[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
[Notices]
[Pages 51113-51117]
[FR Doc No: 2020-18100]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89539; File No. SR-CboeEDGA-2020-023]

Self-Regulatory Organizations; Cboe EDGA Exchange, Inc.; Notice
of Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend the Fee Schedule

August 13, 2020.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on August 3, 2020, Cboe EDGA Exchange, Inc. (the
``Exchange'' or ``EDGA'') filed with the Securities and Exchange
Commission (the ``Commission'') the proposed rule change as described
in Items I and II below, which Items have been prepared by the self-
regulatory organization. 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\ 15 U.S.C. 78a.
    \3\ 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

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

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

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

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

1. Purpose
    The Exchange proposes to amend its fee schedule in connection with
its Add/Remove Volume Tiers, as well as a fee code, effective August 3,
2020.
    The Exchange first notes that it operates in a highly competitive
market in which market participants can readily direct order flow to
competing venues if they deem fee levels at a particular venue to be
excessive or incentives to be insufficient. More specifically, the
Exchange is only one of 13 registered equities exchanges, as well as a
number of alternative trading systems and other off-exchange venues
that do not have similar self-regulatory responsibilities under the
Exchange Act, to which market participants may direct their order flow.
Based on publicly available information,\4\ no single registered
equities exchange has more than 18% of the market share. Thus, in such
a low-concentrated and highly competitive market, no single equities
exchange possesses significant pricing power in the execution of order
flow. The Exchange in particular operates a ``Taker-Maker'' model
whereby it pays credits to members that remove liquidity and assesses
fees to those that add liquidity. The Exchange's fee schedule sets
forth the standard rebates and rates applied per share for orders that
provide and remove liquidity, respectively. Particularly, for
securities at or above $1.00, the Exchange provides a standard rebate
of $0.0018 per share for orders that remove liquidity and assesses a
fee of $0.0030 per share for orders that add liquidity. The Exchange
believes that the ever-shifting market share among the exchanges from
month to month demonstrates that market participants can shift order
flow, or discontinue or reduce use of certain categories of products,
in response to fee changes. Accordingly, competitive forces constrain
the Exchange's transaction fees, and market participants can readily
trade on competing venues if they deem pricing levels at those other
venues to be more favorable.
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    \4\ See Cboe Global Markets, U.S. Equities Market Volume
Summary, Month-to-Date (July 31, 2020), available at https://markets.cboe.com/us/equities/market_statistics/.
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    In response to the competitive environment described above, the
Exchange offers tiered pricing which provides Members opportunities to
qualify for higher rebates or reduced fees where certain volume
criteria and thresholds are met. Tiered pricing provides incremental
incentives for Members to strive for higher or different tier levels by
offering increasingly higher discounts or enhanced benefits for
satisfying increasingly more stringent criteria or different criteria.
The Exchange currently provides for such tiers pursuant to footnote 7
of the fee schedule, which specifically offers Add/Remove Volume Tiers.
To illustrate, Add Volume Tier 1 provides Members an opportunity to
receive a reduced fee of $0.0026 for their liquidity adding orders that
yield fee codes ``3'',\5\ ``4'',\6\ ``B'',\7\ ``V'',\8\ and ``Y'' \9\
where that Member has an ADAV \10\ of greater than or equal to 0.10% of
the TCV.\11\ Likewise, Remove Volume Tier 1 provides Members an
opportunity to receive an enhanced rebate for their liquidity removing
orders that yield fee codes ``N'',\12\ ``W'',\13\ ``6'',\14\ and ``BB''
\15\ where that Member adds or removes an ADV \16\ of greater than or
equal to 0.05% of the TCV.
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    \5\ Appended to orders that add liquidity to EDGA, pre and post
market (Tapes A or C).
    \6\ Appended to orders that add liquidity to EDGA, pre and post
market (Tape B).
    \7\ Appended to orders that add liquidity to EDGA (Tape B).
    \8\ Appended to orders that add liquidity to EDGA (Tape A).
    \9\ Appended to orders that add liquidity to EDGA (Tape C).
    \10\ ADAV means average daily volume calculated as the number of
shares added per day. ADAV is calculated on a monthly basis.
    \11\ TCV means total consolidated volume calculated as the
volume reported by all exchanges and trade reporting facilities to a
consolidated transaction reporting plan for the month for which the
fees apply.
    \12\ Appended to orders that remove liquidity from EDGA (Tape
C).
    \13\ Appended to orders that remove liquidity from EDGA (Tape
A).
    \14\ Appended to orders that remove liquidity from EDGA, pre and
post market (All Tapes).
    \15\ Appended to orders that remove liquidity from EDGA (Tape
B).
    \16\ ADV means daily volume calculated as the number of shares
added to, removed from, or routed by, the Exchange, or any
combination or subset thereof, per day. ADV is calculated on a
monthly basis.
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    Specifically, the Exchanges proposes to amend Add Volume Tiers 2
and 3 and delete Remove Volume Tier 2 under footnote 7. Currently, Tier
2 provides a Member with an opportunity to receive a reduced fee of
$0.0022 for qualifying, liquidity adding orders (i.e. yielding fee code
3, 4, B, V, or Y) where a Member has an ADAV greater than or equal to
0.45% of the TCV, and Tier 3 provides a Member with an opportunity to
receive a reduced fee of $0.0016 for qualifying orders where a Member
adds or removes an ADV of greater than or equal to 0.65% of the TCV.
The proposed rule change moves the criteria and reduced fee amount
currently in Tier 3 to Tier 2 (and removes Tier 2's current reduced fee
amount and criteria) and proposes a to adopt new criteria and reduced
fee amount in Tier 3. As proposed, new Tier 3 provides a Member a
reduced fee of $0.0015 for qualifying orders where a Member adds or
removes an ADV of greater than or equal to 0.75% of the TCV. The
restructuring of Tier 3 to Tier 2 and the new criteria and reduced fee
offered in proposed Tier 3 is designed to provide Members with an
additional opportunity to receive a reduced fee on their liquidity
adding orders, and thus incentive, to increase their overall order
flow, both adding and removing orders, in order to achieve the proposed
criteria and receive the reduced fee. Proposed Tier 3 provides
liquidity adding Members on the Exchange a further incentive to
contribute to a deeper, more liquid market, and liquidity executing
Members on the Exchange a further incentive to increase transactions
and take execution opportunities provided by such increased liquidity.
The Exchange believes that this, in turn, benefits all Members by
contributing towards a robust and well-balanced market ecosystem. The
Exchange notes the proposed tier is available to all

Members and are competitively achievable for all Members that submit
add and/or remove order flow, in that, all firms that submit the
requisite order flow could compete to meet the tier.
    The Exchange next proposes to delete Remove Volume Tier 2,\17\
which currently provides a Member with an opportunity to receive an
enhanced rebate of $0.0028 for qualifying, liquidity removing orders
(i.e. yielding fee code N, W, 6, or BB) where a Member removes an ADV
of greater than or equal to 0.10% of the TCV and has a Step-Up Remove
TCV from October 2019 of greater than or equal to 0.05%. The proposed
rule change removes this tier as the Exchange has observed that none of
its Members have been choosing to meet the criteria in current Tier 2
to achieve an enhanced rebate of $0.0028, but instead, have opted to
meet the criteria in current Tier 3 (Tier 2, as amended) to receive an
enhanced rebate for the same amount.
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    \17\ And, as a result, updates current Tier 3 to Tier 2.
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    Finally, in the Fee Code and Associated Fees table in the Fee
Schedule, the Exchange proposes to amend the standard fee applied to
orders yielding fee code ``MM'', which is appended to non-displayed
orders that add liquidity using Mid-Point Peg, from $0.00080 to
$0.0010. The Exchange notes that this is consistent with fees assessed
on similar liquidity adding, Mid-Point Peg orders on other equities
exchanges and off-exchange venues.\18\
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    \18\ See Nasdaq BX, Inc. Pricing List, ``Fee to Add Liquidity
using Order with Midpoint Pegging'', available at http://www.nasdaqtrader.com/Trader.aspx?id=bx_pricing, which assesses a fee
of $0.0015 for firm orders with Midpoint Pegging adding non-
displayed liquidity; and Nasdaq PSX, Inc. Pricing List, ``Rebates to
Add Non-Displayed Liquidity via an Order with Midpoint Pegging'',
available at [sic], which assesses a rebate of $0.0023 for firm
orders with Midpoint Pegging adding non-displayed liquidity. The
Exchange notes that this is comparable to the fee that it proposes
to asses as the standard fee for orders at $0.0030-the proposed fee
at $0.0010 = $0.0020.
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the objectives of Section 6 of the Act,\19\ in general, and
furthers the objectives of Section 6(b)(4),\20\ in particular, as it is
designed to provide for the equitable allocation of reasonable dues,
fees and other charges among its Members and issuers and other persons
using its facilities. The Exchange also believes that the proposed rule
change is consistent with the objectives of Section 6(b)(5) \21\
requirements that the rules of an exchange be designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, to foster cooperation and coordination
with persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to and perfect the mechanism of a
free and open market and a national market system, and, in general, to
protect investors and the public interest, and, particularly, is not
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
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    \19\ 15 U.S.C. 78f.
    \20\ 15 U.S.C. 78f(b)(4).
    \21\ 15 U.S.C. 78f.(b)(5).
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    The Exchange operates in a highly competitive market in which
market participants can readily direct order flow to competing venues
if they deem fee levels at a particular venue to be excessive or
incentives to be insufficient. The proposed rule change reflects a
competitive pricing structure designed to incentivize market
participants to direct their order flow to the Exchange, which the
Exchange believes would enhance market quality to the benefit of all
Members.
    In particular, the Exchange believes that the proposed restructured
and additional Add Volume Tiers are reasonable because they each
provide an additional opportunity for Members to receive a discounted
rate by means of liquidity adding and removing orders. The Exchange
notes that relative volume-based incentives and discounts have been
widely adopted by exchanges \22\, including the Exchange \23\, and are
reasonable, equitable and non-discriminatory because they are open to
all members on an equal basis and provide additional benefits or
discounts that are reasonably related to (i) the value to an exchange's
market quality and (ii) associated higher levels of market activity,
such as higher levels of liquidity provision and/or growth patterns.
Additionally, as noted above, the Exchange operates in highly
competitive market. The Exchange is only one of several equity venues
to which market participants may direct their order flow, and it
represents a small percentage of the overall market. It is also only
one of several taker-maker exchanges. Competing equity exchanges offer
similar tiered pricing structures, including schedules of rebates and
fees that apply based upon members achieving certain volume and/or
growth thresholds, as well as assess similar fees or rebates for
similar types of orders, to that of the Exchange. These competing
pricing schedules, moreover, are presently comparable to those that the
Exchange provides, including the pricing of comparable criteria and/or
fees and rebates.\24\
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    \22\ See e.g., the Nasdaq Stock Market LLC Rules, Equity 7, Sec.
118(a)(1); and the Nasdaq BX, Inc. Rules, Equity 7 Pricing Schedule,
Sec. 118(a), both of which generally provide credits to members for
adding and/or removing liquidity that reaches certain thresholds of
Consolidated Volume; see also Cboe BYX U.S. Equities Exchange Fee
Schedule, Footnote 1, Add/Remove Volume Tiers, which provides
similar incentives for liquidity adding and removing orders.
    \23\ See generally, Cboe EDGA U.S. Equities Exchange Fee
Schedule, Footnote 7, Add/Remove Volume Tiers.
    \24\ See supra note 18. See also supra note 20 [sic]. Nasdaq
offers credits between $0.00005 and $0.00305 per share for liquidity
adding orders depending on different criteria achieved and member-
base, which similarly equate to the reduced rate which the Exchange
proposes for liquidity adding orders. BX charges between $0.0024 and
$0.0028 per share between for liquidity adding orders for certain
Consolidated Volume-based criteria achieved, which is substantially
similar to the reduced rate which the Exchange proposes for
liquidity adding orders.
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    Specifically, the Exchange believes the proposed tier criteria
under Add Volume Tier 3 and Remove Volume Tier 3, that is, an ADV
threshold component as a percentage of TCV for, is a reasonable means
to further incentivize Members to increase their overall order flow to
the Exchange by encouraging those Members to strive for the different,
incrementally more difficult tier criteria under the proposed tiers to
receive a reduced rate and/or enhanced rebate. As such, adopting
criteria based on a Member's adding and removing orders will encourage
liquidity providing Members to provide for a deeper, more liquid
market, and Members executing on the Exchange to increase transactions
and take such execution opportunities provided by increased liquidity.
The Exchange believes that an increase in overall order flow as a
result of the proposed tiers would benefit all investors by deepening
the Exchange's liquidity pool, providing greater execution incentives
and opportunities, offering additional flexibility for all investors to
enjoy cost savings, supporting the quality of price discovery,
promoting market transparency and improving investor protection.
    In line with the relative difficulty of the proposed criteria for
Add Volume Tier 3, the Exchange believes that providing a greater
reduced fee is reasonable as it is commensurate with the proposed
criteria, that is, it reasonably reflects the scaled difficulty in
achieving the ADV threshold as a percentage TCV in Tier 2 (as relocated
from current Tier 3) as compared to proposed Tier 3. Also, the proposed
reduced fee corresponding to the proposed criteria in Tier 3 does not

represent a significant departure from the fees currently offered, or
criteria required, under the Exchange's existing tiers. For example,
the discounted fees assessed under existing Add Volume Tier 1, for
which a Member must have a daily volume add (ADAV) of 0.10% or greater
than the TCV, is $0.0026 per share, and the discounted fee in
restructured Tier 2 (current Tier 3), for which a Member must add or
remove an ADV of greater than or equal to 0.65% of the TCV, is $0.0016.
The Exchange believes that the step-up in difficulty in achieving an
add volume threshold of 0.10% to achieving and add/remove volume
threshold of 0.65% is commensurate with the difference in the reduced
fees offered per the respective tiers. The Exchange notes too that the
add/remove volume threshold between proposed Tier 2 and proposed Tier 3
is a smaller increase in difficulty and therefore is commensurate with
the proposed smaller increase between the reduced fees offered.
    The Exchange believes the proposed rule change to delete Remove
Volume Tier 2 is reasonable as its Members have not been choosing to
meet the criteria under current Tier 2 to receive the enhanced rebate
of $0.0028, but instead continue to opt to meet the criteria in current
Tier 3 for which they can receive the same enhanced rebate. Therefore,
the Exchange believes it is reasonable to remove an unused tier,
particularly where another existing tier offers other criteria to
achieve the same rebate.
    The Exchange further believes the proposed rule change to increase
the fee amount for fee code MM is reasonable because, as stated above,
in order to operate in the highly competitive equities markets, the
Exchange and its competing exchanges seek to offer similar pricing
structures, including assessing comparable fees for similar types of
orders. Thus, the Exchange believes the proposed fee is reasonable as
it is generally aligned with the amounts assessed for the same type of
non-display orders using Mid-Point Peg that add liquidity on other
equities exchanges,\25\ as well as off-exchange venues.
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    \25\ See supra note 18.
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    The Exchange believes that the proposal represents an equitable
allocation of fees and rebates and is not unfairly discriminatory
because all Members are eligible for the proposed Add Volume Tier 3 and
would have the opportunity to meet the tier's criteria and would
receive the proposed fee if such criteria is met. Without having a view
of activity on other markets and off-exchange venues, the Exchange has
no way of knowing whether this proposed rule change would definitely
result in any Members qualifying for the new Add Volume tier. While the
Exchange has no way of predicting with certainty how the proposed tier
will impact Member activity, the Exchange anticipates that at least
four Members will be able to compete for and reach the proposed tier.
The Exchange anticipates that the tiers will include various Member
types, including liquidity providers (e.g. wholesale firms that mainly
make markets for retail orders), broker-dealers (e.g. bulge bracket
firms that conduct trading on behalf of customers), and proprietary
firms, each providing distinct types of order flow to the Exchange to
the benefit of all market participants. For example, broker-dealer
customer order flow provides more trading opportunities, which attracts
Market Makers. Increased Market Maker activity facilitates tighter
spreads which potentially increases order flow from other market
participants. The Exchange likewise believes that the proposed rule
change to deleted Remove Volume Tier 2 is represents an equitable
allocation of rebates and is not unfairly discriminatory because it
will no longer be available to any Member to choose to meet the tier.
The Exchange also notes that proposed Add Volume Tier 3 and deleted
Remove Volume Tier 2 will not adversely impact any Member's pricing or
their ability to qualify for other reduced fee or enhanced rebate
tiers. Should a Member not meet the proposed criteria under the
proposed tier, the Member will merely not receive that reduced fee/
enhanced rebate. Further, Members already do not choose to meet the
proposed deleted tier, therefore, will not be adversely impacted.
Furthermore, the proposed reduced fee in Add Volume Tier 3 would
uniformly apply to all Members that meet the required criteria under
the respective proposed tiers.
    Finally, the Exchange believes that increasing the fee amount for
orders yielding fee code MM represents an equitable allocation of fees
and is not unfairly discriminatory because, as stated, it is
appropriately in line with the rates assessed by competing exchanges
and it will continue to automatically apply to all Members' non-
displayed liquidity adding orders using Mid-Point Peg.

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 intramarket or intermarket competition that is not
necessary or appropriate in furtherance of the purposes of the Act.
Rather, as discussed above, the Exchange believes that the proposed
change would encourage the submission of additional order flow to a
public exchange, thereby promoting market depth, execution incentives
and enhanced execution opportunities, as well as price discovery and
transparency for all Members. As a result, the Exchange believes that
the proposed change furthers the Commission's goal in adopting
Regulation NMS of fostering competition among orders, which promotes
``more efficient pricing of individual stocks for all types of orders,
large and small.'' \26\
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    \26\ Securities Exchange Act Release No. 51808, 70 FR 37495,
37498-99 (June 29, 2005) (S7-10-04) (Final Rule).
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    The Exchange believes the proposed rule change does not impose any
burden on intramarket competition that is not necessary or appropriate
in furtherance of the purposes of the Act. Particularly, the proposed
change applies to all Members equally in that all Members are eligible
for the proposed Add Volume tier, have a reasonable opportunity to meet
the tier's criteria and will all receive the proposed fee if such
criteria is met. Additionally, the proposed Add Volume tier changes are
designed to attract additional order flow to the Exchange. The Exchange
believes that the additional tier criteria would incentivize market
participants to direct liquidity and executing order flow to the
Exchange, bringing with it improved price transparency. Greater overall
order flow and pricing transparency benefits all market participants on
the Exchange by providing more trading opportunities, enhancing market
quality, and continuing to encourage Members to send orders, thereby
contributing towards a robust and well-balanced market ecosystem, which
benefits all market participants. Further, the Exchange does not
believe that the proposed removal of Remove Volume Tier 2 imposes any
burden on intramarket competition because, as noted above, no Members
have been opting to achieve this tier and instead have been striving to
achieve another Remove Volume Tier which offers the exact same enhanced
rebate. In addition to this, the Exchange believes that the proposed
fee for orders yielding fee code MM will continue to apply
automatically to all such Members' orders.
    Next, the Exchange believes the proposed rule change does not
impose any burden on intermarket competition

that is not necessary or appropriate in furtherance of the purposes of
the Act. As previously discussed, the Exchange operates in a highly
competitive market. Members have numerous alternative venues that they
may participate on and direct their order flow, including 12 other
equities exchanges and off-exchange venues and alternative trading
systems. Additionally, the Exchange represents a small percentage of
the overall market. Based on publicly available information, no single
equities exchange has more than 18% of the market share.\27\ Therefore,
no exchange possesses significant pricing power in the execution of
order flow. Indeed, participants can readily choose to send their
orders to other exchange and off-exchange venues if they deem fee
levels at those other venues to be more favorable. Moreover, the
Commission has repeatedly expressed its preference for competition over
regulatory intervention in determining prices, products, and services
in the securities markets. Specifically, in Regulation NMS, 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.'' \28\ The fact that this market is
competitive has also 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'. . . .''.\29\ Accordingly, the Exchange
does not believe its proposed fee change imposes any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act.
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    \27\ See supra note 4.
    \28\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \29\ 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)).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from Members or other interested
parties.

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

    The foregoing rule change is effective upon filing pursuant to
Section 19(b)(3)(A) \30\ of the Act and subparagraph (f)(2) of Rule
19b-4 \31\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange. At any time within 60 days of the
filing of such proposed rule change, the Commission summarily may
temporarily suspend such rule change if it appears to the Commission
that such action is necessary or appropriate in the public interest,
for the protection of investors, or otherwise in furtherance of the
purposes of the Act. If the Commission takes such action, the
Commission shall institute proceedings under Section 19(b)(2)(B) \32\
of the Act to determine whether the proposed rule change should be
approved or disapproved.
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    \30\ 15 U.S.C. 78s(b)(3)(A).
    \31\ 17 CFR 240.19b-4(f)(2).
    \32\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CboeEDGA-2020-023 on the subject line.

Paper Comments

     Send paper comments in triplicate to: Secretary,
Securities and Exchange Commission, 100 F Street NE, Washington, DC
20549-1090.

All submissions should refer to File Number SR-CboeEDGA-2020-023. 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 (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for 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 Exchange. 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 Number SR-CboeEDGA-2020-023 and should be
submitted on or before September 9, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-18100 Filed 8-18-20; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 76 (Wednesday, April 20, 2011)]
[Notices]
[Pages 22154-22155]
[FR Doc No: 2011-9569]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. OSHA-2011-0062]

Powered Industrial Trucks Standard; Extension of the Office of
Management and Budget's (OMB) Approval of Information Collection
(Paperwork) Requirements

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Request for public comments.

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SUMMARY: OSHA solicits public comments concerning its proposal to
extend OMB approval of the information collection requirements
contained in the Powered Industrial Trucks Standard (29 CFR 1910.178).
The information collection requirements address truck design,
construction, and modification, as well as certification of training
and evaluation for truck operators.

DATES: Comments must be submitted (postmarked, sent, or received) by
June 20, 2011.

ADDRESSES: Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal. Follow the instructions online for submitting
comments.
    Facsimile: If your comments, including attachments, are not longer
than 10 pages, you may fax them to the OSHA Docket Office at (202) 693-
1648.
    Mail, hand delivery, express mail, messenger, or courier service:
When using this method, you must submit a copy of your comments and
attachments to the OSHA Docket Office, Docket No. OSHA-2011-0062, U.S.
Department of Labor, Occupational Safety and Health Administration,
Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210.
Deliveries (hand, express mail, messenger, and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m. to 4:45 p.m., e.t.
    Instructions: All submissions must include the Agency name and OSHA
docket number (OSHA-2011-0062) for the Information Collection Request
(ICR). All comments, including any personal information you provide,
are placed in the public docket without change, and may be made
available online at http://www.regulations.gov. For further information
on submitting comments see the ``Public Participation'' heading in the
section of this notice titled SUPPLEMENTARY INFORMATION. Docket: To
read or download comments or other material in the docket, go to http://www.regulations.gov or the OSHA Docket Office at the address above.
All documents in the docket (including this Federal Register notice)
are listed in the http://www.regulations.gov index; however, some
information (e.g., copyrighted material) is not publicly available to
read or download through the website. All submissions, including
copyrighted material, are available for inspection and copying at the
OSHA Docket Office. You may also contact Theda Kenney at the address
below to obtain a copy of the ICR.

FOR FURTHER INFORMATION CONTACT: Theda Kenney or Todd Owen, Directorate
of Standards and Guidance, OSHA, U.S. Department of Labor, Room N-3609,
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202)
693-2222.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Labor, as part of its continuing effort to reduce
paperwork and respondent (i.e., employer) burden, conducts a
preclearance consultation program to provide the public with an
opportunity to comment on proposed and continuing information
collection requirements in accordance with the Paperwork Reduction Act
of 1995 (44 U.S.C. 3506(c)(2)(A)). This program ensures that
information is in the desired format, reporting burden (time and costs)
is minimal, collection instruments are clearly understood, and OSHA's
estimate of the information collection burden is accurate. The
Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651
et seq.) authorizes information collection by employers as necessary or
appropriate for enforcement of the Act or for developing information
regarding the causes and prevention of occupational injuries,
illnesses, and accidents (29 U.S.C. 657). The OSH Act also requires
that OSHA obtain such information with minimum burden upon employers,
especially those operating small businesses, and to reduce to the
maximum extent feasible unnecessary duplication of efforts in obtaining
information (29 U.S.C. 657).
    Paragraph (a)(4) of the Standard requires that employers obtain the
manufacturer's written approval before modifying a truck in a manner
that affects its capacity and safe operation; if the manufacturer
grants such approval, the employer must revise capacity, operation, and
maintenance instruction plates, tags, and decals accordingly. For
front-end attachments not installed by the manufacturer, paragraph
(a)(5) mandates that employers provide a marker on the trucks that
identifies the attachment, as well as the weight of both the truck and
the attachment when the attachment is at maximum elevation with a
laterally centered load. Paragraph (a)(6) specifies that employers must
ensure that the markers required by paragraphs (a)(3) through (a)(5)
remain affixed to trucks and are legible.
    Paragraphs (l)(1) through (l)(6) of the Standard contain the
paperwork requirements necessary to certify the training provided to
powered industrial truck operators. Accordingly, these paragraphs
specify the following requirements for employers:
     Paragraph (l)(1)--Ensure that trainees successfully
complete the training and evaluation requirements of paragraph (l)
prior to operating a truck without direct supervision.
     Paragraph (l)(2)--Allow trainees to operate a truck only
under the direct supervision of an individual with the knowledge,
training, and experience to train operators and to evaluate their
performance, and under conditions that do not endanger other employees.
The training program must consist of formal instruction, practical
training, and evaluation of the trainee's performance in the workplace.
     Paragraph (l)(3)--Provide the trainees with initial
training on each of 22 specified topics, except on topics that the
employer demonstrates do not apply to the safe operation of the
truck(s) in the employer's workplace.
     Paragraphs (l)(4)(i) and (l)(4)(ii)--Administer refresher
training and evaluation on relevant topics to operators found by
observation or formal evaluation to have operated a truck unsafely,
been involved in an accident or near-miss incident, or been assigned to
operate another type of truck, or if the employer identifies a
workplace condition that could affect safe truck operation.
     Paragraph (l)(4)(iii)--Evaluate each operator's
performance at least once every three years.
     Paragraph (l)(5)--Train rehires only in specific topics
that they performed unsuccessfully during an evaluation and that are
appropriate to the employer's truck(s) and workplace conditions.
     Paragraph (l)(6)--Certify that each operator meets the
training and

evaluation requirements specified by paragraph (l). This certification
must include the operator's name, the training date, the evaluation
date, and the identity of the individual(s) who performed the training
and evaluation.
    Requiring labels (markings) of modified equipment notifies
employees of the conditions under which they can safely operate powered
industrial trucks, thereby preventing such hazards as fires and
explosions caused by poorly designed electrical systems, rollovers/
tipovers that result from exceeding a truck's stability
characteristics, and falling loads that occur when loads exceed the
lifting capacities of attachments. Certification of training and
evaluation provides a means of informing employers that their employees
received the training and demonstrated the performance necessary to
operate a truck within its capacity and control limitations. Therefore,
by ensuring that employees operate only trucks that are in proper
working order, and do so safely, employers prevent possible severe
injury or death of truck operators and other employees who are in the
vicinity of the trucks. Finally, these paperwork requirements are the
most efficient means for an OSHA compliance officer to determine that
an employer properly notified employees regarding the design and
construction of, and modifications made to, the trucks they are
operating, and that their employer provided them with the required
training.

II. Special Issues for Comment

    OSHA has a particular interest in comments on the following issues:
     Whether the proposed information collection requirements
are necessary for the proper performance of the Agency's functions,
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and
costs) of the information collection requirements, including the
validity of the methodology and assumptions used;
     The quality, utility, and clarity of the information
collected; and
     Ways to minimize the burden on employers who must comply;
for example, by using automated or other technological information
collection and transmission techniques.

III. Proposed Actions

    OSHA is requesting that OMB extend its approval of the information
collection requirements contained in the Standard on Powered Industrial
Trucks (29 CFR 1910.178). The Agency is requesting an increase to its
current burden hour estimate of 33,706 hours (from 854,538 hours to
888,244 hours). The increase is due to updated data indicating a rise
in the number of powered industrial trucks from 1,134,699 to 1,179,441
and the number of operators from 1,702,048 to 1,769,162. The Agency
will summarize the comments submitted in response to this notice and
will include this summary in the request to OMB.
    Type of Review: Extension of a currently approved collection.
    Title: Powered Industrial Trucks (29 CFR 1910.178).
    OMB Number: 1218-0242.
    Affected Public: Business or other for-profits.
    Number of Respondents: 1,769,162.
    Frequency: On occasion; annually; triennially.
    Average Time per Response: Ranges from two minutes (.03 hour) to
mark an approved truck to 6.50 hours to train new truck operators.
    Estimated Total Burden Hours: 888,244.
    Estimated Cost (Operation and Maintenance): $247,695.

IV. Public Participation--Submission of Comments on This Notice and
Internet Access to Comments and Submissions

    You may submit comments in response to this document as follows:
(1) Electronically at http://www.regulations.gov, which is the Federal
eRulemaking Portal; (2) by facsimile (fax); or (3) by hard copy. All
comments, attachments, and other material must identify the Agency name
and the OSHA docket number for the ICR (Docket No. OSHA-2011-0062). You
may supplement electronic submissions by uploading document files
electronically. If you wish to mail additional materials in reference
to an electronic or facsimile submission, you must submit them to the
OSHA Docket Office (see the section of this notice titled ADDRESSES).
The additional materials must clearly identify your electronic comments
by your name, date, and the docket number so the Agency can attach them
to your comments.
    Because of security procedures, the use of regular mail may cause a
significant delay in the receipt of comments. For information about
security procedures concerning the delivery of materials by hand,
express delivery, messenger, or courier service, please contact the
OSHA Docket Office at<PHONE_NUMBER>, (TTY<PHONE_NUMBER>).
    Comments and submissions are posted without change at http://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting personal information such as social security numbers and
dates of birth. Although all submissions are listed in the http://www.regulations.gov index, some information (e.g., copyrighted
material) is not publicly available to read or download through this
Web site. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
Information on using the http://www.regulations.gov Web site to submit
comments and access the docket is available at the Web site's ``User
Tips'' link. Contact the OSHA Docket Office for information about
materials not available through the Web site, and for assistance in
using the Internet to locate docket submissions.

V. Authority and Signature

    David Michaels, PhD, MPH, Assistant Secretary of Labor for
Occupational Safety and Health, directed the preparation of this
notice. The authority for this notice is the Paperwork Reduction Act of
1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor's Order No. 4-2010
(72 FR 55355).

    Signed at Washington, DC, on April 15, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2011-9569 Filed 4-19-11; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register Volume 85, Number 230 (Monday, November 30, 2020)]
[Notices]
[Page 76561]
[FR Doc No: 2020-26306]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings

    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:

    Docket Numbers: RP21-228-000.
    Applicants: Sierrita Gas Pipeline LLC.
    Description: Compliance filing Operational Purchase and Sales
Report.
    Filed Date: 11/19/20.
    Accession Number: 20201119-5013.
    Comments Due: 5 p.m. ET 12/1/20.

    Docket Numbers: RP21-229-000.
    Applicants: Southern Natural Gas Company, L.L.C.
    Description: Compliance filing SCRM Filing Nov 2020.
    Filed Date: 11/19/20.
    Accession Number: 20201119-5017.
    Comments Due: 5 p.m. ET 12/1/20.

    Docket Numbers: RP21-230-000.
    Applicants: Algonquin Gas Transmission, LLC.
    Description: Sec.  4(d) Rate Filing: Negotiated Rates--Various
Releases eff 12-1-2020 to be effective 12/1/2020.
    Filed Date: 11/19/20.
    Accession Number: 20201119-5018.
    Comments Due: 5 p.m. ET 12/1/20.

    Docket Numbers: RP21-231-000.
    Applicants: El Paso Natural Gas Company, L.L.C.
    Description: Sec.  4(d) Rate Filing: Negotiated Rate Agreement
Update (Pioneer Jan-Mar 2021) to be effective 11/19/2020.
    Filed Date: 11/19/20.
    Accession Number: 20201119-5036.
    Comments Due: 5 p.m. ET 12/1/20.

    Docket Numbers: RP21-232-000.
    Applicants: Cheniere Corpus Christi Pipeline, LP.
    Description: Compliance filing CCPL Stage 3 Compliance Filing in
Docket No. CP18-513 to be effective 2/1/2021.
    Filed Date: 11/19/20.
    Accession Number: 20201119-5044.
    Comments Due: 5 p.m. ET 12/1/20.

    Docket Numbers: RP21-233-000.
    Applicants: Algonquin Gas Transmission, LLC.
    Description: Sec.  4(d) Rate Filing: Negotiated Rates--Boston Gas
Releases eff 12-1-2020 to be effective 12/1/2020.
    Filed Date: 11/19/20.
    Accession Number: 20201119-5053.
    Comments Due: 5 p.m. ET 12/1/20.

    The filings are accessible in the Commission's eLibrary system
(https://elibrary.ferc.gov/idmws/search/fercgensearch.asp) by querying
the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: November 23, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2020-26306 Filed 11-27-20; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: May 1, 2006 (Volume 71, Number 83)]
[Proposed Rules]
[Page 25727-25731]
[DOCID:fr01my06-21]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2006-0224; FRL-8161-8]
RIN 2060-AN78

Technical Amendments to the Highway and Nonroad Diesel
Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: EPA is proposing to correct, amend, and revise certain
provisions of the Highway Diesel Rule, and the Nonroad Diesel Rule.
This action proposes to correct additional errors and omissions from
the previous rules, and make minor changes to the regulations to assist
entities with regulatory compliance. Further, this action also proposes
technical amendments resulting from discussions with various diesel
stakeholders. These technical amendments would: provide a temporary
increase in the sulfur testing tolerance, revise the designate and
track provisions to account for non-petroleum diesel fuels (i.e.,
biodiesel) and fuel that meets the California Air Resources Board's
diesel fuel standards, and amend the alternative defense provisions to
account for conductivity additives and red dye. This proposed action is
intended to help facilitate compliance with the diesel fuel regulations
and ensure a smooth transition to ultra low sulfur diesel fuel.

DATES: Comments must be received on or before May 31, 2006. If a
hearing is requested, the request must be received by May 16, 2006. If
we receive a request for a public hearing, we will publish information
related to the timing and location of the hearing and the timing of a
new deadline for public comments.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0224 by one of the following methods:
     http://www.regulations.gov: Follow the on-line

instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Air Docket, Environmental Protection Agency,
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, (EPA/DC) EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. 20004. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0224. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site

is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be

automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.

    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA Docket Center

(EPA/DC), Public Reading Room, Room B102, EPA West Building, 1301
Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, except on government holidays. You can reach the Air Docket by
telephone at<PHONE_NUMBER> and by facsimile at<PHONE_NUMBER>. You may
be charged a reasonable fee for photocopying docket materials, as
provided in 40 CFR part 2.

FOR FURTHER INFORMATION CONTACT: Tia Sutton, U.S. EPA, National Vehicle
and Fuels Emission Laboratory, Assessment and Standards Division, 2000
Traverwood Dr., Ann Arbor, MI 48105; telephone<PHONE_NUMBER>, fax
(734) 214-4816, e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    This action will affect companies and persons that produce, import,
distribute, or sell highway and/or nonroad diesel fuel. Affected
Categories and entities include the following:

------------------------------------------------------------------------
                               NAICS    Examples of potentially affected
          Category             Code a               entities
------------------------------------------------------------------------
Industry...................     324110  Petroleum refiners.
Industry...................     422710  Diesel fuel marketers and
                                         distributors.
Industry...................     484220  Diesel fuel carriers.
------------------------------------------------------------------------
a North American Industry Classification System (NAICS).

    This list is not intended to be exhaustive, but rather provides a
guide regarding entities likely to be affected by this action. To
determine whether particular activities may be affected by this action,
you should carefully examine the regulations. You may direct questions
regarding the applicability of this action as noted in FOR FURTHER
INFORMATION CONTACT.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of

the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).

     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
     Make sure to submit your comments by the comment period
deadline identified.

C. How Can I Get Copies of This Document?

    See the direct final rule EPA has published in the ``Rules and
Regulations'' section of this Federal Register for information about
accessing these documents. The direct final rule also includes detailed
instructions for sending comments to EPA.

II. Summary of Rule

    The Highway Diesel rule, published on January 18, 2001 (66 FR
5002), is a comprehensive national program that will greatly reduce
emissions from diesel engines by integrating engine and fuel controls
as a system to gain the greatest air quality benefits. The Nonroad
Diesel Rule was subsequently published on June 29, 2004 (69 FR 38958).
The Nonroad Diesel Rule took a similar approach, covering nonroad
diesel equipment and fuel to further the goal of decreasing harmful
emissions. In 2005, we published two additional direct final
rulemakings (70 FR 40889 was published on July 15, 2005 and 70 FR 70498
was published on November 22, 2005) to make technical amendments to
those rules. We have chosen to propose a third action to correct
additional errors and omissions from the previous rules, as well as
include amendments developed following discussions with stakeholders
throughout the diesel fuel industry. These discussions resulted in the
following changes that are being proposed today, such as: (1) Providing
a temporary increase in the sulfur testing tolerance; (2) revising the
designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards; and, (3) amending the
alternative defense provisions to account for conductivity additives
and red dye. The proposed clarifications and corrections include: The
allowance for early motor vehicle diesel credits to be traded across
Credit Trading Areas, the assignment of Puerto Rico and the U.S. Virgin
Islands to CTA 1, the allowance of shorter statements on product
transfer documents (with EPA approval), the clarification that approved
small refiners who have elected to use the ``gas-for-diesel'' small
refiner option (Sec.  80.553 and Sec.  80.554) may designate 15 ppm
diesel fuel as motor vehicle diesel fuel or nonroad, locomotive, and
marine diesel fuel, and other minor corrections to help facilitate
compliance with EPA's diesel fuel regulations.
    For further discussion on all of the proposed changes contained in
this action, see the direct final rule EPA has published in the ``Rules
and Regulations'' section of this Federal Register. This proposal
incorporates by reference all of the reasoning, explanation, and
regulatory text from the direct final rule.
    Because EPA views the provisions of the action as noncontroversial
and does not expect adverse comment, we are publishing a direct final
rule in the ``Rules and Regulations'' section of this Federal Register.
However, we are publishing this notice of proposed rulemaking to serve
as the proposal to adopt the provisions in the direct final rule if
adverse comments are filed. If we receive adverse comment on one or
more distinct amendment, paragraphs, or sections of the direct final
rulemaking, or receive a request for a hearing within the time frame
described above, we will publish a timely withdrawal of the proposed
direct final rule in the Federal Register indicating which provisions
will become effective and which provisions are being withdrawn due to
adverse comment. We will address all public comments received in a
subsequent final rule based on this proposed rule. We will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time. Any distinct
amendment, paragraph, or section of the direct final rulemaking for
which we do not receive adverse comment will become effective according
to the DATES section in the direct final rule, notwithstanding any
adverse comment on any other distinct amendment, paragraph, or section
of the rule.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review. This action simply corrects errors
and omissions, provides a temporary increase in the sulfur testing
tolerance, revises the designate and track provisions to account for
non-petroleum diesel fuels (i.e., biodiesel) and fuel that meets the
California Air Resources Board's diesel fuel standards, and amends the
alternative defense provisions to account for conductivity additives
and red dye. There are no new costs associated with this rule.
Therefore, this proposed rule is not subject to the requirements of
Executive Order 12866. A Final Regulatory Support Document was prepared
in connection with the original regulations for the Highway Diesel Rule
and the Nonroad Diesel Rule as promulgated on January 18, 2001 and June
29, 2004, respectively, and we have no reason to believe that our
analyses in the original rulemakings were inadequate. The relevant
analyses are available in the docket for the January 18, 2001
rulemaking (A-99-061) and the June 29, 2004 rulemaking (OAR-2003-0012
and A-2001-28) and at the following internet address: http://www.epa.gov/cleandiesel.
 The original action was submitted to the

Office of Management

and Budget for review under Executive Order 12866.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden,
as it simply corrects errors and omissions, provides a temporary
increase in the sulfur testing tolerance, revises the designate and
track provisions to account for non-petroleum diesel fuels (i.e.,
biodiesel) and fuel that meets the California Air Resources Board's
diesel fuel standards, and amends the alternative defense provisions to
account for conductivity additives and red dye. However, the Office of
Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing regulations of the
Highway Diesel Rule (66 FR 5002, January 18, 2001) and the Nonroad
Diesel Rule (69 FR 38958, June 29, 2004) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0308 (EPA ICR 1718). A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Avenue, NW., Washington,
DC 20460 or by calling<PHONE_NUMBER>.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small
entities, a small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) size standards at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule would not impose any new requirements on small entities
as it would merely correct errors and omissions, provide a temporary
increase in the sulfur testing tolerance, revise the designate and
track provisions to account for non-petroleum diesel fuels (i.e.,
biodiesel) and fuel that meets the California Air Resources Board's
diesel fuel standards, and amend the alternative defense provisions to
account for conductivity additives and red dye.
    We continue to be interested in the potential impacts of the
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
    This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable
duties on any of these governmental entities. Nothing in the rule would
significantly or uniquely affect small governments. EPA has determined
that this rule contains no federal mandates that may result in
expenditures of more than $100 million to the private sector in any
single year. This proposed rule merely corrects errors and omissions,
provides a temporary increase in the sulfur testing tolerance, revises
the designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards, and amends the alternative
defense provisions to account for conductivity additives and red dye.
    Thus, this rule is not subject to the requirements of sections 202
and 205 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and

the States, or on the distribution of power and responsibilities among
the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, imposes substantial direct
compliance costs, and is not required by statute. However, if the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the regulation, these restrictions do not apply. EPA also
may not issue a regulation that has federalism implications and that
preempts State law, unless the Agency consults with State and local
officials early in the process of developing the regulation.
    Section 4 of the Executive Order contains additional requirements
for rules that preempt State or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the States, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing all affected State and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, EPA also must consult, to the
extent practicable, with appropriate State and local officials
regarding the conflict between State law and Federally protected
interests within the agency's area of regulatory responsibility.
    This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This direct final rule simply
corrects errors and omissions, provides a temporary increase in the
sulfur testing tolerance, revises the designate and track provisions to
account for non-petroleum diesel fuels (i.e., biodiesel) and fuel that
meets the California Air Resources Board's diesel fuel standards, and
amends the alternative defense provisions to account for conductivity
additives and red dye. Although Section 6 of Executive Order 13132 did
not apply to the Highway Diesel Rule (66 FR 5002) or the Nonroad Diesel
Rule (69 FR 38958), EPA did consult with representatives of various
State and local governments in developing these rules. For this direct
final action, EPA consulted with representatives of the California Air
Resources Board and the Western States Petroleum Association (WSPA) for
the amendments made which will affect refiners and distributors in
California.

F. Executive Order 13175 Consultation and Coordination With Indian
Tribal Governments:

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This direct final rule does
not have tribal implications as specified in Executive Order 13175.
This rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This rule does not uniquely affect the communities of Indian Tribal
Governments. Further, no circumstances specific to such communities
exist that would cause an impact on these communities beyond those
discussed in the other sections of this rule. This direct final rule
merely corrects errors and omissions, provides a temporary increase in
the sulfur testing tolerance, revises the designate and track
provisions to account for non-petroleum diesel fuels (i.e., biodiesel)
and fuel that meets the California Air Resources Board's diesel fuel
standards, and amends the alternative defense provisions to account for
conductivity additives and red dye. Thus, Executive Order 13175 does
not apply to this rule.

G. Executive Order 13045: Children's Health Protection

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it
is not economically significant, and does not involve decisions on
environmental health or safety risks that may disproportionately affect
children.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution or use of energy. This
action simply proposes to correct errors and omissions, provide a
temporary increase in the sulfur testing tolerance, revise the
designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards, and amend the alternative
defense provisions to account for conductivity additives and red dye.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. This action merely proposes to correct errors and omissions,
provide a temporary increase in the sulfur testing tolerance, revise
the designate and track provisions to account for non-petroleum diesel
fuels (i.e., biodiesel) and fuel that meets the California Air
Resources Board's diesel fuel standards, and amend the alternative
defense provisions to account for conductivity

additives and red dye. Thus, we have determined that the requirements
of the NTTAA do not apply.

IV. Statutory Provisions and Legal Requirements

    The statutory authority for this action comes from sections 211(c)
and (i) of the Clean Air Act as amended 42 U.S.C. 7545(c) and (i). This
action is a rulemaking subject to the provisions of Clean Air Act
section 307(d). See 42 U.S.C. 7606(d)(1). Additional support for the
procedural and enforcement related aspects of the rule comes from
sections 144(a) and 301(a) of the Clean Air Act. 42 U.S.C. 7414(a) and
7601(a).

List of Subjects in 40 CFR Part 80

    Fuel additives, Imports, Incorporation by reference, Labeling,
Motor vehicle pollution, Penalties, Reporting and recordkeeping
requirements.

    Dated: April 20, 2006.
Stephen L. Johnson,
Administrator.
[FR Doc. 06-3929 Filed 4-28-06; 8:45 am]

BILLING CODE 6560-50-P