness to commit time to the committee, and
demonstrated ability to work constructively and effectively on
committees;
     Excellent interpersonal, oral, and written communication
and consensus-building skills; and
     Ability to serve a 2-year appointment and volunteer
approximately 5-7 hours per month to support the Board's activities.
    How to Submit Nominations: Nominations can be submitted in
electronic format (preferred) to Dr. Thomas O'Farrell, Designated
Federal Officer, US EPA, MC 8105R, 1200 Pennsylvania Ave. NW,
Washington DC 20460, or email to [email protected] and should be
received by June 1, 2018 for October 2018 appointment. To be
considered, all nomination packages should include:
     Current contact information for the nominee, including the
nominee's name, organization (and position within that organization),
current business address, email address, and daytime telephone number.
     Brief statement describing the nominee's interest in
serving on the ELAB.
     Resume describing the professional and educational
qualifications of the nominee, including a list of relevant activities,
and any current or previous service on advisory committees.
     Letter(s) of recommendation from a third party supporting
the nomination.
    For further questions regarding this notice, please contact Thomas
O'Farrell at<PHONE_NUMBER> or [email protected].

    Dated: April 24, 2018.
Jennifer Orme-Zavaleta,
EPA Science Advisor.
[FR Doc. 2018-09321 Filed 5-3-18; 8:45 am]
 BILLING CODE 6560-50-P


                                                           EPA Form No. 5900-33
                                                     OMB Control No. 2060-0528

                   Instructions for Partnering with ENERGY STAR[(R)]
                                    As a Manufacturer of ENERGY STAR             Qualified Products

Organizations interested in partnering with ENERGY STAR as a Manufacturer of ENERGY STAR Qualified Products should take the following steps:

 Review the Manufacturer Definition on page 2 of this document to ensure this is the appropriate agreement for your organization.

 Review the Product Specifications, Eligibility Criteria, and Partner Commitments documents associated with the product type(s) you wish to qualify. These documents can be found in the Partner Resources section of www.energystar.gov.

 Review the terms of the Partnership Agreement on pages 3 and 4. Be sure to enter your organization's name in the highlighted field on the top of page 3.

 Sign the Partnership Agreement on page 5 by checking the authorization box, entering the date of signature, and entering the contact information of the signatory.

 Complete the Participation Form on page 6. In the "Label and Promote ENERGY STAR Qualified Products" section, select only the relevant product type(s) you wish to qualify.

 Enter the contact information on page 7 for up to four ENERGY STAR contacts at your organization.

 Save your changes to the completed document and send it to the appropriate e-mail address below, based on your product type. If you are unable to send the document by e-mail, please send a hard copy to the appropriate mailing address.

                                 Product Type
                                E-mail Address
                               Mailing Address
   CFLs, clothes washers, dishwashers,         integral LED lamps, freezers,
  refrigerators, residential water heaters,
              room air conditioners,              windows/doors/skylights
<EMAIL_ADDRESS>
                                 ENERGY STAR
                          c/o D&R International
             1300 Spring Street, Suite 500 Silver Spring, MD 20910

                   All other ENERGY STAR qualified products
<EMAIL_ADDRESS>                                 ENERGY STAR
                            c/o ICF International
             1725 Eye Street NW, Suite 1000 Washington, DC 20006

A copy of the signed Partnership Agreement will be returned to you for your records.

                   Change for the Better with ENERGY STAR

Program Definitions and Eligible Organizations

Section 1. Energy Efficiency Program Sponsors
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Eligible organizations: A regulated utility, publicly owned utility, or energy delivery company; a national, regional, state, or local government entity; an organization involved in coordinating and/or administering energy efficiency or environmental education programs that promote ENERGY STAR. See Program Requirements for Energy Efficiency Program Sponsors for the Commercial & Industrial Sectors and/or the Program Requirements for Energy Efficiency Program Sponsors (residential sector).

Section 2. Commercial and Industrial Service and Product Providers
--------------------------------------------------------------------------------
Eligible organizations: An organization that offers energy-efficient products and/or services that agrees to promote and communicate ENERGY STAR to improve the energy performance of commercial buildings.  Eligible organizations include: architects, and A/E firms, banks and commercial financial lenders, contractors, distributors, energy management service companies/consultants, energy service companies (ESCOs), engineers, equipment manufacturers, and unregulated energy retailers and marketers. See the ENERGY STAR Partnership Partner Requirements for Commercial & Industrial Service and Product Providers.

Section 3. Financing Partners
--------------------------------------------------------------------------------
Eligible organizations for Mortgages for Energy-Efficient Homes: A mortgage lender offering special financing for ENERGY STAR qualified new homes. See Program Requirements for Lenders, Mortgages for Energy Efficient Homes.

Section 4. Home Builders/Developers and Home Energy Raters
--------------------------------------------------------------------------------
Eligible organizations: A site-built home builder constructing traditional homes on site; a manufactured home builder providing factory-built, HUD code-based homes; a home energy rater verifying the performance of ENERGY STAR qualified new homes. See the ENERGY STAR Partnership Agreement for Home Builders and Verification Organizations.

Section 5. Retailers/E-tailers and Buying Groups
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Eligible organizations for Retailers/E-tailers: A retail organization selling, marketing, and promoting ENERGY STAR qualified products. Retail organizations can include independent retailers, national chains, buying groups, and online merchants. See Program Requirements for Retailers/E-tailers.
--------------------------------------------------------------------------------

--------------------------------------------------------------------------------
Eligible organizations for Buying Groups: A retail organization selling ENERGY STAR qualified products. See Program Requirements for Buying Groups.

Section 6. Business Improvement
--------------------------------------------------------------------------------
Eligible organizations: Any public or private organization can partner to improve its facilities by committing to continuous improvement of its energy efficiency. For Program Requirements see the Partnership Letter in the Business Improvement section of www.energystar.gov.

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Section 7: Manufacturers
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Eligible Organizations: A company that manufactures or private labels any product(s) that meet the current ENERGY STAR qualification criteria.

Partnership Agreement between
ENERGY STAR
(R)
 and

             (ENTER PARTNER NAME HERE)

Through this agreement, __________________________________ ("ENERGY STAR Partner") joins in partnership with the US Environmental Protection Agency (EPA) and the Department of Energy (DOE) in one or more areas. ENERGY STAR Partner recognizes ENERGY STAR as a broad partnership designed to promote buildings, products, homes, and industrial facilities that use less energy while providing the same or better performance than conventional designs. ENERGY STAR Partner wishes to use the ENERGY STAR name and/ or mark in association with qualified products or homes. ENERGY STAR Partner agrees to use the partnership and the ENERGY STAR mark to promote energy efficiency as an easy and desirable option for organizations and consumers to prevent pollution, protect the global environment, and save on energy bills. ENERGY STAR Partner agrees that it is important to build and maintain the meaning of the ENERGY STAR mark as a trustworthy symbol that makes it easy to make a change for the better.

--------------------------------------------------------------------------------
Partner Commitments
ENERGY STAR Partner is committed to taking action in the area(s) indicated on the ENERGY STAR Participation Form. For the designated program area(s), ENERGY STAR Partner agrees to fulfill all requirements as outlined in the following supporting documents:
 ENERGY STAR Program Requirements, defining requirements for being recognized as a partner in each program area, such as manufacturing, selling, or promoting ENERGY STAR qualified products to consumers or organizations. Specific requirements include identifying a responsible party for each area of participation and updating EPA/DOE on the efforts undertaken through the partnership. Where applicable, these include ENERGY STAR eligibility criteria defining the energy and other performance specifications that must be met for use of the ENERGY STAR mark on and/or in association with buildings, homes, and products; and
 ENERGY STAR Identity Guidelines, describing how the ENERGY STAR name and mark may be used. Partner will adhere to these guidelines and ensure that its authorized representatives, such as advertising agencies, dealers, and distributors, are also in compliance.
EPA/DOE will undertake a variety of efforts to build awareness of the ENERGY STAR name and mark, maintain the credibility of the ENERGY STAR name and mark, and promote the benefits of energy-efficient homes, buildings, products, services, and industrial facilities. EPA/DOE will strive to:
 increase awareness of the ENERGY STAR name and mark across the residential, commercial, and industrial sectors by distributing key messages on the benefits of ENERGY STAR qualified buildings, homes, and products;
 make current versions of the ENERGY STAR Identity Guidelines and ENERGY STAR
      Program Requirements easily accessible through the Internet and other means;
 maintain a Web site where ENERGY STAR Partner can furnish information on its program efforts and responsible key contacts as outlined in the ENERGY STAR Program Requirements; and
 provide ENERGY STAR Partner with public recognition through the Internet and other mechanisms for its efforts in the ENERGY STAR Partnership and its role in protecting the environment.

--------------------------------------------------------------------------------
Disclaimers
Partner will not construe, claim, or imply that its participation in the ENERGY STAR program constitutes federal government approval, acceptance, or endorsement of anything other than Partner's commitment to the program. Partner understands its participation in the ENERGY STAR program does not constitute federal government endorsement of Partner or its buildings, homes, products, services, or industrial facilities. Partner understands that the activities it undertakes in connection with the ENERGY STAR program are voluntary and not intended to provide services to the federal government. As such, Partner will not submit a claim for compensation to any federal agency.

--------------------------------------------------------------------------------
Dispute Resolution
Partner and EPA/DOE will assume good faith as a general principle for resolving conflicts under the ENERGY STAR program. Both parties will endeavor to resolve all matters informally, so as to preserve maximum public confidence in ENERGY STAR.
In the event informal channels do not produce a mutually agreeable resolution to a matter in dispute, either party to this agreement shall notify the other in writing as to the nature of the dispute, the specific corrective action sought, and their intent to terminate the Partnership Agreement, either as a whole or in part, unless specific corrective actions sought are undertaken:
 within 20 days of receiving formal notification from EPA/DOE indicating intent to terminate the Partnership Agreement, either as a whole or in part, Partner will reply, agreeing to either (1) undertake in a timely and effective manner the corrective actions sought by EPA/DOE, or
      (2) terminate the Partnership Agreement, either as a whole or in part;
 within 20 days of receiving formal notification from Partner indicating its intent to terminate the Partnership Agreement, either as a whole or in part, EPA/DOE will reply, either (1) agreeing to undertake in a timely and effective manner the corrective actions sought by Partner, or (2) explaining why such corrective actions cannot be undertaken;
 if Partner fails to respond within 20 days of receiving formal notification of EPA/DOE's intent to terminate the Partnership Agreement, either as a whole or in part, or if Partner responds but does not agree to undertake corrective actions sought by EPA/DOE, or if Partner agrees but does not initiate the corrective actions in a timely manner, then this agreement is terminated, either as a whole or in part.

--------------------------------------------------------------------------------
Entry into Force and Duration of Agreement
Both parties concur that this agreement and the terms outlined in the supporting documents will become effective when signed by both parties. This agreement may be updated at any time to add new areas for which ENERGY STAR Partner wants to be recognized as a partner. Both parties concur that this agreement is wholly voluntary and may be terminated by either party at any time, and for any reason, with no penalty. Failure to comply with this Partnership Agreement, applicable Program Requirements, and Identity Guidelines can result in termination of this agreement and authorization to use the ENERGY STAR mark. EPA/DOE will actively pursue actions for resolving issues of noncompliance.
The undersigned hereby execute this Partnership Agreement on behalf of their party. The signatories of this agreement affirm that they have the authority to execute this agreement on behalf of ENERGY STAR Partner and EPA/DOE.

Partnership Agreement Signatory for ENERGY STAR:

                                  EPA Use Only

                          Elizabeth Craig, Director
                   Climate Protection Partnerships Division,
                     U.S. Environmental Protection Agency

           Signature:

         Name and Title:

             Date:

Partnership Agreement Signatory for ______________________________________

 By checking this box I affirm that I have read and understand the terms of this Partnership Agreement and am authorized to bind this organization to the terms of the Partnership Agreement.

____________________________
                    (Date MM/DD/YYYY)

Name:

 Title:

Address:

City:

State:

Zip

Country:

Phone:

Fax:

E-mail:

Web site:

The public reporting and recordkeeping burden for this collection of information is estimated to average 6.15 hours per response. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed form to this address.

                      ENERGY STAR Partnership Agreement


[Federal Register Volume 86, Number 226 (Monday, November 29, 2021)]
[Notices]
[Pages 67745-67750]
[FR Doc No: 2021-25879]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93640; File Nos. SR-MIAX-2021-43, SR-EMERALD-2021-31]

Self-Regulatory Organizations; Miami International Securities
Exchange, LLC, MIAX Emerald, LLC; Suspension of and Order Instituting
Proceedings To Determine Whether To Approve or Disapprove Proposed Rule
Changes To Amend Fee Schedules To Adopt Tiered-Pricing Structures for
Additional Limited Service MIAX and MIAX Emerald Express Interface
Ports

November 22, 2021.

I. Introduction

    On September 28, 2021, Miami International Securities Exchange, LLC
(``MIAX'') and MIAX Emerald, LLC (``MIAX Emerald'') (each an
``Exchange''; collectively, the ``Exchanges'') each filed with the
Securities and Exchange Commission (``Commission''), pursuant to
Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act''),\1\
and Rule 19b-4 thereunder,\2\ a proposed rule change to adopt a tiered-
pricing structure for additional limited service express interface
ports. Each proposed rule change was immediately effective upon filing
with the Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ The
proposed rule changes were published for comment in the Federal
Register on October 5, 2021.\4\ Pursuant to Section 19(b)(3)(C) of the
Act,\5\ the Commission is hereby: (1) Temporarily suspending File Nos.
SR-MIAX-2021-43 and SR-EMERALD-2021-31; and (2) instituting proceedings
to determine whether to approve or disapprove File Nos. SR-MIAX-2021-43
and SR-EMERALD-2021-31.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ See Securities Exchange Act Release Nos. 93185 (September
29, 2021), 86 FR 55093 (October 5, 2021) (SR-MIAX-2021-43) (``MIAX
Notice''); 93188 (September 29, 2021), 86 FR 55052 (October 5, 2021)
(SR-EMERALD-2021-31) (``MIAX Emerald Notice''). For ease of
reference, citations to statements generally applicable to both
notices are to the MIAX Notice. Comments received on the proposed
rule changes are available on the Commission's website at: https://www.sec.gov/comments/sr-miax-2021-43/srmiax202143.htm (SR-MIAX-2021-
43); https://www.sec.gov/comments/sr-emerald-2021-31/sremerald202131.htm (SR-EMERALD-2021-31).
    \5\ 15 U.S.C. 78s(b)(3)(C).
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II. Description of the Proposed Rule Changes

    Limited Service MIAX Express Interface Ports and Limited Service
MIAX Emerald Express Interface Ports (collectively, ``Limited Service
MEI Ports'') provide Market Makers \6\ with the ability to send eQuotes
and quote purge messages, and are also capable of receiving
administrative information.\7\ Currently, each Exchange allocates two
Limited Service MEI Ports, free of charge, per matching engine to which
a Market Maker connects. Market Makers may request additional Limited
Service MEI Ports for each matching engine to which they connect for an
additional monthly fee for each such additional port. Prior to the
proposed rule changes, each Exchange charged a flat $100 monthly fee
for each such additional port. Each Exchange has proposed to adopt a
tiered-pricing structure.\8\ For both MIAX and MIAX Emerald, the first
and second Limited Service MEI Ports for each matching engine would
remain free of charge. For MIAX, the additional Limited Service MEI
Port fees for each matching engine would increase from $100 to: (i)
$150 for the third and fourth Limited Service MEI Ports; (ii) $200 for
the fifth and sixth Limited Service MEI Ports; and (iii) $250 for the
seventh or more Limited Service MEI Ports.\9\ For MIAX Emerald, the
additional Limited Service MEI Port fees for each matching engine would
increase from $100 to: (i) $200 for the third and fourth Limited
Service MEI Ports; (ii) $300 for the fifth and sixth Limited Service
MEI Ports; and (iii) $400 for the seventh to fourteenth Limited Service
MEI Ports.\10\
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    \6\ Defined at MIAX Rule 100 and MIAX Emerald Rule 100.
    \7\ See, e.g., MIAX Notice, supra note 4, at 55093 n.10.
    \8\ The Exchanges initially filed the proposed fee changes on
August 2, 2021. See Securities Exchange Act Release Nos. 92661
(August 13, 2021), 86 FR 46737 (August 19, 2021) (SR-MIAX-2021-37),
92662 (August 13, 2021), 86 FR 46726 (August 19, 2021) (SR-EMERALD-
2021-25). These filings were withdrawn and replaced with the instant
filings, with additional information. See also Securities Exchange
Act Release No. 91857 (May 12, 2021), 86 FR 26973 (May 18, 2021)
(MIAX-2021-19) (allowing purchase of any number of additional
Limited Service MEI Ports and stating that, at a continued monthly
fee of $100 for each additional port, the Exchange anticipates
generating an annual loss from the provision).
    \9\ See MIAX Notice, supra note 4, at 55094.
    \10\ See MIAX Emerald Notice, supra note 4, at 55053. The MIAX
Emerald Fee Schedule states that Market Makers are limited to twelve
additional Limited Service MEI Ports per matching engine, for a
total of fourteen per matching engine. See MIAX Emerald Fee Schedule
5.d.ii.

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III. Suspension of the Proposed Rule Changes

    Pursuant to Section 19(b)(3)(C) of the Act,\11\ at any time within
60 days of the date of filing of an immediately effective proposed rule
change pursuant to Section 19(b)(1) of the Act,\12\ the Commission
summarily may temporarily suspend the change in the rules of a self-
regulatory organization (``SRO'') if it appears to the Commission that
such action is necessary or appropriate in the public interest, for the
protection of investors, or otherwise in furtherance of the purposes of
the Act. As described below, the Commission believes a temporary
suspension of the proposed rule changes is necessary and appropriate to
allow for additional analysis of the proposed rule changes' consistency
with the Act and the rules thereunder.
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    \11\ 15 U.S.C. 78s(b)(3)(C).
    \12\ 15 U.S.C. 78s(b)(1).
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    In support of the proposed tiered-pricing structure and associated
fee increases, the Exchanges argue that they operate in a highly
competitive market \13\ and their ability to price access and ports is
constrained by competition among exchanges and third parties.\14\ MIAX
states that it has a market share of only 5.8%, and MIAX Emerald states
that it has a market share of only 4.99%, of the U.S. equity options
industry as of September 2021.\15\ The Exchanges also state that there
are 15 other U.S options exchanges which they must consider in their
pricing discipline in order to compete for market participants.\16\ As
evidence for their arguments, the Exchanges provide port fees for
competing exchanges which, according to the Exchanges, demonstrate that
the proposed tiered-pricing structure and proposed fees for additional
Limited Service MEI Ports are less than or similar to fees charged by
competing options exchanges for similar access on those exchanges.\17\
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    \13\ See, e.g., MIAX Notice, supra note 4, at 55094.
    \14\ See, e.g., id. at 55101.
    \15\ See MIAX Notice, supra note 4, at 55095; MIAX Emerald
Notice, supra note 4, at 55054-55.
    \16\ See, e.g., MIAX Notice, supra note 4, at 55101.
    \17\ See, e.g., id. at 55095.
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    In further support of their arguments that competitive forces
constrain the proposed tiered-pricing structure and the associated fee
increases, the Exchanges state that the use of such additional Limited
Service MEI Ports is entirely voluntary; \18\ and that there is no
regulatory requirement that any market participant access any one
options exchange, use more than the two free Limited Service MEI Ports
that the Exchanges provide per matching engine, access the Exchanges in
a particular capacity, or trade any particular product offered on the
Exchanges.\19\ Each Exchange further states that no options market
participant is required by rule, regulation, or competitive forces to
be a Member of its Exchange; \20\ and that it is not aware of any
reason why market participants could not simply drop their access (or
not initially access an exchange) if an exchange were to establish non-
transaction fees that did not make business or economic sense for such
market participants.\21\ The Exchanges believe this is illustrated by
the fact that market participants can and do drop their access to
exchanges based on non-transaction fee pricing \22\ and that they are
unaware of any one options exchange whose membership includes every
registered broker-dealer.\23\
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    \18\ See, e.g., id. at 55101.
    \19\ See, e.g., id. at 55100.
    \20\ See, e.g., id. at 55096.
    \21\ See, e.g., id.
    \22\ See, e.g., id.
    \23\ See, e.g., id. at 55100-101.
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    The Exchanges also state that the proposed fee increases for
additional Limited Service MEI Ports (which they reference as
``Proposed Access Fees'') are intended to recover the Exchanges' costs
of providing access to their systems \24\ and are a reasonable attempt
to offset a portion of the costs associated with providing access to
their network infrastructure.\25\ The Exchanges provide an analysis of
their revenues, costs, and profitability associated with the Proposed
Access Fees. The Exchanges state that this analysis reflects an
extensive cost review in which the Exchanges analyzed nearly every
expense item in the Exchanges' general expense ledgers to determine
whether each such expense relates to the Proposed Access Fees, and, if
such expense did so relate, what portion (or percentage) of such
expense actually supports the access services associated with the
Proposed Access Fees.\26\
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    \24\ See, e.g., id. at 55099.
    \25\ See, e.g., id. at 55096.
    \26\ See, e.g., id. Each Exchange also states that no expense
amount is allocated twice; and the expenses in each Exchange's
analysis only cover its own options market, not those of any
affiliate. See, e.g., id. at 55097.
---------------------------------------------------------------------------

    For 2021, the total annual expense for providing the access
services associated with the Proposed Access Fees is projected by the
Exchanges to be approximately $1.32 million for MIAX and $0.88 million
for MIAX Emerald.\27\ As described in more detail in the MIAX Notice
and MIAX Emerald Notice, the total annual expense for each Exchange is
comprised of the following, all of which the Exchanges state are
directly related to the access services associated with the Proposed
Access Fees: \28\
---------------------------------------------------------------------------

    \27\ See MIAX Notice, supra note 4, at 55096; MIAX Emerald
Notice, supra note 4, at 55056.
    \28\ See, e.g., MIAX Notice, supra note 4, at 55096-99. The
Exchanges clarify that the projected total annual expense includes
costs related to all Limited Service MEI Ports, including the two
Limited Service MEI Ports that Market Makers receive for free. See,
e.g., id. at 55099.
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     Third-party expense, relating to fees paid by the
Exchanges to third-parties for certain products and services. This
included allocating a portion of fees paid to: (1) Equinix for data
center services; (2) Zayo Group Holdings, Inc. for network services;
(3) Secure Financial Transaction Infrastructure, which supports
connectivity and feeds; (4) various other service providers for
content, connectivity, and infrastructure services; and (5) various
other hardware and software providers; and
     internal expense, relating to the internal costs of the
Exchanges to provide the access services associated with the Proposed
Access Fees. This included allocating a portion of the Exchanges': (1)
Employee compensation and benefits expenses for full-time employees
that support the access services associated with the Proposed Access
Fees; (2) depreciation and amortization of hardware and software used
to provide the access services associated with the Proposed Access
Fees; and (3) occupancy expenses for leased office space for staff that
provide the access services associated with the Proposed Access Fees.
    The Exchanges state that their cost and revenue analyses show that
the Proposed Access Fees will not result in excessive pricing or supra-
competitive profits.\29\ According to the Exchanges, on a fully-
annualized basis, the revenue the Exchanges project to collect from the
Proposed Access Fees \30\ would be approximately $3.21 million per year
for MIAX and $2.07 million per year for MIAX Emerald.\31\ This results
in a projected profit margin of approximately 59% for MIAX ($3.21
million in projected revenue minus $1.32 million in projected expense =
$1.89 million profit per year) and

approximately 58% for MIAX Emerald ($2.07 million in projected revenue
minus $0.88 million in projected expense = $1.19 million profit per
year).\32\ The Exchanges state that, based on the 2020 financial
statements filed by competing options exchanges in Form 1 amendments,
the Exchanges' revenues that are derived from access fees are in line
with the revenue that is derived from access fees of competing
exchanges, and the Exchanges' overall operating margins are in line
with or less than the operating margins of competing exchanges.\33\
MIAX further states that its anticipated operating margin, inclusive of
its proposed fee change, would remain lower than or comparable to that
of competing exchanges.\34\
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    \29\ See, e.g., id. at 55099.
    \30\ The revenue numbers include the revenues the Exchanges
project to collect only from the fees the Exchanges will charge for
additional Limited Service MEI Ports after the first two Limited
Service MEI Ports that Market Makers receive for free. See, e.g.,
id.
    \31\ See MIAX Notice, supra note 4, at 55099; MIAX Emerald
Notice, supra note 4, at 55058.
    \32\ See MIAX Notice, supra note 4, at 55099; MIAX Emerald
Notice, supra note 4, at 55058.
    \33\ See, e.g., MIAX Notice, supra note 4, at 55100.
    \34\ See MIAX Notice, supra note 4, at 55100.
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    The Exchanges further state that the Proposed Access Fees are
reasonable, equitably allocated, and not unfairly discriminatory
because it benefits overall competition in the marketplace to allow
relatively new entrants like the Exchanges and their affiliate, MIAX
Pearl, LLC (``MIAX Pearl''), to propose fees that may help them recoup
their substantial investment in building out costly infrastructure. The
Exchanges state that they and MIAX Pearl have historically set their
fees purposefully low in order to attract business and market share.
The Exchanges also state that the concept of a tiered-pricing structure
for ports is not new or novel.\35\
---------------------------------------------------------------------------

    \35\ See, e.g., MIAX Notice, supra note 4, at 55100.
---------------------------------------------------------------------------

    In addition, the Exchanges state that the move from a flat fee per
month to a tiered-pricing structure is reasonable, equitably allocated,
and not unfairly discriminatory because the proposed structure would
encourage firms to be more efficient and economical in the number of
Limited Service MEI Ports they purchase, which the Exchanges believe
will enable them to better monitor and provide access to the Exchanges'
networks to ensure that the Exchanges meet their obligations under the
Act to offer access to the Exchanges on terms that are not unfairly
discriminatory, as well as to ensure sufficient capacity and headroom
in their systems.\36\
---------------------------------------------------------------------------

    \36\ See, e.g., id.
---------------------------------------------------------------------------

    The Exchanges further state that firms that are primarily order
routers seeking best-execution do not utilize Limited Service MEI
Ports; and that, therefore, the fees described in the proposed tiered-
pricing structure will only be allocated to market-making firms that
engage in advanced trading strategies and typically request multiple
additional Limited Service MEI Ports.\37\ The Exchanges further state
that such market-making firms generate higher costs by utilizing more
of the Exchanges' resources.\38\ The Exchanges state that they must
build out and continue to maintain networks that have the capacity the
handle the message rate requirements of not only firms that consume
minimal port resources, but also those firms that most heavily consume
port resources, network consumers, and purchasers of numerous Limited
Service MEI Ports, which handle billions of messages per day across the
Exchanges' networks.\39\ The Exchanges believe that, given that
purchasers of the greatest amount of Limited Service MEI Ports utilize
the most resources across their networks, it is reasonable to operate
at profit margins of approximately 59% (for MIAX) and 58% (for MIAX
Emerald) for these ports.\40\ The Exchanges state that such profit
margins should enable the Exchanges to continue to invest in their
networks and systems, maintain their current infrastructure, support
future enhancements to ports and network connectivity, and continue to
offer enhanced customer reporting and monitoring services.\41\
---------------------------------------------------------------------------

    \37\ See, e.g., id. at 55094.
    \38\ See, e.g., id.
    \39\ See, e.g., id. at 55099.
    \40\ See MIAX Notice, supra note 4, at 55099; MIAX Emerald
Notice, supra note 4, at 55059.
    \41\ See MIAX Notice, supra note 4, at 55099; MIAX Emerald
Notice, supra note 4, at 55059.
---------------------------------------------------------------------------

    The Commission received two comment letters from one commenter that
opposes the proposed rule changes.\42\ This commenter states that the
Exchanges have not sufficiently demonstrated their proposed fees'
consistency with the Act or addressed previous concerns with the
proposed fees raised by the same commenter.\43\ Specifically, this
commenter argues that the Exchanges' filings make the same general
claims in support of their assertion that the port fee changes are fair
and reasonable, equitably allocated, and not unfairly discriminatory as
other filings relating to ``10Gb ULL'' connections,\44\ and that the
Exchanges' justifications for the Limited Service MEI Ports fail for
the same reasons as those offered in the 10Gb ULL filings.\45\ The
commenter asserts that there are no reasonable substitutes for the
Exchanges' 10Gb ULL connectivity lines, particularly for market makers
whose business models require them to subscribe to direct connectivity
to the Exchanges in the highest proposed pricing tier.\46\ The
commenter further argues that the fact that no member or non-member has
altered its use of 10Gb ULL connectivity since the fee changes went
into effect serves as further support of its claim that there are no
reasonable alternatives to the service.\47\ This commenter also argues
that the ability for a member to withdraw from an exchange should not
support the reasonableness of any individual proposed fee, as a member
would incur significant costs in withdrawing from an exchange in the
form of lost infrastructure investments, the cost of withdrawal itself,
and other opportunity costs.\48\ This commenter further objects that
the Exchanges have not provided sufficient quantitative support for
their revenues, costs, and profitability under the current and proposed
fees to support an analysis that the proposed fees and the Exchanges'
profitability are reasonable.\49\ Moreover, the commenter argues that
the Exchanges' comparison of their projected access fee profit margins
to the overall profit margins of competing exchanges is insufficient as
it does not appropriately compare the individual components of these
other exchange fees to those of the Exchanges.\50\ The commenter also
suggests that any comparisons made by the Exchanges to the revenues and
margins of other exchanges are inapt

because they do not account for the circumstances under which other
exchanges established their fees, including, for example, whether the
services are equivalent or the costs to provide them are similar.\51\
Finally, this commenter claims that the proposed tiers in the new fee
structure are unfairly discriminatory because the Exchanges have not
provided any cost breakdown to support the claim that the use of
multiple connections creates higher costs for the Exchanges.\52\
Instead, the commenter argues that market participants who purchase
more units of 10Gb ULL connections use more exchange bandwidth simply
due to the fact that they have purchased more units, and that this does
not justify the proposal to charge a higher rate per unit, which the
commenter claims is unfairly discriminatory towards market maker
subscribers.\53\
---------------------------------------------------------------------------

    \42\ See letters from Richard J. McDonald, Susquehanna
International Group, LLP, to Vanessa Countryman, Secretary,
Commission, dated October 1, 2021 (``First SIG Letter'') and October
26, 2021 (``Second SIG Letter'').
    \43\ See Second SIG Letter, supra note 42, at 2. In the First
SIG Letter the commenter requested that the Commission suspend the
proposals and institute proceedings to determine whether to approve
or disapprove the proposals on the basis that the proposals
represent the same fee changes previously proposed by the Exchanges
for which the commenter expressed concerns. See also letter from
Richard J. McDonald, Susquehanna International Group, LLP, to
Vanessa Countryman, Secretary, Commission, dated September 7, 2021,
available at https://www.sec.gov/comments/sr-miax-2021-35/srmiax202135-9208444-249989.pdf (comment letter submitted to File
Nos. SR-MIAX-2021-35, SR-MIAX-2021-37, SR-PEARL-2021-33, SR-PEARL-
2021-36, SR-EMERALD-2021-23, and SR-EMERALD-2021-25, and expressing
similar concerns to those described herein).
    \44\ See Securities Exchange Act Release Nos. 93165 (September
28, 2021), 86 FR 54750 (October 4, 2021) (SR-MIAX-2021-41); 93162
(September 28, 2021), 86 FR 54739 (October 4, 2021) (SR-PEARL-45);
and 93166 (September 28, 2021), 86 FR 54760 (October 4, 2021) (SR-
EMERALD-29).
    \45\ See Second SIG Letter, supra note 42, at 7.
    \46\ See id. at 2-3.
    \47\ See id. at 3.
    \48\ See id.
    \49\ See id. at 4. The commenter further argues that the
Exchanges have not sufficiently justified the profit margins they
would be accruing with the proposed fees by, for example, explaining
specific technological undertakings the Exchanges expect to fund
with the revenue from the new fees. See id.
    \50\ See id. at 4-5.
    \51\ See id.
    \52\ See id. at 5.
    \53\ See id. at 6.
---------------------------------------------------------------------------

    Another commenter asks the Commission to disapprove the proposed
fee changes because the Exchanges have not met their burden of
demonstrating that they are consistent with the standards under the
Exchange Act.\54\ This commenter states that the Exchanges' argument
that competition for order flow constrains pricing for products and
services exclusively offered by the Exchange does not demonstrate that
the fees are reasonable.\55\ This commenter also disagrees with the
Exchanges' statement that they must continually adjust the fees for
these services as a result of competition from other markets because it
does not reflect marketplace reality.\56\ This commenter also states
that the Exchanges have failed to demonstrate that the proposed fees
are equitably allocated and not unfairly discriminatory, with the
proposed fee changes ``clearly and directly'' impacting market makers
and burden of the fee increases falling predominantly on market makers
operating on the Exchanges.\57\ The commenter states that the Exchanges
offer no concrete support for their arguments that the tiered-pricing
structure would encourage firms to be more economical and efficient in
the number of connections they purchase, allowing the Exchanges to
better monitor and provide access to their networks to ensure that they
have sufficient capacity and headroom in their systems.\58\ The
commenter also states that the Exchanges have provided no public
information on how they derived the cost amounts they determined to
allocate to the products and services subject to the proposed fee
changes nor any meaningful baseline information regarding the
Exchanges' overall costs.\59\ This commenter believes that the
Exchanges have withdrawn and refiled essentially identical
proposals,\60\ subverting proper consideration of the proposed fee
changes under the process set forth in the Exchange Act.\61\
---------------------------------------------------------------------------

    \54\ See letter from Ellen Green, Managing Director, Equity and
Options Market Structure, Securities Industry and Financial Markets
Association, to Vanessa Countryman, Secretary, Commission, dated
November 16, 2021 (``SIFMA Letter'').
    \55\ See id. at 3. This commenter asserts that the proposals are
similar to proprietary market data products offered by the
Exchanges, which are unique to the Exchanges and market participants
cannot obtain anywhere else. Id. The commenter also states that for
market makers, additional MEI ports are critical for market makers
to provide liquidity on the Exchanges and the argument that the
additional MEI ports are options ``does not reflect marketplace
reality, nor does it demonstrate that the proposed fees are
reasonable.'' Id. at 4.
    \56\ See id. at 4.
    \57\ See id. at 4-5.
    \58\ See id. at 4. The commenter also states that the Exchanges
fail to provide any discussion of why their current capacity needs
are constrained under the current pricing structure.
    \59\ See id. at 5. The commenter believes that such information
is needed to allow commenters to judge whether the allocations are
supportable. Id. This commenter also believes that the Exchanges'
discussion of profit margins are ``high-level and conclusory,'' and
fail to provide sufficient detail to understand whether or not the
fees are reasonable. Id.
    \60\ See supra note 8.
    \61\ See SIFMA Letter, supra note 54, at 5-6.
---------------------------------------------------------------------------

    When an exchange files a proposed rule change with the Commission,
including fee filings, it is required to provide a statement supporting
the proposal's basis under the Act and the rules and regulations
thereunder applicable to the exchange.\62\ The instructions to Form
19b-4, on which exchanges file their proposed rule changes, specify
that such statement ``should be sufficiently detailed and specific to
support a finding that the proposed rule change is consistent with
[those] requirements.'' \63\
---------------------------------------------------------------------------

    \62\ See 17 CFR 240.19b-4 (General Instructions for Form 19b-4--
Information to be Included in the Complete Form--Item 3 entitled
``Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change'').
    \63\ See id.
---------------------------------------------------------------------------

    Section 6 of the Act, including Sections 6(b)(4), (5), and (8),
requires, among other things, that the rules of an exchange: (1)
Provide for the equitable allocation of reasonable fees among members,
issuers, and other persons using the exchange's facilities; \64\ (2) be
designed to perfect the mechanism of a free and open market and a
national market system and to protect investors and the public
interest, and not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers; \65\ and (3) not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act.\66\
---------------------------------------------------------------------------

    \64\ 15 U.S.C. 78f(b)(4).
    \65\ 15 U.S.C. 78f(b)(5).
    \66\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    In temporarily suspending the Exchanges' proposed rule changes, the
Commission intends to further consider whether the proposed additional
Limited Service MEI Port fees are consistent with the statutory
requirements applicable to a national securities exchange under the
Act. In particular, the Commission will consider whether the proposed
rule changes satisfy the standards under the Act and the rules
thereunder requiring, among other things, that an exchange's rules
provide for the equitable allocation of reasonable fees among members,
issuers, and other persons using its facilities; are designed to
perfect the mechanism of a free and open market and a national market
system and to protect investors and the public interest, and are not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers; and do not impose any burden on competition not
necessary or appropriate in furtherance of the purposes of the Act.\67\
---------------------------------------------------------------------------

    \67\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
---------------------------------------------------------------------------

    Therefore, the Commission finds that it is appropriate in the
public interest, for the protection of investors, and otherwise in
furtherance of the purposes of the Act, to temporarily suspend the
proposed rule changes.\68\
---------------------------------------------------------------------------

    \68\ For purposes of temporarily suspending the proposed rule
changes, the Commission has considered the proposed rules' impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes

    In addition to temporarily suspending the proposal, the Commission
also hereby institutes proceedings pursuant to Sections 19(b)(3)(C)
\69\ and 19(b)(2)(B) of the Act \70\ to determine whether the
Exchanges' proposed rule changes should be approved or disapproved.
Institution of proceedings does not indicate that the Commission has
reached any conclusions with respect to any of the issues involved.
Rather, the

Commission seeks and encourages interested persons to provide
additional comment on the proposed rule changes to inform the
Commission's analysis of whether to approve or disapprove the proposed
rule changes.
---------------------------------------------------------------------------

    \69\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, Section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under Section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
    \70\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2)(B) of the Act,\71\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
---------------------------------------------------------------------------

    \71\ 15 U.S.C. 78s(b)(2)(B). Section 19(b)(2)(B) of the Act also
provides that proceedings to determine whether to disapprove a
proposed rule change must be concluded within 180 days of the date
of publication of notice of the filing of the proposed rule change.
See id. The time for conclusion of the proceedings may be extended
for up to 60 days if the Commission finds good cause for such
extension and publishes its reasons for so finding, or if the
exchange consents to the longer period. See id.
---------------------------------------------------------------------------

     Whether the Exchanges have demonstrated how the proposed
fees are consistent with Section 6(b)(4) of the Act, which requires
that the rules of a national securities exchange ``provide for the
equitable allocation of reasonable dues, fees, and other charges among
its members and issuers and other persons using its facilities''; \72\
---------------------------------------------------------------------------

    \72\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

     Whether the Exchanges have demonstrated how the proposed
fees are consistent with Section 6(b)(5) of the Act, which requires,
among other things, that the rules of a national securities exchange be
designed to ``perfect the mechanism of a free and open market and a
national market system'' and ``protect investors and the public
interest,'' and not be ``designed to permit unfair discrimination
between customers, issuers, brokers, or dealers''; \73\ and
---------------------------------------------------------------------------

    \73\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

     Whether the Exchanges have demonstrated how the proposed
fees are consistent with Section 6(b)(8) of the Act, which requires
that the rules of a national securities exchange ``not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of [the Act].'' \74\
---------------------------------------------------------------------------

    \74\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    As discussed in Section III above, the Exchanges made various
arguments in support of the proposals, and the Commission received
comment letters disputing the Exchanges' arguments and expressing
concerns regarding the proposals.\75\ In particular, the commenters
argue that the Exchanges did not provide sufficient information to
establish that the proposed fees are consistent with the Act and the
rules thereunder.\76\ The Commission believes that there are questions
as to whether the Exchanges have provided sufficient information to
demonstrate that the proposals are consistent with the Act and the
rules thereunder.
---------------------------------------------------------------------------

    \75\ See First SIG Letter and Second SIG Letter, supra note 42;
SIFMA Letter, supra note 54.
    \76\ See id.
---------------------------------------------------------------------------

    Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the [Act]
and the rules and regulations issued thereunder . . . is on the [SRO]
that proposed the rule change.'' \77\ The description of a proposed
rule change, its purpose and operation, its effect, and a legal
analysis of its consistency with applicable requirements must all be
sufficiently detailed and specific to support an affirmative Commission
finding,\78\ and any failure of an SRO to provide this information may
result in the Commission not having a sufficient basis to make an
affirmative finding that a proposed rule change is consistent with the
Act and the applicable rules and regulations.\79\
---------------------------------------------------------------------------

    \77\ 17 CFR 201.700(b)(3).
    \78\ See id.
    \79\ See id.
---------------------------------------------------------------------------

    The Commission is instituting proceedings to allow for additional
consideration and comment on the issues raised herein, including as to
whether the proposals are consistent with the Act, and specifically,
with its requirements that the rules of a national securities exchange
provide for the equitable allocation of reasonable dues, fees, and
other charges among its members, issuers, and other persons using its
facilities; are designed to perfect the mechanism of a free and open
market and a national market system, and to protect investors and the
public interest; are not designed to permit unfair discrimination
between customers, issuers, brokers, or dealers; and do not impose a
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act; \80\ as well as any other provision of the
Act, or the rules and regulations thereunder.
---------------------------------------------------------------------------

    \80\ See 15 U.S.C. 78f(b)(4), (5), and (8).
---------------------------------------------------------------------------

V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such comments should be submitted by December 20, 2021.
Rebuttal comments should be submitted by January 3, 2022. Although
there do not appear to be any issues relevant to approval or
disapproval that would be facilitated by an oral presentation of views,
data, and arguments, the Commission will consider, pursuant to Rule
19b-4, any request for an opportunity to make an oral presentation.\81\
---------------------------------------------------------------------------

    \81\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by an SRO. See Securities
Acts Amendments of 1975, Report of the Senate Committee on Banking,
Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th
Cong., 1st Sess. 30 (1975).
---------------------------------------------------------------------------

    The Commission asks that commenters address the sufficiency and
merit of the Exchanges' statements in support of the proposals, in
addition to any other comments they may wish to submit about the
proposed rule changes.
    Interested persons are invited to submit written data, views, and
arguments concerning the proposed rule changes, including whether the
proposed rule changes are consistent with the Act. Comments may be
submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Nos. SR-MIAX-2021-43 and SR-EMERALD-2021-31 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 Nos. SR-MIAX-2021-43 and SR-
EMERALD-2021-31. These file numbers should be included on the subject
line if email is used. To help the Commission process and review your
comments more efficiently, please use only one method. The Commission
will post all comments on the Commission's internet website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent
amendments, all written statements with respect to the proposed rule
changes that are filed with the Commission, and all written
communications relating to the proposed rule changes between the
Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street NE, Washington, DC 20549, on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for

inspection and copying at the principal office of the Exchanges. All
comments received will be posted without change. Persons submitting
comments are cautioned that we do not redact or edit personal
identifying information from comment submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Nos. SR-MIAX-2021-43 and SR-EMERALD-
2021-31 and should be submitted on or before December 20, 2021.
Rebuttal comments should be submitted by January 3, 2022.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(3)(C) of the
Act,\82\ that File Nos. SR-MIAX-2021-43 and SR-EMERALD-2021-31 be, and
hereby are, temporarily suspended. In addition, the Commission is
instituting proceedings to determine whether the proposed rule changes
should be approved or disapproved.
---------------------------------------------------------------------------

    \82\ 15 U.S.C. 78s(b)(3)(C).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\83\
---------------------------------------------------------------------------

    \83\ 17 CFR 200.30-3(a)(57) and (58).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-25879 Filed 11-26-21; 8:45 am]
BILLING CODE 8011-01-P


EC 2owo 003 UNITED STATE IRONMENTAL PROTECTION AGENCY SHINGTON, D. C RECEIPT OF D \

I DATE: 11/ 12/ 98 TO: The Honorable Newt Gingrich Speaker of the House of Representatives The Capitol, H 209 Washington, D. C. 205 15 FROM: U. S. Environmental Protection Agency 40 1 M Street, SW Washington, DC 20460 TITLE OF DOCUMENTS:

1. Application of Minority and Women Owend Business Enterprise Requirements in the Clean Water and Drinking Water State Revolving Fund Programs [ FRL +# ]

2. Approval and Promulgation of State Implementation Plans; Alaska [ FRL # 61 88 71 3. Delegation of National Emission Stafidards for Hazardous Air Pollutants for Source Categories; State of Arizona; Pinal County Air Quality Control District [ FRL # 6175 21 4. Tennessee; Final Approval of State Petroleum Underground Storage Tank Program [ FRL # 6186 11 RECEIVED BY: Date:

RecycledlRecyclable Printed with Vegetable Oil Based Inks on 100% Recycled Paper ( 20% Postconsurnerj r 3+ fiED = 4, % * $ io UNITED STATES E NVl RONM ENTAL PROTECTION AGENCY 5 CI WASHINGTON, 0. C. 20460 RECEIPT OF DELIVERY DATE: 11/ 12/ 98 TO: The Honorable Albert Gore President of the Senate The Capitol, S 212 Washington, DC 205 10 FROM: U. S. Environmental Protection Agency 401 M Street, SW Washington, DC 20460 +

TITLE OF DOCUMENTS:

1. Application of Minority and Women Owend Business Enterprise Requirements in the Clean Water and Drinking Water State Revolving Fund Programs [ FRL # f 2. Approval and Promulgation of State Implementation Plans; Alaska [ FRL # 61 88 71 .

3. Delegation of National Emission Standards for Hazardous Air Pollutants for Source Categories; State of Arizona; Pinal County Air Quality Control District [ FRL # 6175 21 4. Tennessee; Final Approval of State Petroleum Underground Storage Tank Program [ FRL # 6186 11 Recycled/ Recyclable Printed with Vegetable Oil Based Inks on 100% Recycled Paper ( 20% Postconsumer)  P UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D. C. 204.60 RECEIPT OF DELIVERY DATE: iiii2i9a Receipt of Delivery TO: Mr. Robert P. Murphy General Counsel General Accounting Office Room 7175 441 G Street, NW Washingtop, DC 20548 FROM: U. S. Environmental Protection Agency 401 M Street, SW Washington, DC 20460 TITLE OF DOC'TmNTS: 7

1. Application of Minority and Women Owend Business Enterprise Requirements in the Clean Water and Drinking Water State Revolving Fund Programs [ FRL # J 2. Approval and Promulgation of State Implementation Plans; Alaska [ FRL # 6188 71 3. Delegation of National Emission Standards for Hazardous Air Pollutants for Source Categories; State of Arizona; Pinal County Air Quality Control District [ FRL # 6175 21 4. Tennessee; FinaI Approval of State Petroleum Underground Storage Tank Program [ FRL # 6186 11 RECEIVED BY: Date: f/ f 2  98  RecyciedlRecyclable Printed with Vegetable Oil Based inks on 100% Recycled Paper ( 20% Postconsumer)

 _ __ I___;__ I_


[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Notices]
[Pages 32275-32277]
[FR Doc No: 2023-10704]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2022-0112; Notice 1]

Rivian Automotive, LLC, Receipt of Petition for Decision of
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Receipt of petition.

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

SUMMARY: Rivian Automotive, LLC (Rivian) has determined that certain
model year (MY) 2022 Rivian Electric Delivery Van (EDV) motor vehicles
do not fully comply with Federal Motor

Vehicle Safety Standard (FMVSS) No. 208, Occupant Crash Protection.
Rivian filed a noncompliance report dated October 24, 2022, and amended
the report on November 14, 2022. Rivian subsequently petitioned NHTSA
(the ``Agency'') on November 15, 2022, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This document announces receipt of Rivian's petition.

DATES: Send comments on or before June 20, 2023.

ADDRESSES: Interested persons are invited to submit written data,
views, and arguments on this petition. Comments must refer to the
docket and notice number cited in the title of this notice and may be
submitted by any of the following methods:
     Mail: Send comments by mail addressed to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590.
     Hand Delivery: Deliver comments by hand to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m.
except for Federal Holidays.
     Electronically: Submit comments electronically by logging
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting
comments.
     Comments may also be faxed to<PHONE_NUMBER>.
    Comments must be written in the English language, and be no greater
than 15 pages in length, although there is no limit to the length of
necessary attachments to the comments. If comments are submitted in
hard copy form, please ensure that two copies are provided. If you wish
to receive confirmation that comments you have submitted by mail were
received, please enclose a stamped, self-addressed postcard with the
comments. Note that all comments received will be posted without change
to https://www.regulations.gov, including any personal information
provided.
    All comments and supporting materials received before the close of
business on the closing date indicated above will be filed in the
docket and will be considered. All comments and supporting materials
received after the closing date will also be filed and will be
considered to the fullest extent possible.
    When the petition is granted or denied, notice of the decision will
also be published in the Federal Register pursuant to the authority
indicated at the end of this notice.
    All comments, background documentation, and supporting materials
submitted to the docket may be viewed by anyone at the address and
times given above. The documents may also be viewed on the internet at
https://www.regulations.gov by following the online instructions for
accessing the dockets. The docket ID number for this petition is shown
in the heading of this notice.
    DOT's complete Privacy Act Statement is available for review in a
Federal Register notice published on April 11, 2000 (65 FR 19477-78).

FOR FURTHER INFORMATION CONTACT: Syed Rahaman, General Engineer, NHTSA,
Office of Vehicle Safety Compliance,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:
    I. Overview: Rivian determined that certain MY 2022 Rivian EDV
motor vehicles do not fully comply with paragraph S4.5.1(b)(5)(i) of
FMVSS No. 208, Occupant Crash Protection (49 CFR 571.208).
    Rivian filed a noncompliance report dated October 24, 2022, and
amended the report on November 14, 2022, pursuant to 49 CFR part 573,
Defect and Noncompliance Responsibility and Reports. Rivian petitioned
NHTSA on November 15, 2022, for an exemption from the notification and
remedy requirements of 49 U.S.C. chapter 301 on the basis that this
noncompliance is inconsequential as it relates to motor vehicle safety,
pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556,
Exemption for Inconsequential Defect or Noncompliance.
    This notice of receipt of Rivian's petition is published under 49
U.S.C. 30118 and 30120 and does not represent any agency decision or
another exercise of judgment concerning the merits of the petition.
    II. Vehicles Involved: Approximately 1,278 MY 2022 Rivian EDV motor
vehicles, manufactured between December 10, 2021, and September 27,
2022, were reported by the manufacturer.
    III. Noncompliance: Rivian explains that a label displaying the
subject vehicle's clearance height is affixed to the same side of the
sun visor containing the air bag warning label, therefore, the subject
vehicles do not comply with paragraph S4.5.1(b)(5)(i) of FMVSS No. 208.
    IV. Rule Requirements: Paragraph S4.5.1(b)(5)(i) of FMVSS No. 208
includes the requirements relevant to this petition. S4.5.1(b)(5)(i)
requires that except for the information on an air bag maintenance
label placed on the sun visor pursuant to S4.5.1(a) of FMVSS No. 208,
or on a utility vehicle warning label placed on the sun visor that
conforms in content, form, and sequence to the label shown in Figure 1
of FMVSS No. 105, no other information shall appear on the same side of
the sun visor to which the sun visor air bag warning label is affixed.
    V. Summary of Rivian's Petition: The following views and arguments
presented in this section, ``V. Summary of Rivian's Petition,'' are the
views and arguments provided by Rivian. They have not been evaluated by
the Agency and do not reflect the views of the Agency. Rivian describes
the subject noncompliance and contends that the noncompliance is
inconsequential as it relates to motor vehicle safety.
    Rivian states that the air bag warning label that is affixed to the
sun visor in the subject vehicles meets the FMVSS No. 208 content
requirements and is displayed as intended by the standard. In addition
to this compliant label, there is another label affixed to the sun
visor that indicates the clearance height of the subject vehicle.
Rivian believes that the vehicle clearance height label included on the
sun visor is inconsequential to motor vehicle safety because the
subject vehicles are exclusively used in a single fleet of delivery
vehicles that are driven by professional drivers. Rivian explains that
the subject vehicles are walk-in vans in which the driver's seat is the
only designated seating position and drivers are required to wear their
seatbelts when operating the subject vehicle. Because of the vehicle's
intended usage, Rivian believes that the subject noncompliance does not
affect the efficacy of the information provided by the air bag warning
label.
    Furthermore, Rivian contends that the purpose of the requirement
that no other information be present with the air bag warning label is
to mitigate ``the potential for children to be placed at a seating
position that is equipped with an air bag and also inform of the
precautions the vehicle occupant may take to protect themselves from
being injured by a deploying air bag'' Rivian believes that this is not
a risk because there is no expectation that a child would be present in
or around the subject vehicle. Rivian states that if a child were to
occupy the driver's seat, the brake transmission shift interlock that
is required by FMVSS No. 114 would prevent the child from operating the
vehicle, thus there would be no way for the air bags to be deployed.

    Additionally, Rivian says that the drivers of the subject vehicles
are required to use the seatbelt at all times and the information
provided by the air bag warning label is visible, easy to read, and not
positioned near the vehicle clearance height label. Therefore, Rivian
believes that there is no indication that the addition of the
noncompliant vehicle clearance height label would cause a driver of the
subject vehicle to confuse the message of the air bag warning label.
    Rivian believes that the reason NHTSA determined that no other
types of information are allowed to be displayed on the same side of
the sun visor as the air bag warning label was to maximize the
effectiveness of the label's content by ensuring that there is
consistent and uniform messaging to consumers. Rivian quotes NHTSA's
decision on a similar petition from Maserati: ``The purpose of [the air
bag warning label in] FMVSS No. 208 is to reduce the adverse effects of
air bags by attracting the attention of vehicle occupants to look for
the air bag warning label on the sun visor.'' \1\
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    \1\ See Grant of Petition of Maserati, 87 FR 54749, September 7,
2022).
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    Rivian contends that in past inconsequentiality petitions, NHTSA
determined ``that the manner in which a particular subset of vehicles
is used bears upon the inconsequential nature of the air bag warning
label noncompliance.'' Further, Rivian says that NHTSA has previously
granted inconsequentiality for a noncompliance involving the placement
of the air bag warning label in a vocational vehicle and found that due
to the nature and intended use of the affected vehicles, it would be
unlikely for children to be placed in the front passenger seating
area.\2\
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    \2\ See Grant of Petition of Spartan Motors, 81 FR 87654,
December 5, 2016
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    Rivian adds that NHTSA granted prior petitions in which the air bag
warning label deviated from the exact language that is required by the
standard.\3\ Although those petitions related to the language that was
used in the advanced air bag warning label, Rivian contends that
NHTSA's rationale for those determinations still applies in the present
case.
---------------------------------------------------------------------------

    \3\ See Grant of Petition to Bentley Motors, 72 FR 71734,
December 12, 2007; see also Grant of Petition to BMW, 71 FR 78511,
December 29, 2006.
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    Rivian states that the subject noncompliance has been corrected for
vehicles in production. Rivian says it is not aware of any crash,
death, injury, field report, or claims related to the subject
noncompliance.
    Rivian concludes by stating its belief that the subject
noncompliance is inconsequential as it relates to motor vehicle safety
and its petition to be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, any decision on
this petition only applies to the subject vehicles that Rivian no
longer controlled at the time it determined that the noncompliance
existed. However, any decision on this petition does not relieve
vehicles distributors and dealers of the prohibitions on the sale,
offer for sale, or introduction or delivery for introduction into
interstate commerce of the noncompliant vehicles under their control
after Rivian notified them that the subject noncompliance existed.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)

Otto G. Matheke, III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2023-10704 Filed 5-18-23; 8:45 am]
BILLING CODE 4910-59-P