[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Notices]
[Pages 67782-67787]
[FR Doc No: 2020-23574]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90232; File No. SR-CBOE-2020-097]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change Relating
To Amend Its Fees Schedule

October 20, 2020.
    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 October 8, 2020, Cboe Exchange, Inc. (the ``Exchange'' or
``Cboe Options'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I,
II, and III below, which Items have been prepared by the Exchange. The
Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Cboe Exchange, Inc. (the ``Exchange'' or ``Cboe Options'') proposes
to amend its Fees 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://www.cboe.com/AboutCBOE/CBOELegalRegulatoryHome.aspx), 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 Fees Schedule to (1) remove
Market-Maker floor volume from the Marketing Fees assessment; (2) adopt
a new fee code for Market-Maker volume executed on the floor; (3)
remove Market-Maker floor volume eligibility for credits under certain
programs; (4) amend the Clearing Trading Permit Holder Fee Cap; (5)
reinstate certain facility fees currently waived in light of the COVID-
19 pandemic; (6) add options on the S&P 500 ESG Index (``SPESG'') to
the same Customer Large Trade Discount assessed for options on the S&P
500 Index (``SPX''); and (7) amend the application of the Strategy Fees
Cap to certain products, effective October 1, 2020.\3\
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    \3\ The Exchange initially filed the proposed fee changes on
October 1, 2020 (SR-CBOE-2020-093). On October 8, 2020, the Exchange
withdrew that filing and submitted this filing.
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    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 16 options venues to which market participants
may direct their order flow. Based on publicly available information,
no single options exchange has more than 16% of the market share.\4\
Thus, in such a low-concentrated and highly competitive market, no
single options exchange possesses significant pricing power in the
execution of option order flow. 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 to 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. In response to competitive pricing, the Exchange,
like other options exchanges, offers rebates and assesses fees for
certain order types executed on or routed through the Exchange.
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    \4\ See Cboe Global Markets U.S. Options Monthly Market Volume
Summary (September 29, 2020), available at https://markets.cboe.com/us/options/market_statistics/.
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Proposed Removal of Market-Maker Floor Volume From Assessment of
Marketing Fees
    The Exchange first proposes to amend its Marketing Fee program. By
way of background the Marketing Fee is assessed on transactions of
Market-Makers, resulting from customer orders at the per contract rate
provided above on all classes of equity options, options on ETFs,
options on ETNs and index options.\5\ A Designated Primary Market-Maker
(``DPM''), a ``Preferred Market[hyphen]Maker (``PMM''), or a Lead
Market-Maker (``LMM'') (collectively ``Preferenced
Market[hyphen]Maker'') are given access to the marketing fee funds
generated from a Preferenced order. The funds collected via this
Marketing Fee are then put into pools controlled by the Preferenced
Market-Maker. The Preferenced Market-Maker controlling a certain pool
of funds can then determine the order flow provider(s) to which the
funds should be directed in order to encourage such order flow
provider(s) to send orders to the Exchange. Currently, the Marketing
Fee does not apply to Market-Maker transactions resulting from orders
from non[hyphen]Trading Permit Holder market[hyphen]makers;
transactions resulting from penny cabinet trades and sub-penny cabinet
trades; transactions in FLEX Options; transactions executed as a
qualified contingent cross (``QCC''); and transactions in the Penny
Pilot classes resulting from orders executed through the Step Up
Mechanism (``SUM''). Each month, undisbursed marketing fees in excess
of $250,000 will be reimbursed to the Market-Makers that contributed to
the pool based upon a one month look back and their pro-rata portion of
the entire amount of marketing fee collected during that month.
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    \5\ The marketing fee does not apply to Sector Indexes, DJX,
MXEA, MXEF, XSP or products in Underlying Symbol List A.

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    The proposed rule change amends the Marketing Fees table by adding
transactions in open outcry to the list of Market-Maker transactions to
which the Marketing Fee does not apply. As such, transactions in open
outcry will not be assessed, thus will not contribute to the pool nor
be included in the one month look back of pro-rata contributions in
determining the allocation of undisbursed marketing fees. The Exchange
has recently observed that collecting on and distributing funds for
Market-Maker transactions in open outcry resulting from customer orders
has not served as a significant incentive in attracting customer order
flow to the trading floor as designed. Therefore, the proposed rule
change removes this assessment for such transactions on the trading
floor, which, in turn will also assist the Exchange in redirecting
resources and funding into other programs intended to incentivize
customer order flow providers. The Exchange also notes that the
proposed amendment to the Marketing Fee program is also in line with
how other exchanges with trading floors apply their respective
marketing fee programs.\6\
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    \6\ See NYSE American Options Fee Schedule, Section IA, Options
Transaction Fees and Credits, Marketing Charges Per Contract for
Electronic Transactions, which assesses marketing charges on NYSE
American Options Market Makers who are counterparties to an
Electronic trade only.
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Proposed Fee Code for Market-Maker Volume Executed on the Trading Floor
    The Exchange proposes to adopt a new fee code for Market-Maker
orders transacted on the trading floor (i.e., manual) in Equity, ETF,
and ETN Options, Sector Indexes and All Other Index Products. Such
orders will yield fee code ``MB'' and will be assessed a standard rate
of $0.35 per contract. Currently, Market-Maker transactions in Equity,
ETF, and ETN Options are assessed the same fee of $0.23 per contract.
The proposed rule change is intended to assess manual Market-Maker
order flow in light of the proposed change (described in detail above)
to remove the assessment of Marketing Fees for manual Market-Maker
order flow. Additionally, the proposed rule change is consistent with
the manner in which other options exchanges with trading floors
currently assess different standard rates between manual and electronic
market maker volume.\7\
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    \7\ See BOX Options Fee Schedule, Section IA, Electronic
Transaction Fees: Non-Auction Transaction, which assesses $0.50 or
$0.75 for (taker) market maker orders; and Section IIA, Manual
Transaction Fees: Qualified Open Outcry Orders (``QOO''), which
assesses $0.25 for manual market maker orders; see also NYSE Arca
Options Fee Schedule, Trade-Related Charges for Standard Options,
which assesses $0.25 for manual market maker orders and $0.50 or
$1.10 for electronic (take liquidity) market maker orders.
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Proposed Removal of Market-Maker Floor Volume Eligibility Under Certain
Programs
    The Exchange proposes to remove Market-Maker volume transacted in
open outcry from eligibility for credits pursuant to the Liquidity
Provider Sliding Scale and the Affiliated Volume Plan (``AVP'').
Currently, the Liquidity Provider Sliding Scale offers credits on
Market-Maker orders where a Market-Maker achieves certain volume
thresholds based on total national Market-Maker volume in all
underlying symbols \8\ during the calendar month. Currently, under AVP,
if a Market-Maker affiliate \9\ (``Affiliate OFP'') or Appointed OFP
receives a credit under the Exchange's Volume Incentive Program
(``VIP''), the Market-Maker will receive an access credit on their BOE
Bulk Ports corresponding to the VIP tier reached as well as a
transaction fee credit on their sliding scale Market-Maker transaction
fees. Specifically, the proposed rule change provides in footnote 10
(appended to the Liquidity Provider Sliding Scale) that the Liquidity
Provider Sliding Scale applies to Liquidity Provider (Cboe Options
Market-Maker, DPM and LMM) transaction fees in all products except (1)
Underlying Symbol List A (34) excluding XSP, and (2) (as proposed)
volume executed in open outcry. The proposed rule change will also make
clear that the volume thresholds under the Liquidity Provider Sliding
Scale will continue to include volume executed in open outcry. The
Exchange notes that it continues to include volume executed in open
outcry in a Market-Maker's volume eligible to meet the tier thresholds
in order to continue to incentivize Market-Maker order flow to the
trading floor. The Exchange offers a hybrid market system and aims to
continue to balance incentives for Market-Makers to contribute to deep
liquid markets for investors on both its electronic and open outcry
platforms. The proposed rule change provides in footnote 23 (appended
to the AVP table) that volume executed in open outcry is not eligible
to receive a credit under AVP. The Exchange notes that no changes are
being made to the Volume Incentive Program as it relates to Market-
Maker transactions in open outcry as it currently does not include
Market-Maker volume. The proposed change to remove the eligibility of
certain credits for Market-Maker volume in open outcry is also intended
to balance the fact that Market-Makers will no longer be assessed
Marketing Fees on such orders.
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    \8\ Excluding products in Underlying Symbol List A and XSP.
    \9\ ``Affiliate'' defined as having at least 75% common
ownership between the two entities as reflected on each entity's
Form BD, Schedule A.
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Proposed Amendment to Clearing Trading Permit Holder Fee Cap
    The Clearing Trading Permit Holder Fee Cap table and accompanying
footnote 22 provides that, for all non-facilitation business executed
in AIM or open outcry, or as a QCC or FLEX transaction, transaction
fees for Clearing Trading Permit Holder Proprietary and/or their Non-
Trading Permit Holder Affiliates (collectively, ``Firms'') in all
products except Sector Indexes and products in Underlying Symbol List
A, in the aggregate, are capped at $75,000 per month per Clearing
Trading Permit Holder. The proposed rule change amends the cap from
$75,000 to $55,000. The proposed reduction in the fee cap amount is
intended to incentivize Firms to submit increased order flow to the
Exchange thus encouraging a healthy and diverse ecosystem as the
Exchange has observed lower Firm volume across the industry in recently
months than observed historically. Additionally, the Exchange notes
that the proposed cap change is competitive with similar firm caps in
place on other options exchanges.\10\
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    \10\ See BOX Options Fee Schedule, Section IIA, Manual
Transaction Fees: Qualified Open Outcry Orders, which provides that
QOO Order fees for Broker Dealers will be capped at $75,000 per
month per Broker Dealer; see also NYSE Arca Options Fee Schedule,
Firm and Broker Dealer Monthly Firm Cap Tiers, which assesses a
broker-dealer/firm cap between $65,000 and $100,000 for firms that
achieve certain volume tiers.
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Proposed Reinstatement of Certain Facility Fees
    Current footnote 24 provides for modified and waived fees for
certain trading floor-related transaction fees and fees related to
trading floor facilities while the trading floor operates in a modified
state. Specifically, it provides that, among other things, monthly fees
will be waived for the following facilities fees: Standard and non-
standard booth rentals, wireless phone rental, arbitrage phone
positions and satellite TV, provided however that such fees will be
pro-rated based on the remaining trading days in the calendar month if
the trading floor becomes fully operational mid-month. If a TPH is
unable to utilize designated facility services while the trading floor
is operating in a modified state, corresponding fees, including for

standard and non-standard booth rentals, Exchangefone maintenance,
single line maintenance, intra floor lines, voice circuits, data
circuits at local carrier (entrance), and data circuits at in-house
frame, will not be assessed.
    While the Exchange's trading floor continues to operate in a
modified state due to the ongoing COVID-19 pandemic, on September 21,
2020, the Exchange further expanded its trading floor capacity. As a
result, Trading Permit Holders have been able to again occupy booths
and utilize the wireless phone rentals. The Exchange notes also that as
a result of the recent expansion all wireless phone rental will be in
use, however, not all booths will be occupied. Therefore, the proposed
rule change updates footnote 24 to reinstate fees for such facilities
and provides that, beginning October 1, 2020, facilities fees for
standard and non-standard booth rentals and wireless phone rental will
be reinstated. The proposed rule change makes clear too that if a TPH
is unable to utilize designated facility services while the trading
floor is operating in a modified state, corresponding fees, including
for standard and non-standard booth rentals will not be assessed.
Proposed Addition of SPESG to the Rate Provided for SPX in the Large
Customer Discount Program
    On September 21, 2020, the Exchange submitted a fee filing to
introduce fees for the newly listed and traded SPESG on the
Exchange.\11\ The proposal generally amended the Fees Schedule so that
the majority of the existing transactions fees and programs currently
applicable to trading in SPX would also apply to trading in SPESG.
However, it inadvertently did not include SPESG in the Customer Large
Trade Discount along with SPX (and SPXW). As a result, SPESG currently
falls under the transaction fees discount for ``All Other Options''
(which charges for only the first 5,000 contracts per order), where the
Exchange had instead intended it to receive the same transaction fees
discount as SPX (which charges for only the first 20,000 contracts per
order), consistent with amendments made to accommodate SPESG throughout
the proposal. Therefore, the proposed rule change amends the Customer
Large Trade Discount to correct this inadvertent omission and apply the
same Customer Large Trade Discount to SPESG as SPX going forward.
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    \11\ See Securities Exchange Act Release No. 90093 (October 5,
2020) (SR-CBOE-2020-088).
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Proposed To Amend the Application of the Strategy Cap
    By way of background, last month, the Exchange submitted a proposal
that amended footnote 13 and updated the strategy cap from applying to
strategies executed on the same trading day in the same option class
for options on equities, ETFs and ETN to applying to strategies
executed in open outcry on the same trading day in the same option
class across all symbols.\12\ The Exchange notes that in the proposal
it incorrectly applied the cap to strategies executed in open outcry on
the same trading day in the same options across all symbols where,
instead, the proposal was originally intended to clarify that the
strategy cap would apply to strategies executed in open outcry on the
same trading day in the same options classes across all symbols in
equity, ETF and ETN options, as opposed to on a symbol by symbol basis.
As such, the proposed rule change reapplies the strategy cap to
executions (in open outcry) in equities, ETFs and ETNs, as was in place
prior to just last month, and updates footnote 13 to clarify that the
cap applies across all symbols within equity, ETF and ETN options.
Specifically, proposed footnote 13 provides that Market-Maker, Clearing
Trading Permit Holder, JBO participant, broker-dealer and non-Trading
Permit Holder market-maker transaction fees are capped at $0.00 for all
merger, short stock interest, reversal, conversion and jelly roll
strategies executed in open outcry on the same trading day in the same
option class across all symbols in equities, ETFs and ETNs.\13\
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    \12\ See Securities Exchange Act Release No. 89831 (September
11, 2020), 85 FR 58096 (September 17, 2020) (SR-CBOE-2020-084).
    \13\ The proposed rule change also removes footnote 13
incorrectly appended to ``Rate Table--Underlying Symbol List A''.
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2. Statutory Basis
    The Exchange believes the proposed rule change is consistent with
the Securities Exchange Act of 1934 (the ``Act'') and the rules and
regulations thereunder applicable to the Exchange and, in particular,
the requirements of Section 6(b) of the Act.\14\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \15\ 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. Additionally,
the Exchange believes the proposed rule change is consistent with
Section 6(b)(4) of the Act,\16\ which requires that Exchange rules
provide for the equitable allocation of reasonable dues, fees, and
other charges among its Trading Permit Holders and other persons using
its facilities.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
    \16\ 15 U.S.C. 78f(b)(4).
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    As stated above, 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. Many of the proposed fee
changes reflect a competitive pricing structure designed to incentivize
market participants to direct their order flow to the Exchange's
trading floor, which the Exchange believes would enhance market quality
to the benefit of all TPHs. Particularly, the Exchange believes that
its proposed amendment to the application of certain programs and
assessments of Market-Maker volume executed in open outcry and the
proposed $55,000 Clearing Trading Permit Holder Fee Cap are consistent
with Section 6(b)(4) of the Act in that the proposed rule changes are
reasonable, equitable and not unfairly discriminatory. As noted above,
the Exchange operates in highly competitive market. The Exchange is
only one of several options venues to which market participants may
direct their order flow, and it represents a small percentage of the
overall market. The Exchange believes that the proposed fees are
reasonable, equitable, and not unfairly discriminatory in that
competing options exchanges, and the Exchange itself, offer fees and
credits in connection with Market-Maker transactions in open outcry
\17\ or firm fee caps,\18\ as the Exchange now proposes. 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
options exchange transaction fees. Stated otherwise, changes to
exchange transaction fees can have a direct effect on the ability of an
exchange to compete for order flow. The

Exchange amends its Fees Schedule accordingly to respond to this
competitive marketplace.
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    \17\ See supra notes 6 and 7.
    \18\ See supra note 10.
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Proposed Removal of Market-Maker Floor Volume From Assessment of
Marketing Fees
    The Exchange believes that the proposed rule change to amend the
Marketing Fees table by adding transactions in open outcry to the list
of Market-Maker transactions to which the Marketing Fee does not apply
is reasonable because the current assessment of such orders has not
resulted in significant incentive in attracting customer order flow to
the trading floor as designed. Therefore, the proposed rule change is
reasonable in that it removes this assessment for such transactions,
which will allow the Exchange to redirect such resources and funding
into other programs intended to incentivize customer order flow
providers. Impactful incentive programs for customer order flow
providers would, in turn, encourage an increase in customer order flow,
which attracts Market-Makers. A subsequent increase in Market-Maker
activity tends to signal an increase in activity from other market
participants, contributing to overall deeper, more liquid markets and a
robust market ecosystem to the benefit of all market participants. The
Exchange believes the proposed rule change is equitable and not
unfairly discriminatory because the proposed rule change will apply
equally to all Market-Maker volume in open outcry, in that, no such
volume will be assessed, or otherwise a part of, the Marketing Fee
program. Also, as described above, the proposed rule change is
reasonable, equitable and not unfairly discriminatory as the Marketing
Fee program, as proposed, is also in line with how other exchanges with
trading floors apply their respective marketing fee programs.\19\
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    \19\ See supra note 6.
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Proposed Fee Code for Market-Maker Volume Executed on the Trading Floor
    The Exchange believes that the proposed rule change to adopt a fee
code and assess a standard rate for Market-Maker manual orders is
reasonable in that it is reasonably designed to balance the assessment
of fees on such orders in light of the removal of the assessment of
Marketing Fees on such orders as proposed. The Exchange believes that
the proposed rule change is equitable and not unfairly discriminatory
because the proposed fee will apply automatically and uniformly to all
Market-Maker orders transacted in open outcry (i.e., manual).
Additionally, the proposed rule change is reasonable, equitable and not
unfairly discriminatory because it is consistent with the manner in
which other options exchanges with trading floors currently assess
different standard rates between manual and electronic Market-Maker
volume.\20\
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    \20\ See supra note 7.
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Proposed Removal of Market-Maker Floor Volume Eligibility Under Certain
Programs
    The proposed rule change to remove Market-Maker volume transacted
in open outcry from eligibility for credits pursuant to the Liquidity
Provider Sliding Scale and the AVP is reasonable because it is also
reasonably designed to balance against the increased benefit to Market-
Makers as a result of not assessing Marketing Fees for Market-Maker
volume in open outcry, which, the Exchange believes that even with the
proposed standard fee applied, may result in reduced overall
transaction fees for Market-Makers executing volume on the trading
floor. The Exchange also believes that it is reasonable to continue to
include Market-Maker open outcry volume in the volume thresholds for
meeting the Liquidity Provider Sliding Scale tiers because, as stated
above, it is designed to continue to incentivize Market-Maker order
flow to the trading floor and would assist the Exchange in continuing
to provide a robust hybrid market. Particularly, Market-Maker volume in
open outcry facilitates tighter spreads on the Exchange and signals
additional corresponding increase in order flow from other market
participants. Increased overall order flow benefits all investors by
deepening the Exchange's liquidity pool, potentially providing even
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. The Exchange notes, too, that other programs in
the Fees Schedule include certain volume in meeting volume thresholds
while not including the same volume as eligible for credits or reduced
rates under such programs.\21\ The proposed rule change is equitable
and not unfairly discriminatory because the proposed rule change will
apply equally to all Market-Maker volume in open outcry, in that, no
such volume will be allotted credits under the Liquidity Provider
Sliding Scale Program or AVP.
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    \21\ See e.g., Cboe Options Fees Schedule, Volume Incentive
Program (VIP) table (which counts volume for capacity B, J and U
towards tier qualification but not as eligible for the VIP credit),
and Cboe Options Clearing Trading Permit Holder Proprietary Products
Sliding Scale table (which counts volume in products not included in
Underlying Symbol List A towards reaching the tiers, but provides
reduced rates to volume in products included in Underlying Symbol
List A).
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Proposed Amendment to Clearing Trading Permit Holder Fee Cap
    The Exchange believes that the proposed reduction in the Clearing
Trading Permit Holder Fee Cap amount is reasonably designed to
incentivize Firms to increase their order flow submitted to the
Exchange in order to meet, and trade beyond, the reduced cap,
particularly given the recent observation of Firm volume decline across
the industry. As stated above, increases in order flow contributes to
deeper, more liquid markets and an increase in overall trading
activity. The Exchange further believes that Clearing Trading Permit
Holder participation in the markets is essential to a robust market
ecosystem as Clearing Trading Permit Holders facilitate the execution
of customer orders as well as provide clearing services. The Exchange
believes that the proposed fee cap is equitable and reasonable as it
will continue to apply uniformly to all Clearing Permit Holders that
submit qualifying volume to meet the cap. Additionally, the Exchange
notes that the proposed cap change is competitive with similar firm
caps in place on other options exchanges.\22\
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    \22\ See supra note 10.
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Proposed Reinstatement of Certain Facility Fees
    The Exchange believes that reinstating the facility fees for the
use of booths (as occupied) and wireless phones is reasonable as the
Exchange has recently expanded its trading floor capacity, though
continues to operate in a modified state, and therefore these
facilities are once again being used by Trading Permit Holders. The
Exchange believes the proposed rule change is also reasonable,
equitable and not unfairly discriminatory as it applies equally to all
floor TPHs use such services.
Proposed Addition of SPESG to the Rate Provided for SPX in the Large
Customer Discount Program
    The proposed rule change to add SPESG to the same existing
transaction fees that apply to SPX under the Customer Large Trade
Discount is reasonable as it is intended to correct an inadvertent
omission of such via a recent proposal which amended the

Fees Schedule so that the majority of the existing transactions fees
and programs currently applicable to trading in SPX would also apply to
trading in SPESG.\23\ The Exchange also believes, and as stated in the
recent proposal, it is reasonable to apply the same discount to SPESG
as it currently does to SPX because of the relation between the S&P 500
ESG Index and the S&P 500 Index, wherein each constituent of a S&P 500
ESG Index is a constituent of the S&P 500 Index. The proposed rule
change does not alter any of the current rates under the Customer Large
Trade Discount. Moreover, the proposed rule change is equitable and not
unfairly discriminatory because all customer orders in SPESG will be
charged equally up to the first 20,000 contracts per order just as they
are today for orders in SPX.
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    \23\ See supra note 11.
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Proposed To Amend the Application of the Strategy Cap
    The Exchange believes that the proposed rule change to re-apply the
strategy fee cap to open outcry executions in equity, ETF and ETN
options is reasonable because it corrects the Fees Schedule to reflect
the original intention of the recent proposal that updated the strategy
caps and footnote 13,\24\ and because, just until month ago, the cap
applied exclusively to equities, ETFs and ETNs. By way of background,
last month, the Exchange submitted a proposal that amended footnote 13
and updated the strategy cap from applying to strategies executed on
the same trading day in the same option class for options on equities,
ETFs and ETN to applying to strategies executed in open outcry on the
same trading day in the same option class across all symbols.\25\ The
proposed rule change is reasonably designed to provide additional
clarity in the Fees Schedule and mitigate any potential confusion
regarding the application of the strategy cap to strategies executed in
open outcry across all symbols in equity, ETF and ETN options (rather
than an alternative reading that such might apply on a symbol by symbol
basis). The proposed rule change does not alter the amount of the
current strategy fee cap and will continue to be uniformly available to
all similarly situated market participants, that is, all market-makers,
Clearing Trading Permit Holders, JBO participants, broker-dealers and
non-Trading Permit Holders that execute strategies in any class of
equity, ETF or ETN options in open outcry will continue to be eligible
to for the cap, thus, will continue to equally receive no charge on
such orders.
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    \24\ See supra note 12.
    \25\ See Securities Exchange Act Release No. 89831 (September
11, 2020), 85 FR 58096 (September 17, 2020) (SR-CBOE-2020-084).
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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.
    The Exchange does not believe that the proposed rule change will
impose any burden on intramarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act. Particularly,
the proposed change regarding Market-Maker volume in open outcry will
apply uniformly to all such volume. That is, all Market-Makers that
transact orders on the trading floor will not be assessed the Marketing
Fee on such orders, such orders will uniformly not be eligible for
credits under the Liquidity Provider Sliding Scale or AVP, and such
orders will automatically and uniformly yield fee code MB and be
assessed the standard rebate for MB. Likewise, the Clearing Trading
Permit Holder Fee Cap will continue to apply uniformly, as it does
today, to all Firms that submit qualifying orders to reach the cap. The
proposed rule change merely reduces the cap as an incentive for
Clearing Trading Permit Holders to submit additional liquidity to the
Exchange, which would benefit all market participants. The Exchange
notes that the remaining proposed rule changes do not alter any of the
current fees in place. The proposed rule change to reinstate certain
facilities fees will apply equally to all floor Trading Permit Holders
utilizing such facility services, the proposed rule change to the
Customer Large Trade Discount table will apply equally to all customer
orders in SPESG, exactly as it does today for such orders in SPX, and
the proposed rule change to re-apply the strategy cap to strategies
executed in certain products will apply uniformly to all market-makers,
Clearing Trading Permit Holders, JBO participants, broker-dealers and
non-Trading Permit Holders that execute strategies in open outcry
across all symbols in equity, ETF and ETN options.
    The Exchange does not believe that the proposed rule change will
impose any burden on intermarket competition that is not necessary or
appropriate in furtherance of the purposes of the Act because, as noted
above, competing options exchanges, and the Exchange, currently have
substantially similar fees in place in connection with Market-Maker
orders executed in open outcry and firm fee caps. The Exchange notes it
operates in a highly competitive market. In addition to Cboe Options,
TPHs have numerous alternative venues that they may participate on and
director their order flow, including 15 other options exchanges, as
well as off-exchange venues, where competitive products are available
for trading. Based on publicly available information, no single options
exchange has more than 18% of the market share of executed volume of
options trades.\26\ Therefore, no exchange possesses significant
pricing power in the execution of option order flow. 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.'' \27\ 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' . . . .''.\28\ Accordingly, the
Exchange does not believe its proposed changes to the incentive
programs impose any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act.
---------------------------------------------------------------------------

    \26\ See supra note 4.
    \27\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005).
    \28\ NetCoalition v. SEC, 615 F.3d 525, 539 (D.C. Cir. 2010)
(quoting Securities Exchange Act Release No. 59039 (December 2,
2008), 73 FR 74770, 74782-83 (December 9, 2008) (SR-NYSEArca-2006-
21)).
---------------------------------------------------------------------------

    The Exchange does not believe that the proposed rule change in
connection with the waiver of certain designated facility service fees
will impose any burden on intermarket competition that is not necessary
or appropriate in furtherance of the purposes of the Act because the
proposed changes only

affect trading on the Exchange in limited circumstances.

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

    The Exchange neither solicited nor received comments on the
proposed rule change.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) of the Act \29\ and paragraph (f) of Rule 19b-4 \30\
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is 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 will institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78s(b)(3)(A).
    \30\ 17 CFR 240.19b-4(f).
---------------------------------------------------------------------------

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-CBOE-2020-097 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-CBOE-2020-097. 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-CBOE-2020-097 and should be submitted on
or before November 16, 2020.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
---------------------------------------------------------------------------

    \31\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-23574 Filed 10-23-20; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 82, Number 82 (Monday, May 1, 2017)]
[Notices]
[Pages 20367-20368]
[FR Doc No: 2017-08755]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[Docket No. USCG-2017-0316]

Merchant Marine Personnel Advisory Committee

AGENCY: Coast Guard, Department of Homeland Security.

ACTION: Notice of Federal Advisory Committee teleconference meeting.

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

SUMMARY: The Merchant Marine Personnel Advisory Committee will meet via
teleconference, to complete the discussions from its March 22-23, 2017,
meetings on various issues related to the training and fitness of
merchant marine personnel. The teleconference will be open to the
public.

DATES: The full Committee is scheduled to meet by teleconference on
Tuesday, May 16, 2017, from 11 a.m. until 2 p.m. Eastern Daylight Time.
Please note that this teleconference may adjourn early if the Committee
has completed its business.

ADDRESSES: To join the teleconference, contact the individual listed in
the FOR FURTHER INFORMATION CONTACT section to obtain the needed
information no later than 5 p.m. on May 10, 2017. The number of
teleconference lines is limited and will be available on a first-come,
first-served basis. To physically join those participating from U.S.
Coast Guard Headquarters, it will be hosted in Room 6K15-15, 2703
Martin Luther King Jr Ave SE., Washington, DC 20593-7509 (https://www.uscg.mil/baseNCR/pages/visitor_trans.asp).
    Pre-registration Information: Foreign nationals participating
physically at the U.S. Coast Guard Headquarters will be required to
pre-register no later than 5 p.m. on April 28, 2017, to be admitted to
the meeting. U.S. citizen participating physically at the U.S. Coast
Guard Headquarters will be required to pre-register no later than 5
p.m. on May 10, 2017, to be admitted to the meeting. To pre-register,
contact Lieutenant Junior Grade James Fortin at<PHONE_NUMBER> or
<EMAIL_ADDRESS>with MERPAC in the subject line and provide
your name, company, and telephone number; if a foreign national, also
provide your country of citizenship, and passport number and expiration
date. All attendees will be required to provide a government-issued
picture identification card in order to gain admittance to the
building.
    For information on facilities or services for individuals with
disabilities or to request special assistance at the meeting, contact
the Alternate Designated Federal Officer as soon as possible using the
contact information provided in the FOR FURTHER INFORMATION CONTACT
section of this notice.
    Instructions: You are free to submit comments at any time,
including orally at the teleconference, but if you want committee
members to review your comment before the teleconference, please submit
your comments no later than May 10, 2017. We are particularly
interested in comments on the issues in the ``Agenda'' section below.
You must include ``Department of Homeland Security'' and docket number
USCG-2017-0316. Written comments may also be submitted using the
Federal eRulemaking Portal at http://www.regulations.gov. If you
encounter technical difficulties with comment submission, contact the
individual in the FOR FURTHER INFORMATION CONTACT section of this
document. Comments received will be posted without alteration at http://regulations.gov, including any personal information provided. You may
review the Privacy Act notice regarding the Federal Docket Management
System in the March 24, 2005, issue of the Federal Register (70 FR
15086).
    Docket Search: For access to the docket to read documents or
comments related to this notice, go to http://www.regulations.gov, type
USCG-2017-0316 in the Search box, press Enter, and then click on the
item you wish to view.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade James Fortin,
Alternate Designated Federal Officer of the Merchant Marine Personnel
Advisory Committee, 2703 Martin Luther King Jr. Ave SE., Stop 7509,
Washington, DC 20593-7509, telephone<PHONE_NUMBER>, fax<PHONE_NUMBER> or
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Notice of this meeting is given under the
Federal Advisory Committee Act, 5 United States Code Appendix.
    The Merchant Marine Personnel Advisory Committee was established
under authority of section 310 of the Howard Coble Coast Guard and
Maritime Transportation Act of 2014, codified at Title 46, United
States Code, section 8108, and chartered under the provisions of the
Federal Advisory Committee Act (Title 5, United States Code, Appendix).
The Committee acts solely in an advisory capacity to the Secretary of
the Department of Homeland Security through the Commandant of the Coast
Guard on matters relating to personnel in the United States merchant
marine, including training, qualifications, certification,
documentation, and fitness standards and other matters as assigned by
the Commandant. The Committee shall also review and comment on proposed
Coast Guard regulations and policies relating to personnel in the
United States merchant marine, including training, qualifications,
certification, documentation, and fitness standards; may be given
special

assignments by the Secretary and may conduct studies, inquiries,
workshops, and fact finding in consultation with individuals and groups
in the private sector and with State or local governments; and shall
advise, consult with, and make recommendations reflecting its
independent judgment to the Secretary.

Agenda

    The agenda for the May 16, 2017, full Committee teleconference
meeting is as follows:
    (1) Introduction.
    (2) Designated Federal Officer announcements.
    (3) Roll call of Committee members and determination of a quorum.
    (4) New Business.
    (a) New task statement, Military Education, Training and Assessment
for STCW and National Mariner Endorsements;
    (b) New task statement, Review and comment on the ``Guidelines for
Issuing Endorsements for Tankerman PIC Restricted to Fuel Transfers on
Towing Vessels'' policy letter (CG-MMC Policy Letter No. 01-17);
    (c) New task statement, Provide input to MARAD's working group that
will examine and assess the size of the pool of U.S. mariners necessary
to support the U.S. flag fleet in times of national emergency; and
    (d) New task statement, Communication between External Stakeholders
and the Mariner Credentialing Program.
    (e) New task statement, Fundamental requirement for Officers to
read and write in English.
    (5) Report summaries and recommendations from the following working
groups:
    (a) Task Statement 87, Review of policy documents providing
guidance on the implementation of the December 24, 2013 International
Convention on Standards of Training, Certification and Watchkeeping for
Seafarers rulemaking;
    (b) Task Statement 95, Recommendations Regarding Training
Requirements for Officer Endorsements for Master or Mate (Pilot) of
Towing Vessels, except Assistance Towing and Apprentice Mate
(Steersman) of Towing Vessels, in Inland Service;
    (c) Task Statement 96, Review and comment on the course and program
approval requirements including 46 CFR 10.402, 10.403, 10.407 and NVIC
03-14 guidelines for approval of training courses and programs;
    (d) Task Statement 97, Develop and recommend the specifications for
a Designated Examiner, Qualified Assessor and Designated Medical
Examiner online verification tool so that the public, mariners and
shipping companies can verify the Designated Examiner, Qualified
Assessor and Designated Medical Examiners for Coast Guard approval of
individuals to perform the functions of those positions;
    (e) New task statement, Military Education, Training and Assessment
for STCW and National Mariner Endorsements;
    (f) New task statement, Review and comment on the ``Guidelines for
Issuing Endorsements for Tankerman PIC Restricted to Fuel Transfers on
Towing Vessels'' policy letter (CG-MMC Policy Letter No. 01-17);
    (g) New task statement, Provide input to MARAD's working group that
will examine and assess the size of the pool of U.S. mariners necessary
to support the U.S. flag fleet in times of national emergency; and
    (h) New task statement, Communication between External Stakeholders
and the Mariner Credentialing Program.
    (6) Public comment period.
    (7) Discussion of working group recommendations. The Committee will
review the information presented on each issue, deliberate on any
recommendations presented by the working groups, and approve/formulate
recommendations. The Committee will also close any completed tasks.
Official action on these recommendations may be taken on this date.
    (8) Closing remarks.
    (9) Adjournment of meeting.
    A copy of all meeting documentation will be available at https://homeport.uscg.mil/merpac no later than May 10, 2017. Alternatively, you
may contact Lieutenant Junior Grade James Fortin as noted in the FOR
FURTHER INFORMATION CONTACT section above.
    Public comments will be limited to three minutes per speaker.
Please note that the public comment periods will end following the last
call for comments. Please contact Lieutenant Junior Grade James Fortin,
listed in the FOR FURTHER INFORMATION CONTACT section, to register as a
speaker. Please note that the teleconference may adjourn early if the
work is completed.

    Dated: April 26, 2017.
J.G. Lantz,
Director of Commercial Regulations and Standards.
[FR Doc. 2017-08755 Filed 4-28-17; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 77, Number 77 (Friday, April 20, 2012)]
[Rules and Regulations]
[Pages 23619-23622]
[FR Doc No: 2012-9446]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0118; FRL-9662-4]

Approval and Promulgation of Implementation Plans; Alabama:
Removal of State Low-Reid Vapor Pressure Requirement for the Birmingham
Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the
Alabama State Implementation Plan (SIP), submitted by the Alabama
Department of Environmental Management (ADEM), on January 10, 2012, for
parallel processing. ADEM submitted the final version of the SIP
revision on March 2, 2012. The revision modifies Alabama's SIP to move
Chapter 335-3-20 ``Control of Fuels,'' which includes the regulation
that governs the State's 7.0 pounds per square inch (psi) requirement
for the low-Reid Vapor Pressure (RVP) fuel program in Jefferson and
Shelby Counties (hereafter referred to as the ``Birmingham Area'') from
the active measures portion of the Alabama SIP to the contingency
measures portions of the maintenance plans for the Birmingham Area for
the ozone national ambient air quality standards (NAAQS or standards),
and of the proposed maintenance plans for the 1997 annual fine
particulate matter (PM2.5) standards, and the 2006 24-hour
PM2.5 standards, when those actions are finalized. The
change to the SIP will result in the federal RVP requirement of 7.8 psi
applying for the Birmingham Area. EPA is approving this SIP revision
because the State has demonstrated that it is consistent with section
110 of the Clean Air Act (CAA or Act).

DATES: This final rule is effective April 20, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R04-OAR-2012-0118. All documents in the docket are listed in
the www.regulations.gov Web site. 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 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 Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9043. Mr. Lakeman can also be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. What is the effect of this action?
III. What is EPA's final action?
IV. Statutory and Executive Order Reviews

I. What is the background for this final action?

    On March 2, 2012, ADEM submitted a revision to the Alabama SIP to
move the state-level RVP requirement of 7.0 psi from the active
measures portions of the SIP to the contingency measures portions of
the SIP. The applicable RVP requirement would then be the federal 7.8
psi requirement and the 7.0 psi state-level requirement would be a part
of the maintenance plans as contingency measures for the NAAQS
discussed above. The State is not seeking a change to the federal RVP
requirements of 7.8 psi that are applicable to the Birmingham Area.
    Section 211(h) of the CAA requires EPA to set a maximum RVP
standard of 9.0 psi during the high ozone season, which is defined as
June 1st through September 15th of each year. See also 40 CFR 80.27.
The CAA provides for more stringent requirements to be established for
ozone nonattainment areas. In accordance with CAA section 211(h), EPA
established a two-phase reduction in high ozone season commercial
gasoline volatility. These rules focus on reducing gasoline emissions
of volatile organic compounds (VOC). Phase I was applicable to calendar
years 1989 through 1991. Depending on the state and month, gasoline RVP
was not to exceed 10.5 psi, 9.5 psi, or 9.0 psi. See 54 FR 11868 (March
22, 1989). Phase II was applicable to calendar years 1992 and later.
Depending on the state and month, gasoline RVP may not exceed 9.0 psi
or 7.8 psi. See 55 FR 23658 (June 11, 1990). A current listing of the
RVP requirements for states can be found on EPA's Web site at: http://www.epa.gov/otaq/fuels/gasolinefuels/volatility/standards.htm.
    The Birmingham Area was originally classified as a 1-hour ozone
nonattainment area by EPA on March 3, 1978 (43 FR 8962). The Birmingham
nonattainment Area at that time was geographically defined as Jefferson
County, Alabama. On November 6, 1991, by operation of law under section
181(a) of the CAA, EPA classified the Birmingham nonattainment area as
a marginal nonattainment area for the 1-hour ozone NAAQS and added
Shelby County to the nonattainment area (56 FR 56693). The
nonattainment classification for the Birmingham marginal ozone area was
based on ambient air sampling measurements for ozone made during 1987-
1989. As an ozone nonattainment area, the Birmingham Area was subject
to the federal RVP requirements of 7.8 psi for both Jefferson and
Shelby Counties.
    Section 211(c)(4)(C) of the CAA allows states to seek a waiver from
EPA to adopt into the federally-approved SIP, a state fuel program that
is more stringent than federal requirements. Subsequently, in 2001, EPA
approved a state fuel program that imposed a 7.0 psi requirement for
this area, under section 211(c)(4)(C) of the CAA. The low-RVP fuel
program required that all gasoline sold during the control period (June
1st through September 15th) in the Birmingham Area contain a maximum
RVP of 7.0 psi.
    The Birmingham Area subsequently attained the 1-hour ozone NAAQS
and was redesignated for that NAAQS on March 12, 2004. See 69 FR 11798.
At that time, ADEM included the 7.0 psi RVP requirement in its
maintenance plan. Thereafter, the Birmingham Area was designated as a
nonattainment for the more stringent 1997 8-hour ozone NAAQS, effective
June 15, 2004 (69 FR 23858). On May 12, 2006 (71 FR 27631), the
Birmingham Area was redesignated to attainment for the 1997 8-hour
ozone NAAQS.\1\ As part of the requirement to be redesignated to
attainment, ADEM developed a maintenance plan pursuant to CAA section
175A(a) that demonstrated the Area would maintain the 1997 8-hour ozone
NAAQS for at least 10 years after redesignation. In that maintenance
demonstration, ADEM, in its emissions projections, adopted a
conservative approach to the fuel requirement in the Area by assuming a
high ozone season RVP requirement of 9.0 psi as opposed to 7.0 psi.\2\
The State demonstrated that the Area could continue to maintain the
ozone NAAQS with the 9.0 psi requirement.
---------------------------------------------------------------------------

    \1\ On March 12, 2008, EPA promulgated a revised 8-hour ozone
NAAQS--also known as the 2008 8-hour ozone NAAQS. Currently, the
Agency is reviewing individual area's compliance with the revised 8-
hour ozone NAAQS and anticipates completing a designation process in
the Spring of 2012. Today's rulemaking is not related to the 2008 8-
hour ozone NAAQS, however, EPA notes that 2008-2010 and preliminary
2009-2011 monitoring data suggests that the Birmingham Area is
attaining the 2008 8-hour ozone NAAQS.
    \2\ The Birmingham Area was also designated nonattainment for
the 1997 PM2.5 and the 2006 PM2.5 NAAQS. In
association with these redesignation requests, EPA proposed to
approve maintenance plans which assume a high ozone season RVP
requirement of 7.8 psi as opposed to the State requirement of 7.0
psi. Throughout this rulemaking, EPA's reference to the maintenance
plans for the 1997 PM2.5 and 2006 PM2.5 NAAQS
is in reference to the proposed maintenance plans because these
plans have been proposed for approval by EPA but have not yet been
finalized.
---------------------------------------------------------------------------

    EPA's primary consideration for determining the approvability of
Alabama's SIP revision is whether this requested action complies with
section 110(l) of the CAA. Section 110(l) of the CAA states:

    Plan Revision--Each revision to an implementation plan submitted
by a State under this chapter shall be adopted by such State after
reasonable notice and public hearing. The Administrator shall not
approve a revision of a plan if the revision would interfere with
any applicable requirement concerning attainment and reasonable
further progress (as defined in section 7501 of this title), or any
other applicable requirement of this chapter. 42 U.S.C. 7410(l).

    Alabama's March 2, 2012, SIP revision requested only that the
state-level requirement of 7.0 psi be moved from the active measures
portions of the Alabama SIP to the contingency measures portions of the
maintenance plans for the ozone NAAQS, the annual 1997 PM2.5
standards and the 2006 24-hour PM2.5 standards. Because the
RVP requirements currently are a part of the SIP, the revision must
meet the requirements of CAA section 110(l). Therefore, as part of
Alabama's SIP revision request to change its RVP requirement, Alabama
must demonstrate that the revision will not interfere with the
attainment or maintenance of any of the NAAQS or any other applicable
requirement of the CAA.
    Developing what is necessary for a SIP revision to comply with
section

110(l) is a case-by-case determination based upon the circumstances of
each revision. EPA interprets 110(l) as applying to all NAAQS that are
in effect, including those that have been promulgated but for which the
EPA has not yet made designations. The specific elements of the SIP
revision depend on the circumstances and emissions analyses. The
State's request does not involve a modification of the 7.8 psi federal
RVP requirement, which is separately applicable by federal regulation
(40 CFR 80.27) to both Jefferson and Shelby Counties. On March 5, 2012,
EPA published a proposed rulemaking to approve the January 10, 2012,
SIP revision under parallel processing. See 77 FR 13055. The proposed
rulemaking considered the potential impacts with regard to a difference
in RVP requirements for the Birmingham Area between the state-level
requirement of 7.0 psi and the federal-level requirement of 7.8 psi.
    Alabama's March 2, 2012, SIP revision included an evaluation of the
impact that the removal of the 7.0 psi state-level RVP requirement
would have on the applicable NAAQS. For the purposes of this change,
EPA made the preliminary determination that the applicable NAAQS \3\ of
interest for the noninterference demonstration required by section
110(l) of the CAA are the ozone, particulate matter and nitrogen oxides
(NO2) standards because the RVP requirements result
primarily in emissions benefits for VOCs and nitrogen oxides
(NOX). VOCs and NOX emissions are precursors for
ozone and particulate matter, and NO2 is a component of
NOX. Information regarding the State's analysis is provided
in the EPA's March 5, 2012, proposed rulemaking. There are no emissions
reductions attributable to the emissions of carbon monoxide (CO), lead
and sulfur dioxide (SO2) from RVP requirements. As a result,
there is no information indicating the revision would have any impact
on those NAAQS. Additionally, the Birmingham Area is currently
designated attainment for the CO, lead and SO2 NAAQS, and is
continuing to attain these standards. Therefore, the analysis in the
March 5, 2012, rulemaking focused on the impact of Alabama's changes to
the RVP requirements on the ozone, particulate matter and
NO2 NAAQS. See 77 FR 13055.
---------------------------------------------------------------------------

    \3\ The six NAAQS that EPA establishes health and welfare based
standards are CO, lead, NO2, ozone, particulate matter,
and SO2.
---------------------------------------------------------------------------

    EPA's March 5, 2012 (77 FR 13055), proposed approval was contingent
upon Alabama providing EPA with a final SIP revision that was not
changed significantly from the January 10, 2012, revision. Alabama
provided its final SIP revision on March 2, 2012. There were no
significant changes made to the final submittal. There are minor
differences between the draft and final SIP submittals due to changes
made by ADEM in response to comments made by EPA during the public
comment period. EPA received no adverse comments on the March 5, 2012,
proposed rulemaking.

II. What is the effect of this action?

    The action being finalized today will remove the 7.0 psi
requirement from the active portion of the Alabama SIP to the
contingency measures portion of the maintenance plans for the ozone,
and the proposed maintenance plans for the 1997 PM2.5 and
2006 PM2.5 NAAQS, if finalized. This change will result in
the federal RVP requirement of 7.8 psi applying for the Birmingham
Area.

III. What is EPA's final action?

    EPA is taking final action to approve Alabama's March 2, 2012, SIP
revision regarding the State's regulation at Chapter 335-3-20 ``Control
of Fuels'' which identifies Alabama's 7.0 psi requirement for the low-
RVP fuel program in the Birmingham Area (i.e., Jefferson and Shelby
Counties). Specifically, Alabama's March 2, 2012, SIP revision moves
the State's 7.0 psi requirement for low-RVP fuel program in the
Birmingham Area from the active measures portion to the contingency
measures portions of the maintenance plans for ozone standards, and the
proposed maintenance plans for the annual 1997 PM2.5
standard and the 2006 24-hour PM2.5 standard, if finalized.
This final will result in applicability of the federal RVP requirement
of 7.8 psi for the Birmingham Area.
    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for this action to become effective immediately upon publication. This
is because a delayed effective date is unnecessary and will eliminate
any uncertainty as to which fuel requirement refiners that supply fuel
to the Area must adhere to for the summer of 2012. The immediate
effective date for this action is authorized under both 5 U.S.C.
553(d)(1), which provides that rulemaking actions may become effective
less than 30 days after publication if the rule grants or recognizes an
exemption or relieves a restriction, and section 553(d)(3), which
allows an effective date less than 30 days after publication as
otherwise provided by the agency for good cause found and published
with the rule. The purpose of the 30-day waiting period prescribed in
section 553(d) is to give affected parties a reasonable time to adjust
their behavior and prepare before the final rule takes effect. Today's
rule, however, does not create any new regulatory requirements such
that affected parties would need time to prepare before the rule takes
effect. Rather, today's rule will provide refiners time to plan for and
supply fuel to the area. For these reasons, EPA finds good cause under
5 U.S.C. 553(d)(3) for this action to become effective on the date of
publication of this action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and

     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
    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. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 19, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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. This action 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements and Volatile organic
compounds.

    Dated: April 11, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart B--Alabama

0
2. Section 52.50(c) is amended by revising the heading for ``Chapter
No. 335-3-20,'' and the entries for ``Section 335-3-20-.01,'' ``Section
335-3-20-.02,'' and ``Section 335-3-20-.03'' to read as follows:

Sec.  52.50  Identification of plan.

* * * * *
    (c) * * *

                                        EPA Approved Alabama Regulations
----------------------------------------------------------------------------------------------------------------
                                                                State
          State citation                Title/subject      effective date    EPA approval date      Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
                                          Chapter No. 335-3-20 Reserved
----------------------------------------------------------------------------------------------------------------
Section 335-3-20-.01..............  Reserved.............          4/3/12  4/20/12 [Insert        ..............
                                                                            citation of
                                                                            publication].
Section 335-3-20-.02..............  Reserved.............          4/3/12  4/20/12 [Insert        ..............
                                                                            citation of
                                                                            publication].
Section 335-3-20-.03..............  Reserved.............          4/3/12  4/20/12 [Insert        ..............
                                                                            citation of
                                                                            publication].
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-9446 Filed 4-19-12; 8:45 am]
BILLING CODE 6560-50-P