[Federal Register Volume 79, Number 5 (Wednesday, January 8, 2014)]
[Notices]
[Pages 1420-1422]
[FR Doc No: 2014-00073]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71229; File No. SR-Topaz-2013-18]

Self-Regulatory Organizations; Topaz Exchange, LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Make Non-
Controversial Changes to Its Rules

January 2, 2014.
    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 December 23, 2013, the Topaz Exchange, LLC (d/b/a ISE Gemini)
(the ``Exchange'' or ``Topaz'') filed with the Securities and Exchange
Commission (``Commission'') the proposed rule change as described in
Items I, II and III below, which items have been prepared by the self-
regulatory organization. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes a number of non-controversial and technical
changes to its rules. Examples of such

corrections include updating Topaz rule number citations and cross
references, correcting typographical errors and deleting obsolete rule
text. The text of the proposed rule change is available on the
Exchange's Internet Web site at http://www.ise.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 self-regulatory organization
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 self-regulatory organization
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 is proposing to make a number of non-controversial
changes and technical corrections to its rules. Examples of such
corrections include updating rule number citations and cross-
references, correcting typographical errors, and deleting obsolete rule
text. Following is a narrative description of each of the corrections:
    [ssquf] Topaz Rule 701 (Trading Rotations) is being amended to make
a non-substantive change to correct a typographical error in paragraph
(b)(2) and to remove the first sentence in paragraph (c), which states
that trading in options will close 2 minutes after the primary market
on which the underlying stock trades closes for trading. This reference
to a 4:02 p.m. closing was imported from the International Securities
Exchange (``ISE'') rule book, but should have been removed when the
hours of trading on the ISE were amended,\3\ but was inadvertently
overlooked.
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    \3\ See Securities Exchange Act Release No. 53248 (February 7,
2006), 71 FR 8015 (February 15, 2006) (SR-ISE-2005-58).
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    [ssquf] Topaz Rule 705 (Limitation of Liability) is being amended
to change a non-substantive word to update the sentence structure of
paragraph (a).
    [ssquf] Topaz Rule 715 (Types of Orders) is being amended to add
the defined terms of ``Day Order'' and ``Good-Till-Cancelled Order (GTC
Order).'' The addition of these two order types qualify for non-
controversial treatment as there is nothing new or novel with respect
to these types of orders. Additionally, the Chicago Board Options
Exchange has identical order types.\4\
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    \4\ See CBOE Rule 43.2(5) and (7).
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    [ssquf] Topaz Rules 803(c) is being amended to remove underlining
that does not belong. Topaz Rules 803, 810 and 811 are being amended to
remove cross-references to Rule 803(c)(2) and replace them with the
correct cross-references, where applicable. These cross-references were
imported from the ISE rule book, which were inadvertently missed when
paragraph 803(c)(2) was deleted from the ISE rules.\5\
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    \5\ See Securities Exchange Act Release No. 69396 (April 18,
2013), 78 FR 24273 (April 24, 2013) (SR-ISE-2013-18).
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    [ssquf] Topaz Rule 804(d)(3) is being deleted as this provision is
obsolete and no longer applicable, but was imported from the ISE rule
book and (e)(2)(ii) is being amended to delete rule text that was
incorrectly imported from the ISE rule book.\6\
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    \6\ See Securities Exchange Act Release No. 69175 (March 19,
2013), 78 FR 17988 (March 25, 2013) (SR-ISE-2013-17).
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2. Statutory Basis
    The basis under the Act for this proposed rule change is the
requirement under Section 6(b)(5) \7\ that an exchange have rules that
are designed to prevent fraudulent and manipulative acts and practices,
to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism for a free and open market and
a national market system, and, in general, to protect investors and the
public interest. The Exchange believes it is appropriate to make these
technical corrections to its rules so that Exchange members and
investors have a clear and accurate understanding of the meaning of the
Exchange's rules. By removing obsolete rule text, the Exchange is
eliminating any potential for confusion about how its systems operate.
By updating cross-references in its rules, the Exchange is eliminating
any inaccuracies. The addition of a Day Order and a GTC Order qualifies
for non-controversial treatment as there is nothing new or novel with
respect to these order types. Day Orders and GTC Orders merely address
the time-in-force of an order and are standard, generic orders. In
addition, CBOE has both of these order types in its rules.\8\ The
Exchange further believes that the proposed rule change is not unfairly
discriminatory because it treats all market participants equally and
will not have an adverse impact on any market participant.
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    \7\ 15 U.S.C. 78f(b)(5).
    \8\ See note 4.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    Most of the proposed rule changes are non-substantive corrections
to the Exchange's rules and therefore do not implicate the competition
analysis. The change proposing to adopt two new order types is non-
controversial as they already exist on another exchange and merely
address the time-in-force of an order, and will therefore not impact
competition because these order types already exist. The proposed rule
changes will serve to promote regulatory clarity and consistency,
thereby reducing burdens on the marketplace and facilitating investor
protection.

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

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

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

    Because the foregoing proposed rule change does not significantly
affect the protection of investors or the public interest, does not
impose any significant burden on competition, and, by its terms, does
not become operative for 30 days from the date on which it was filed,
or such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) \9\ of the Act and Rule 19b-
4(f)(6) \10\ thereunder. The Exchange provided the Commission with
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 the proposed rule
change.
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6).
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    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.

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-Topaz-2013-18 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 Number SR-Topaz-2013-18. 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 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 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 Web site 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; 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 Number SR-Topaz-2013-18 and should be
submitted on or before January 29, 2014.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-00073 Filed 1-7-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 67 (Monday, April 8, 2019)]
[Proposed Rules]
[Pages 13838-13840]
[FR Doc No: 2019-06647]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. FAA-2013-0772; Notice No. 25-19-01-SC]

Special Conditions: Embraer EMB-550 Airplane; Flight Envelope
Protection: Normal Load Factor (g) Limiting

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed special conditions.

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SUMMARY: This action proposes an amendment to special conditions for
the Embraer EMB-550 airplane. This airplane will have novel or unusual
design features when compared to the state of technology envisioned in
the airworthiness standards for transport category airplanes. This
design feature is associated with an electronic flight control system
that prevents the pilot from inadvertently or intentionally exceeding
the positive or negative airplane limit load factor. The applicable
airworthiness regulations do not contain adequate or appropriate safety
standards for this design feature. These proposed special conditions
contain the additional safety standards that the Administrator
considers necessary to establish a level of safety equivalent to that
established by the existing airworthiness standards.

DATES: Send comments on or before April 29, 2019.

ADDRESSES: Send comments identified by Docket No. FAA-2013-0772 using
any of the following methods:
     Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending
your comments electronically.
     Mail: Send comments to Docket Operations, M-30, U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC, 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov/, including any personal
information the commenter provides. Using the search function of the
docket website, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478).
    Docket: Background documents or comments received may be read at
http://www.regulations.gov/ at any time. Follow the online instructions
for accessing the docket or go to Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Joe Jacobsen, Airplane & Flight Crew
Interface Section, AIR-671, Transport Standards Branch, Policy and
Innovation Division, Aircraft Certification Service, Federal Aviation
Administration, 2200 South 216th Street, Des Moines, Washington 98198;
telephone and fax<PHONE_NUMBER>; email [email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite interested people to take part in this rulemaking by
sending written comments, data, or views. The most helpful comments
reference a specific portion of the special conditions, explain the
reason for any recommended change, and include supporting data.
    We will consider all comments we receive by the closing date for
comments. We may change these special conditions based on the comments
we receive.

Background

    On August 9, 2016, Embraer applied for a change to Type Certificate
No. TC00062IB to include additional flexibility to the normal load
factor limit on the Model EMB-550 airplane, by amending the existing
Model EMB-550 Special Conditions No. 25-520-SC as a result of
harmonization efforts in the Flight Test Harmonization Working Group
(FTHWG). The Embraer EMB-550 airplane, currently approved under Type
Certificate No. TC00062IB, is a twin-engine, transport category
airplane with a maximum takeoff weight of 42,857 pounds. The EMB-550
has a maximum seating capacity of 12 passengers.
    The Model EMB-550 flight control system design incorporates normal
load factor limiting on a full-time basis that will prevent the pilot
from inadvertently or intentionally exceeding the positive or negative
airplane limit load factor. This feature is considered novel and
unusual in that the current regulations do not provide standards for
maneuverability and controllability evaluations for such systems.

Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14
CFR) 21.101, Embraer must show that the EMB-550 airplane, as changed,
continues to meet the applicable provisions of the regulations listed
in Type Certificate No. TC00062IB or the applicable regulations in
effect on the date of application for the change, except for earlier
amendments as agreed upon by the FAA.
    If the Administrator finds that the applicable airworthiness
regulations (i.e., 14 CFR part 25) do not contain adequate or
appropriate safety standards for the Embraer EMB-550 airplane because
of a novel or unusual design feature, special conditions are prescribed
under the provisions of Sec.  21.16.
    Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same novel or
unusual design feature, or should any other model already included on
the same type certificate be modified to incorporate the same novel or
unusual design feature, these special conditions would also apply to
the other model under Sec.  21.101.
    In addition to the applicable airworthiness regulations and special
conditions, the Embraer EMB-550 airplane must comply with the fuel vent
and exhaust emission requirements of 14 CFR part 34 and the noise
certification requirements of 14 CFR part 36.
    The FAA issues special conditions, as defined in 14 CFR 11.19, in
accordance with Sec.  11.38, and they become part of the type
certification basis under Sec.  21.101.

Novel or Unusual Design Features

    The Embraer EMB-550 airplane will incorporate the following novel
or unusual design features:
    The Model EMB-550 flight control system design incorporates normal
load factor limiting on a full-time basis that will prevent the pilot
from inadvertently or intentionally exceeding the positive or negative
airplane limit load factor. This feature is considered novel and
unusual in that the current regulations do not provide standards for
maneuverability and controllability evaluations for such systems.

Discussion

    The normal load factor limit on the Model EMB-550 is unique in that
traditional airplanes with conventional flight control systems
(mechanical linkages) are limited in the pitch axis only by the
elevator surface area and deflection limit. The elevator control power
is normally derived for adequate controllability and the
maneuverability at the most critical longitudinal pitching moment. The
result is that traditional airplanes have a significant portion of the
flight envelope where maneuverability in excess of limit structural
design values is possible. The Model EMB-550 because of the normal load
factor limit does not have this excess maneuverability.
    Title 14, Code of Federal Regulations (14 CFR) part 25 does not
specify requirements for demonstrating maneuver control that impose any
handling qualities requirements beyond the design limit structural
loads. Nevertheless, some pilots are accustomed to the availability of
this excess maneuver capacity in case of extreme emergency such as
upset recoveries or collision avoidance.
    As a result of harmonization efforts with other civil aviation
authorities through the Flight Test Harmonization Working Group
(FTHWG), the FAA is including additional flexibility in maneuverability
limits by amending the existing Model EMB-550 Special Conditions No.
25-520-SC. This additional flexibility allows for reduced
maneuverability limits beyond Vmo/Mmo. The existing special conditions
are otherwise unchanged.
    The proposed special conditions contain the additional safety
standards that the Administrator considers necessary to establish a
level of safety equivalent to that established by the existing
airworthiness standards.

Applicability

    As discussed above, these special conditions are applicable to the
Embraer EMB-550 airplane. Should Embraer apply at a later date for a
change to the type certificate to include another model incorporating
the same novel or unusual design feature, these special conditions
would apply to that model as well.
    Certification of the Embraer EMB-550 airplane is currently
scheduled for April 2019. The substance of these special conditions has
been subject to the notice and public comment procedure in several
prior instances. Therefore, because a delay would significantly affect
the applicant's installation of the system and the certification of the
airplane, we are shortening the public comment period to 20 days.

Conclusion

    This action affects only certain novel or unusual design features
on one model of airplane. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements.

Authority Citation

    The authority citation for these special conditions is as follows:

    Authority:  49 U.S.C. 106(f), 106(g), 40113, 44701, 44702,
44704.

The Proposed Special Conditions

    Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for Embraer EMB-550 airplanes.

Flight Envelope Protection: Normal Load Factor (g) Limiting

    1. To meet the intent of adequate maneuverability and
controllability required

by Sec.  25.143(a), and in addition to the requirements of Sec.
25.143(a) and in the absence of other limiting factors, the
following special conditions are proposed based on Sec.  25.333(b):
    a. The positive limiting load factor must not be less than:
    (1) 2.5g for the normal state of the electronic flight control
system with the high lift devices retracted up to Vmo/Mmo. The
positive limiting load factor may be gradually reduced down to 2.25g
above Vmo/Mmo.
    (2) 2.0g for the normal state of the electronic flight control
system with the high lift devices extended.
    b. The negative limiting load factor must be equal to or more
negative than:
    (1) Minus 1.0g for the normal state of the electronic flight
control system with the high lift devices retracted.
    (2) 0.0g for the normal state of the electronic flight control
system with high lift devices extended.
    c. Maximum reachable positive load factor wings level may be
limited by the characteristics of the electronic flight control
system or flight envelope protections (other than load factor
protection) provided that:
    (1) The required values are readily achievable in turns, and
    (2) Wings level pitch up responsiveness is satisfactory.
    d. Maximum achievable negative load factor may be limited by the
characteristics of the electronic flight control system or flight
envelope protections (other than load factor protection) provided
that:
    (1) Pitch down responsiveness is satisfactory, and
    (2) From level flight, 0g is readily achievable or
alternatively, a satisfactory trajectory change is readily
achievable at operational speeds. For the FAA to consider a
trajectory change as satisfactory, the applicant should propose and
justify a pitch rate that provides sufficient maneuvering capability
in the most critical scenarios.
    e. Compliance demonstration with the above requirements may be
performed without ice accretion on the airframe.
    f. These special conditions do not impose an upper bound for the
normal load factor limit, nor does it require that the limiter
exist. If the limit is set at a value beyond the structural design
limit maneuvering load factor ``n'' of Sec. Sec.  25.333(b),
25.337(b) and 25.337(c), there should be a very obvious positive
tactile feel built into the controller so that it serves as a
deterrent to inadvertently exceeding the structural limit.

    Issued in Des Moines, Washington.
Suzanne Masterson,
Acting Manager, Transport Standards Branch, Policy and Innovation
Division, Aircraft Certification Service.
[FR Doc. 2019-06647 Filed 4-5-19; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 86, Number 156 (Tuesday, August 17, 2021)]
[Rules and Regulations]
[Pages 45864-45866]
[FR Doc No: 2021-17238]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

Docket Number USCG-2021-0610
RIN 1625-AA00

Safety Zone, Recurring Events in Captain of the Port Duluth--
Bridgefest Regatta Fireworks

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard will enforce a safety zone for the Bridgefest
Regatta Fireworks in Houghton, MI. This action is necessary to protect
participants and spectators during the Bridgefest Regatta Fireworks.
During the enforcement period, entry into, transiting, or anchoring
within the safety zone is prohibited unless authorized by the Captain
of the Port Duluth or their designated on-scene representative.

DATES: This rule is effective from 9:15 p.m. through 9:45 p.m. on
September 4, 2021.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2021-0610 in the search box and click ``Search.'' Next, in the Document
Type column, select ``Supporting & Related Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions about this
notice of enforcement, call or email LTJG Joseph R. McGinnis, telephone
218-725-3818, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable. The event
already has established dates in 33 CFR 165.943 Table 1, and typically
takes place in mid-June. However, this year the event will take place
in September. The impact of organizer budgeting constraints in June,
2021 prevented the event from occurring within the timeframe published
in the Federal Register. Thus, the Safety Zone must be published as a
Temporary Final Rule this year because a Notice of Enforcement cannot
be used to enforce a rule this far outside of the dates approved in the
Federal Registrar. We must establish this safety zone by September 4,
2021 in order to protect the public from the hazards associated with a
fireworks event.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. Delaying the effective date of
this rule would be impracticable because immediate action is needed to
respond to the potential safety hazards associated with a triggering
event from the Bridgefest Regatta Fireworks.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C.
70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of
Homeland Security Delegation No. 00170.1, Revision No. 01.2. The
Captain of the Port Duluth (COTP) has determined that potential hazards
associated with a firework triggering event on September 4, 2021, will
be a safety concern for anyone within a 1120 foot radius of the launch
site. This rule is needed to protect personnel, vessels, and the marine
environment in the navigable waters within the safety zone while the
event occurs.

IV. Discussion of the Rule

    This rule establishes a safety zone from 9:15 p.m. through 9:45
p.m. on September 4, 2021. All waters of the Keweenaw Waterway in
Hancock, MI within the arc of a circle with a radius of no more than
1,120 feet from the launch site at position 47[deg]07'22'' N,
088[deg]35'28'' W. No vessel or person will be permitted to enter the
safety zone without obtaining permission from the COTP or a designated
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. This rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, this
rule has not been reviewed by the Office of Management and Budget
(OMB).
    This regulatory action determination is based on the fact that
there is little commercial traffic on the Portage Canal and the size of
the area being enforced is small enough to allow vessels to transit
safely but must be aware of their surroundings. Coast Guard can be
contacted VHF Channel 16 for any discrepencies or hazards found during
the event.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit near
the safety zone may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant economic
impact on any vessel owner or operator.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), which guide the Coast
Guard in complying with the National Environmental Policy Act of 1969
(42 U.S.C. 4321-4370f), and have determined that this action is one of
a category of actions that do not individually or cumulatively have a
significant effect on the human environment. This rule involves all
waters of the Keweenaw Waterway in Hancock, MI within the arc of a
circle with a radius of no more than 1,120 feet from the launch site at
position 47[deg]07'22'' N, 088[deg]35'28'' W. There is no fauna, flora,
or ecosystem of concern that is in the vicinity of the display that
will be catastrophically effected during a 30 minute firework show. It
is categorically excluded from further review under paragraph L[60(a)]
of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  46 U.S.C. 70034; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T08-0610 to read as follows:

Sec.  165.T08-610  Safety Zone, Recurring Events in Captain of the Port
Duluth--Bridgefest Regatta Fireworks.

    (a) Location. The following area is a temporary safety zone: All
waters of the Keweenaw Waterway in Hancock, MI within the arc of a
circle with a radius of no more than 1,120 feet from the launch site at
position 47[deg]07'22'' N, 088[deg]35'28'' W.
    (b) Definitions. As used in this section, designated representative
means a Coast Guard Patrol

Commander, including a Coast Guard coxswain, petty officer, or other
officer operating a Coast Guard vessel and a Federal, State, and local
officer designated by or assisting the Captain of the Port Duluth
(COTP) in the enforcement of the safety zone.
    (c) Regulations. (1) In accordance with the general regulations in
Sec.  165.23, entry into, transiting, or anchoring within the safety
zone described in paragraph (a) is prohibited unless authorized by the
Captain of the Port, Duluth or his designated representative.
    (2) Before a vessel operator may enter or operate within the safety
zone, they must obtain permission from the Captain of the Port, Duluth,
or a designated representative via VHF Channel 16 or telephone at (906)
635-3233. Vessel operators given permission to enter or operate in the
safety zone must comply with all orders given to them by the Captain of
the Port, Duluth or a designated representative.
    (d) Enforcement period. This section will be enforced from 9:15
p.m. through 9:45 p.m. on September 4, 2021.

    Dated: August 6, 2021.
F.M. Smith,
CDR, U.S. Coast Guard, Captain of the Port Duluth.
[FR Doc. 2021-17238 Filed 8-16-21; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Notices]
[Pages 53401-53402]
[FR Doc No: 2021-20849]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

Clarification of Departmental Position on American Airlines--
JetBlue Airways Northeast Alliance Joint Venture

AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).

ACTION: Clarification notice.

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

SUMMARY: By this notice, the U.S. Department of Transportation (DOT or
Department) clarifies its position on the American Airlines (American)
and JetBlue Airways (JetBlue) Northeast Alliance (NEA) joint venture
agreements and the January 10, 2021 agreement between and among DOT,
JetBlue and American (DOT Agreement) terminating the Department's
review of the NEA, following the September 21, 2021 announcement of
antitrust litigation by the U.S. Department of Justice (DOJ). The
Department will work closely with DOJ should it seek data and documents
that will help in the resolution of DOJ's action. The DOT Agreement
remains in effect during the pendency of the DOJ litigation. The
Department retains independent statutory authority to prohibit unfair
methods of competition in air transportation to further its statutory
objectives to prevent predatory or anticompetitive practices and to
avoid unreasonable industry concentration.\1\ However, the Department
intends to defer to DOJ, as the primary enforcer of Federal antitrust
laws, to resolve the antitrust concerns that DOJ has identified with
respect to the NEA. The Department also intends to stay the proceedings
in a Spirit Airlines, Inc. (Spirit) formal complaint against the NEA's
implementation while the DOJ action is pending. The Department will
assess its next steps, if any, relating to the Spirit complaint and the
NEA at the conclusion of the DOJ litigation.
---------------------------------------------------------------------------

    \1\ 49 U.S.C. 40101.

---------------------------------------------------------------------------
DATES: September 27, 2021.

FOR FURTHER INFORMATION CONTACT: Blane A. Workie or Ryan Patanaphan,
Office of Aviation Consumer Protection, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, at 202-
366-9342 or by email at<EMAIL_ADDRESS>or
<EMAIL_ADDRESS>or Todd Homan, Director, Office of Aviation
Analysis, 1200 New Jersey Ave. SE, Washington, DC 20590,<PHONE_NUMBER>,
<EMAIL_ADDRESS>(email).

SUPPLEMENTARY INFORMATION:

Background

    In 2020, American and JetBlue submitted to the Department joint
venture agreements concerning the NEA, which covered code-sharing,
frequent flyer, interline, revenue sharing, and asset sharing. The
agreements and supporting documentation were submitted to the
Department under 49 U.S.C. 41720, which requires that major air
carriers submit joint venture agreements to the Department at least 30
days before the agreements take effect. Section 41720 permits the
Department to extend the 30-day period up to an additional 150 days for
joint venture agreements involving code-sharing and 60 days for other
types of joint venture agreements.
    Consistent with past precedent, the Department chose to conduct the
review of the NEA informally and without establishing a docketed
proceeding.\2\ As permitted by 49 U.S.C. 41720, the Department extended
its review and the waiting period for the NEA to November 19, 2020, via
a Federal Notice issued on August 20, 2020.\3\ In the notice, the
Department explained that it would consult with DOJ during its review,
and that its focus was on whether the NEA would likely reduce
competition and create the potential for collusion or other
restrictions on price and service levels in markets where the carriers
compete.
---------------------------------------------------------------------------

    \2\ See, e.g., 67 FR 50,745 (Aug. 5, 2002) (United Air Lines and
US Airways) and 67 FR 69,804 (Nov. 19, 2002) (Delta Air Lines,
Northwest Airlines, and Continental Airlines). Both agreements were
subject to an informal, non-docketed review, although third parties
were given the opportunity to submit comments on the agreements due
to public interest concerns, subject to access restrictions designed
to ensure that confidential business information did not become
public.
    \3\ 85 FR 51,552 (Aug. 20, 2020).
---------------------------------------------------------------------------

    Section 41720 does not provide the Department the authority to
approve or disapprove agreements submitted for review under that
section; rather, the section gives the Department a limited period of
time to review the agreements before such agreements may take effect.
DOJ, which is responsible for enforcing Federal antitrust laws and has
also been conducting its own review of the NEA, had not concluded its
investigation at the time DOT's review period ended and DOT entered in
the DOT Agreement with American and JetBlue on January 10, 2021.
Section 41720 does not require DOJ to adhere to a particular timeframe
for its review. If an alliance agreement appears to be problematic, the
Department and DOJ have separate authority to address anticompetitive
conduct. As the Department's time-limited review of the NEA was
concluding, it was aware that DOJ was continuing its detailed review
and identifying and examining concerns on the impact on competition.
    In this context, DOT's review of the NEA under section 41720 was
not designed to approve or disapprove the alliance. During the
Department's review, American and JetBlue entered into negotiations
with DOT. These negotiations culminated in the DOT Agreement with
American and JetBlue on January 10, 2021, in which the carriers agreed
to take actions to address several Departmental concerns about
anticompetitive harms arising out of the NEA.\4\ The DOT Agreement did
not address all of the Department's concerns resulting from the NEA's
impacts on competition, but instead sought concessions from the
carriers that were intended to mitigate some of the anticompetitive
harm while providing a means for monitoring the NEA's implementation.
---------------------------------------------------------------------------

    \4\ The agreement can be found at https://www.transportation.gov/sites/dot.gov/files/2021-01/Agreement%20terminating%20review%20DOT-AA-B6%20with%20appendix%20011021%20website.pdf.
---------------------------------------------------------------------------

    For example, the DOT Agreement required upfront slot divestitures
of six slot-pairs at Ronald Reagan Washington National Airport (DCA),
seven slot-pairs at John F. Kennedy International Airport (JFK), and a
conditional divestiture of up to ten additional slots at JFK if the
carriers failed to meet capacity growth targets in New York City
(limited to JFK and LaGuardia Airports). In the case of the DCA slot-
pairs, a perpetual-lease arrangement provided for the divested slots to
be reacquired by the carriers in the event that the NEA is
discontinued. The carriers also agreed to periodically report to DOT
capacity figures, route changes, and slot and gate utilization metrics.
The carriers agreed to adhere to antitrust protocols to limit the type
of communications between them, as well as other commitments.
    The DOT Agreement does not expand or restrict the Department's
existing statutory and regulatory authorities, including the ability to
investigate and prohibit potentially unfair, deceptive, or exclusionary
practices.\5\ The parties to

the DOT Agreement recognized that the alliance was still subject to the
antitrust laws, that DOJ was continuing its review, and that DOT
retained its authority to remedy any competitive harm.
---------------------------------------------------------------------------

    \5\ Section 7 of the DOT Agreement specifies that ``[n]othing in
this Agreement shall expand or restrict DOT's existing statutory and
regulatory authorities, or at any time prohibit or limit DOT from
exercising those authorities, including but not limited to
investigation and enforcement regarding: (1) Potentially unfair or
deceptive practices; (2) potentially exclusionary practices; [or]
(3) acquisition or operation of additional slots or gates not
currently held by American or JetBlue.''
---------------------------------------------------------------------------

Spirit Airlines Formal Complaint

    On January 7, 2021, prior to execution and public release of the
DOT Agreement, Spirit filed a formal complaint with DOT that was
docketed in DOT-OST-2021-0001. In its complaint, Spirit requested an
on-the-record investigation of the NEA to determine whether the NEA's
implementation would constitute an unfair method of competition in
violation of 49 U.S.C. 41712(a).\6\ Spirit also asserted that
insufficient information about the NEA was made public during the
Department's review, and that the remedies agreed to in the DOT
Agreement were insufficient to address anticompetitive concerns.
---------------------------------------------------------------------------

    \6\ The Department's authority to address competition concerns
is separate and distinct from that of DOJ, covering a different
scope of anticompetitive conduct than DOJ's authority. Under 49
U.S.C. 41712, the Department has authority to investigate and decide
whether a carrier has been or is engaging in an unfair method of
competition in air transportation. The Department prohibits
anticompetitive conduct that (1) violates the antitrust laws, (2) is
not yet serious enough to violate the antitrust laws but may well do
so if left unchecked, or (3) although not a violation of the letter
of the antitrust laws, is close to a violation or is contrary to
their spirit. See, e.g., ASTA v. United et al., DOT Order 2002-9-2
(Sep. 4, 2002), citing E.I. Du Pont de Nemours and Co. v. Federal
Trade Commission, 729 F.2d 128, 136-137 (2d Cir. 1984). E.I.Du Pont
de Nemours interpreted the Federal Trade Commission's authority
under 15. U.S.C. 45, upon which 49 U.S.C. 41712 is based.
---------------------------------------------------------------------------

    Several entities, including other airlines, an airline association,
a consumer advocacy organization, and a non-profit organization focused
on competition, submitted comments supporting various aspects of
Spirit's complaint.\7\ Those comments were filed after the public
release of the DOT Agreement. American and JetBlue filed answers
opposing Spirit's complaint.
---------------------------------------------------------------------------

    \7\ The organizations included the National Air Carrier
Association, Southwest Airlines, United Airlines, Travelers United,
the American Antitrust Institute, Airports Council International--
North America, and the Service Employees International Union.
---------------------------------------------------------------------------

DOJ Litigation

    On September 21, 2021, after completing an extended review of the
NEA, DOJ announced its determination that the NEA violates the
antitrust laws and that the agency has initiated action to enjoin the
agreements. DOJ has shared with the Department its significant concerns
with respect to the effect of the NEA on competition. The Department
notes that the DOT Agreement does not, nor was it intended to, wholly
address these concerns. The Department will work closely with DOJ
should it seek data and documents that will help in the resolution of
DOJ's action.
    Because of the DOJ action, and to avoid duplicative or inconsistent
proceedings, DOT is separately staying the proceedings in the Spirit
formal complaint while the DOJ action is unresolved. Although the DOT
Agreement remains in effect, the Department will continue coordinating
with DOJ. The Department notes its own statutory authority to
investigate and prohibit anticompetitive conduct if the situation
warrants. However, the Department intends to defer to DOJ, as the
primary enforcer of Federal antitrust laws, to resolve antitrust
concerns with respect to the NEA. The Department believes that it would
be inefficient and unhelpful to have two concurrent proceedings and
therefore intends to defer any independent action until the DOJ
antitrust litigation has concluded.

    Issued this 21st Day of September, 2021, in Washington, DC.
John E. Putnam,
Acting General Counsel.
[FR Doc. 2021-20849 Filed 9-24-21; 8:45 am]
BILLING CODE 4910-9X-P


[Federal Register: October 8, 2009 (Volume 74, Number 194)]
[Notices]
[Page 51931-51935]
[DOCID:fr08oc09-105]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-60777; File No. SR-BX-2009-060]

Self-Regulatory Organizations; NASDAQ OMX BX; Notice of Filing
and Immediate Effectiveness of a Proposal To Amend Exchange Rule 11890
Governing Clearly Erroneous Executions Pursuant to Section 19(b)(1) of
the Securities Exchange Act of 1934 (``Act'') \1\ and Rule
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).

DATES: October 2, 2009.
    19b-4 thereunder,\2\ notice is hereby given that on October 1,
2009, NASDAQ OMX BX (``Exchange'' or ``BX'') 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. BX has designated the proposed rule change as
constituting a rule change under Rule 19b-4(f)(6) under the Act,\3\
which renders the proposal effective upon filing with the Commission.
The Commission is publishing this notice to solicit comments on the
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    BX is proposing to amend Exchange Rule 11890 governing clearly
erroneous executions. The text of the filing is available at http://

nasdaqomx.cchwallstreet.com 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, BX 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. BX 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 Exchange Rule 11890 in order to
improve the Exchange's rule regarding clearly erroneous executions. The
proposed changes are part of a market-wide effort designed to provide
transparency and finality with respect to clearly erroneous executions.
This effort seeks to achieve consistent results for participants across
U.S. equities exchanges while maintaining a fair and orderly market,
protecting investors and protecting the public interest. In addition,
the Exchange has attempted to shorten and combine existing sections of
Rule 11890 and has incorporated all of the prior Interpretive Materials
into the body of the rule. The Exchange believes this will create a
clearer and more concise rule that will assist market participants in
complying with its terms. The proposed changes are more fully discussed
below.

    Definition
    The Exchange will amend the meaning of the definition of a clearly
erroneous execution, to add clarifying language with respect to
cancelled trades. The proposed change identifies that a transaction
made in error and agreed to be canceled by both parties or determined
by the Exchange to be clearly erroneous will be removed from the
Consolidated Tape. A trade will only be removed from the Consolidated
Tape when the determination is deemed final and any applicable appeals
have been exhausted.

    Member Initiated Review Requests
    The Exchange proposes to amend Rule 11890 to update the procedures
for requesting a review of a clearly erroneous transaction. The
Exchange proposes that requests for review must be received by the
exchange within 30 minutes of the execution time for orders initially
routed to and executed on the Exchange. This is consistent with the
Exchange's current practice and will be applied uniformly by other
markets to provide a level of consistency and certainty across market
centers. As is the case under the current rule, the Exchange proposes
that members submit certain essential identifying information with the
request including the time of the transaction(s), security symbol(s),
number of shares, price(s), side (bought or sold), and factual basis
for believing that the trade is clearly erroneous. The current rule
allows members additional time to file at market open. However, the
Exchange believes that a uniform 30 minutes is an appropriate time
frame for all trades that affords the requesting party sufficient time
to gather and submit all required information.
    The proposed rule also requires the Exchange to notify the
counterparty to a trade upon receipt of a timely filed request for
review that satisfies the numerical guidelines set forth within the
Rule (referred to in the proposed amendments as ``Numerical
Guidelines,'' which are discussed in detail below). This proposed
language eliminates the requirement that counterparties be notified of
every request for a ruling and instead requires notice only when a
request is filed in a timely manner and satisfies the Numerical
Guidelines. This change alleviates the burden on the Exchange of
notifying the counterparties when a request for review does not merit a
ruling to break the trades at issue.
    In addition, notification may be by one of several means, including
press release, system status, web posting or any other method
reasonably expected to provide rapid notice to many market
participants. For example, the Exchange anticipates streamlining the
notification process for counterparties when the Exchange receives a
high volume of clearly erroneous filings. In such circumstances it
might issue an electronic system status message indicating which trades
were under review instead of more time consuming individual calls to
each counterparty. This will benefit market participants by expediting
notification that trades are under review and the decision with respect
to particular trades. The Exchange would advise market participants of
what notification processes it will use through a Notice to Members or
Head Trader Alert.

    Routed Executions
    The Exchange proposes to give other market centers an additional 30
minutes from the receipt of their participant's timely filing to
request a ruling, but no longer than 60 minutes from the time of the
execution under review. This provision accounts for those executions
initially directed to an away market center and subsequently routed by
that away market center to the Exchange.
    For example, assume an order is initially routed by a participant
to Market Center A and subsequently routed to the Exchange where the
order is executed at a price outside of the Numerical Guidelines.
Without additional time Market Center A might be late in filing with
the Exchange if its customer takes almost 30 minutes to file the
original complaint. The proposal would give Market Center A up to 30
additional minutes from the time its customer files with Market Center
A to file with the Exchange for review. This provision caps the filing
deadline for an away market center at 60 minutes from the time of the
execution under review.

    Outlier Transactions
    The proposed amendments to Rule 11890 provide that an Official \4\
may consider requests for review received after thirty minutes, but not
longer than sixty minutes after the execution in question in the case
of an Outlier Transaction. An Outlier Transaction is a transaction
where (1) the execution price of the security is greater than three
times the current Numerical Guidelines, or (2) the execution price of
the security breaches the 52-week high or low, in which case NASDAQ may
consider Additional Factors to determine if the transaction qualifies
for review or if the Exchange shall decline to act.
---------------------------------------------------------------------------

    \4\ Designated Officers of the Exchange and designated employees
of the Exchange or The NASDAQ Stock Market LLC who are authorized to
act on behalf of the Exchange pursuant to the Regulatory Service
Agreement (RSA) between the Exchange and NASDAQ Stock Market LLC
(collectively ``Officials'') would have authority to review member
initiated requests under Rule 11890(a). This will allow one Official
to review related transactions in affiliated markets to expedite and
ensure uniformity of decisions among affiliated exchanges.

    Deletion of Current Rule 11890(a)(2)(D) Inside Price Minimum
Thresholds
    The Exchange proposes to delete the inside price minimum thresholds
that currently apply to transactions during regular market hours (9:30
a.m. to 4:00 p.m.). These thresholds establish which trades are
eligible for review and are different than the Numerical Guidelines.
The Exchange believes that these thresholds, which predate the use of
Numerical Guidelines, add an extra layer of complexity to the filing
process

without providing any meaningful benefit to investors or the Exchange.

    Numerical Guidelines
    Currently, the Interpretive Materials to Rule 11890 provide
specific numerical guidelines for determining what constitutes a
clearly erroneous transaction. The Exchange proposes codifying these
numerical thresholds, referred to as ``Numerical Guidelines,'' in the
rule to explicitly state what constitutes a clearly erroneous
execution. The proposal also adds Numerical Guidelines for leveraged
ETFs and ETNs, which are securities that have become increasingly
popular since the original numerical thresholds were adopted. The
proposed Numerical Guidelines state that a transaction executed during
the Core Trading Session \5\ or the Opening and Late Trading Sessions
\6\ may be found to be clearly erroneous only if the price of the
transaction is greater in the case of a buy, or less in the case of a
sale, than the reference price by an amount that equals or exceeds the
Numerical Guidelines for a particular transaction category. The
Reference Price shall be equal to the consolidated last sale
immediately prior to the execution under review, unless unusual
circumstances are present.
---------------------------------------------------------------------------

    \5\ The Core Trading Session begins at 9:30 a.m. and ends at 4
p.m.
    \6\ The Opening Session begins at 7 a.m. and concludes with the
start of the Core Trading Session. The Late Trading Session begins
at the end of the Core Trading Session and continues until 8 p.m.
---------------------------------------------------------------------------

    The proposed Numerical Guidelines for sales greater than $0.00 and
up to and including $25.00 are 10% for the Core Trading Session and 20%
for the Opening and Late Trading Sessions. The proposed Numerical
Guidelines for sales greater than $25.00 up to and including $50.00 are
5% for the Core Trading Session and 10% for Opening and Late Trading
Sessions. The proposed Numerical Guidelines for sales greater than
$50.00 are 3% for the Core Trading Session and 6% for Opening and Late
Trading Sessions. A filing involving five or more securities by the
same member may be considered a ``Multi-Stock Event.'' In the case of a
Multi-Stock Event, the proposed guidelines are 10% for the Core Trading
Session and 10% for the Opening and Late Trading Sessions. In the case
of Leveraged ETF/ETN securities, the above guidelines are to be
multiplied by the leverage multiplier of the security. Executions that
do not meet or exceed the Numerical Guidelines will not be eligible to
be broken under this section. The following chart summarizes the
proposed Numerical Guidelines.

----------------------------------------------------------------------------------------------------------------
                                               Core Trading Session Numerical   Opening and Late Trading Session
                                             Guidelines (subject transaction's    Numerical Guidelines (subject
  Reference price: Consolidated Last Sale          % difference from the         transaction's % difference from
                                                  Consolidated Last Sale):        the Consolidated Last Sale):
----------------------------------------------------------------------------------------------------------------
Greater than $0.00 up to and including       10%..............................  20%.
 $25.00.
Greater than $25.00 up to and including      5%...............................  10%.
 $50.00.
Greater than $50.00........................  3%...............................  6%.
Filings involving five or more securities    10%..............................  10%.
 by the same participant may be considered
 a ``Multi-Stock Event''.
Leveraged ETF/ETN securities...............  Core Trading Session Numerical     Core Trading Session Numerical
                                              Guidelines multiplied by the       Guidelines multiplied by the
                                              leverage multiplier (i.e. 2x).     leverage multiplier (i.e. 2x).
----------------------------------------------------------------------------------------------------------------

    The following example explains the application of these guidelines.
ABC has a consolidated last sale of $10.00. During the Core Trading
Session Customer A enters a market order to buy 10,000 shares, although
it had intended a market order for 1,000 shares. Executions occur,
moving through the depth of the Exchange Book, as follows:

Trade 1--1000 shares @ $10.00 (0% difference from Reference
Price)
Trade 2--5000 shares @ $10.50 (5% difference from Reference
Price)
Trade 3--2000 shares @ $11.00 (10% difference from
Reference Price)
Trade 4--1000 shares @ $11.50 (15% difference from
Reference Price)
Trade 5--1000 shares @ $12.00 (20% difference from
Reference Price)

    In this example, to be clearly erroneous the trades must be at a
price that is at least 10% higher than the consolidated last sale prior
to the series of executions. Absent any Unusual Circumstances or
Additional Factors (each discussed below), the Exchange Official would
break trades 3 through 5, priced at $11.00 and above,
as clearly erroneous, but would let stand trades 1 and
2. If instead the trade happened in the Late Trading Session,
where a 20% difference from the Reference Price is required for trades
to be clearly erroneous, the Official would break only Trade 5
and trades 1 through 4 would stand.
    Establishing Numerical Guidelines within the rule gives regulatory
transparency and consistency in the application of the rules of the
Exchange. These Numerical Guidelines, which are substantially similar
to existing Exchange guidance, represent the general consensus
developed based on the collective experiences of a market-wide group.
The Exchange believes that the Numerical Guidelines are fair and
appropriate and apply evenly to all participants.

    Unusual Circumstances
    The Exchange further proposes that in unusual circumstances the
Exchange may, in its discretion and with a view toward maintaining a
fair and orderly market and protecting investors and the public
interest, use a Reference Price other than the consolidated last sale.
``Unusual Circumstances'' may include periods of extreme market
volatility, sustained illiquidity, or widespread system issues. Other
Reference Prices that the Exchange may use would include the
consolidated inside price, the consolidated opening price, the
consolidated prior close, or the consolidated last sale prior to a
series of executions.
    Under the proposed rule the Exchange may also use a higher
Numerical Guideline if, after market participants have been alerted to
erroneous activity, the price of the security returns toward its prior
trading range but continues to trade beyond the price it would have
normally been broken.

    Joint Market Rulings
    In the interest of achieving consistency across markets, the
proposal would give the Exchange the ability to use a different
Reference Price and/or Numerical Guideline in events that involve other
markets. In these instances the Reference Price would be determined
based on a consensus among the exchanges where the transactions
occurred.

    Additional Factors

    The proposed amendments to Rule 11890 also enumerate some
additional factors that an Official may consider when determining
whether an execution is clearly erroneous. These factors include, but
are not limited to, system malfunctions or disruptions, volume and
volatility for the security, derivative securities products that
correspond to greater than 100% in the direction of a tracking index,
news released for the security, whether trading in the security was
recently halted/resumed, whether the security is an IPO, whether the
security was subject to a stock-split, reorganization, or other
corporate action, overall market conditions, Opening and Late Session
executions, validity of the consolidated tapes trades and quotes,
consideration of primary market indications, and executions
inconsistent with the trading pattern in the stock. Each additional
factor shall be considered with a view toward maintaining a fair and
orderly market, the protection of investors and the public interest.
The Exchange believes market participants recognize that such factors
will be considered in reviewing potentially erroneous trades because
Rule 11890 currently includes similar provisions.
    Numerical Guidelines Applicable to Volatile Market Opens
    The proposed amendments give the Exchange the ability to expand the
Numerical Guidelines applicable to transactions occurring between 9:30
a.m. and 10 a.m. based on the disseminated value of the S&P 500 Futures
at 9:15 a.m. When the S&P Futures are up or down 3%, or up to but not
including 5% at 9:15 a.m., the Numerical Guidelines are doubled. When
the S&P Futures are up or down 5% or greater at 9:15 a.m., the
Numerical Guidelines are tripled. The Exchange believes that the S&P
500 futures contract is an appropriate and reliable barometer of market
activity prior to the market opening due to its broad based market
coverage and deep liquidity. Using the S&P 500 Futures disseminated
value at 9:15 a.m. as the barometer of market activity, the Exchange is
providing a transparent means of offering adjusted guidelines in times
of volatile market activity.
    Review Procedures
    Initial Determination
    The Exchange proposes adding language stating that a determination
shall be made generally within 30 minutes of receipt of the complaint,
but in no case later than the start of Core Trading on the following
trading day. Rulings made outside of 30 minutes will not fail for lack
of timeliness. The guideline simply provides participants an
appropriate expectation that a ruling will generally be made within 30
minutes and in no case later than the start of Core Trading on the
following trading day.
    Appeals
    The current rule provides that the Market Operation Review
Committee (``MORC'') shall review and render a decision upon an appeal.
The proposed rule offers more definite guidelines to ensure the
expedient resolution of appeals. It requires the MORC to review appeals
as soon as practicable, but generally on the same day as the executions
under review. Appeals received between 3 p.m. ET and the close of
trading in the Late Trading Session should be made as soon as
practicable, but in no case later than the trading day following the
date of the execution under review. While decisions by the MORC that do
not meet these time guidelines will still be valid, these guidelines
will provide participants with reasonable expectations of when a ruling
on appeal will generally be made. As is currently the case, all
decisions rendered under Rule 11890(a) (complaints of market
participants) will be subject to appeal to the MORC as will decisions
rendered by a Senior Official under Rule 11890(b) (decisions on the
Exchange's own motion), except in cases where the Senior Official
determines that the ruling should not be eligible for appeal because
finality is necessary to maintain a fair and orderly market and to
protect investors and the public interest. This provision simply
clarifies the fact that nothing in the proposed rule limits or impedes
the rights of the parties to arbitrate their dispute.
    Exchange Acting on Its Own Motion
    The proposed rule would allow a designated ``Senior Official'' of
the Exchange\7\ to review executions pursuant to Rule 11890(b). The
Exchange's Rule 11890(b) is consistent with NYSE ARCA, Inc.'s Rule
7.10(g). The Senior Official's decision would still be guided by the
Numerical Guidelines (including the Multi-Stock Event 10% threshold),
Unusual Circumstances and Additional Factors outlined above. In
extraordinary circumstances a Senior Official may apply a lower
Numerical Guideline if such action is necessary to maintain a fair and
orderly market or protect investors and the public interest. In some
instances the Exchange may detect a single execution that breaches the
Numerical Guidelines but is not the subject of a ruling request. This
provision gives the Exchange the ability to review such executions. In
other cases, clearly erroneous executions commonly involve multiple
parties and multiple executions. All affected parties may not request a
ruling. The Exchange proposes this provision to permit a Senior
Official to rule on a group of transactions related to the same
occurrence or event as a whole, without a formal request for a ruling
from every affected party.
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    \7\ Currently only Executive Vice Presidents designated by the
Exchange's President are eligible to make rulings under Rule
11890(b). The Exchange proposes to expand this to include other
officers from the Exchange and senior level employees of the
Exchange or The NASDAQ Stock Market LLC ``Senior Officials'' who are
authorized to act on behalf of the Exchange pursuant to the
Regulatory Service Agreement (RSA) between the Exchange and NASDAQ
Stock Market LLC. All designated Exchange Officers and a subset of
senior level employees will be designated as ``Senior Officials''
with the authority to review transactions pursuant to Rule 11890(b).
The Exchange anticipates that only a subset of more senior employees
allowed to review transactions under Rule 11890(a) would be
authorized to review trades under Rule 11890(b). This will allow one
Senior Official to review related transactions in affiliated markets
to expedite and ensure uniformity of decisions among affiliated
exchanges. The Exchange's Chief Regulatory Officer would designate
Officials and Senior Officials with relevant market experience to
adjudicate these matters.
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    As is currently the case, the Exchange could break all trades in a
security if a pervasive mistake resulted in trading that should not
have occurred. For example, trades in a security that was incorrectly
authorized for trading prior to the date of its actual initial public
offering would all be broken. Similarly, if the Exchange systems
executed orders at a price that was inconsistent with the rules
governing the operation of the system, either due to an Exchange system
error or because an underlying erroneous order resulted in an erroneous
price, the Exchange may break all of the affected trades.
    This rule change shall be effective October 5, 2009.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\8\ in general, and with
Section 6(b)(5) of the Act,\9\ in particular, in that the proposal is
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.
The proposed rule change would coordinate standards of review of
clearly erroneous trades across markets, thereby eliminating
conflicting rulings among exchanges and disparate treatment of
similarly priced trades.
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    \8\ 15 U.S.C. 78f.
    \9\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    BX does not believe that the proposed rule change will impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act.

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

    Written comments were neither solicited nor received.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, 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\
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    \10\ 15 U.S.C. 78s(b)(3)(A).
    \11\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file 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 requirement.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act\12\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)\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 requests
that the Commission waive the 30-day operative delay so that it may
implement the new rule on October 5, 2009, the same date as the other
equities exchanges. The Commission believes that waiving the 30-day
operative delay is consistent with the protection of investors and the
public interest because it will allow the Exchange to begin applying
the new rule on the same date as the other equities exchanges.\14\
Application of the new rule on this date should help foster
transparency and consistency among those exchanges that adopt clearly
erroneous execution rules substantially similar to those previously
approved by the Commission.\15\ For these reasons, the Commission
designates that the proposed rule change become operative on October 5,
2009.
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    \12\ 17 CFR 240.19b-4(f)(6).
    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposal's impact on efficiency,
competition, and capital formation. 15 U.S.C. 78c(f).
    \15\ See Securities Exchange Act Release No. 60706 (September
22, 2009), 74 FR 49416 (September 28, 2009) (NYSEArca-2009-36).
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    At any time within 60 days of the filing of the 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.

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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-BX-2009-060 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 Number SR-BX-2009-060. 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 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 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 the Exchange. 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 publicly available. All
submissions should refer to File Number SR-BX-2009-060 and should be
submitted on or before October 29, 2009.
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    \16\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E9-24244 Filed 10-7-09; 8:45 am]

BILLING CODE 8011-01-P