[Federal Register: March 5, 2009 (Volume 74, Number 42)]
[Notices]
[Page 9606]
[DOCID:fr05mr09-28]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[ Docket Nos. EG09-10-000, EG09-11-000, EG09-12-000, EG09-13-000, EG09-
14-000, EG09-15-000, EG09-16-000, EG09-17-000]

Majestic Wind Power LLC, Enel Stillwater, LLC, NRG Texas Power
LLC, FPL Energy Oliver Wind I, LLC, Bull Creek Wind LLC, Buffalo Ridge
I LLC, Moraine Wind II LLC, Pebble Springs Wind LLC; Notice of
Effectiveness of Exempt Wholesale Generator Status

February 27, 2009.
    Take notice that during the month of January 2009, the status of
the above-captioned entities as Exempt Wholesale Generators Companies
became effective by operation of the Commission's regulations 18 CFR
366.7(a).

Kimberly D. Bose.
Secretary.
 [FR Doc. E9-4723 Filed 3-4-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 88, Number 227 (Tuesday, November 28, 2023)]
[Proposed Rules]
[Pages 83062-83065]
[FR Doc No: 2023-26107]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0660; FRL-11572-01-R4]

Air Plan Approval; FL; Miscellaneous SIP Changes

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
Florida Department of Environmental Protection (FDEP) on April 1, 2022.
The proposed revision corrects definitions, updates, and removes
outdated references, clarifies rule applicability in several rules
within the Florida SIP, and removes methods to determine visible
emissions.

DATES: Comments must be received on or before December 28, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0660 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute.

Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Bell can be reached
via phone number<PHONE_NUMBER> or via electronic mail at
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On April 1, 2022, FDEP submitted a SIP revision to EPA regarding
Chapter 62-296, Florida Administrative Code (F.A.C.), Stationary
Sources, of the Florida SIP. In Florida's April 1, 2022, submission,
the State is requesting that EPA approve changes to the following rules
in the Florida SIP: Rule 62-296.320(4), General Pollutant Emission
Limiting Standards; \1\ Rule 62-296.406, Fossil Fuel Steam Generators
with Less Than 250 Million Btu Per Hour Heat Input, New and Existing
Emissions Units; Rule 62-296.602, Primary Lead-Acid Battery
Manufacturing Operations; Rule 62-296.603, Secondary Lead Smelting
Operations; Rule 62-296.604, Electric Arc Furnace Equipped Secondary
Steel Manufacturing Operations; Rule 62-296.700, Reasonably Available
Control Technology (RACT) Particulate Matter; Rule 62-296.702, Fossil
Fuel Steam Generators; Rule 62-296.704, Asphalt Concrete Plants; Rule
62-296.705, Phosphate Processing Operations; Rule 62-296.707, Electric
Arc Furnaces; Rule 62-296.708, Sweat or Pot Furnaces; Rule 62-296.711,
Materials Handling, Sizing, Screening, Crushing and Grinding
Operations; and Rule 62-296.712, Miscellaneous Manufacturing Process
Operations.\2\ The April 1, 2022, SIP revision that is the subject of
this proposed rulemaking corrects definitions, updates and removes
outdated references, and clarifies applicability in these rules, and it
removes methods to determine visible emissions in Rules 62-296.320 and
62-296.406. Further discussion of what the State submitted and why EPA
is proposing to approve these changes to the Florida SIP is provided in
the following section.
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    \1\ On October 13, 2023, the State submitted a letter to EPA
withdrawing its request to revise subsection (3) of Rule 62-296.320.
Thus, EPA is not acting on Rule 62-296.320(3). For further
information, please see the docket for this proposed rulemaking,
which includes Florida's October 13, 2023, withdrawal letter.
    \2\ On April 1, 2022, FDEP submitted a number of SIP revisions
to Chapter 62-296, Stationary Sources. These other SIP revisions not
described herein will be acted on through other rulemakings. See
also, footnote 1 regarding subparagraph (3) of Rule 62-296.320.
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II. Analysis of Florida's April 1, 2022, SIP Revision

A. Analysis of Rule 62-296.320

    In the April 1, 2022, submission, the State requests that EPA
remove a reference to the Ringlemann Chart and revise subparagraph (4)
of Rule 62-296.320 to include citations to the Code of Federal
Regulations for the applicable EPA test methods--Methods 5, 9 and 17--
and state that EPA test methods are adopted and incorporated by
reference at Rule 62-204.800, instead of Rule 62-297.401, Compliance
Test Methods, due to the repeal of Rule 62-297.401.\3\
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    \3\ Florida repealed Rule 62-297.401, State effective on July
10, 2014. On October 13, 2017, EPA approved the removal of Rule 62-
297.401 from Florida's SIP. See 82 FR 47636. Rule 62-204.800 adopts
and incorporates by reference Federal rules cited throughout FDEP's
air pollution rules.
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    The Ringlemann Chart visible emissions evaluation system evolved
from the concept developed by Maximillian Ringelmann in the late 1800s,
in which a chart with calibrated black grids on a white background was
used to measure black smoke emissions from coal-fired boilers. The
Ringelmann Chart was adopted by the U.S. Bureau of Mines in the early
1900s and was used extensively in efforts to assess and control
emissions. In the early 1950s, the Ringelmann concept was expanded to
other colors of smoke by the introduction of the concept of
``equivalent opacity.'' Equivalent opacity meant that the white smoke
was equivalent to a Ringelmann number in its ability to obscure the
view of a background. In some States, equivalent opacity is still
measured in Ringelmann numbers, whereas in others a 0 to 100 percent
scale is used. EPA stopped using Ringelmann numbers in the New Source
Performance Standards (NSPS) when the revised EPA Method 9 was
promulgated in 1974.\4\ All NSPS visible emission limits are stated in
percent opacity units, although some State regulations still specify
the use of the Ringelmann system. EPA Method 9 is based solely on
opacity.
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    \4\ For further information regarding EPA's revised Method 9 and
opacity, see ``Section 3.12 Method 9-Visible Determination of the
Opacity of Emissions from Stationary Sources,'' available at https://www3.epa.gov/ttnemc01/qahandbook3/qaiii%201977/qa%20vol%20iii%20-%20aug%201977%20-%20sec%203-12.pdf.
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    EPA conducted extensive field studies on the accuracy and
reliability of the Method 9 opacity evaluation technique when the
method was revised and repromulgated in response to industry challenges
concerning certain NSPS opacity standards and methods. The studies
showed that visible emissions can be assessed accurately by properly
trained and certified observers. Two central features of Method 9
involve taking opacity readings of plumes at 15-second intervals and
averaging 24 consecutive readings (6 minutes) unless some other time is
specified in the emission standard (some NSPS specify a 3-minute
averaging period). EPA is proposing to approve removal of the reference
to the Ringlemann Chart because studies found that Method 9 was more
accurate and reliable for an evaluation technique than the use of the
Ringelmann numbers, EPA no longer uses Ringelmann numbers in the NSPS,
and the State rule continues to use Method 9 for opacity. Thus, removal
of the reference to the Ringlemann Chart will not interfere with any
applicable requirement concerning attainment or any other applicable
Clean Air Act (CAA) requirement.\5\
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    \5\ See CAA section 110(l).
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B. Analysis of Rule 62-296.406

    In the April 1, 2022, submission, the State requests that EPA
revise Rule 62-296.406, currently titled ``Fossil Fuel Steam Generators
with Less Than 250 Million Btu Per Hour Heat Input, New and Existing
Emissions Units,'' by removing the unnecessary phrases ``New and
Existing Emissions Units'' from the rule title and ``new and existing''
from the rule text. EPA is proposing to approve these changes because
the rule will continue to apply to new and existing emissions units
that meet the rule's unchanged applicability criteria.
    FDEP is also requesting that EPA approve revisions to Rule 62-
296.406(1), which remove references to repealed FDEP Method 9.
Subparagraph 296.406(1) requires subject sources to comply with a
visible emissions limit of 20 percent opacity. However, the rule

also allows sources two options for exceeding 20 percent opacity: one
six-minute period per hour during which opacity cannot exceed 27
percent, or one two-minute period per hour during which opacity cannot
exceed 40 percent. The rule requires that the option selected by the
source be specified in the source's construction and operation permits.
The SIP revision removes the exception that allows up to 40 percent
opacity over a two-minute period per hour but retains the exception
that allows up to 27 percent opacity for one six-minute period per
hour. The option proposed for deletion, which allows opacity of no more
than 40 percent over a two-minute average, stems from, and was
consistent with, FDEP Method 9, which measured opacity on a two-minute
average; however, Florida removed this method from its State rules on
July 10, 2014. The option that is retained, allowing one exceedance per
hour of an opacity up to 27 percent over a six-minute average, is
consistent with, EPA Method 9, which measures opacity on a six-minute
average. While the averaging times and percent opacity allowed in the
two exceptions differs, the two exceptions are approximately equivalent
on a six-minute average.\6\ Subparagraph 296.406(1) is also revised to
add the phrase ``shall not exceed''; delete the word ``either''; add
the word ``one'' before the word hour; add the word ``period'' after
one-hour; change the word percentile to percent; and delete the
provision that provided that the selected exception to the 20 percent
opacity requirement (27 percent for a six-minute average per hour or 40
percent for two-minute period per hour) would be specified in a permit.
These revisions either remove language to correspond to the removal of
the 40 percent opacity exception or clarify rule language. With such
revisions, the proposed rule would state: ``Visible Emissions--shall
not exceed 20 percent opacity, except for one six-minute period per
one-hour period, which shall not exceed 27 percent.'' EPA is proposing
to approve these changes because Florida has removed FDEP Method 9 from
its State rules, the exception is approximately equivalent to the 27
percent exception that remains in the rule, and the changes will not
interfere with any applicable requirement concerning attainment or any
other applicable CAA requirement.
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    \6\ See the March 17, 2023, EPA memorandum to the file re: FL-
167-1, April 1, 2022; DEP Method 9, which is included in the docket
for this proposed rulemaking. This memorandum memorializes a
conversation between EPA and FL DEP during which Florida confirmed
that the difference between the two options is negligible since the
data points are measured by a human observer in five percent
increments.
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C. Analysis of Rules 62-296.602, .603, and .604

    As discussed below, the April 1, 2022, SIP revision contains
several changes to Rule 62-296.602, Primary Lead-Acid Battery
Manufacturing Operations; Rule 62-296.603, Secondary Lead Smelting
Operations; and Rule 62-296.604, Electric Arc Furnace Equipped
Secondary Steel Manufacturing Operations.
    The April 1, 2022, submission revises Rules 62-296.602(3), 62-
296.603(3), and 62-296.604(3) by requiring the use of EPA's air quality
models as provided in 40 CFR part 51, Appendix W; adding a citation to
40 CFR part 51, Appendix W; stating that EPA test methods are adopted
and incorporated by reference at Rule 62-204.800; and clarifying that
the ambient air quality standard for lead is the national standard. EPA
is proposing to approve the aforementioned changes because they will
not interfere with any applicable requirement concerning attainment or
any other applicable CAA requirement.

D. Analysis of Rules 62-296.700, .702, .704, .705, .707, .708, .711,
and .712

    As discussed below, the April 1, 2022, submission requests several
changes to Rule 62-296.700, Reasonably Available Control Technology
(RACT) Particulate Matter; Rule 62-296.702, Fossil Fuel Steam
Generators; Rule 62-296.704, Asphalt Concrete Plants; Rule 62-296.705,
Phosphate Processing Operations; Rule 62-296.707, Electric Arc Furnace;
Rule 62-296.708, Sweat or Pot Furnaces; Rule 62-296.711, Materials
Handling, Sizing, Screening, Crushing and Grinding Operations; and Rule
62-296.712, Miscellaneous Manufacturing Process Operations.
    The April 1, 2022, submission seeks to clarify Rules 62-296.700(1)
and (2) by updating certain rule citations and revising the term
``existing emissions unit'' to ``any emissions unit issued an air
permit on or before May 30, 1988,'' because Florida's PM RACT rules
only apply to emission units that have been issued air permits on or
before May 30, 1988.\7\ The April 1, 2022 submission also deletes
general language that provided that the rule applied in ``a particulate
matter air quality maintenance area or in the area of influence of such
an area,'' and instead includes language to clarify what areas of the
State are subject to RACT for TSP by specifically identifying those
geographic areas. Additionally, the revision moves language from Rule
62-296.700's applicability section at .700(1) that provides an
exception for an emissions unit which has received a determination of
Best Available Control Technology to Rule 62-296.700's exemptions
section at .700(2). These changes to 62-296.700(1) and (2) clarify
applicability of the rule. Rules 62-296.702, .704, .705, .707, .708,
.711, and .712 are revised to include citations to applicable EPA test
methods, as described in 40 CFR part 60, Appendices A-2, A-3, A-4, A-6,
A-7, and B, and state that EPA test methods are adopted and
incorporated by reference in Rule 62-204.800. In addition, the
revisions delete a sentence in Rule 62-296-702(3) stating that EPA
Method 5 may be used to demonstrate compliance because this provision
already specifies when EPA Method 5 may be used. EPA is proposing to
approve these changes as they do not change the applicability of the
rule and will not interfere with any applicable requirement concerning
attainment or any other applicable CAA requirement.
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    \7\ On May 19, 1988, Florida submitted revisions to the SIP
regarding particulate matter (PM) as part of the implementation of
the PM10 standard (PM with an aerodynamic diameter of 10
microns or less). The rules submitted under the May 19, 1988, date
was State effective on May 30, 1988. In these revisions, which were
approved by EPA on February 1, 1990 (55 FR 3403), EPA approved
Florida's changes to its particulate matter SIP that clarify what
areas of the State were covered by the PM (total suspended
particulates (TSP)) RACT rules and the location of PM (TSP) air
quality maintenance areas and areas of influence (areas within 50
kilometers outside the boundary of an air quality maintenance area).
EPA also clarified in that notice that RACT for existing sources
would continue to apply in TSP nonattainment areas, but RACT for new
and modified sources was rescinded. That notice addressed Rule 17-
2.650, which was later recodified to become Rules 62-296.700 through
62-296.712.
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III. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, and as discussed in Section II of this
preamble, EPA is proposing to incorporate by reference Florida Rule 62-
296.320(4), General Pollutant Emission Limiting Standards, state
effective July 10, 2014; \8\ Rule 62-296.406, Fossil Fuel Steam
Generators with Less Than 250 Million Btu Per Hour Heat Input, State
effective November 5, 2020; Rule 62-296.602, Primary Lead-Acid Battery
Manufacturing Operations, State effective July 10, 2014; Rule 62-
296.603,

Secondary Lead Smelting Operations, State effective July 10, 2014; Rule
62-296.604, Electric Arc Furnace Equipped Secondary Steel Manufacturing
Operations, state effective July 10, 2014; Rule 62-296.700, Reasonably
Available Control Technology (RACT) Particulate Matter, State effective
August 14, 2019; Rule 62-296.702, Fossil Fuel Steam Generators, State
effective July 10, 2014; Rule 62-296.704, Asphalt Concrete Plants,
State effective July 10, 2014; Rule 62-296.705, Phosphate Processing
Operations, State effective July 10, 2014; Rule 62-296.707, Electric
Arc Furnace, State effective July 10, 2014; Rule 62-296.708, Sweat or
Pot Furnaces, State effective July 10, 2014; Rule 62-296.711, Materials
Handling, Sizing, Screening, Crushing and Grinding Operations, State
effective July 10, 2014; and Rule 62-296.712, Miscellaneous
Manufacturing Process Operations, State effective July 10, 2014. EPA
has made, and will continue to make, these materials generally
available through www.regulations.gov and at the EPA Region 4 office
(please contact the person identified in the ``For Further Information
Contact'' section of this preamble for more information).
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    \8\ Portions of Rule 62-296.320 that are not addressed in this
proposed rulemaking would remain in the Florida SIP with a State
effective March 13, 1996.
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IV. Proposed Action

    For the reasons discussed above, EPA is proposing to approve the
April 1, 2022, Florida SIP revision consisting of amendments to Rules
62-296.320(4), 62-296.406, 62-296.602, 62-296.603, 62-296.604, 62-
296.700, 62-296.702, 62-296.704, 62-296.705, 62-296.707, 62-296.708,
62-296.711, and 62-296.712 in the Florida SIP.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 proposes to approve State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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 Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have Tribal implications and will not impose
substantial direct costs on Tribal governments or preempt Tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
    The State of Florida did not evaluate environmental justice
considerations as part of its SIP submittal; the CAA and applicable
implementing regulations neither prohibit nor require such an
evaluation. EPA did not perform an EJ analysis and did not consider EJ
in this proposed action. Due to the nature of the action being proposed
here, this proposed action is expected to have a neutral to positive
impact on the air quality of the affected area. Consideration of EJ is
not required as part of this proposed action, and there is no
information in the record inconsistent with the stated goal of E.O.
12898 of achieving environmental justice for people of color, low-
income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.

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

    Dated: November 21, 2023.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2023-26107 Filed 11-27-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 147 (Tuesday, July 31, 2012)]
[Notices]
[Pages 45404-45406]
[FR Doc No: 2012-18553]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-67497; File No. SR-NYSEMKT-2012-25]

Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and
Immediate Effectiveness of Proposed Rule Change Amending NYSE MKT Rule
500--Equities To Extend the Operation of the Pilot Program That Allows
Nasdaq Stock Market Securities To Be Traded on the Exchange Pursuant to
a Grant of Unlisted Trading Privileges Until the Earlier of Securities
and Exchange Commission Approval To Make Such Pilot Permanent or
January 31, 2013

July 25, 2012.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on July 12, 2012, NYSE MKT LLC (``NYSE MKT'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend NYSE MKT Rule 500--Equities to
extend the operation of the pilot program that allows Nasdaq Stock
Market (``Nasdaq'') securities to be traded on the Exchange pursuant to
a grant of unlisted trading privileges. The pilot is currently
scheduled to expire on July 31, 2012; the Exchange proposes to extend
it until the earlier of Securities and Exchange Commission
(``Commission'') approval to make such pilot permanent or January 31,
2013. The text of the proposed rule change is available on the
Exchange's Web site at www.nyse.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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

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

1. Purpose
    NYSE MKT Rules 500-525--Equities, as a pilot program, govern the
trading of any Nasdaq-listed security on the Exchange pursuant to
unlisted trading privileges (``UTP Pilot Program'').\4\ The Exchange
hereby seeks to extend the operation of the UTP Pilot Program,
currently scheduled to expire on July 31, 2012, until the earlier of
Commission approval to make such pilot permanent or January 31, 2013.
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    \4\ See Securities Exchange Act Release No. 62479 (July 9,
2010), 75 FR 41264 (July 15, 2010) (SR-NYSEAmex-2010-31). See also
Securities Exchange Act Release Nos. 62857 (September 7, 2010), 75
FR 55837 (September 14, 2010) (SR-NYSEAmex-2010-89); 63601 (December
22, 2010), 75 FR 82117 (December 29, 2010) (SR-NYSEAmex-2010-124);
64746 (June 24, 2011), 76 FR 38446 (June 30, 2011) (SR-NYSEAmex-
2011-45); and 66040 (December 23, 2011), 76 FR 82324 (December 30,
2011) (SR-NYSEAmex-2011-104).
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    The UTP Pilot Program includes any security listed on Nasdaq that
(i) is designated as an ``eligible security'' under the Joint Self-
Regulatory Organization Plan Governing the Collection, Consolidation
and Dissemination of Quotation and Transaction Information for Nasdaq-
Listed Securities Traded on Exchanges on an Unlisted Trading Privilege
Basis, as amended (``UTP Plan''),\5\ and (ii) has been admitted to
dealings on the Exchange pursuant to a grant of unlisted trading
privileges in accordance with Section 12(f) of the Securities Exchange
Act of 1934, as amended (the ``Act''),\6\ (collectively, ``Nasdaq
Securities'').\7\
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    \5\ See Securities Exchange Act Release No. 58863 (October 27,
2008), 73 FR 65417 (November 3, 2008) (File No. S7-24-89). The
Exchange's predecessor, the American Stock Exchange LLC, joined the
UTP Plan in 2001. See Securities Exchange Act Release No. 55647
(April 19, 2007), 72 FR 20891 (April 26, 2007) (File No. S7-24-89).
In March 2009, the Exchange changed its name to NYSE Amex LLC, and,
in May 2012, the Exchange subsequently changed its name to NYSE MKT
LLC. See Securities Exchange Act Release Nos. 59575 (March 13,
2009), 74 FR 11803 (March 19, 2009) (SR-NYSEALTR-2009-24) and 67037
(May 21, 2012), 77 FR 31415 (May 25, 2012) (SR-NYSEAmex-2012-32).
    \6\ 15 U.S.C. 78l.
    \7\ ``Nasdaq Securities'' is included within the definition of
``security'' as that term is used in the NYSE MKT Equities Rules.
See NYSE MKT Rule 3--Equities. In accordance with this definition,
Nasdaq Securities are admitted to dealings on the Exchange on an
``issued,'' ``when issued,'' or ``when distributed'' basis. See NYSE
MKT Rule 501--Equities.
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    The Exchange notes that its New Market Model Pilot (``NMM Pilot''),
which, among other things, eliminated the function of specialists on
the Exchange and created a new category of market participant, the
Designated Market Maker (``DMM''),\8\ is also scheduled to end on July
31, 2012.\9\ The timing of the operation of the UTP Pilot Program was
designed to correspond to that of the NMM Pilot. In approving the UTP
Pilot Program, the Commission acknowledged that the rules relating to
DMM benefits and duties in trading Nasdaq Securities on the Exchange
pursuant to the UTP Pilot Program are consistent with the Act \10\ and
noted the similarity to the NMM Pilot, particularly with respect to DMM
obligations and benefits.\11\ Furthermore, the UTP Pilot Program rules
pertaining to the assignment of securities to DMMs are substantially
similar to the rules implemented through the NMM Pilot.\12\ The
Exchange has similarly filed to extend the operation of the NMM Pilot
until the earlier of Commission approval to make the NMM Pilot
permanent or January 31, 2013.\13\
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    \8\ See NYSE MKT Rule 103--Equities.
    \9\ See Securities Exchange Act Release No. 60758 (October 1,
2009), 74 FR 51639 (October 7, 2009) (SR-NYSEAmex-2009-65). See also
Securities Exchange Act Release Nos. 61030 (November 19, 2009), 74
FR 62365 (November 27, 2009) (SR-NYSEAmex-2009-83); 61725 (March 17,
2010), 75 FR 14223 (March 24, 2010) (SR-NYSEAmex-2010-28); 62820
(September 1, 2010), 75 FR 54935 (September 9, 2010) (SR-NYSEAmex-
2010-86); 63615 (December 29, 2010), 76 FR 611 (January 5, 2011)
(SR-NYSEAmex-2010-123); 64773 (June 29, 2011), 76 FR 39453 (July 6,
2011) (SR-NYSEAmex-2011-43); and 66042 (December 23, 2011), 76 FR
82326 (December 30, 2011) (SR-NYSEAmex-2011-102).
    \10\ 15 U.S.C. 78a.
    \11\ See SR-NYSEAmex-2010-31, supra note [4] [sic], at 41271.
    \12\ Id.
    \13\ See SR-NYSEMKT-2012-21.
---------------------------------------------------------------------------

    Extension of the UTP Pilot Program in tandem with the NMM Pilot,
both from July 31, 2012 until the earlier of Commission approval to
make such pilots permanent or January 31, 2013, will provide for the
uninterrupted trading of Nasdaq Securities on the Exchange on a UTP
basis and thus continue to encourage the additional utilization of, and
interaction with, the Exchange, and provide market participants with
improved price discovery, increased liquidity, more competitive quotes
and greater price improvement for Nasdaq Securities.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with

the requirements of the Act and the rules and regulations thereunder
applicable to a national securities exchange. In particular, the
Exchange believes that its proposal to extend the UTP Pilot Program is
consistent with (i) Section 6(b) of the Act,\14\ in general, and
furthers the objectives of Section 6(b)(5) of the Act,\15\ in
particular, in that it is 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
of a free and open market and a national market system, and, in
general, to protect investors and the public interest; (ii) Section
11A(a)(1) of the Act,\16\ in that it seeks to ensure the economically
efficient execution of securities transactions and fair competition
among brokers and dealers and among exchange markets; and (iii) Section
12(f) of the Act,\17\ which governs the trading of securities pursuant
to UTP consistent with the maintenance of fair and orderly markets, the
protection of investors and the public interest, and the impact of
extending the existing markets for such securities.
---------------------------------------------------------------------------

    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
    \16\ 15 U.S.C. 78k-1(a)(1).
    \17\ 15 U.S.C. 78l(f).
---------------------------------------------------------------------------

    Specifically, the Exchange believes that extending the UTP Pilot
Program would provide for the uninterrupted trading of Nasdaq
Securities on the Exchange on a UTP basis and thus continue to
encourage the additional utilization of, and interaction with, the
Exchange, thereby providing market participants with additional price
discovery, increased liquidity, more competitive quotes and potentially
greater price improvement for Nasdaq Securities. Additionally, under
the UTP Pilot Program, Nasdaq Securities trade on the Exchange pursuant
to rules governing the trading of Exchange-Listed securities that
previously have been approved by the Commission. Accordingly, this
proposed rule change would permit the Exchange to extend the
effectiveness of the UTP Pilot Program in tandem with the NMM Pilot,
which the Exchange has similarly proposed to extend until the earlier
of Commission approval to make such pilot permanent or January 31,
2013.\18\
---------------------------------------------------------------------------

    \18\ See supra note 13.
---------------------------------------------------------------------------

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 competition that is 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

    No written comments were solicited or received with respect to the
proposed rule change.

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

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \19\ and Rule 19b-4(f)(6) thereunder.\20\
Because the 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 prior to
30 days from the date on which it was filed, the proposed rule change
has become effective pursuant to Section 19(b)(3)(A) of the Act and
Rule 19b-4(f)(6)(iii) thereunder.\21\
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \20\ 17 CFR 240.19b-4(f)(6).
    \21\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires the Exchange to give the Commission written notice of the
Exchange's intent to file the proposed rule change, along with a
brief description and text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission. The
Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \22\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\23\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Commission believes
that waiving the 30-day operative delay is consistent with the
protection of investors and the public interest because such waiver
would allow the pilot program to continue uninterrupted. Accordingly,
the Commission hereby grants the Exchange's request and designates the
proposal operative upon filing.\24\
---------------------------------------------------------------------------

    \22\ 17 CFR 240.19b-4(f)(6).
    \23\ 17 CFR 240.19b-4(f)(6)(iii).
    \24\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission 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-NYSEMKT-2012-25 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-NYSEMKT-2012-25. 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 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-NYSEMKT-2012-25 and should
be submitted on or before August 21, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\25\
---------------------------------------------------------------------------

    \25\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-18553 Filed 7-30-12; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 201 (Thursday, October 17, 2019)]
[Notices]
[Pages 55656-55658]
[FR Doc No: 2019-22592]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87274; File No. SR-CBOE-2019-098]

Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change Relating
To Amend the Appointment Weight Table in Rule 5.50 in the Shell
Structure for the Exchange's Rulebook

October 10, 2019.
    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 4, 2019, 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
and II below, which Items have been prepared by the Exchange. The
Exchange filed the proposal as a ``non-controversial'' proposed rule
change pursuant to Section 19(b)(3)(A)(iii) of the Act \3\ and Rule
19b-4(f)(6) thereunder.\4\ The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \4\ 17 CFR 240.19b-4(f)(6).
---------------------------------------------------------------------------

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 the appointment weight table in Rule 5.50 in the shell
structure for the Exchange's Rulebook that will become effective upon
the migration of the Exchange's trading platform to the same system
used by the Cboe Affiliated Exchanges (as defined below) (``shell
Rulebook''). 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
    In 2016, the Exchange's parent company, Cboe Global Markets, Inc.
(formerly named CBOE Holdings, Inc.) (``Cboe Global''), which is also
the parent company of Cboe C2 Exchange, Inc. (``C2''), acquired Cboe
EDGA Exchange, Inc. (``EDGA''), Cboe EDGX Exchange, Inc. (``EDGX'' or
``EDGX Options''), Cboe BZX Exchange, Inc. (``BZX'' or ``BZX
Options''), and Cboe BYX Exchange, Inc. (``BYX'' and, together with
Cboe Options, C2, EDGX, EDGA, and BZX, the ``Cboe Affiliated
Exchanges''). The Cboe Affiliated Exchanges are working to align
certain system functionality, retaining only intended differences,
between the Cboe Affiliated Exchanges, in the context of a technology
migration. Cboe Options intends to migrate its trading platform to the
same system used by the Cboe Affiliated Exchanges, which the Exchange
expects to complete on October 7, 2019. In connection with this
technology migration, the Exchange has a shell Rulebook that resides
alongside its current Rulebook, which shell Rulebook will contain the
Rules that will be in place upon completion of the Cboe Options
technology migration.
    The Exchange proposes to amend an inadvertent error currently in
the appointment weight table in shell Rule 5.50(g). Currently, the
appointment weight table shows ``Options on the iPath S&P 500 VIX
Short-Term Futures'' with an appointment weight of .100 in one row of
the table and ``Index ETN (VXX)'' with a weight of .001 in the row
directly below. The Exchange notes that this is incorrect and should be
displayed in a single row containing ``Options on the iPath S&P 500 VIX
Short-Term Futures Index ETN (VXX)'' with a weight of .100. A
formatting error occurred that inadvertently broke apart Options on the
iPath S&P 500 VIX Short-Term Futures Index ETN (VXX) into two rows.\5\
Indeed, the Exchange notes that neither Options on the iPath S&P 500
VIX Short-Term Futures, nor Index ETN, are separate products on the
Exchange and instead, Options on the iPath S&P 500 VIX Short-Term
Futures Index ETN (symbol: VXX) is, in fact, the correct name of the
product.\6\ Therefore, the Exchange now proposes to correct this in the
appointment table to show Options on the iPath S&P 500 VIX Short-Term
Futures Index ETN (VXX) with an appointment weight of .100.
Additionally, the proposed rule change also removes the rows in the
appointment table which refer to Options on the NASDAQ 100 Index

(NDX) and Morgan Stanley Retail Index Options (MVR), on which the
Exchange is authorized to list options, but on which the Exchange does
not currently, and does not intend, to list options. Because there are
currently no options listed on either of these indexes, the proposed
rule change has no impact on trading on the Exchange. The proposed rule
change also corrects a cross-reference in the table. The rule provision
regarding the Exchange's ability to list SPX or VIX on a group basis is
in Rule 4.13 rather Rule 4.14, so the proposed rule change updates the
cross-reference accordingly.\7\ The proposed changes are of a non-
substantive nature and are only making changes to correct an formatting
error that had resulted in an inaccurate row within the appointment
weight table under shell Rule 5.50(g) and to remove references to
indexes on which the Exchange does not list (and does not intend to
list) options.
---------------------------------------------------------------------------

    \5\ See Securities and Exchange Act Release No. 81879 (October
16, 2017), 82 FR 48858 (October 20, 2017) (Notice of Filing and
Immediate Effectiveness of a Proposed Rule Change To List and Trade
S&P Select Sector Index Options) (SR-CBOE-2017-065), wherein the
Exhibit 5 to SR-CBOE-2017-065 it shows, correctly, Options on the
iPath S&P 500 VIX Short-Term Futures Index ETN (VXX), as one product
with an appointment cost (the prior term) of .10.
    \6\ See Cboe Options on Volatility-based ETPs (October 4, 2019),
available at http://www.cboe.com/products/options-on-single-stocks-and-exchange-traded-products/options-on-exchange-traded-products/cboe-options-on-volatility-based-etps.
    \7\ See Rule 4.13(f) in the shell Rulebook.
---------------------------------------------------------------------------

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.\8\ Specifically, the
Exchange believes the proposed rule change is consistent with the
Section 6(b)(5) \9\ 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 the
Section 6(b)(5) \10\ requirement that the rules of an exchange not be
designed to permit unfair discrimination between customers, issuers,
brokers, or dealers.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b).
    \9\ 15 U.S.C. 78f(b)(5).
    \10\ Id.
---------------------------------------------------------------------------

    As stated, the proposed rule change makes no substantive changes to
the rules. The proposed rule change is merely intended to correct an
inadvertent formatting error in the appointment weight table which
mistakenly broke apart the product name ``Options on the iPath S&P 500
VIX Short-Term Futures Index ETN (VXX)'' into two rows, delete
references to indexes on which the Exchange does not list (and does not
intend to list) options, and correct a cross-reference to another rule
in order to avoid potential confusion and provide market participants
with accurate rules within the shell Rulebook upon the technology
migration on October 7, 2019. As such, the proposed rule change is
designed to promote just and equitable principles of trade, 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, by providing market participants with rules of the
Exchange that are clear and, thus, easy to understand.

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 competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The proposed rule change is
not intended as a competitive change, but rather, seeks to make non-
substantive rule changes in amending a table formatting error, remove
references to certain indexes no longer applicable to trading on the
Exchange, and correct a cross-reference to shell Rule 5.50(g) in
anticipation of the October 7, 2019 technology migration. The Exchange
also does not believe that the proposed rule change will impose any
undue burden on competition because, as stated, the proposed changes
will not impact trading on the Exchange as they are non-substantive
changes designed to correct rule formatting and provide an up-to-date
list of indexes in order to alleviate any potential confusion and
provide market participants with clear and accurate rules.

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

    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)(iii) of the Act \11\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\12\
---------------------------------------------------------------------------

    \11\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Commission has waived that requirement in this case.
---------------------------------------------------------------------------

    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \13\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \14\ permits the
Commission to designate a shorter time if such action is consistent
with the protection of investors and the public interest. The Exchange
has asked the Commission to waive the five day prefiling requirement
and the 30-day operative delay so that it may implement the proposed
rule change without delay. According to the Exchange, waiver of the
prefiling requirement and the operative delay will help to avoid any
potential confusion by providing market participants with accurate
rules within the shell Rulebook upon the technology migration on
October 7, 2019. The Commission believes that waiver of the 30-day
operative delay is consistent with the protection of investors and the
public interest because the proposed rule change raises no new or novel
issues. Therefore, the Commission hereby waives the prefiling
requirement and the operative delay and designates the proposal
operative upon filing.\15\
---------------------------------------------------------------------------

    \13\ 17 CFR 240.19b-4(f)(6).
    \14\ 17 CFR 240.19b-4(f)(6)(iii).
    \15\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of 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.

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-2019-098 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-2019-098. 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-2019-098 and should be submitted on
or before November 7, 2019.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\16\
---------------------------------------------------------------------------

    \16\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-22592 Filed 10-16-19; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Notices]
[Page 16409]
[FR Doc No: 2011-6770]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Notice Announcing Preliminary Permit Drawing

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

------------------------------------------------------------------------
Lock+ Hydro Friends Fund XXXIV...  Project No. 13742-000.
FFP Missouri 5, LLC..............  Project No. 13757-000.
Solia 2 Hydroelectric, LLC.......  Project No. 13764-000.
------------------------------------------------------------------------

    The Commission has received three preliminary permit applications
deemed filed on May 18, 2010, at 8:30 a.m.,\1\ for proposed projects to
be located at the Army Corps of Engineers' Emsworth Lock and Dam on the
Ohio River, in Allegheny County, Pennsylvania. The applications were
filed by Lock+ Hydro Friends Fund XXXIV for Project No. 13742, FFP
Missouri 5, LLC, for Project No. 13757, and Solia 2 Hydroelectric, LLC,
for Project No. 13764.\2\
---------------------------------------------------------------------------

    \1\ Under the Commission's Rules of Practice and Procedure, any
document received after regular business hours is considered filed
at 8:30 a.m. on the next regular business day. 18 CFR 385.2001(a)(2)
(2010).
    \2\ Emsworth Hydro, LLC, also filed a permit application to
study the same site for Project No. 13786, which is deemed filed on
May 19, 2010.
---------------------------------------------------------------------------

    On March 24, 2011, at 10 a.m. (eastern time), the Secretary of the
Commission, or her designee, will conduct a random drawing to determine
the filing priority of the applicants identified in this notice. The
Commission will select among competing permit applications as provided
in section 4.37 of its regulations.\3\ The priority established by this
drawing will be used to determine which applicant, among those with
identical filing times, will be considered to have the first-filed
application.
---------------------------------------------------------------------------

    \3\ 18 CFR 4.37 (2010).
---------------------------------------------------------------------------

    The drawing is open to the public and will be held in room 2C, the
Commission Meeting Room, located at 888 First St., NE., Washington, DC
20426. A subsequent notice will be issued by the Secretary announcing
the results of the drawing.

    Dated: March 15, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011-6770 Filed 3-22-11; 8:45 am]
BILLING CODE 6717-01-P


amended to permit an affirmation that a substance is not directed for a food use.  This would
avoid the article of food from being refused if the prior notice was submitted for a category that
required prior notice.  Another comment wants FDA to develop a method that would allow the
submitter or the transmitter to disclaim the need for prior notice at the time of the prior notice
transmission.
FD2 - Indicates that the article is under FDA jurisdiction and review of entry information by FDA under section
801(a) of the act will take place.  However, the article is not "food" for which prior notice information is required.
FD3 - Indicates that the article may be subject to prior notice under section 801(m) of the act and 21 CFR Part 1,
subpart I. , e.g., the article has both food and non-food uses.
FD4 - Indicates that the article is "food" for which prior notice is required under section 801(m) of the act and 21
CFR Part 1, subpart I.

37
(Response) If there is a concern regarding the FD flags associated with the HTS codes,
you should contact FDA and provide a detailed description of why you believe the HTS code is
flagged incorrectly.  FDA and CBP are continuously reviewing and updating the FD flags
associated with the HTS codes.  If you have questions regarding whether prior notice is required
for a particular article of food, contact the PNC for assistance.  Furthermore, we have established
procedures in place to disclaim articles of food the submitter believes does not require prior
notice.  This can be accommodated by ABI/ACS as an affirmation of compliance.
(Comments) One comment states that the list of HTS codes flagged for prior notice (both
FD3 and FD4) (as provided by Customs Admin message 03-2605 dated October 31, 2003)
contains 762 tariff numbers.  The comment asks if this is a definitive list at this point, especially
since FDA and CBP estimated the number to be around 2000.
(Response) This is not a definitive list.  FDA and CBP are continuously reviewing and
updating the FD flags associated with the HTS codes.  Guidance regarding the HTS flags is
posted at http://www.cfsan.fda.gov/~dms/htsguid3.html.  The lack of an FD3 or FD4 designation
does not mean that prior notice is not required.  If the article of food fits the definition of food
provided in § 1.276 of the final rule, then prior notice is required for that article of food.
(Final rule) Section 1.276(b)(5) of the final rule defines “food” as having the meaning
given in section 201(f) of the act, except that it does not include food contact substances as
defined in section 409(h)(6) of the act (21 U.S.C. 348(h)(6)) or pesticides as defined in 7 U.S.C.
136(u).  Examples of food include fruits, vegetables, fish, including seafood, dairy products,
eggs, raw agricultural commodities for use as food or as components of food, animal feed
(including pet food), food and feed ingredients, food and feed additives, dietary supplements and

38
dietary ingredients, infant formula, beverages (including alcoholic beverages and bottled water),
live food animals, bakery goods, snack foods, candy, and canned foods.
We revised this definition for clarity in the final rule by adding the phrase, “except as
provided in paragraph (b)(5)(i) of this section,” in the first sentence; and reworded paragraph
(b)(5)(i) to read, “For purposes of this subpart, food does not include:”.
12. International Mail (§ 1.276(b)(8))
The IFR defines “international mail” to mean foreign national mail services.
International mail does not include express carriers, express consignment operators, or other
private delivery services.”
(Comments) One comment asks FDA to define international mail to include express
carriers.  Another comment asks FDA to clarify whether sending an item by express delivery will
be considered “international mail” or “express carrier.”
(Response) FDA declines to make the requested change.  The IFR defines “international
mail” to mean “foreign national mail services” and expressly excluded express carriers, express
consignment operators, or other private delivery services from the definition.  We retain this
definition in the final rule but revised the wording to make the definition easier to read, and to
add the phrase, “unless such service is operating under contract as an agent or extension of a
foreign mail service,” at the end of the definition.  This phrase was needed to clarify that a
contractor working for a foreign mail service also is included in the definition of “international
mail.”  International mail is a function of the foreign postal organizations of sovereign countries
who are members of the International Postal Union.  International mail shipments generally do
not utilize any of the electronic data transmission systems commonly used by express
consignment carriers and private delivery services.

39
(Final rule) Section 1.276(b)(8) of the final rule defines “international mail” to mean
foreign national mail services.  International mail does not include express consignment
operators or carriers or other private delivery services unless such service is operating under
contract as an agent or extension of a foreign mail service.
13. Manufacturer (§ 1.276(b)(9))
(Comments) Two comments request that we define the word “manufacturer.”  One of
these suggests that we define “manufacturer” to mean the last entity to conduct a processing
operation; e.g., including bottling but excluding labeling.
(Response/Final rule) As discussed in section III.H.7.a of this document, FDA agrees and
has added a definition for manufacturer.  Section 1.276(b)(9) of the final rule defines
manufacturer as the last facility, as that word is defined in § 1.227(b)(2) (in the registration rule),
that manufactured/processed the food.  A facility is considered the last facility even if the food
undergoes further manufacturing/processing that consists of adding labeling or any similar
activity of a de minimis nature.  If the food undergoes further manufacturing/processing that
exceeds an activity of a de minimis nature, then the subsequent facility that performed the
additional manufacturing/processing is considered the manufacturer.
14. No Longer in Its Natural State (§ 1.276(b)(10))
The IFR defines “no longer in its natural state” to mean that “an article of food has been
made from one or more ingredients or synthesized, prepared, treated, modified, or manipulated.
Examples of activities that render food no longer in its natural state are cutting, peeling,
trimming, washing, waxing, eviscerating, rendering, cooking, baking, freezing, cooling,
pasteurizing, homogenizing, mixing, formulating, bottling, milling, grinding, extracting juice,
distilling, labeling, or packaging.  Crops that have been cleaned (e.g., dusted, washed), trimmed,

40
or cooled attendant to harvest or collection or treated against pests, waxed, or polished are still in
their natural state for purposes of this subpart.  Whole fish headed, eviscerated, or frozen
attendant to harvest are still in their natural state for purposes of this subpart.
(Comments) One comment asks FDA to clarify the term, “no longer in its natural state”
by expressly stating that seed for sowing or planting that are shucked, sorted and sized remain
“in their natural state” for purposes of prior notice.  Another comment believes that activities
such as trimming, washing, waxing, and packaging of produce are part of normal harvesting
activities and seeks to clarify that produce that has been trimmed, washed, waxed, and/or
packaged is still “in its natural state.”
(Response) The IFR defines “no longer in its natural state” as meaning “an article of food
has been made from one or more ingredients or synthesized, prepared, treated, modified, or
manipulated.  Examples of activities that render food no longer in its natural state are cutting,
peeling, trimming, washing, waxing, eviscerating, rendering, cooking, baking, freezing, cooling,
pasteurizing, homogenizing, mixing, formulating, bottling, milling, grinding, extracting juice,
distilling, labeling, or packaging.  Crops that have been cleaned (e.g., dusted, washed), trimmed,
or cooled attendant to harvest or collection or treated against pests, waxed, or polished are still in
their natural state for purposes of this subpart.  Whole fish headed, eviscerated, or frozen
attendant to harvest are still in their natural state for purposes of this subpart.”  In the final rule,
we are deleting the word “waxed” in the list of activities that render the food still in their natural
state since this was included in error.
After publishing the prior notice IFR, FDA issued guidance in the form of questions and
answers to help clarify the prior notice requirements.  In the second edition of “Questions and
Answers Regarding the Interim Final Rule on Prior Notice of Imported Food (Edition 2)” (the

41
prior notice question and answer guidance document) available at
http://www.cfsan.fda.gov/~pn/pnqagui2.html, issued May 2004, under section B, Definitions,
question 4.1 of the guidance, we discuss seeds.  If the seed will be used only for sowing or
planting, and not directed to food use, then no prior notice is required and, therefore, there is no
need to determine whether the seeds are in their natural state for the purposes of prior notice.
Regarding the other comments, the definition for “no longer in its natural state” in the
final rule already states that trimmed or washed produce is still in its natural state, if those
activities are attendant to harvest or collection.  This same definition states that waxing and
packaging are activities that render food no longer in its natural state.
(Final Rule) Section 1.276(b)(10) of the final rule defines “no longer in its natural state”
to mean that “an article of food has been made from one or more ingredients or synthesized,
prepared, treated, modified, or manipulated.  Examples of activities that render food no longer in
its natural state are cutting, peeling, trimming, washing, waxing, eviscerating, rendering,
cooking, baking, freezing, cooling, pasteurizing, homogenizing, mixing, formulating, bottling,
milling, grinding, extracting juice, distilling, labeling, or packaging.  Crops that have been
cleaned (e.g., dusted, washed), trimmed, or cooled attendant to harvest or collection or treated
against pests, or polished or packaged are still in their natural state for purposes of this subpart.
Whole fish headed, eviscerated, or frozen attendant to harvest are still in their natural state for
purposes of this subpart.”
15. Port of Arrival (§ 1.276(b)(11))
The IFR defines “port of arrival” to mean “the water, air, or land port at which the article
of food is imported or offered for import into the United States, i.e., the port where the article of
food first arrives in the United States. This port may be different than the port where

42
consumption or warehouse entry or foreign trade zone admission documentation is presented to
the U.S. Customs and Border Protection (CBP).”
(Comments) Two comments ask FDA to clarify what is meant by the term, “port of
arrival.”  One comment notes that notwithstanding the definition in the IFR, FDA representatives
have stated that “port of arrival” means the first port where the articles of food are “off-loaded”
and that if the articles remain on the vehicle or vessel, then the port of arrival definition has not
been met for these and only these articles.  Another comment reports being told by FDA
representatives that when a ship arrives from Europe, only goods "off loaded" in that port must
be given prior notice within the timeframes required.  If the ship has food destined to be "off
loaded" in other ports, prior notice must be filed for each port in accordance with the timeframes
required by the regulations.  The comments ask FDA to clarify this definition.
(Response) FDA agrees to clarify the term, “port of arrival,” as it is a required data
element in a prior notice and important for gauging the timeframes for prior notice submission.
The interim final rule defined "port of arrival" as "the water, air, or land port at which the article
of food is imported or offered for import into the United States, i.e., the port where the article of
food first arrives in the United States."  In essence, the comments ask us to identify the point at
which an article of food "first arrives" in the United States when the food is arriving by water.
The preambles to the proposed rule and IFR explained that for FDA to be able to protect
U.S. consumers from terrorism or other food-related emergencies, it was important for FDA to
receive prior notice before the food covered by that notice is shipped around the country and
potentially lost to government oversight (68 FR 5428 at 5431 and 68 FR 58974 at 58991).  The
preambles concluded that prior notice must be given before the food first physically appears in
the United States so that FDA can inspect the food upon arrival.

43
As noted in the comments, some shipments contain both food and non-food cargo.  If the
carrier stops at multiple ports, the articles of food may remain on board at intermediate ports
where non-food articles are unloaded.  The articles of food are then unloaded at one or more
subsequent ports.  When food is shipped via water and FDA has bioterrorism or other public
health emergency concerns about the food, it would inspect the food at the point of unloading.
This is because before the food is unloaded it would remain on the carrier either at a secured port
under CBP authority or in open water, preventing intentional or unintentional diversion until
unloading.  The same is true for food shipped by air.  When an article of food remains on board
at one airport to be unloaded at a subsequent airport, FDA would not need to examine the food
until the point where that food is unloaded.  In contrast, when food is shipped via land, any
articles of food remaining on board would travel through the United Stated while outside of
secured ports and, therefore, could be potentially lost to government oversight due to off-loading
in non-controlled areas.
Therefore, we believe that when an article of food is shipped via water or air, the article
"first arrives" at the port where it is unloaded.  When an article of food is shipped via land, the
article "first arrives" at the port where it crosses the border.  We are revising the definition of
"port of arrival" in the final rule to clarify this distinction.  We have added a statement that for an
article of food arriving by water or air, the port of arrival is the port of unloading.  For an article
of food arriving by land, the definition now states that the port of arrival is the port where the
article of food first crosses the border into the United States.
(Comments) One comment asks FDA to clarify the word “port.”  The comment asks
whether the IFR applies to U.S. Navy ships returning to “port” or to a U.S. Naval Base from
outside U.S. territorial waters.  The comment notes that U.S. Navy fleet ships always have been

44
considered U.S. territory.  The comment also notes that the CPG states that food entering and
then leaving the “port area” is not subject to prior notice and asks FDA to clarify the term, “port
area.”
(Response) FDA clarifies that the term, “port,” is not defined but that “port of arrival”
and “port of entry” are defined.  The term, “port,” as used in the rule relates to ports identified by
CBP.  In 19 CFR 101.1 Definitions, “Port and port of entry refer to any place designated by
Executive Order of the President, by order of the Secretary of the Treasury, or by Act of
Congress, at which a Customs officer is authorized to accept entries of merchandise to collect
duties, and to enforce the various provisions of the Customs and navigation laws. The terms
‘port’ and ‘port of entry’ incorporate the geographical area under the jurisdiction of a port
director.”  If CBP changes this definition in the future, we will evaluate whether § 1.276(b)(12)
should be revised to incorporate those changes.  Proposed policies in the Prior Notice Final Rule
Draft CPG, would apply to most articles of food on U.S. Navy ships returning to “port” or a U.S.
Naval Base from outside U.S. territorial waters.  One policy states that FDA and CBP should
typically consider not taking any regulatory action when an article of food is imported or offered
for import for an official government purpose without prior notice, provided that a Federal
Government agency is the importer of record.  Another states that FDA and CBP should
typically consider not taking any regulatory action when an article of food is imported or offered
for import for non-commercial purposes with a non-commercial shipper without prior notice.
One of the examples of foods imported or offered for import that may be covered by this policy
is food in household goods, including military transfers.
(Final rule) Section 1.276 (b)(11) of the final rule defines “port of arrival” as “the water,
air, or land port at which the article of food is imported or offered for import into the United

45
States.  For an article of food arriving by water or air, this is the port of unloading.  For an article
of food arriving by land, this is the port where the article of food first crosses the border into the
United States.  The port of arrival may be different than the port where consumption or
warehouse entry or foreign trade zone admission documentation is presented to the U.S. Customs
and Border Protection (CBP).”
16. Shipper (§ 1.276(b)(14))
The IFR defines “shipper” to mean “the owner or exporter of the article of food who
consigns and ships the article from a foreign country or the person who sends an article of food
by international mail to the United States.”
(Comments) Two comments request that we clarify the IFR’s definition of “shipper.”
One comment asks whether the shipper is the person who physically loads the shipment for its
final journey to the United States, the company that has the business contract to export the food
to the U.S. importer, or someone in the middle who removes the shipment from temporary
storage for the initial phase of its entire journey to the United States. Another comment asks for
clarification as to who is the shipper when the producer’s shipping platform is involved in the
shipment—the transporter who takes responsibility for the whole shipment or the producer's own
facility (assuming that neither would be classified as "manufacturer")?
(Response) In the IFR, we defined “shipper” based upon the description of shipper as it is
discussed in CBP’s proposed rule “Required Advance Electronic Presentation of Cargo
Information” (July 23, 2003; 68 FR 43574 at 43577).  We have decided to continue to use this
definition in the final rule.  In the examples cited in the comments above, the shipper is
considered to be the entity that arranges or directs the shipment to be sent to the United States,
irrespective of who physically transports it. In the first example it would be the company having

46
the business contract to export the food; in the second, assuming that the producer is sending the
food to a firm in the United States, they (the producer) would be the shipper. It should also be
noted that a firm may be both a shipper and a manufacturer with respect to the same product if
the product is shipped from the point of manufacture to the United States. Moreover, we have
added the phrase, “or express consignment operators or carriers or other private delivery
service,” after the term, “international mail,” in the definition of “shipper” to clarify that a
shipper is involved with various types of transactions, and not just international mail shipments.
(Final rule) Section 1.276(b)(14) of the final rule defines shipper to mean “the owner or
exporter of the article of food who consigns and ships the article from a foreign country or the
person who sends an article of food by international mail or express consignment operators or
carriers or other private delivery service to the United States.”
17. Comments Requesting Additional Definitions
(Comments) Several comments request that we define additional terms in the final rule,
including: “trip number,” “carrier,” and “ultimate consignee.”
(Response) FDA disagrees.  FDA believes these terms are sufficiently clear based on our
experience since the initial implementation of the prior notice IFR.  FDA intends to interpret the
"ultimate consignee" consistent with CBP's use of that term in regards to the entry of
merchandise, which is contained in paragraph 6.3 of Customs Directive No. 3550-079A, June 27,
2001.  As stated in that CBP Directive, "if the merchandise has not been sold or consigned to a
U.S. party at the time of entry or release, then the Ultimate Consignee at the time of entry or
release is defined as the proprietor of the U.S. premises to which the merchandise is to be
delivered."

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18. Summary of the Final Rule
Section 1.276 of the final rule defines the following terms:  The act, calendar day,
country from which the article originates, country from which the article is shipped, FDA
Country of Production, food, full address, grower, international mail, manufacturer, no longer in
its natural state, port of arrival, port of entry, registration number, shipper, United States, and
you.
D. What is the Scope of this Subpart? (§ 1.277)
Section 1.277(a) of the IFR states that the prior notice requirements apply to all food for
humans and other animals that is imported or offered for import into the United States. This
covers food for use, storage, or distribution in the United States, and includes food for gifts, trade
and quality assurance/quality control samples, food for transshipment through the United States
to another country, food for future export, and food for use in a U.S. Foreign Trade Zone (FTZ).
Section 1.277(b) of the IFR sets out the exclusions from prior notice.  It excludes food for
an individual’s personal use when it is carried by or otherwise accompanies the individual when
arriving in the United States (i.e., for consumption by themselves, family and friends, not for sale
or other distribution); food that was made by an individual in his/her personal residence and sent
by that individual as a personal gift (i.e., for non-business reasons) to an individual in the United
States; food that is imported then exported without leaving the port of arrival until export; and
meat food products, poultry products, and egg products that, at the time of importation, are
subject to the exclusive jurisdiction of USDA under the Federal Meat Inspection Act (21 U.S.C.
601 et seq.), the Poultry Products Inspection Act (21 U.S.C. 451 et seq.), or the Egg Products
Inspection Act (21 U.S.C. 1031 et seq.).

48
FDA received many comments about § 1.277(b), which are addressed in order of the
exclusions covered in the IFR: Food for an individual’s personal use when carried by or
otherwise accompanying an individual; homemade food; food that is imported for immediate
exportation; and foods under exclusive USDA/Food Safety and Inspection Service jurisdiction.
The comments concerning requests for additional exclusions from the scope of the prior notice
requirements are addressed by issue, beginning with general comments/requests.
1. Food for an Individual’s Personal Use When Accompanied at Arrival
Section 1.277(b)(1) of the IFR excludes food for an individual’s personal use when it is
carried by or otherwise accompanies the individual when arriving in the United States.  The IFR
explains that in this situation there was no “shipper” as that term is used in section 801(m) of the
act.
(Comments) One comment requests that FDA expand the exemption for food carried in
to the United States for personal use to include all food products carried in personal baggage; or
to allow declaration of entry to be made through existing general CBP entry declaration
procedures.
(Response) FDA disagrees.  Prior notice is not required for food that is carried by or
otherwise accompanies an individual entering the United States (e.g., food that is in his or her
carry-on or checked baggage) when the food is for that individual’s personal use (§ 1.277(b)(1)).
This means that the food is for consumption by the individual or by the individual’s family and
friends and is not for sale or other distribution.  If the food carried by or otherwise accompanying
an individual is for commercial purposes, then prior notice requirements apply.
As we explained in the IFR preamble, we do not believe that Congress intended for us to
characterize travelers bringing food back from their travels in their personal baggage for their

49
own use as “shippers” for purposes of section 801(m) of the act.  When there is a commercial
purpose involved, there is a “shipper,” i.e., the person or entity on whose behalf the traveler is
bringing in the food.  Thus, by its terms, section 801(m) of the act requires that food carried by
or otherwise accompanying an individual arriving in the United States that is not for personal use
be subject to prior notice.  Moreover, we explained that we would potentially create a loophole
that would defeat the purpose of the prior notice rule if we were to exempt all food products
carried in personal baggage.
(Final rule) Section 1.277(b)(1) of the final rule continues to state that the rule does not
apply to food for an individual’s personal use when it is carried by or otherwise accompanies the
individual when arriving in the United States.
2. Homemade Food Sent as Personal Gift
Section 1.277(b)(2) of the IFR excludes food that was made by an individual in his/her
personal residence and sent by that individual as a personal gift (i.e., for non-business reasons) to
an individual in the United States.
(Comments) No comments were received about this issue.
(Final rule) Section 1.277(b)(2) is retained without change.
3. Food Imported Then Exported Without Leaving Port of Arrival Until Export
Section 1.277(b)(3) of the IFR excludes food that is imported then exported without
leaving the port of arrival until export.
(Comments) One comment states that if food moves for immediate export (IE) out of the
3
same port, it is not subject to prior notice.  However, if the food moves on a T&E entry, prior
notice is required.  The comment provides a scenario where a shipment arrives at Los Angeles
3
Food that is brought to a U.S. port but is then directly exported from that port of arrival is entered under a CBP IE
entry and subject to the limitations of an IE bond. In essence, this food may not leave the port of arrival until export.

50
Harbor and then moves to Los Angeles Airport for export.  Los Angeles Harbor and Los Angeles
Airport are separate ports and each has its own port code assigned by CBP.  The comment states
that CBP considers this an IE entry.  Similarly, the comment questioned if FDA considers this an
IE entry as well, or if it is considered a T&E entry that requires prior notice.
(Response) If the food arrives in and is exported from the same port, then it is not subject
to prior notice.  FDA considers a port to be the same as defined by CBP in 19 CFR 101.1; i.e.,
the term "port" incorporates the geographical area under the jurisdiction of a port director.  The
geographical boundaries of the port of Los Angeles-Long Beach are described in 19 CFR
101.3(b)(1).  While Los Angeles Harbor and Los Angeles Airport are separate for CBP
management purposes, they are considered to be within the same port.  Accordingly, IE entries
may be filed for movements between Los Angeles Harbor and Los Angeles Airport followed by
exportation of the goods.  Similarly, because such movements would not leave the port of arrival
until export, prior notice would not be required.
(Comments) One comment suggests that articles of food imported and admitted into a
FTZ in or adjacent to the port of arrival as “zone restricted status” merchandise, and then
exported from the port of arrival under an IE entry, are sufficiently similar to an IE entry that the
same restrictions as for an IE entry would apply if the food were refused admission under 801(m)
of the act.  The comment, therefore, recommends that these articles should be exempt from the
prior notice requirements.
(Response) The fact that food is for admission into an FTZ does not, by itself, mean that
the food is not subject to the requirements of the prior notice regulation (§ 1.277(a)).  In the first
instance described in the comments, where the article of food is imported and admitted into an
FTZ located in the port of arrival and then exported from the port of arrival, prior notice is not

51
required (§ 1.277(b)(3)).  In the second instance, where the article of food is imported and
admitted into an FTZ located adjacent to the port of arrival and then exported, prior notice would
be required since the food has left the port of arrival before export and may not be subject to the
limitations of an IE bond.  An FTZ adjacent to the port of arrival is considered to be outside the
port of arrival, and therefore not sufficiently similar to those IE entries that have never left the
port of arrival.
(Comments) Several comments ask that FDA exempt the airline industry’s food service
from the requirements of prior notice.  The comments assert that there is no danger to the
American public from this operation.  One comment suggests that leftover unopened cans of
soda, unopened small bottles of liquor (to be held in bonded storage) or other “dry-stores” items
on flights inbound to the United States and intended for use on later flights should be exempt
from prior notice.  In addition, the comment states that it is not possible to determine at “wheels
up” what will remain upon landing in the United States.  One comment states that it is impossible
to provide detailed information about leftover soda and liquor on incoming international aircraft.
One comment proposes the addition of the following exception to § 1.277(b): "Food that is
imported by a shipper operating an aircraft in international air transportation, then exported by
the same shipper, [as] long as such food remains on board the aircraft at all times from import to
export."
(Response) If the aircraft food is consumed on the international flight or discarded and is
not entered into the United States for use, storage, or distribution or remains on board and is
exported from the same port into which it arrived, it is outside the scope of the regulation and
prior notice is not required.  By contrast, prior notice is required for in-flight food that is moved
out of the port of arrival to caterers for use on other international or domestic flights (§ 1.277).

52
(Comments) One comment questions whether wines manufactured in a foreign country
and present on a passenger ship that may cruise or dock in the United States Territorial Sea
require prior notice.
(Response) If the wine remains on the ship, it does not require prior notice
(§ 1.277(b)(3)).  However, if the wine is offloaded from the ship and leaves the port of arrival in
the United States, prior notice would be required.
(Comments) One comment asks that if wines are loaded onto a passenger ship at a U.S.
port, but such an article of food has been previously imported into the U.S. to be exported or
transshipped, does the prior notice for such an article of food require the manufacturer’s
registration number.
(Response) Prior notice is required for food imported or offered for import into the
United States before arrival and not when the food is loaded onto a passenger ship in the United
States.
(Final rule) Section 1.277(b)(3) is retained without change in the final rule and excludes
food that is imported then exported without leaving the port of arrival until export.
4. Food Under the Exclusive Jurisdiction of USDA
The IFR in § 1.277(b)(4), (b)(5), and (b)(6) excludes: Meat food products that at the time
of importation are subject to the exclusive jurisdiction of USDA under the Federal Meat
Inspection Act (21 U.S.C. 601 et seq.); poultry products that at the time of importation are
subject to the exclusive jurisdiction of USDA under the Poultry Products Inspection Act (21
U.S.C. 451 et seq); and egg products that at the time of importation are subject to the exclusive
jurisdiction of USDA under the Egg Products Inspection Act (21 U.S.C. 1031 et seq).  The IFR
explains that these are excluded as directed in the Bioterrorism Act.

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(Comments) Comments state that live animals including cattle, pig, chickens, etc. require
prior notice, whereas prior notice is not required for products exclusively regulated by the
Federal Meat Inspection Act.  The comments recommend that animals regulated exclusively by
USDA/Veterinary Services such as live cattle, pigs, and chickens be exempt from prior notice
because USDA examines them upon importation. One comment further suggests that live
animals requiring prior notice should be those animals regulated by FDA, such as turtles, game
animals, etc.  Another comment asks whether prior notice is required for livestock sent to the
United States for recreational purposes, but after a number of years are expected to be
slaughtered and enter the food chain as pet food.  One comment asks that FDA exempt breeder
livestock not imported for immediate slaughter and remove "FD3" flags from HTS codes that