[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)]
[Notices]
[Pages 63523-63525]
[FR Doc No: 2016-22155]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-78806; File No. SR-NASDAQ-2016-098]

Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order
Approving Proposed Rule Change To Modify the Complimentary Services
Offered to Certain New Listings

September 9, 2016.

I. Introduction

    On July 11, 2016, The Nasdaq Stock Market LLC (``Nasdaq'' or
``Exchange'') 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 modify the complimentary services offered to
certain new listings. The proposed rule change was published for
comment in the Federal Register on July 28, 2016.\3\ No comment letters
were received in response to the Notice. This order approves the
proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 78392 (July 22,
2016), 81 FR 49705 (``Notice'').
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II. Description of the Proposed Rule Change

    The Exchange offers complimentary services to companies listing on
the Nasdaq Global and Global Select Markets in connection with an
initial public offering, upon emerging from bankruptcy, or in
connection with a spin-off or carve-out from another company
(``Eligible New Listings'') and to companies that switch their listing
from the New York Stock Exchange (``NYSE'') to the Nasdaq Global or
Global Select Markets (``Eligible Switches'' and, with Eligible New
Listings, ``Eligible Companies'').\4\ According to the Exchange, this
program offers valuable services to newly listing companies designed to
help ease the transition of becoming a public company or switching
markets, makes listing on Nasdaq more attractive to these companies,
and provides Nasdaq Corporate Solutions the opportunity to demonstrate
the value of its services and forge a relationship with the company.\5\
Currently, Eligible Companies receive a whistleblower hotline, investor
relations Web site, press release distribution services, interactive
webcasting, and market analytic tools, and may receive a market
surveillance service.\6\ As discussed in more detail below, the
Exchange proposed to modify its current offerings to Eligible
Companies.
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    \4\ See Notice, supra note 3, at 49705. See also Securities
Exchange Act Release Nos. 65963 (December 15, 2011), 76 FR 79262
(December 21, 2011) (SR-NASDAQ-2011-122) (``Original Approval
Order'') and 72669 (July 24, 2014), 79 FR 44234 (July 30, 2014) (SR-
NASDAQ-2014-058) (``2014 Approval Order'').
    \5\ See Notice, supra note 3, at 49705.
    \6\ See Nasdaq Rule IM-5900-7(b)-(c). Only Eligible Companies
with a market capitalization of $750 million or more receive the
market surveillance service. The Exchange proposed to rename this
service as ``stock surveillance'' to better reflect its purpose.
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    The Exchange currently offers Eligible Companies that have a market
capitalization of $750 million or more a stock surveillance tool,
through which an analyst attempts to determine who is buying and
selling the company's stock.\7\ While any public company can use this
offering, the Exchange stated in its proposal that it may not be an
appropriate fit for some companies, such as those that are closely held
or otherwise have low liquidity or low volume, which may prioritize
different investor relations tools over stock surveillance.\8\
Therefore, the Exchange proposed to allow companies eligible for this
service to choose from the existing stock surveillance offering or
other alternatives, which Nasdaq stated are also designed to help
companies identify current owners, potential buyers or sellers of their
stock, or otherwise enhance their investor relations efforts.\9\
Specifically, Eligible Companies that have a market capitalization of
$750 million or more would be allowed to choose the existing stock
surveillance offering or from among the following alternatives: (i) A
global targeting package, where an investor targeting specialist will
help focus the company's investor relations efforts on appropriate
investors, tailor messaging to those investors' interests and measure
the company's impact on their holdings; (ii) monthly ownership
analytics and event driven targeting, which provide a monthly
shareholder analysis and tracking report, which an analyst will help
interpret during a monthly call, and a shareholder targeting plan
around one event each year, such as a roadshow or investor conference;
or (iii) an annual perception study designed to identify how the
company is perceived by key stakeholders and provide the company with
actionable recommendations for enhancing its perception in the
market.\10\ The approximate retail value of the proposed new services
ranges from $35,000 to $46,000 per year, as compared to the approximate
retail value of $51,000 for the existing stock surveillance tool.\11\
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    \7\ See Nasdaq Rule IM-5900-7(c).
    \8\ See Notice, supra note 3, at 49705.
    \9\ See id.
    \10\ See proposed Rule IM-5900-7(a) under section being renamed
``Market Advisory Tools.''
    \11\ See Notice, supra note 3, at 49705. The Exchange also
proposed to update the description of the stock surveillance tool to
clarify that it is a single, dedicated analyst who provides that
service, as opposed to the team approach used for the proposed
alternative market advisory tools, and to note that the analyst
attempts to identify institutional buyers and sellers in the
company's stock. See id.
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    The Exchange also proposed to create a new tier of services for
Eligible Companies with a market capitalization of $5 billion or more.
As noted in the Original Approval Order and the 2014 Approval Order,
the Exchange believes that it is appropriate to offer different
services based on a company's market capitalization given that larger
companies generally will need more and different governance,
communication, and intelligence services.\12\ According to the
Exchange, companies with a market capitalization of $5 billion or more
can benefit from, and are more likely to purchase at the end of the
complimentary period, investor targeting or perception studies in
addition to surveillance services because they have more complex
investor relations functions and frequently have more shareholders and
a greater change in their shareholdings.\13\ As such, the Exchange
proposed to offer these companies, with a market capitalization of $5
billion or more, the choice of a second market advisory tool.
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    \12\ See Notice, supra note 3, at 49706. See also Original
Approval Order, supra note 4, at 79265.
    \13\ See Notice, supra note 3, at 49706.
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    The Exchange also proposed to modify the complimentary services
offered to Eligible Switches. In particular, the Exchange proposed to
increase the number of users of the market analytic tool to three users
for Eligible Switches with a market capitalization of $750 million or
more but less than $5 billion and to four users for Eligible Switches
with a market capitalization of $5 billion or more.\14\ In addition,
Nasdaq proposed to increase the term of the complimentary services from
three years to four years for any Eligible Switch with a market
capitalization of $750 million or greater.\15\
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    \14\ See proposed Rule IM-5900-7(c)(2)-(3). This service has a
retail value of approximately $29,000 per year for two users,
$40,000 for three users, and $51,000 for four users. See Notice,
supra note 3, at 49706.
    \15\ See proposed Rule IM-5900-7(c)(2)-(3). The Exchange noted
that this proposal would restore some features and the term of
complimentary services that was previously in effect for such
companies. See Notice, supra note 3, at 49706.

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    The Exchange also proposed to revise the values and descriptions of
the complimentary services offered.\16\ In addition, the Exchange
proposed to amend the description of the market analytic tool to
reflect the addition of mobile access to the users of that service and
to add the value of that offering for three and four users ($40,000 and
$51,000, respectively).\17\ In its filing, the Exchange also proposed
to rename the ``Interactive Webcasting'' service ``Audio Webcasting''
to reflect the voice-only nature of the service, which is delivered
through a platform branded with the company's name and logo that allows
real-time questions from the audience, and to describe the four audio
webcasts as a ``package'' to reflect the basis for the approximate
retail value provided.\18\ In addition, the Exchange proposed to rename
the current ``Press Release'' service to ``Disclosure Services'' to
better reflect the availability of EDGAR and XBRL services, and to
specify that these services are provided as an annual stipend usable
with Nasdaq Corporate Solutions.\19\ The Exchange also proposed to
delete the reference to factors affecting the number of press releases
available because the revised rule would explicitly state that an
annual stipend is provided and would emphasize disclosure services
generally rather than just press releases.\20\
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    \16\ In particular, the approximate retail value would be
updated from $15,000 to $16,000 for the investor relations Web site,
from $30,000 to $29,000 for the market analytic tool for two users,
and from $50,000 to $51,000 for the stock surveillance tool. See
proposed Rule IM-5900-7(a). The Exchange also proposed to eliminate
rounding in the total retail value of the services offered to each
category of Eligible Company. See Notice, supra note 3, at 49706. In
addition, the Exchange proposed to modify the introductory note to
Rule IM-5900-7 to reference the historical changes to the program
and explain the impact of the revisions to companies that are
already listed, and to reorganize the rule to enhance its
readability and usability. See id.
    \17\ See proposed Rule IM-5900-7(a).
    \18\ See Notice, supra note 3, at 49706.
    \19\ See proposed Rule IM-5900-7(a).
    \20\ See Notice, supra note 3, at 49706.
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    The Exchange stated that if a company has a choice among different
complimentary services under the proposed rule, the company must make
its selection when it first begins to use a complimentary service and
will not be permitted to subsequently change to a different
complimentary service offered in the package.\21\ The Exchange noted in
its proposal that a company can discontinue using a service at any time
without penalty and can also elect to purchase from Nasdaq Corporate
Solutions a service alternative that was previously declined or a
comparable service from another competitor.\22\
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    \21\ See id.
    \22\ See id.
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    The Exchange noted that any company receiving services under the
terms of the Original Approval Order or the 2014 Approval Order on the
date this proposal is approved may elect to receive services under the
revised terms in this proposal. If a company elects to receive services
under this proposal, the services that the company is eligible to
receive will be determined based on its status and market
capitalization at the time of its original listing and the length of
time that services are available to the company under the revised
package will be calculated from the company's original listing
date.\23\
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    \23\ See id.
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III. Discussion and Commission Findings

    The Commission has carefully reviewed the proposed rule change and
finds that it is consistent with the requirements of Section 6 of the
Act.\24\ Specifically, the Commission finds that the proposal is
consistent with Sections 6(b)(4) \25\ and 6(b)(5) of the Act \26\ in
particular, in that the proposed rule is designed to provide for the
equitable allocation of reasonable dues, fees, and other charges among
Exchange members, issuers, and other persons using the Exchange's
facilities, and is not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers. Moreover, the Commission
believes that the proposed rule change is consistent with Section
6(b)(8) of the Act \27\ in that it does not impose any burden on
competition not necessary or appropriate in furtherance of the purposes
of the Act.
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    \24\ 15 U.S.C. 78f. In approving this proposed rule change, the
Commission has considered the proposed rule's impact on efficiency,
competition, and capital formation. See 15 U.S.C. 78c(f).
    \25\ 15 U.S.C. 78f(b)(4).
    \26\ 15 U.S.C. 78f(b)(5).
    \27\ 15 U.S.C. 78f(b)(8).
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    The Commission believes that it is consistent with the Act for the
Exchange to revise the products and services it offers to companies.
According to Nasdaq, the stock surveillance tool that certain Eligible
Companies receive may not be an appropriate fit for some of these
companies, such as those that are closely held or otherwise have low
liquidity or low volume.\28\ Accordingly, these companies may derive
more value from the other market advisory services, as described above,
that Nasdaq is now going to be offering as a choice, in addition to the
stock surveillance tool, to Eligible Companies with a market
capitalization of $750 million or more.
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    \28\ See Notice, supra note 3 at 49705.
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    The Commission also believes that it is consistent with the Act for
the Exchange to create a new tier of services for Eligible Companies
with a market capitalization of $5 billion or more and to offer varying
services to different categories of issuers since larger capitalized
companies generally will need and use more services.\29\ The Exchange
represents that companies with a market capitalization of $5 billion or
more have more complex investor relations functions and therefore can
benefit from additional market advisory services and are more likely to
purchase additional services at the end of the complimentary
period.\30\ In addition, the Exchange's proposal would provide Eligible
Switches additional user seats for the market analytic tool than those
provided to similarly capitalized Eligible New Listings. In making this
distinction, the Exchange has stated that Eligible Switches are more
likely to benefit from additional market analytic user seats than
Eligible New Listings because these companies generally have larger
investor relations teams already in place, whereas Eligible New
Listings receive support from investment banks and others for a period
of time after listing as their investor relations programs mature and
therefore have, in the Exchange's view, less need for additional user
seats.\31\ Moreover, Nasdaq stated in its proposal that Eligible
Switches will, in its view, forego more services paid for by their
former exchange and that larger Eligible Switches will forego even more
services. In support of this, Nasdaq notes that NYSE recently modified
its services offered to listed companies so that they are now valued
higher so that some companies will need a greater incentive

to forego the services offered by NYSE and switch to Nasdaq.\32\ Based
on the above, the Commission believes that the Exchange has provided a
sufficient basis for providing additional services to certain Eligible
New Listings and Eligible Switches, as well as varying services to
these different categories of listings, and that these changes do not
unfairly discriminate among issuers and reflect the competitive
environment for exchange listings for transfers from a competing
exchange.\33\
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    \29\ See Original Approval Order, supra note 4, at 79266
(finding that it is reasonable for Nasdaq to provide different
services to tiers based on market capitalization since larger
capitalized companies generally will need and use more services).
See also Notice, supra note 3, at 49707. The Commission notes that,
as stated in the 2014 Approval Order, all listed companies receive
some services from Nasdaq, including Nasdaq Online and the Market
Intelligence Desk. See 2014 Approval Order, supra note 4, at 44235.
    \30\ See Notice, supra note 3, at 49707. As noted by the
Exchange in its prior filing, it offers more services to larger
companies because they need more and different governance,
communications, and intelligence services. See Original Approval
Order, supra note 4, at 79265.
    \31\ See Notice, supra note 3, at 49707. The Commission notes
that in a prior filing Nasdaq reduced its market analytic tools to
all Eligible Companies from four users to two users based on
Nasdaq's experience with company use of the service.
    \32\ See id. at 49706. See also Securities Exchange Act Release
No. 76127 (October 9, 2015), 80 FR 62584 (October 16, 2015) (SR-
NYSE-2015-36).
    \33\ See 2014 Approval Order, supra note 4, at 44235.
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    Further, the Commission believes that it is consistent with the Act
for the Exchange to reinstate the four year term for services provided
to Eligible Switches with a market capitalization of $750 million or
more. According to the Exchange, this change reflects Nasdaq's ongoing
assessment of the competitive market for listings.\34\ Specifically,
the Exchange has represented that it faces competition in the market
for listing services and that it competes in part by offering valuable
services to listed companies.\35\ The Exchange states that the proposed
changes will result in a more enticing package for potential listings
and therefore will enhance competition among listing exchanges.\36\
Accordingly, the Commission believes that the proposed rule reflects
the current competitive environment for exchange listings among
national securities exchanges, and is appropriate and consistent with
Section 6(b)(8) of the Act.\37\
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    \34\ See Notice, supra note 3, at 49707. The Commission notes
that the Original Approval Order found four years of services for
Eligible Switches as consistent with the Act. As noted above, Nasdaq
had reduced services to Eligible Switches from four to three years
in 2014 and is now proposing to change back to four years of
services for these transfers for competitive reasons. See id. at
49706 & n.13. See also supra note 32 and accompanying text.
    \35\ See Notice, supra note 3, at 49707 & n.13.
    \36\ See id. at 49708.
    \37\ 15 U.S.C. 78f(b)(8).
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    Finally, the Commission believes that it is reasonable, and in fact
required by Section 19(b) of the Exchange Act, that Nasdaq amend IM-
5900-7 to update the rule text to reflect the actual retail values of
the services offered, which have changed since the original adoption of
the rule.\38\ The Commission also believes it is reasonable for the
Exchange to make certain non-substantive changes, as described above,
to the names and descriptions of certain services provided. This
provides greater transparency to Nasdaq's rules and the fees applicable
to companies listing on the Exchange.
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    \38\ We would expect Nasdaq, consistent with Section 19(b) of
the Act, to periodically update the retail values of services
offered should they change. This will help to provide transparency
to listed companies on the value of the free services they receive
and the actual costs associated with listing on Nasdaq.
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IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\39\ that the proposed rule change (SR-NASDAQ-2016-098), be, and
hereby is, approved.
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    \39\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\40\
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    \40\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-22155 Filed 9-14-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 86, Number 208 (Monday, November 1, 2021)]
[Notices]
[Page 60348]
[FR Doc No: 2021-23778]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2017-0162]

Pipeline Safety: Request for Special Permit; Natural Gas Pipeline
Company of America, LLC

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA);
DOT.

ACTION: Notice.

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SUMMARY: PHMSA is publishing this notice to solicit public comments on
a request for special permit received from the Natural Gas Pipeline
Company of America, LLC (NGPL). The special permit request is seeking
relief from compliance with certain requirements in the Federal
pipeline safety regulations. At the conclusion of the 30-day comment
period, PHMSA will review the comments received from this notice as
part of its evaluation to grant or deny the special permit request.

DATES: Submit any comments regarding this special permit request by
December 1, 2021.

ADDRESSES: Comments should reference the docket number for this special
permit request and may be submitted in the following ways:
     E-Gov Website: http://www.Regulations.gov. This site
allows the public to enter comments on any Federal Register notice
issued by any agency.
     Fax: 1-202-493-2251.
     Mail: Docket Management System: 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: Docket Management System: U.S. Department
of Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between
9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal
holidays.
    Instructions: You should identify the docket number for the special
permit request you are commenting on at the beginning of your comments.
If you submit your comments by mail, please submit two (2) copies. To
receive confirmation that PHMSA has received your comments, please
include a self-addressed stamped postcard. Internet users may submit
comments at http://www.Regulations.gov.

    Note: There is a privacy statement published on http://www.Regulations.gov. Comments, including any personal information
provided, are posted without changes or edits to http://www.Regulations.gov.

    Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments responsive to this notice contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this notice, it is important that you clearly designate
the submitted comments as CBI. Pursuant to 49 Code of Federal
Regulations (CFR) Sec.  190.343, you may ask PHMSA to give confidential
treatment to information you give to the agency by taking the following
steps: (1) Mark each page of the original document submission
containing CBI as ``Confidential''; (2) send PHMSA, along with the
original document, a second copy of the original document with the CBI
deleted; and (3) explain why the information you are submitting is CBI.
Unless you are notified otherwise, PHMSA will treat such marked
submissions as confidential under the FOIA, and they will not be placed
in the public docket of this notice. Submissions containing CBI should
be sent to Kay McIver, DOT, PHMSA-PHP-80, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001. Any commentary PHMSA receives that is not
specifically designated as CBI will be placed in the public docket for
this matter.

FOR FURTHER INFORMATION CONTACT:
    General: Ms. Kay McIver by telephone at<PHONE_NUMBER>, or by email
at [email protected].
    Technical: Mr. Steve Nanney by telephone at<PHONE_NUMBER>, or by
email at [email protected].

SUPPLEMENTARY INFORMATION: PHMSA received a special permit request from
NGPL, a subsidiary of Kinder Morgan, Inc., seeking a waiver from the
requirements of 49 CFR 192.611(a) and (d): Change in class location:
Confirmation or revision of maximum allowable operating pressure, and
49 CFR 192.619(a): Maximum allowable operating pressure: Steel or
plastic pipelines. This special permit is being requested in lieu of
pipe replacement, pressure testing, or pressure reduction for one (1)
pipeline segment totaling 205.84 feet (approximately 0.039 miles) of
30-inch diameter pipe on the Gulf Coast Line 1 Pipeline located in
Miller County, Arkansas. The proposed special permit will allow
operation of the original Class 1 or Class 2 pipe in the Class 3
location.
    The proposed special permit segment on the Gulf Coast Line 1
Pipeline has a maximum allowable operating pressure of 858 pounds per
square inch gauge and was constructed in 1950.
    The special permit request, proposed special permit with
conditions, and Draft Environmental Assessment (DEA) for the Gulf Coast
Line 1 Pipeline is available for review and public comments in Docket
No. PHMSA-2017-0162. PHMSA invites interested persons to review and
submit comments on the special permit request and DEA in the docket.
Please include any comments on potential safety and environmental
impacts that may result if the special permit is granted. Comments may
include relevant data.
    Before issuing a decision on the special permit request, PHMSA will
evaluate all comments received on or before the comments closing date.
Comments received after the closing date will be evaluated, if it is
possible to do so without incurring additional expense or delay. PHMSA
will consider each relevant comment it receives in making its decision
to grant or deny this special permit request.

    Issued in Washington, DC, on August 13, 2021, under authority
delegated in 49 CFR 1.97.
Alan K. Mayberry,
Associate Administrator for Pipeline Safety.
[FR Doc. 2021-23778 Filed 10-29-21; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register: January 27, 2009 (Volume 74, Number 16)]
[Notices]
[Page 4788-4790]
[DOCID:fr27ja09-69]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-59258; File No. SR-BATS-2009-001]

Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
BATS Rule 11.9, entitled ``Orders and Modifiers''

January 15, 2009.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on January 12, 2009, BATS Exchange, Inc. (``BATS'' or the
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the Exchange. The Exchange
has designated this proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-
4(f)(6)(iii) thereunder,\4\ which renders it effective upon filing with
the Commission. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange is proposing to amend BATS Rule 11.9, entitled
``Orders and Modifiers,'' to provide Exchange system functionality that
will cancel any portion of a market order submitted to the Exchange (a
``BATS market order'') that would execute at a price that is more than
50 cents or 5 percent worse than the NBBO at the time the order
initially reaches the Exchange (the ``Initial NBBO''), whichever is
greater.
    The text of the proposed rule change is available at the Exchange's
Web site at http://www.batstrading.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The purpose of the proposed rule change is to protect market
participants

from executions at prices that are significantly worse than the NBBO at
the time of order entry by providing Exchange system functionality that
will cancel any portion of a BATS market order that would execute at a
price that is 50 cents or 5 percentage points worse than the Initial
NBBO, whichever is greater. Any portion of a BATS market order that
would otherwise execute outside of these thresholds will be immediately
cancelled back to the User.\5\ The Exchange believes that Users who
submit market orders to the Exchange generally intend to receive
executions for the full size of their orders at or near the Initial
NBBO and are not always aware that there may not be enough liquidity at
that price to fill the entire size of their orders. The Exchange
believes that the market order thresholds proposed in this rule filing
will help avoid executions of BATS market orders at prices that are
significantly worse than the Initial NBBO, particularly in thinly-
traded securities. The following example demonstrates how the BATS
market order thresholds would operate:
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    \5\ As defined in Exchange Rule 1.5(bb).
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     A User submits a routable BATS market order \6\ (i.e., not
designated as a ``BATS Only'' order) to buy 1,000 shares of ABC;
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    \6\ If the order is not routable then it would be executed on
the Exchange only if such executions would not trade through the
protected quotations of other market centers. If the order is a
routable order, then such order will be executed in accordance with
BATS Rule 11.13(a), however, orders will not be routed away for
execution at prices outside of the market order thresholds proposed
in this rule filing, which applies both to market orders executed on
the Exchange and to market orders that are to be routed away.
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     The Initial NBBO in security ABC is $8.00 (bid) by $8.05
(offer), 100 shares each, both published by ``Market Center A'';
     The Exchange has 100 shares of liquidity at the $8.05
offer price and also has resting orders on its book to sell 100 shares
at $8.15, 100 shares at $8.20 and 1,000 shares at $8.60; and
     Other than the $8.05 offer published by Market Center A
there are no offers to sell the security at or between $8.05 and $8.60
at other market centers.

Under the circumstances described above, with the Initial NBBO of $8.00
(bid) by $8.05 (offer), the BATS market order would be executed as
follows:
     100 shares executed at the $8.05 price on the Exchange;
     900 shares routed to Market Center A as an immediate or
cancel order with a price of $8.05;
     100 shares executed at Market Center A (presuming this
offer was still available and there was no additional non-displayed
liquidity at that price);
     800 shares returned to the Exchange;
     100 shares executed at the Exchange at the $8.15 price
level;
     100 shares executed at the Exchange at the $8.20 price
level.

Under this example, 400 shares of the BATS market order would be
executed. The remaining 600 shares of the BATS market order would be
cancelled back to the User because the liquidity on the Exchange at the
$8.60 price level exceeds the BATS market order thresholds set forth in
proposed Rule 11.9(a)(2), and such order is not eligible for routing
outside of such thresholds. Such BATS market order could only be
executed or routed by the Exchange up to and including a price of $8.55
($0.50 worse than the Initial NBBO).
    For those Users who intend to trade against liquidity at multiple
price points from the Initial NBBO beyond the BATS market order
thresholds proposed in this rule filing, those Users can clearly and
unambiguously specify that intent by submitting a marketable limit
order to the Exchange. For example, using the scenario described above,
if the User submitted a limit order to buy 1,000 shares of security ABC
with a limit price of $9.00, such order would be executed up to its
full size, either on the Exchange (provided that the Exchange would not
trade through protected quotations) or at away market centers if the
order was routable.
2. Statutory Basis
    The Exchange believes the proposal is consistent with the
requirements of the Act and the rules and regulations thereunder that
are applicable to a national securities exchange, and, in particular,
with the requirements of Section 6(b).\7\ In particular, for the
reasons described above, the proposed change is consistent with Section
6(b)(5) of the Act,\8\ because it would promote just and equitable
principles of trade, remove impediments to, and perfect the mechanism
of, a free and open market and a national market system, and, in
general, protect investors and the public interest, by helping to avoid
executions of market orders on the Exchange at prices that are
significantly worse than the NBBO at the time an order is initially
received by the Exchange. The Exchange believes that the Initial NBBO
is a fair representation of then-available prices and accordingly
provides for an appropriate pricing mechanism such that BATS market
orders should not be executed at a significantly worse price. Also, the
Exchange believes that this proposal is consistent with existing
exchange rules that allow for the breaking of trades deemed clearly
erroneous by reference to objective thresholds away from the NBBO.\9\
Accordingly, the modifications to BATS Rule 11.9 promote just and
equitable principles of trade, remove impediments to, and perfect the
mechanism of, a free and open market and a national market system.
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78f(b).
    \8\ 15 U.S.C. 78f(b)(5).
    \9\ See, e.g., NASDAQ Rule 11890. 11890.
---------------------------------------------------------------------------

A. Self-Regulatory Organization's Statement of Burden on Competition

    The Exchange does not believe that the proposed rule change imposes
any burden on competition.

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

    The Exchange has neither solicited nor received written comments on
the proposed rule change.
i. Date of Effectiveness of the Proposed Rule Changes and Timing for
Commission Action
    Because the foregoing rule change does not: (1) Significantly
affect the protection of investors or the public interest; (2) impose
any significant burden on competition; and (3) become operative for 30
days after the date of this filing, or such shorter time as the
Commission may designate, it has become effective pursuant to Section
19(b)(3)(A) of the Act \10\ and Rule 19b-4(f)(6) thereunder.\11\
---------------------------------------------------------------------------

    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

    A proposed rule change filed under 19b-4(f)(6) normally may not
become operative prior to 30 days after the date of filing.\12\
However, Rule 19b-4(f)(6)(iii) \13\ permits the Commission to designate
a shorter time if such action is consistent with the protection of
investors and the public interest. The Exchange has requested that the
Commission waive the 30-day operative delay so that the proposal may
become operative upon filing. The Commission believes that waiving the
30-day operative delay is consistent with the

protection of investors and the public interest because such waiver
will allow BATS Users to immediately benefit from the protections
provided by BATS market orders. The Commission hereby grants the
Exchange's request and designates the proposal operative upon
filing.\14\
---------------------------------------------------------------------------

    \12\ 17 CFR 240.19b-4(f)(6)(iii). In addition, Rule 19b-
4(f)(6)(iii) requires that a self-regulatory organization submit to
the Commission written notice of its intent to file the proposed
rule change, along with a brief description and text of the proposed
rule change, at least five business days prior to the date of filing
of the proposed rule change, or such shorter time as designated by
the Commission. The Exchange has satisfied this notice requirement.
    \13\ Id.
    \14\ For the purposes only of waiving the 30-day operative
delay, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors or otherwise in
furtherance of the purposes of the Act.
ii. Solicitation of Comments
    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposal is
consistent with the Act. Comments may be submitted by any of the
following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File No. SR-BATS-2009-001 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-BATS-2009-001. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule 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 inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of BATS. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File No. SR-BATS-2009-001 and should be
submitted on or before February 17, 2009.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
---------------------------------------------------------------------------

    \15\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E9-1670 Filed 1-26-09; 8:45 am]

BILLING CODE 8011-01-P


ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [ R03 OAR 2005 0502; FRL ]

Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; VOC and NOx RACT Determinations for Six Individual Sources AGENCY: Environmental Protection Agency ( EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to approve revisions to the Commonwealth of Pennsylvania State Implementation Plan ( SIP). The revisions were submitted by the Pennsylvania Department of Environmental Protection ( PADEP) to establish and require reasonably available control technology ( RACT) for six major sources of volatile organic compounds ( VOC) and nitrogen oxides ( NOx) pursuant to the Commonwealth of Pennsylvania's ( Pennsylvania's or the Commonwealth's) SIP approved generic RACT regulations. EPA is approving these revisions in accordance with the Clean Air Act ( CAA).

EFFECTIVE DATE: This final rule is effective on [ insert date 30 days from date of publication].

ADDRESSES: EPA has established a docket for this action under Docket ID Number EPAR03 OAR 2005 0502. All documents in the docket are listed in the www. regulations. gov website. Although listed in the electronic docket, some information is not publicly available, i. e.,

confidential business information ( CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will 2 be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www. regulations. gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U. S. Environmental Protection Agency,

Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality,

P. O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, ( 215) 814 2182, or by e mail at quinto. rose@ epa. gov.

SUPPLEMENTARY INFORMATION:

I. Background On March 2, 2006 ( 71 FR 10626), EPA published a notice of proposed rulemaking ( NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of formal SIP revisions submitted by Pennsylvania on November 21, 2005. These SIP revisions consist of source specific operating permits, consent orders and/ or plan approvals issued by PADEP to establish and require RACT pursuant to the Commonwealth's SIP approved generic RACT regulations. The following table identifies the sources and the individual consent orders ( COs) and operating permits ( OPs) which are the subject of this rulemaking. 3 PENNSYLVANIA  VOC AND NOx RACT DETERMINATIONS FOR INDIVIDUAL SOURCES SOURCE'S NAME COUNTY Operating Permit ( OP #) Consent Order ( CO#) SOURCE TYPE " MAJOR SOURCE" POLLUTANT DLM Foods ( formerly Heinz USA) Allegheny CO 211 Food Processing NOx NRG Energy Center ( formerly Pittsburgh Thermal Limited Partnership) Allegheny CO 220 Steam Generation NOx Tasty Baking Oxford, Inc. Chester OP 15 0104 Bakery Operations VOC Silberline Manufacturing Company Carbon OP 13 0014 Paint and Lacquers Production VOC Adhesives Research, Inc. York OP 67 2007 Surface Coating VOC Mohawk Flush Doors, Inc. Northumberland OP 49 0001 Surface Coating VOC An explanation of the CAA's RACT requirements as they apply to the Commonwealth and EPA's rationale for approving these SIP revisions were provided in the NPR and will not be restated here.

No public comments were received on the NPR.

II. Final Action EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP on November 21,

2005 to establish and require VOC and NOx RACT for six sources pursuant to the 4 Commonwealth's SIP approved generic RACT regulations.

III. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 ( 58 FR 51735, October 4, 1993), this action is not a " significant regulatory action" and therefore is not subject to review by the Office of Management and Budget.

For this reason, this action is also not subject to Executive Order 13211, " Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" ( 66 FR 28355, May 22,

2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act ( 5 U. S. C. 601 et seq.). Because this rule approves pre existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 ( Public Law 104 4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 ( 65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 ( 64 5 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 " Protection of Children from Environmental Health Risks and Safety Risks" ( 62 FR 19885, April 23, 1997),

because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards ( VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12( d) of the National Technology Transfer and Advancement Act of 1995 ( 15 U. S. C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 ( 44 U. S. C. 3501 et seq.).

B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: ( 1) rules of particular applicability; ( 2) rules relating to agency management or personnel; and ( 3) rules of agency organization, procedure, or practice that 6 do not substantially affect the rights or obligations of non agency parties. 5 U. S. C. 804( 3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source specific requirements for six named sources.

C. Petitions for Judicial Review Under section 307( b)( 1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by [ insert date 60 days from date of publication of this document in the Federal Register]. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. 7 This action approving source specific RACT requirements for six sources in the Commonwealth of Pennsylvania may not be challenged later in proceedings to enforce its requirements. ( See section 307( b)( 2).)

List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

/ s/ _________________ __________________________ Dated: April 27, 2006 Judith Katz, Acting Regional Administrator, Region III. 8 40 CFR part 52 is amended as follows:

PART 52  [ AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U. S. C. 7401 et seq.

Subpart NN  Pennsylvania 2. In Section 52.2020, the table in paragraph ( d)( 1) is amended by adding the entries for DLM Foods, NRG Energy Center, Tasty Baking Oxford, Inc., Silberline Manufacturing Company,

Adhesives Research, Inc., and Mohawk Flush Doors, Inc., at the end of the table to read as follows:

§ 52.2020 Identification of plan.

* * * * *

( d) * * *

( 1) * * *

Name of source Permit number County State effective date EPA approval date Additional explanation/ § 52.2063 citation * * * * * * *

DML Foods ( formerly Heinz USA) CO 211 Allegheny 6/ 9/ 05 [ Insert Federal Register publication date] [ Insert page number where the document begins] 52.2020( d)( 1)( o)

NRG Energy Center ( formerly Pittsburgh Thermal Limited Partnership) CO 220 Allegheny 6/ 9/ 05 [ Insert Federal Register publication date] [ Insert page number where the document begins] 52.2020( d)( 1)( o) Name of source Permit number County State effective date EPA approval date Additional explanation/ § 52.2063 citation 9 Tasty Baking Oxford, Inc. OP 15 0104 Chester 5/ 12/ 04 [ Insert Federal Register publication date] [ Insert page number where the document begins] 52.2020( d)( 1)( o)

Silberline Manufacturing Company OP 13 0014 Carbon 4/ 19/ 99 [ Insert Federal Register publication date] [ Insert page number where the document begins] 52.2020( d)( 1)( o)

Adhesives Research, Inc. OP 67 2007 York 7/ 1/ 95 [ Insert Federal Register publication date] [ Insert page number where the document begins] 52.2020( d)( 1)( o)

Mohawk Flush Doors, Inc. OP 49 0001 Northumberland 1/ 20/ 99 Insert Federal Register publication date] [ Insert page number where the document begins] 52.2020( d)( 1)( o)

* * * * *