[Federal Register Volume 76, Number 75 (Tuesday, April 19, 2011)]
[Notices]
[Pages 21931-21932]
[FR Doc No: 2011-9414]

=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

Submission for OMB Review; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Investor Education and Advocacy, Washington, DC
20549.

Requested Change:
    Form 10-K, OMB Control No. 3235-0063; SEC File No. 270-48.
    Form 20-F, OMB Control No. 3235-0288; SEC File No. 270-156.

    Section 989G of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 \1\ (the ``Act'') provides that Section 404(b)
of the Sarbanes-Oxley Act \2\ does not apply to any audit report
prepared for an issuer that is neither an accelerated filer nor a large
accelerated filer as defined in Rule 12b-2 \3\ under the Securities
Exchange Act.\4\ Notice is hereby given that, pursuant to the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and
Exchange Commission (the ``Commission'') has submitted to the Office of
Management and Budget the request for approval of extension of the
previously approved collection of information discussed below.
---------------------------------------------------------------------------

    \1\ Public Law 111-203 (July 21, 2010).
    \2\ 15 U.S.C. 7262.
    \3\ 17 CFR 240.12b-2.
    \4\ 15 U.S.C. 78a et seq.
---------------------------------------------------------------------------

    In a separate release,\5\ the Commission amended its rules in light
of the Act, which amends Section 404 of the Sarbanes-Oxley Act. The
Commission had previously estimated the burden of complying with
Section 404(b) of the Sarbanes-Oxley Act assuming that all filers of
Forms 10-K and 20-F would file an auditor's attestation report. The
filers that were included in the estimate but are no longer subject to
the 404 requirement are sometimes referred to as ``non-accelerated
filers.''
---------------------------------------------------------------------------

    \5\ Release No. 33-9142 (Sept. 15, 2010) [75 FR 57385].
---------------------------------------------------------------------------

    Form 10-K sets forth the disclosure requirements for annual reports
filed by issuers under the Securities Exchange Act. Form 20-F sets
forth the disclosure requirements for annual reports and registration
statements filed by foreign private issuers under the Securities
Exchange Act, as well as many of the

disclosure requirements for registration statements filed by foreign
private issuers under the Securities Act.
    Based on the number of non-accelerated filers that filed an annual
report in 2009, we estimate that approximately 4,400 annual reports on
Form 10-K and approximately 285 annual reports on Form 20-F are filed
annually by non-accelerated filers. The current burden estimates for
Form 10-K and Form 20-F attribute 0.5 burden hours per issuer for
filing the auditor attestation report, including the burden attributed
to the related disclosure in the annual report, and do not include any
burden attributed to the audit work.\6\ Consistent with the burden
estimates for these forms, that estimate is then split 75% and 25%
between internal staff and external professionals for Form 10-K, and
25% and 75% between internal staff and external professionals for Form
20-F. Both estimates assume an hourly rate of $400 for external
professionals. Accordingly, we are reducing the aggregate burden
estimate by 1,650 hours of internal staff time and $220,000 for
external professional services for Form 10-K, and 36 hours of internal
staff time and $42,750 for external professional services for Form 20-
F.
---------------------------------------------------------------------------

    \6\ For further information on the determination of our
estimates, see Release No. 33-8238 (June 5, 2003) [68 FR 36636].
---------------------------------------------------------------------------

    The information collections requirements related to Forms 10-K and
20-F are mandatory. There is no mandatory retention period for the
information disclosed, and the information disclosed is made publicly
available on the EDGAR filing system. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
    The public may view the background documentation for this
information collection at the following Web site, http:
www.reginfo.gov. Comments should be directed to: (i) Desk Officer for
the Securities and Exchange Commission, Office of Information and
Regulatory Affairs, Office of Management and Budget, Room 10102, New
Executive Office Building, Washington, DC 20503, or by sending an e-
mail to<EMAIL_ADDRESS>and (ii) Thomas Bayer, Chief
Information Officer, Securities and Exchange Commission, c/o Remi
Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312 or send an
e-mail to<EMAIL_ADDRESS>Comments must be submitted to OMB
within 30 days of this notice.
    Please direct your written comments to Thomas Bayer, Chief
Information Officer, Securities and Exchange Commission, c/o Remi
Pavlik-Simon, 6432 General Green Way, Alexandria, VA 22312; or send an
e-mail to: PRA_Mailbox<EMAIL_ADDRESS>
     April 11, 2011.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-9414 Filed 4-18-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: November 24, 2008 (Volume 73, Number 227)]
[Notices]
[Page 71062-71070]
[DOCID:fr24no08-147]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58970; File No. SR-NYSE-2008-120]

Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by New York Stock Exchange, LLC Relating to the Limited
Liability Company Agreement of New York Block Exchange, a Facility of
NYSE

November 17, 2008.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Exchange Act'')\1\ and Rule 19b-4 under the Exchange Act,\2\
notice is hereby given that, on November 14, 2008, New York Stock
Exchange, LLC (``NYSE'' or the ``Exchange'') filed with the Securities
and Exchange Commission (the ``Commission'' or ``SEC'') the proposed
rule change as described in Items I, II, and III below, which Items
have been prepared by the self-regulatory organization. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

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

    NYSE, a New York limited liability company, registered national
securities exchange and self-regulatory organization, is submitting
this rule filing (the ``Proposed Rule Change'') to the Commission in
connection with the proposed formation of a joint venture between the
Exchange and BIDS Holdings L.P., a Delaware limited partnership
(``BIDS''). The Exchange proposes to establish a new electronic trading
facility, the New York Block Exchange (``NYBX''), as a facility, as
that term is defined in Section 3(a)(2) of the Exchange Act, of the
Exchange. NYBX will be an electronic facility of the Exchange that will
provide for the continuous matching and execution of securities listed
on the NYSE of all non-displayed orders with the aggregate of all
displayed and non-displayed orders of the NYSE Display Book [supreg]
(``Display Book'' or ``DBK'') and considers protected quotations of all
automated trading centers. The terms ``protected quotations'' and
``automated trading centers'' will have the same meanings as defined in
Rule 600 of Regulation NMS. NYBX would be owned and operated by New
York Block Exchange LLC (the ``Company''), a Delaware limited liability
company formed and jointly owned by the Exchange and BIDS. In this
Proposed Rule Change, the proposed Limited Liability Company Agreement
of the Company (the ``LLC Agreement'') is attached as Exhibit 5A.
Proposed Rule 2B, commentary.01, is attached as Exhibit 5B. The LLC
Agreement of the Company is the source of the Company's governance and
operating authority and, therefore, functions in a similar manner as
articles of incorporation and by-laws function for a corporation.
    The text of the proposed rule change is available at http://
www.nyse.com, NYSE's principal office, and the Commission's Public
Reference Room.

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

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

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

1. Purpose
    The Exchange is submitting this Proposed Rule Change to the
Commission in connection with the proposed formation of a joint venture
between the Exchange and BIDS. The Exchange proposes to establish a new
electronic trading facility, called NYBX (the ``Facility''), as a
facility (as that term is defined in Section 3(a)(2) of the Exchange
Act) of the Exchange. NYBX will be an electronic facility of the
Exchange that will provide for the continuous matching and execution of
securities listed on the NYSE of all non-displayed orders with the
aggregate of all displayed and non-displayed orders of the Display Book
and considers protected quotations of all automated trading centers.
NYBX would be owned and operated by the Company, a Delaware limited
liability company formed and jointly owned by the Exchange and BIDS.
BIDS will become an NYSE member in connection with the establishment of
the facility. In addition to its ownership stake in the Company, the
Exchange will enter into a services agreement with the Company (the
``Services Agreement'') pursuant to which the Exchange will perform
certain financial, operational, information technology and development
services for the Company. An affiliate of the Exchange, NYSE Market,
Inc., is also an equity investor in BIDS.
    The LLC Agreement is the source of the Company's governance and
operating authority and, therefore, functions in a similar manner as
articles of incorporation and by-laws function for a corporation. The
Exchange is submitting a separate filing to establish rules relating to
trading on NYBX.
Structure of the Company
    As a limited liability company, ownership of the Company is
represented by limited liability company interests in the Company
(``Interests''). The holders of Interests are referred to as the
members of the Company (the ``Members''). The Interests represent
equity interests in the Company and entitle the holders thereof to
participate in the Company's allocations and distributions. Currently,
the Exchange and BIDS each own 50% of the Interests.

Term and Termination
    Pursuant to Section 1.6 of the LLC Agreement, the Company will have
an initial term of three years from the date the LLC Agreement is
entered into (the ``Effective Date''), with automatic one year renewal
terms unless a Member elects to dissolve the Company within thirty days
prior to the end of a term. In addition, Section 10.2(a) of the LLC
Agreement provides that the Company may be dissolved upon the first to
occur of the following: (i) If a Member does not make its pro rata
share of capital contributions to the Company under certain
circumstances; (ii) if the Members jointly agree to dissolve the
Company; (iii) the determination by BIDS to dissolve the Company if the
Exchange or any of its Affiliates enters into any agreement or
arrangement with respect to a joint venture, licensing, partnership or
other similar strategic agreement with, or acquiring equity
representing an equal or greater percentage than the aggregate
investment by the Exchange in BIDS of, any U.S. registered alternative
trading system, as defined in Rule 300 of the Exchange Act (``ATS''),
that executes block trades or that does not display its liquidity or
orders to its subscribers or other users of the ATS; (iv) the
determination of the Exchange to dissolve the Company if BIDS or any of
its Affiliates enters into any agreement or arrangement with respect to
a joint venture, licensing, partnership or other similar strategic
agreement with, or receiving an equity investment representing an equal
or greater percentage than the Exchange's investment in BIDS from, any
U.S. or European contract market or securities exchange other than the
Exchange or its Affiliates or any ATS that executed 10% or more of the
securities in the relevant class of securities traded in the preceding
quarter in the U.S.; (v) the delivery by either Member of written
notice to the Company and the other Member of its determination to
dissolve the Company for cause, including for an uncured material
breach of the LLC Agreement, bankruptcy of the other Member or a
material change in the relevant regulatory regime that frustrates the
business of the Company; (vi) the delivery by any Member of written
notice to the Company and the other Member of its determination to
exercise the SRO Termination Right (as defined below in ``Regulation of
the Company''); or (vii) the occurrence of any other event that would
make it unlawful for the business of the Company to be continued.
    Upon expiration of the term or the occurrence of any of the events
set forth in Section 10.2(a) of the Agreement, the Company will be
dissolved and terminated in accordance with the provisions of Article
10 of the LLC Agreement, including provisions for certain transition
services by the Members in order for NYBX to continue to operate and to
permit an orderly transition or cessation of the operation of NYBX.
Governance of the Company
    Section 8.3 of the LLC Agreement establishes a board of directors
of the Company (the ``Board of Directors'') to manage the business and
affairs of the Company. Section 8.1(a) of the LLC Agreement provides
that, subject to the limitations in the LLC Agreement and except as
otherwise specifically contemplated by the LLC Agreement, the Board of
Directors has exclusive and complete authority and discretion to manage
the operations and affairs of the Company and to make all decisions
regarding the business of the Company, and in carrying out his or her
duties hereunder, each member of the Board of Directors shall (x)
comply with the federal securities laws and the rules and regulations
promulgated thereunder and (y) cooperate with NYSE LLC pursuant to its
regulatory authority and the provisions of the LLC Agreement and with
the SEC. Section 8.1(b) of the LLC Agreement provides that the Board of
Directors shall delegate the day-to-day operations of the Company and
the development of NYBX to the Exchange pursuant to the Services
Agreement.
    Section 8.3 of the LLC Agreement provides that the Board of
Directors will consist of four directors, comprised of two individuals
designated by the Exchange (each, a ``NYSE Director'') and two
individuals designated by BIDS (each, a ``BIDS Director''). Any
individual designated to the Board of Directors by a Member must be
reasonably acceptable to the other Member and may not be subject to any
applicable ``statutory disqualification'' (within the meaning of
Section 3(a)(39) of the Exchange Act). Any director who becomes subject
to any such statutory disqualification shall be deemed to have
automatically resigned from the Board of Directors.
    Generally, under Section 8.3(f), the entire Board of Directors,
either present or represented by proxy, shall constitute a quorum for
the transaction of business. If such a quorum is not present within
sixty (60) minutes after the time appointed for any meeting, the
meeting shall be adjourned and the directors present either in person
or represented by proxy at such meeting shall reschedule the meeting to
occur within five (5) Business Days. If a director who was not present
at the initial meeting is not present either in person or represented
by proxy at the rescheduled meeting, then (i) the Member represented by
such director shall promptly appoint an alternate director reasonably
acceptable to the other Member and (ii) the rescheduled meeting shall
be adjourned and the directors present either in person or represented
by proxy at such meeting shall reschedule the meeting to occur within
three (3) Business Days. If such alternate director is not present in
person or represented by proxy at such second rescheduled meeting,
then, except as set forth in the following sentence, three (3)
directors, either present in person or represented by proxy, shall
constitute a quorum for the transaction of business. In the event of a
meeting of the Board of Directors solely with respect to the business
of suspending or terminating a Member's voting privileges or membership
under Section 7.1(b), the presence of the directors designated by the
Member subject to sanction shall not be required in order to constitute
a quorum to transact such business and in such event less than three
(3) directors, either present in person or represented by proxy, may
constitute a quorum for the transaction of such business as long as all
directors designated by the Member not subject to sanction are present.
Written notice of any rescheduled meeting shall be delivered to all
directors at least one (1) Business Day prior to the date of such
rescheduled meeting. Each Member shall direct, and shall use its
reasonable best efforts to cause, each director designated by it to
attend all meetings of the Board of Directors and, in the event such
director is unable to attend a meeting, to cause such director to
authorize a person or persons to act for him or her by proxy in
accordance with Section 8.3(h). Each Member shall take all necessary
actions, to the fullest extent permitted by law, to ensure that the
directors designated by such Member vote on all matters.
    Pursuant to Section 8.3(g), except as provided in the first
sentence of Section 3.1(c) of the LLC Agreement the vote of a majority
of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, so long as such vote
includes the vote of at least one NYSE Director and one BIDS Director.
Specifically, a vote of the majority of the Board of Directors will be
required to cause or permit the Company or any of its subsidiaries to
do

or take any action that would materially impact the Company, the
ownership or use of the Company's intellectual property and the rights
of the Members, including without limitation a merger of the Company,
selling the Company's assets, amending the LLC Agreement or other
governance documents, acquiring or issuing securities of the Company,
entering new lines of business, licensing intellectual property, making
distributions to Members, incurring debt, filing for bankruptcy,
approving and materially amending the Company's annual budget or
operating plan, or taking any action that would impact the Company's
regulatory status. The LLC Agreement does not provide for a third party
deadlock provision.
    If such alternate director is not present in person or represented
by proxy at such second rescheduled meeting, then, except as set forth
in the following sentence, three (3) directors, either present in
person or represented by proxy, shall constitute a quorum for the
transaction of business. In the event of a meeting of the Board of
Directors solely with respect to the business of suspending or
terminating a Member's voting privileges or membership under Section
7.1(b), the presence of the directors designated by the Member subject
to sanction shall not be required in order to constitute a quorum to
transact such business and in such event less than three (3) directors,
either present in person or represented by proxy, may constitute a
quorum for the transaction of such business as long as all directors
designated by the Member not subject to sanction are present. Written
notice of any rescheduled meeting shall be delivered to all directors
at least one (1) Business Day prior to the date of such rescheduled
meeting. Each Member shall direct, and shall use its reasonable best
efforts to cause, each director designated by it to attend all meetings
of the Board of Directors and, in the event such director is unable to
attend a meeting, to cause such director to authorize a person or
persons to act for him or her by proxy in accordance with Section
8.3(h). Each Member shall take all necessary actions, to the fullest
extent permitted by law, to ensure that the directors designated by
such Member vote on all matters.
    Section 8.3(c) of the LLC Agreement provides that a director may
only be removed (with or without cause) by the Member who designated
such director; provided that any director (regardless of who designated
such director) may be removed for cause by a majority vote of the other
members of the Board of Directors voting at a meeting duly convened, so
long as such majority includes at least one NYSE Director and one BIDS
Director.
    Under Section 8.1(d) of the LLC Agreement, the Board of Directors
and each director agrees to comply with the federal securities laws and
the rules and regulations promulgated thereunder and to cooperate with
the Exchange pursuant to its regulatory authority and with the
Commission. Furthermore, each director shall take into consideration
whether his or her actions would cause the Facility or the Company to
(i) engage in conduct that fosters and does not interfere with the
ability of the Exchange or the Company to carry out their respective
responsibilities under the Exchange Act and to prevent fraudulent and
manipulative acts and practices, (ii) promote just and equitable
principles of trade, (iii) foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, (iv) remove impediments to, and perfect the mechanisms of,
a free and open market and a national market system, and (v) in
general, protect investors and the public interest.
    Section 8.1(e) of the LLC Agreement provides that NYSE Regulation
(as defined below) must receive notice of planned or proposed changes
to the Company (not including changes relating solely to Non-Market
Matters) or the Facility and that such changes may only be implemented
if NYSE Regulation does not object affirmatively to such changes prior
to implementation. If NYSE Regulation, in its sole discretion,
determines that such planned or proposed changes to the Company or the
Facility could cause a Regulatory Deficiency if implemented, NYSE
Regulation may direct the Company to modify the proposal as necessary
to ensure that it does not cause a Regulatory Deficiency, in which case
the Company will, prior to implementation, modify the proposal such
that NYSE Regulation does not object to the planned or proposed
changes. In the event that NYSE Regulation, in its sole discretion,
determines that a Regulatory Deficiency exists or is planned, NYSE
Regulation may direct the Company to undertake such modifications to
the Company (but not to include Non-Market Matters) or the Facility as
are necessary or appropriate to eliminate or prevent the Regulatory
Deficiency and allow NYSE Regulation to perform and fulfill its
regulatory responsibilities under the Exchange Act.
    Under Section 8.9 of the LLC Agreement, the Company may, at the
discretion of the Board of Directors, issue additional Interests to any
person for any amount of consideration, if any, as determined by the
Board of Directors and admit any such persons as an additional Member;
provided, that such additional Member will automatically be bound by
all of the terms and conditions of the LLC Agreement applicable to
Members and that such additional Member executes the documentation
required by the Board of Directors pursuant to which such additional
Member agrees to be bound by the terms and provisions of the LLC
Agreement.
Capital Contributions and Distributions
    Section 3.1(a) of the LLC Agreement provides that at the Effective
Date, each Member will make a cash capital contribution to the Company.
Section 3.1(c) of the LLC Agreement provides that, except as otherwise
required by law, no Member shall be required, or permitted, to make any
additional capital contributions to the Company without the unanimous
consent of the Board of Directors. If and when NYSE Regulation notifies
the Company that actions are required by the Company in order for the
Company to maintain its status as an operator of a facility of a self-
regulatory organization pursuant to the Exchange Act, then the Company
will determine the cost of such actions and the Board of Directors will
direct the Members to make, on a pro rata basis, a capital contribution
to the Company equal to the amount required for the Company to maintain
such status. Each Member will make its pro rata share of any capital
contribution requested by the Board of Directors promptly following its
receipt of such request; provided, that each Member will have no
obligation to make its pro rata share of the capital contribution
requested pursuant to the preceding sentence if, after giving effect to
such capital contribution, the aggregate amount of all capital
contributions made by the Members pursuant to the preceding sentence
during the three-year period ending on the date of such determination
would exceed $1,000,000. If a Member does not make its pro rata share
of such capital contribution in accordance with the preceding sentence,
then either Member may cause the Company to dissolve in accordance with
the provisions of the LLC Agreement.
    Pursuant to Section 4.1 of the LLC Agreement, gain from the sale of
assets of the Company will be allocated 50% to each member and
operating income will be allocated in the same manner as gain unless
the Board of Directors

unanimously determines that a different allocation or operating income
is appropriate.
    Section 5.1 of the LLC Agreement provides that, to the extent
available for distribution, cash of the Company will generally be
distributed 50% to each Member unless the Board of Directors has
determined that the Members should be allocated operating income in
differing percentages, in which case cash will be distributed in a
manner that reflects such differing percentages as determined by the
Board of Directors.
Intellectual Property
    Pursuant to an intellectual property license to be entered into on
the Effective Date by and among the Company, the Exchange and BIDS (the
``IP License''), each of the Exchange and BIDS will provide to the
Company a non-exclusive license for the use of certain of its
intellectual property and the Company will provide to each Member a
non-exclusive license (exercisable only upon certain events) for the
use of the intellectual property owned by the Company.
    The LLC Agreement and the IP License provide that the Company will
own intellectual property which is (i) developed for NYBX by a third
party by or on behalf of the Company, (ii) expressly conveyed or
contributed by any of the Members to the Company and all derivatives,
improvements or enhancements thereto, or (iii) not in existence as of
the Effective Date that is developed by any person explicitly for the
use of NYBX and designated as such in writing during the development
process and all derivatives, improvements or enhancements thereto;
provided, that if such intellectual property is a derivative,
improvement or enhancement to intellectual property owned by a Member,
it shall only be owned by the Company if it is explicitly for the use
of NYBX and designated as such in writing during the development
process.
Non-Compete
    Section 7.4 of the LLC Agreement provides that during the period
commencing on the Effective Date and continuing until the earlier of
(x) the one-year anniversary of the Effective Date and (y) the first
day on which NYBX is available for use by the members of any one or
more the U.S. self-regulatory organizations operated by NYSE Euronext
(the ``NYSE Markets'') for trading as a facility approved by the
Commission (the ``Non-Competition Period''), neither Member shall, and
each Member shall cause its Affiliates not to, directly or indirectly
compete with, or enter into any agreement with any other person that
calls for such Member or its Affiliates to enter into any equity
investment, joint venture, licensing or partnership that competes with,
the business of the Company anywhere in the United States. The Non-
Competition Period will be automatically extended for successive six-
month periods unless a Member gives the other Member written notice of
its intention to terminate the Non-Competition Period at least six
months prior to the end of the then-current Non-Competition Period as
so extended from time to time. Notwithstanding the foregoing, each
Member and its Affiliates may (i) provide services to any other person
that is not engaged in any business that is competitive with the
business of the Company; (ii) own less than 5% of the issued and
outstanding equity of any entity (so long as such Member or Affiliate
does not control or participate in the management of such entity);
(iii) take any action that may be necessary for it or its Affiliates to
remain in compliance with applicable laws, rules or regulations; and
(iv) continue to engage in any of its existing businesses.
Changes in Ownership of the Company
    Section 9.1 of the LLC Agreement provides that each Members may not
sell, assign, pledge or in any manner dispose of or create or suffer
the creation of a security interest in or any encumbrance on all or a
portion of its Interest in the Company (the commission of any such act
being referred to as a ``Transfer''), except in accordance with the
terms and conditions set forth in the LLC Agreement. Section 9.2 of the
LLC Agreement permits a Member to Transfer all or any portion of its
Interest to (i) a Permitted Transferee or (ii) a person that is not a
Permitted Transferee with the consent of the other Member, subject to
the satisfaction of the requirements set forth in Sections 9.3 and 9.8
of the LLC Agreement (described below), and provides that the
transferee of all or any portion of a Member's Interest may be admitted
to the Company as a Member upon the prior written consent of the Board
of Directors.
    Section 9.3 of the LLC Agreement prohibits the Transfer of all or
any portion of an Interest in the Company unless: (i) The transferor
pays all reasonable costs and expenses incurred by the Company in
connection with the Transfer; (ii) the transferor delivers to the
Company a fully executed copy of all documents relating to the Transfer
and the agreement of the transferee in writing and otherwise in form
and substance acceptable to the Board of Directors to be bound by the
terms imposed upon such Transfer by the Board of Directors and by the
terms of the LLC Agreement and to assume all obligations of the
transferor under the LLC Agreement relating to the Interest that is the
subject of such Transfer; (iii) the Board of Directors is reasonably
satisfied that the Transfer will not (A) cause the Company to be
treated as an association taxable as a corporation for federal income
tax purposes, (B) cause the Company to be treated as a ``publicly
traded partnership'' within the meaning of the Internal Revenue Code of
1986, as amended from time to time (the ``Code''), (C) violate any
federal, state or non-United States securities laws, rules or
regulations, (D) cause some or all of the assets of the Company to be
``plan assets'' or the investment activity of the Company to constitute
``prohibited transactions'' under ERISA or the Code, and (E) cause the
Company to be an investment company required to be registered under the
Investment Company Act of 1940, as amended. Under Section 9.1 of the
LLC Agreement, any Transfer or purported Transfer of an Interest not
made in accordance with the LLC Agreement will be null and void and of
no force or effect whatsoever.
    Section 9.8(a) of the LLC Agreement provides that beginning after
Commission approval of this proposed rule change, the Company must
provide the Commission with written notice ten days prior to the
closing date of any acquisition of an Interest by a person that results
in a Member's percentage ownership interest in the Company, alone or
together with any Related Person of such Member, meeting or crossing
either the 5%, 10%, or 15% thresholds.
    Section 9.8(b) of the LLC Agreement provides that beginning after
Commission approval of this proposed rule change, no person that is not
a Member as of the Effective Date, either alone or together with its
Related Persons, may directly own an Interest that would result in such
person having a percentage ownership interest exceeding 20% (the
``Concentration Limitation''); provided, however, that the
Concentration Limitation shall not apply to the Exchange. The
Concentration Limitation shall apply to each person (other than the
Exchange) unless and until: (i) Such person shall have delivered to the
Board of Directors a notice in writing, not less than 45 days (or such
shorter period as the Board of Directors expressly consents to) prior
to the acquisition of any Interest that

would cause such person (either alone or together with its Related
Persons) to exceed the Concentration Limitation, of such person's
intention to acquire such Interest; (ii) such notice shall have been
filed with, and approved by, the Commission under Section 19(b) of the
Exchange Act and shall have become effective thereunder; and (iii) the
Board of Directors shall not have determined to oppose such person's
acquisition of such Interest. The Board of Directors shall oppose such
person's acquisition of such Interest if the Board of Directors
determines, in its sole discretion, that (A) such ownership by such
person, either alone or together with its Related Persons, will impair
the ability of the Company and the Board of Directors to carry out its
functions and responsibilities, including but not limited to, under the
Exchange Act, or is otherwise not in the best interests of the Company;
(B) such ownership by such person, either alone or together with its
Related Persons, will impair the ability of the Commission to enforce
the Exchange Act; (C) such person or its Related Persons are subject to
any applicable ``statutory disqualification'' (within the meaning of
Section 3(a)(39) of the Exchange Act); or (D) if such Interest would
result in the person having an ownership interest in the Company
exceeding the Concentration Limitation, either such person or one of
its Related Persons is a ``member'' or ``member organization'' of the
Exchange (as defined in the rules of the Exchange, as such rules may be
in effect from time to time). In making a determination pursuant to the
foregoing, the Board of Directors may impose such conditions and
restrictions on such person and its Related Persons as the Board of
Directors may in its sole discretion deem necessary, appropriate or
desirable in furtherance of the objectives of the Exchange Act and the
governance of the Company.
    Section 9.8(c) of the LLC Agreement provides that beginning after
Commission approval of this proposed rule change, the Exchange's
percentage ownership interest shall not decline below 50% unless and
until: (i) The Exchange shall have delivered to the Board of Directors
a notice in writing, not less than 45 days (or such shorter period as
the Board of Directors shall expressly consent to) prior to the
Transfer of any Interest that would result in the Exchange (either
alone or together with its Related Persons) holding less than a 50%
ownership interest in the Company, of the Exchange's intention to
Transfer such Interest; and (ii) such notice shall have been filed
with, and approved by, the Commission under Section 19(b) of the
Exchange Act and shall have become effective thereunder.
    Section 9.8(d) of the LLC Agreement provides for indirect changes
in control of the Company. Any person that acquires a controlling
interest (i.e., an interest of 25% or more of the total voting power)
in a Member who, alone or together with any Related Person of such
Member, holds a Percentage Interest in the Company equal to or greater
than 20% would be required to agree to become a party to the LLC
Agreement and abide by its terms. The amendment to the LLC Agreement
caused by the addition of the indirect controlling party would trigger
a proposed rule change that the Exchange would have to file with the
Commission pursuant to Section 19(b) of the Exchange Act. The non-
economic rights and privileges, including all voting rights, of the
Member in which such controlling interest is acquired would be
suspended until this proposed rule change becomes effective under the
Exchange Act or until the indirect controlling party ceases to have a
controlling interest in such Member.
Trading Volume Limitations
    Section 9.9 of the LLC Agreement provides that if (i) during at
least 4 of the then preceding 6 calendar months, the average daily
trading volume in the Facility exceeds 10% of the aggregate average
daily trading volume of the Exchange (The aggregate average daily
trading volume in the Facility shall be calculated based upon the
trading volume of the Facility itself combined with trading volume in
the NYSE Display Book [supreg] (``Display Book'') that originated in
the Facility, if any) and (ii) a Member (other than the Exchange),
either alone or together with its Related Persons owns Interests
resulting in a percentage ownership interest exceeding the
Concentration Limitation, then if such Member elects not to Transfer
sufficient Interests within 180 days after the date on which both the
conditions in clauses (i) and (ii) are satisfied so that such Member
does not exceed the Concentration Limitation, an independent third
party SRO engaged by the Company shall begin, within such 180-day
period, to conduct market surveillance of such Member with respect to
such Member's trading activity in both the Facility and in NYSE LLC,
such that no Transfer in respect of the Concentration Limitation set
forth in this Section 9.9 will be required under applicable law or
regulation.
Regulation of the Company
    Under Section 8.1(c) of the LLC Agreement, the Members acknowledge
and agree that NYSE Regulation, Inc., an independent, not-for-profit
subsidiary of the Exchange, together with its successors (``NYSE
Regulation''), will have regulatory responsibility for the activities
of NYBX and will perform all actions related thereto, including without
limitation the following actions: (i) The adoption, amendment and
interpretation of policies arising out of and regarding any statement
made generally available to the membership of the Exchange, to persons
having or seeking access to NYBX or to a group or category of such
persons that establishes or changes any standard, limit or guideline
with respect to (A) the rights, obligations or privileges of such
persons or group or category of persons or (B) the meaning,
administration or enforcement of any new or existing rule or policy of
NYBX, including any exemption from such rule or policy; (ii) adoption,
amendment and interpretation of policies and rules relating to and
regarding the regulation of NYBX and approval of rule filings related
to NYBX prior to filing with the Commission; (iii) securities
regulation, record keeping obligations and other matters implicating
the self-regulatory organization responsibilities of the Exchange under
the Exchange Act; and (iv) real-time market surveillance and trading
activity reported to NYBX (collectively, the ``SRO Responsibilities'').
    The Exchange will consult with the Board of Directors with respect
to the SRO Responsibilities of NYSE Regulation; provided, however, that
to the extent it is impracticable or prohibited by law for the Exchange
to consult with the Board of Directors in advance of taking any action
as part of its SRO Responsibilities, the Exchange will consult with the
Board of Directors or the applicable Member as soon as practicable
thereafter. Such consultation will include providing the Board of
Directors with the reasonable opportunity to review and comment in
advance upon non-routine information relating to NYBX that appears in
filings, statements or applications submitted to the Commission or
another governmental or regulatory authority on behalf of the Company
that are material to ensuring that the Company and NYBX comply with
applicable federal securities laws and, to the extent not otherwise
prohibited by law, keeping the Board of Directors apprised, on a
regular and timely manner, of non-routine notices or orders relating to

NYBX received by the Exchange or NYSE Regulation from the Commission or
another governmental or regulatory authority. The Board of Directors
cannot require the Exchange to act or fail to act in a manner that the
Exchange reasonably believes to be inconsistent with its regulatory
obligations.
    Section 8.1(c) of the LLC Agreement also provides that should NYSE
Regulation (i) exercise its authority in a manner that materially
adversely affects the ability of any Member to utilize NYBX in
accordance with the LLC Agreement or (ii) require the Company to take
any action having a material effect that would otherwise require the
approval of the Board of Directors, but which does not receive such
approval either prior to or following such action, then (x) in the case
of clause (i) above, each Member so adversely affected, and (y) in the
case of clause (ii) above, each Member, will have the right to cause
the Company to dissolve in accordance with the provisions of the LLC
Agreement (the ``SRO Termination Right'').
    Section 7.1(b) of the LLC Agreement provides that, after
appropriate notice and opportunity for hearing, the Board of Directors,
by a vote of a majority of the directors (excluding the vote of the
directors designated by the Member subject to sanction), may suspend or
terminate a Member's voting privileges or membership in the event: (i)
Such Member has materially violated a provision of the LLC Agreement
relating to Regulatory Matters or any federal or state securities law;
(ii) such Member is subject to any applicable ``statutory
disqualification'' (as defined in Section 3(a)(39) of the Exchange
Act); or (iii) such action is necessary or appropriate in the public
interest or for the protection of investors. Prior to any such
suspension or termination, the Board of Directors will deliver to such
Member a written notice specifying in reasonable detail the basis for
such proposed suspension or termination.
    Section 14.1 of the LLC Agreement generally provides that the
Members, the members of the Board of Directors and the Company may not
disclose any confidential information of the Company or any Member to
any person, except as expressly permitted by the LLC Agreement. Section
14.1 of the LLC Agreement provides exceptions for, among other things,
disclosure required by any applicable law, regulation or legal process
or by the rules of any stock exchange, regulatory body or governmental
authority, including without limitation any rules and regulations
promulgated under the Exchange Act, and disclosure to the SEC or other
regulatory body or governmental authority in connection with any
necessary regulatory or governmental approval. Furthermore, nothing in
the LLC Agreement shall be interpreted to limit or impede the rights of
the Commission, the Exchange or NYSE Regulation to access and examine
confidential information of the Company pursuant to U.S. federal
securities laws, and the rules and regulations promulgated thereunder,
or to limit or impede the ability of a member of the Board of
Directors, any Member or officer, director, agent or employee of a
Member or of the Company to disclose confidential information of the
Company to the Commission, the Exchange or NYSE Regulation.
    Furthermore, Section 14.1 of the LLC Agreement provides that all
confidential information pertaining to the self-regulatory function of
the Exchange or the Company (including but not limited to disciplinary
matters, trading data, trading practices and audit information)
contained in the books and records of the Company will not be made
available to any persons other than to those officers, directors,
employees and agents of the Company and the Members that have a
reasonable need to know the contents thereof, will be retained in
confidence by the Company and the Members and their respective
officers, directors, employees and agents, and will not be used for any
commercial purposes.
Regulatory Jurisdiction Over Members
    Under Section 6.1(a) of the LLC Agreement, the Members acknowledge
that, to the extent related to the Company's business, the books,
records, premises, officers, directors, agents and employees of the
Company and of its Members shall be deemed to be the books, records,
premises, officers, directors, agents and employees of the Exchange for
purposes of, and subject to oversight pursuant to, the Exchange Act. In
addition, the books and records of the Company will be maintained at
the principal office of the Company in New York and will be subject at
all times to inspection and copying by the Commission and the Exchange
at no additional charge to the Commission or the Exchange.
    Under Section 6.1(b) of the LLC Agreement, the Company, its Members
and the officers, directors, agents and employees of the Company and
its Members irrevocably submit to the jurisdiction of the U.S. federal
courts, the Commission and the Exchange for purposes of any suit,
action or proceeding pursuant to U.S. federal securities laws, and the
rules and regulations promulgated thereunder, arising out of, or
relating to, activities of the Company and waive, and agree not to
assert by way of motion, as a defense or otherwise in any such suit,
action or proceeding, any claims that they are not personally subject
to the jurisdiction of the Commission, that the suit, action or
proceeding is an inconvenient forum or that the venue of the suit,
action or proceeding is improper, or that the subject matter hereof may
not be enforced in or by such courts or agency.
    Under Section 6.1(c) of the LLC Agreement, the Company, its
Members, and the officers, directors, agents, and employees of the
Company and its Members agree to comply with the federal securities
laws and the rules and regulations promulgated thereunder and to
cooperate with the Exchange pursuant to its regulatory authority and
the provisions of the LLC Agreement and with the Commission and to
engage in conduct that fosters and does not interfere with the
Company's and NYSE LLC's ability to (i) prevent fraudulent and
manipulative acts and practices; (ii) promote just and equitable
principles of trade; (iii) foster cooperation and coordination with
persons engaged in regulating, clearing, settling, processing
information with respect to, and facilitating transactions in,
securities; (iv) remove impediments to and perfect the mechanisms of a
free and open market and a national market system; and (v) in general,
protect investors and the public interest.
    Furthermore, Section 8.1(d) provides that the Company and each
Member shall take such action as is necessary to ensure that the
Company's and such Member's officers, directors, agents and employees
consent in writing to the application to them of the provisions in the
LLC Agreement with respect to their activities relating to the Company.
    The Exchange believes that these provisions will serve as notice to
Members that they will be subject to the jurisdiction of the U.S.
federal courts, the Commission and the Exchange. Accordingly, these
provisions ensure that, should an occasion arise which requires
regulatory cooperation or jurisdictional submission from the Members,
it will be forthcoming and uncontested.
Amendments to the LLC Agreement and the Certificate of Formation
    Pursuant to Section 13.1 of the LLC Agreement, any amendment to the
LLC Agreement which does not adversely affect the right of any Member
in any material respect may be made by the Board of Directors without
the consent of the Members if such amendment is

for the purpose of admitting substituted or additional Members as
permitted by the LLC Agreement, necessary to maintain the Company's
status as a partnership that is not a ``publicly traded partnership''
pursuant to the Code, necessary to preserve the validity of any and all
allocations of income, gain, loss or deduction pursuant to the Code, or
contemplated by the LLC Agreement. Any amendments other than those
described in the foregoing sentence require the consent of all Members.
If the LLC Agreement is amended, the Board of Directors will amend the
Certificate of Formation to reflect such change if the Board of
Directors deems such amendment to be necessary or appropriate.
    Furthermore, Section 13.1 of the LLC Agreement provides that for so
long as the Company is a facility of the Exchange or of a successor of
the Exchange that is a self-regulatory organization, before any
amendment or repeal of any provision of the LLC Agreement becomes
effective, such amendment or repeal must either (i) be filed with or
filed with and approved by the Commission under Section 19 of the
Exchange Act and the rules promulgated thereunder or (ii) be submitted
to the board of directors of the Exchange or its successor, and if the
Exchange's board of directors determines that such amendment or repeal
must be filed with or filed with and approved by the Commission under
Section 19 of the Exchange Act and the rules promulgated thereunder
before such amendment or repeal may be effectuated, then such amendment
or repeal will not be effectuated until filed with or filed with and
approved by the Commission, as the case may be.
Relationship of the Exchange to BIDS
    On February 25, 2008, NYSE Market, Inc., a Delaware corporation and
wholly-owned subsidiary of the Exchange, and BIDS entered into a
Contribution Agreement. Pursuant to the Contribution Agreement, NYSE
Market, Inc. contributed cash to the capital of BIDS in exchange for
limited partnership interests in BIDS representing on the date of such
issuance 8.57% of the aggregate limited partnership interests in BIDS
(the ``Purchased Interests''). The Exchange and its affiliates do not
have any voting or other ``control'' arrangements with any of the other
limited partners or general partner of BIDS relating to its investment
in BIDS. The purchase by NYSE Market, Inc. of the Purchased Interests
was consummated on February 25, 2008. As a result of such purchase,
NYSE Market, Inc. became a limited partner of BIDS pursuant to the
Amended and Restated Limited Partnership Agreement of BIDS dated
January 31, 2007. The general partner of BIDS is BIDS Holdings GP LLC.
    The Exchange proposes that there be an exemption from Rule 2B of
the Exchange with respect to the investment by NYSE Market, Inc. in
BIDS. In relevant part, Rule 2B provides that, without prior Commission
approval, the Exchange or any entity with which it is affiliated shall
not, directly or indirectly, acquire or maintain an ownership interest
in a member organization. In addition, a member organization shall not
be or become an affiliate of the Exchange, or an affiliate of any
affiliate of the Exchange; provided, however, that, if a director of an
affiliate of a member organization serves as a director of NYSE
Euronext, this fact shall not cause such member organization to be an
affiliate of the Exchange, or an affiliate of an affiliate of the
Exchange. Upon execution of the LLC Agreement and BIDS' approval as a
member organization, the Exchange (through an affiliate) will maintain
an ownership interest in a member organization and BIDS will be
affiliated with an affiliate of the Exchange, in each case which
without Commission approval would be prohibited by Rule 2B. The
Commission has also previously noted its concern regarding (i) the
potential for conflicts of interest in instances where an exchange is
affiliated with one of its members and (ii) the potential for
informational advantages that could place an affiliated member of an
exchange at a competitive advantage vis-[agrave]-vis other non-
affiliated members. As such, the Exchange requests that the Commission
approve the relationships between BIDS and the Exchange described
above, subject to the conditions and limitations set out below.
    In making such a request, the Exchange notes that, consistent with
the Exchange's procedures relating to its affiliated outbound router,
Archipelago Securities LLC, the Exchange will adopt certain policies
and procedures relating to BIDS to mitigate concerns that there are
potential conflicts of interest in instances where a member firm is
affiliated with an exchange, including with respect to the potential
for informational advantages that could place an affiliated member of
an exchange at a competitive advantage vis-[agrave]-vis other non-
affiliated members.
    The Exchange notes that with respect to its business activities,
BIDS, which will become an NYSE member prior to commencement of the
Facility, is subject to independent oversight and enforcement by the
Financial Industry Regulatory Authority (``FINRA''), an unaffiliated
self-regulatory organization (``SRO'') that is BIDS'designated
examining authority. In this capacity, FINRA is responsible for
examining BIDS with respect to its books and records and capital
obligations, and shares with NYSE Regulation the responsibility for
reviewing BIDS' compliance with intermarket trading rules such as SEC
Regulation NMS. In addition, through an agreement between FINRA and the
NYSE pursuant to the provisions of SEC Rule 17d-2 under the Exchange
Act, FINRA's staff will review for BIDS' compliance with other NYSE
rules through FINRA's examination program. NYSE Regulation will, upon
commencement of the Facility's operations, monitor BIDS for compliance
with NYSE trading rules, subject, of course, to SEC oversight of NYSE
Regulation's regulatory program.
    In order to alleviate any residual concerns the Commission may have
regarding the potential for conflicts of interest, the Exchange notes
that NYSE Regulation has agreed with the Exchange that it will collect
and maintain the following information of which NYSE Regulation staff
becomes aware--namely, all alerts, complaints, investigations and
enforcement actions where BIDS (in its capacity as an NYSE member) is
identified as having potentially violated NYSE or applicable SEC
rules--in an easily accessible manner, so as to facilitate any review
conducted by the SEC's Office of Compliance Inspections and
Examinations. NYSE Regulation has further agreed with the Exchange that
it will provide a report to the Exchange's Chief Regulatory Officer, on
at least a quarterly basis, which: (i) Quantifies all alerts (of which
NYSE Regulation is aware in its tracking system) that identify BIDS as
having potentially violated NYSE or SEC rules and (ii) quantifies the
number of all investigations that identify BIDS as having potentially
violated NYSE or SEC rules.
    The Exchange is also proposing to amend Exchange Rule 2B by adding
commentary.01. As amended, Exchange Rule 2B, commentary.01 will require
the implementation of policies and procedures that are reasonably
designed to ensure that BIDS Holdings, L.P. and its affiliates do not
have access to non-public information relating to the Exchange,
obtained as a result of BIDS' affiliation with the Exchange, until such
information is available generally to similarly situated members of the
Exchange; provided, however, that BIDS Holdings, L.P. and its
affiliates shall be

permitted to have access to non-public information relating to the
parties' obligations under the LLC Agreement or the relationship of the
parties contemplated by the LLC Agreement, and such non-public
information shall be kept confidential in accordance with Section 14.1
of the LLC Agreement, including the requirement that such non-public
information shall not be made available to any Persons other than to
those officers, directors, employees and agents of the Company and the
Members that have a reasonable need to know the contents thereof. These
policies and procedures would include systems development protocols to
facilitate an audit of the efficacy of these policies and procedures.
    Specifically, Exchange Rule 2B, commentary.01 shall provide as
follows:
    The Exchange and BIDS shall establish and maintain procedures and
internal controls reasonably designed to ensure that BIDS Holdings,
L.P. and its affiliates do not have access to non-public information
relating to the Exchange, obtained as a result of BIDS' affiliation
with the Exchange, until such information is available generally to
similarly situated members of the Exchange; provided, however, that
BIDS Holdings, L.P. and its affiliates shall be permitted to have
access to non-public information relating to the parties' obligations
under the LLC Agreement or the relationship of the parties contemplated
by the LLC Agreement, and such non-public information shall be kept
confidential in accordance with Section 14.1 of the LLC Agreement,
including the requirement that such non-public information shall not be
made available to any Persons other than to those officers, directors,
employees and agents of the Company and the Members that have a
reasonable need to know the contents thereof.
    The Exchange believes these measures effectively address the
concerns identified by the Commission regarding the potential for
informational advantages favoring BIDS vis-[agrave]-vis other non-
affiliated NYSE members. The Exchange also notes that Section 9.9 of
the LLC Agreement will also mitigate these concerns. Section 9.9 of the
LLC Agreement provides that if during at least 4 of the then preceding
6 calendar months, the average daily trading volume in the Facility
exceeds 10% of the aggregate average daily trading volume of the
Exchange, then, within 180 days, either an independent third party SRO
engaged by the Company must begin to conduct market surveillance of
BIDS with respect to BIDS's trading activity in both the Facility and
in NYSE LLC, or BIDS must Transfer sufficient Interests so that BIDS
does not exceed the Concentration Limitation.
    In addition, the Exchange notes that NYSE Market, Inc. owns less
than 9% of the equity in BIDS and therefore does not own a controlling
interest in BIDS or otherwise have any veto or other special voting
rights with respect to the management or operation of BIDS. The
Exchange further notes that the general partner of BIDS, in which the
Exchange and its affiliates hold no interests, manages the day-to-day
business of BIDS. The Exchange acknowledges that if the Exchange or any
of its affiliates were to directly or indirectly increase the equity
ownership of BIDS, such increase would require prior Commission
approval. The Exchange believes the foregoing measures and factors
minimize the concerns identified by the Commission regarding potential
conflicts of interest.
Pilot Period
    The Exchange proposes that the Commission authorize the exemption
from Rule 2B for a pilot period of one year from the date of the
approval of this rule filing. The Exchange believes that this pilot
period is of sufficient length to permit both the Exchange and the
Commission to assess the impact of the rule change described herein.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is
the requirement under Section 6(b)(5) \3\ that an exchange have rules
that are 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.
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that this proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Exchange Act.

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

    The Exchange has not received any unsolicited written comments from
members or other interested parties.

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

    Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
    (A) By order approve the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule
change should be 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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2008-120 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-NYSE-2008-120. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m.

Copies of such filing also will be available for inspection and copying
at the principal offices of the Exchange. All comments received will be
posted without change; the Commission does not edit personal
identifying information from submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSE-2008-120 and should be submitted on
or before December 15, 2008.
---------------------------------------------------------------------------

    \4\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\4\
Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-27795 Filed 11-21-08; 8:45 am]

BILLING CODE 8011-01-P


[Federal Register: September 20, 2006 (Volume 71, Number 182)]
[Rules and Regulations]
[Page 54908-54912]
[DOCID:fr20se06-9]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 80

[EPA-HQ-OAR-2004-0508; FRL-8221-2]
RIN 2060-AJ71

Control of Air Pollution From New Motor Vehicles; Second
Amendment to the Tier 2/Gasoline Sulfur Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: This action amends the credit generation provisions of the
Geographic Phase-in Area (GPA) gasoline sulfur program to yield the
correct number of credits for refineries and importers that produce GPA
gasoline and eliminate the generation of windfall credits by refineries
or importers that have gasoline sulfur baselines below 150 ppm sulfur.
    In June 2002, we published a Direct Final Rule (DFR) and concurrent
Notice of Proposed Rulemaking (NPRM) to amend certain provisions of the
gasoline sulfur program concerning Geographic Phase-in Area (GPA)
gasoline. Specifically, we replaced the variable standard for GPA
gasoline with a flat standard of 150 parts per million (ppm) sulfur for
the duration of the GPA program. To prevent the generation of windfall
credits by refineries or importers that had gasoline sulfur baselines
below 150 ppm sulfur, we also amended the program's credit generation
provisions. As stated in the preamble to the Direct Final Rule, we
believed that the amendment would result in an equivalent number of
credits generated during the amended GPA program as compared to the
original program described under the Tier 2 final rule. Despite our
intent for the revised calculations to yield the equivalent number of
credits, the amended credit provisions were incorrect as pointed out by
an adverse comment received on the DFR. Based on this adverse comment,
we issued a partial withdrawal notice on August 26, 2002, to withdraw
the amendments to the credit provisions and reinstate the provisions
that were previously in effect. However, we also stated that we would
address the adverse comments in a subsequent final action, this action,
based on the concurrent NPRM.

DATES: This final rule is effective on January 1, 2007.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2004-0508. All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

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

EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington,
DC. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The Docket telephone number
is<PHONE_NUMBER>. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>.

    Note: The EPA Docket Center suffered damage due to flooding
during the last week of June 2006. The Docket Center is continuing
to operate. However, during the cleanup, there will be temporary
changes to Docket Center telephone numbers, addresses, and hours of
operation for people who wish to visit the Public Reading Room to
view documents. Consult EPA's Federal Register notice at 71 FR 38147
(July 5, 2006) or the EPA Web site at http://www.epa.gov/epahome/dockets.htm
 for current information on docket status, locations and

telephone numbers.

FOR FURTHER INFORMATION CONTACT: Mary Manners, Compliance and
Innovative Strategies Division, U.S. EPA, National Vehicle and Fuels
Emission Laboratory, 2000 Traverwood, Ann Arbor, MI 48105; telephone
(734) 214-4873, fax<PHONE_NUMBER>, e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Does This Action Apply to Me?

    This action will affect you if you produce gasoline. The table
below gives an example of entities that may have to comply with the
regulations. However, since this is only an example, you should
carefully examine these and other existing regulations in Title 40 Part
80 of the Code of Federal Regulations (CFR). If you have any questions,
please call the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

----------------------------------------------------------------------------------------------------------------
                                                  NAICS codes                        Examples of potentially
                   Category                           \a\        SIC codes \b\         regulated entities
----------------------------------------------------------------------------------------------------------------
Industry......................................          324110            2911  Petroleum refiners.
----------------------------------------------------------------------------------------------------------------
\a\ North American Industry Classification System (NAICS).
\b\ Standard Industrial Classification (SIC) System.

Outline of This Preamble

I. Electronic Availability
II. Background
    A. Refinery/Importer Annual Average GPA Standard and Credit
Generation Under the Tier 2 Final Rule
    B. Refinery/Importer Annual Average GPA Standard and Credit
Generation Under the June 2002 Direct Final Rule
III. What Is EPA Finalizing Under This Action?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health & Safety Risks

    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. Electronic Availability

    Today's action is available electronically on the date of
publication from EPA's Federal Register Internet Web site listed below.
Electronic copies of this preamble, regulatory language, and other
documents associated with today's final rule are available from the EPA
Office of Transportation and Air Quality Web site, listed below,
shortly after the rule is signed by the Administrator. These services
are free of charge, except any cost that you already incur for
connecting to the Internet.
    EPA Federal Register Web site: http://www.epa.gov/fedrgstr/EPA-AIR/

(either select a desired date or use the Search feature).
    EPA Office of Transportation and Air Quality Web site: http://www.epa.gov/otaq/
 (look in What's New or under specific rulemaking

topic).
    Please note that due to differences between the software used to
develop the documents and the software into which the documents may be
downloaded, changes in format, page length, etc., may occur.

II. Background

    Under a direct final rule (DFR) published in the Federal Register
on June 12, 2002 (67 FR 40169), we eliminated the anti-backsliding
provision for the annual average sulfur standard for Geographic Phase-
in Area (GPA) gasoline. Specifically, we replaced the variable average
standard for GPA gasoline \1\ with a flat average standard of 150 ppm
sulfur for 2004 through the duration of the GPA program.\2\ To prevent
the generation of windfall credits by refineries that had gasoline
sulfur baselines below 150 ppm sulfur, we also amended the credit
generation provisions for the duration of the GPA program (Sec.
80.310). As stated in the preamble to the direct final rule, we
believed that the amendment to Sec.  80.310 would result in an
equivalent number of credits generated during the amended GPA program
as compared to the original program under the Tier 2 final rule (65 FR
6698, February 10, 2000), even though the average standard for GPA
gasoline was changed to 150 ppm sulfur.
---------------------------------------------------------------------------

    \1\ The anti-backsliding requirement was defined for the average
standard for GPA gasoline as the least of (1) 150 ppm, (2), the
refinery's or importer's 1997/1998 average gasoline sulfur level,
calculated in accordance with section 80.295, plus 30 ppm, or (3)
the lowest average sulfur level for any year in which the refinery
generated allotments or credits under sections 80.275(a) or 80.305
plus 30 ppm, not to exceed 150 ppm.
    \2\ Under the Tier 2 final rule (65 FR 6698, February 10, 2000),
the GPA program lasted from 2004 through 2006. However, the highway
diesel final rule (66 FR 5002, January 18, 2001) allowed a two year
extension of the GPA program in exchange for full compliance with
the 15 ppm ultra-low sulfur diesel fuel standard by June 1, 2006.
---------------------------------------------------------------------------

    However, one commenter on the DFR indicated that the amendment to
Sec.  80.310 would change the manner in which a refinery or importer of
GPA gasoline would generate gasoline sulfur credits beginning in 2004.
Specifically, the commenter stated that the amendments to Sec. Sec.
80.310(a) and 80.310(b) would cause the credit baselines for its
refineries to be reduced from 150 ppm to lower sulfur levels. The
commenter also indicated that the changes to Sec.  80.310(d) would
require a refinery to reduce sulfur levels by at least 10 percent from
its baseline before credits could be generated. The commenter stated
that it would be adversely impacted by these changes since the amended
rule would require it to invest capital dollars earlier than it had
currently planned at its refineries in order to generate credits. The
commenter stated that the combined effect of these changes would be
detrimental because the number of credits that it could generate would
be significantly reduced. The commenter indicated that it would be
negatively impacted by this credit generation limitation since its
ability to defer capital expenditures would be limited.
    Based on this adverse comment, we issued a partial withdrawal
notice (67 FR 38338, August 26, 2002) to withdraw the amendments to
Sec.  80.310(a), (b), and (d). In the DFR, we stated that if we
received adverse comment on one or more distinct amendments,
paragraphs, or sections of the direct final rule by July 12, 2002, we
would publish a timely withdrawal in the Federal Register indicating
which provisions would become effective on September 10, 2002, and
which provisions would be withdrawn due to adverse comment. During the
30-day comment period for the rule, we received the adverse comments
discussed above on the amendments to Sec.  80.310(a), (b), and (d). In
the partial withdrawal notice, we withdrew those amendments and
reinstated the provisions that were previously in effect. However, we
also stated that we would address the adverse comments in a subsequent
final action, today's action, based on the Notice of Proposed
Rulemaking that was published concurrently with the DFR.

A. Refinery/Importer Annual Average GPA Standard and Credit Generation
Under the Tier 2 Final Rule

    Prior to the June 2002 DFR, a refinery or importer's average sulfur
standard for GPA gasoline would have been, with the anti-backsliding
provisions of the Tier 2 final rule, the least of 150 ppm, the
refinery's 1997-98 sulfur baseline plus 30 ppm, or the level from which
credits were generated plus 30 ppm. A refinery or importer with a
sulfur baseline of 100 ppm, for example, would have had a GPA gasoline
sulfur standard of 130 ppm for the duration of the GPA program (the
refinery or importer's 1997-98 baseline plus 30 ppm), assuming that no
credits were generated prior to 2004. In 2004 and beyond, that refinery
or importer would have generated credits based on the following
equation under Sec.  80.310:

CRa = Va x (Sstd-Sa)

Where:

CRa = Credits generated for the averaging period.
Va = Total annual volume of gasoline produced at a
refinery or imported during the averaging period.
Sstd = The standard for GPA gasoline (least of 150 ppm,
the refinery or importer's 1997-98 sulfur baseline plus 30 ppm, or
the level from which credits were generated plus 30 ppm).
Sa = Actual annual average sulfur level for gasoline
produced at a refinery or imported during the averaging period,
exclusive of any credits.

    Using a volume of 100 gallons for simplified calculation purposes
and assuming that the refinery or importer's actual annual gasoline
sulfur level was held at its baseline level of 100 ppm, that refinery
or importer would have generated 3000 ppm-gallon credits [100 gallons x
(130 ppm - 100 ppm)].

B. Refinery/Importer Annual Average GPA Standard and Credit Generation
Under the June 2002 Direct Final Rule

    As a result of the June 2002 DFR, a refinery or importer's average
sulfur standard for GPA gasoline would have been a flat standard of 150
ppm. As mentioned above, the DFR also amended the credit generation
provisions (Sec.  80.310) for the duration of the GPA program to
prevent the generation of windfall credits. As a result of the DFR,
that refinery or importer would have generated credits based on the
following equation:

CRa = Va x (SCredit-Sa)

Where:

CRa = Credits generated for the averaging period.

Va = Total annual volume of gasoline produced at a
refinery or imported during the averaging period.
SCredit = For GPA gasoline, the least of 150 ppm, or the
refinery or importer's 1997-98 sulfur level, or the refinery or
importer's lowest annual average sulfur level for any year from 2000
through 2003 during which the refinery or importer generated credits
or allotments.
Sa = Actual annual average sulfur level for gasoline
produced at a refinery or imported during the averaging period,
exclusive of any credits.

    Again using a volume of 100 gallons for simplified calculation
purposes and assuming that the refinery or importer's actual annual
gasoline sulfur level was held at its baseline level of 100 ppm, that
refinery or importer would not generate any credits under the amended
Sec.  80.310 [100 gallons x (100 ppm - 100 ppm) = 0]. Furthermore, the
amendment to Sec.  80.310 specified that refiners and importers of GPA
gasoline may generate credits beginning in 2004 only if the annual
average sulfur level for the gasoline produced or imported during the
annual averaging period is less than 0.90 of the refinery or importer's
1997-98 baseline sulfur level. In this example, the refinery or
importer would not be able to generate credits until it reduced its
gasoline sulfur levels to 90 percent of its baseline, or 90 ppm [0.90 x
100].

III. What Is EPA Finalizing Under This Action?

    Today's final rule does not further amend the refinery/importer
annual average standard for GPA gasoline. That is, the standard
continues to be 150 ppm for the duration of the GPA program. However,
today's final rule does amend the credit generation provisions of Sec.
80.310 by adding 30 ppm to the Scredit variable, as shown below.
Today's final rule also amends Sec. Sec.  80.285 and 80.415 to make
them consistent with Sec.  80.310. These amendments will yield the
correct number of credits generated in that the number of credits
generated will be equivalent to the number of credits generated under
Sec.  80.310 of the Tier 2 final rule. While these amendments apply to
credits generated beginning in 2004, these amendments will not be
effective until January 1, 2007 and will not be applied retroactively.
Specifically, under today's final rule, a refinery or importer will
generate credits based on the following equation:

CRa = Va x (SCredit-Sa)

Where:

CRa = Credits generated for the averaging period.
Va = Total annual volume of gasoline produced at a
refinery or imported during the averaging period.
SCredit = For GPA gasoline, the least of 150 ppm, or the
refinery's or importer's 1997-98 sulfur level plus 30 ppm, or the
refinery's lowest annual average sulfur level for any year from 2000
through 2003 during which the refinery generated credits or
allotments plus 30 ppm.
Sa = Actual annual average sulfur level for gasoline
produced at a refinery or imported during the averaging period,
exclusive of any credits.

    Again using a volume of 100 gallons for simplified calculation
purposes and assuming that the refinery or importer's actual annual
gasoline sulfur level is held at its baseline level of 100 ppm, that
refinery or importer will generate 3000 ppm-gallon credits under
today's final rule [100 gallons x (130 ppm-100 ppm) = 3000].

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This action specifically amends the regulations pertaining to the
calculation of GPA gasoline sulfur credits to yield the correct number
of credits for refineries and importers that produce GPA gasoline and
to eliminate the generation of windfall credits by refineries or
importers that have gasoline sulfur baselines below 150 ppm sulfur.
This action is of limited impact in that it only applies to GPA
gasoline and only for 2007 and 2008; it does not impose any new
information collection requirements on the regulated entities.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
Today's action does not apply to or affect small refiners or any other
small entity.
    As stated above, today's action amends the credit generation
provisions of the GPA gasoline sulfur program to yield the correct
number of credits for GPA gasoline and eliminate the generation of
windfall credits by refineries or importers that have gasoline sulfur
baselines below 150 ppm sulfur.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments, and the private sector. Under Sec.  202 of the UMRA, We
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more for
any single year. Before promulgating a rule for which a written
statement is needed, Sec.  205 of the UMRA generally requires us to
identify and

consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of Sec.  205 do not
apply when they are inconsistent with applicable law. Moreover, Sec.
205 allows us to adopt an alternative that is not the least costly,
most cost-effective, or least burdensome alternative if we provide an
explanation in the final rule of why such an alternative was adopted.
    Before we establish any regulatory requirement that may
significantly or uniquely affect small governments, including tribal
governments, we must develop a small government plan pursuant to Sec.
203 of the UMRA. Such a plan must provide for notifying potentially
affected small governments, and enabling officials of affected small
governments to have meaningful and timely input in the development of
our regulatory proposals with significant Federal intergovernmental
mandates. The plan must also provide for informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    This rule contains no Federal mandates for State, local, or tribal
governments as defined by the provisions of Title II of the UMRA. The
rule imposes no enforceable duties on any of these governmental
entities. Nothing in the rule will significantly or uniquely affect
small governments.
    We have determined that this rule does not contain a Federal
mandate that may result in estimated expenditures of more than $100
million to the private sector in any single year. This action has the
net effect of amending 40 CFR 80.285, 80.310, and 80.415 to correct the
credit generation provisions for GPA gasoline. Therefore, the
requirements of the Unfunded Mandates Act do not apply to this action.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires us to develop an accountable process to ensure
``Meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, we may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or we consult
with State and local officials early in the process of developing the
proposed regulation. We also may not issue a regulation that has
federalism implications and that preempts State law, unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
    Section 4 of the Executive Order contains additional requirements
for rules that preempt State or local law, even if those rules do not
have federalism implications (i.e., the rules will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government). Those
requirements include providing all affected State and local officials
notice and an opportunity for appropriate participation in the
development of the regulation. If the preemption is not based on
express or implied statutory authority, we also must consult, to the
extent practicable, with appropriate State and local officials
regarding the conflict between State law and federally protected
interests within the agency's area of regulatory responsibility.
    This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The requirements of the rule
will be enforced by the Federal government at the national level. Thus,
the requirements of section 6 of the Executive Order do not apply to
this rule. Although section 6 of Executive Order 13132 does not apply
to this rule, we did consult with State and local officials in
developing this rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule corrects the
credit generation provisions for GPA gasoline under the Tier 2 program.
This final rule does not have tribal implications, as specified in
Executive Order 13175.

G. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, section 5-501 of the Order directs us to evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by us.
    This rule is not subject to the Executive Order because it is not
an economically significant regulatory action as defined by Executive
Order 12866. Furthermore, this rule does not concern an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children.

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

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 12(d) of Public Law 104-113, directs us to use
voluntary consensus standards in our regulatory activities unless it
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) developed or adopted by voluntary consensus standards
bodies. The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards.

    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 1, 2007.

List of Subjects in 40 CFR Part 80

    Environmental protection, Fuel additives, Gasoline, Imports,
Labeling, Motor vehicle pollution, Penalties, Reporting and
recordkeeping requirements.

    Dated: September 14, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, title 40, Chapter 1 of the
Code of Federal Regulations is amended as follows:

PART 80--REGULATION OF FUELS AND FUEL ADDITIVES

0
1. The authority citation for part 80 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7545 and 7601(a).

0
2. Section 80.285 is amended by revising paragraph (b)(1)(ii) to read
as follows:

Sec.  80.285  Who may generate credits under the ABT program?

* * * * *
    (b) * * *
    (1) * * *
    (ii) Refiners and importers of gasoline designated as GPA gasoline
under Sec.  80.219, using the least of 150.00 ppm, or the refinery's or
importer's 1997-98 baseline calculated under Sec.  80.295 plus 30.00
ppm, or the refinery's lowest annual average sulfur level for any year
from 2000 through 2003 during which the refinery generated credits or
allotments plus 30.00 ppm (for any party generating credits under both
paragraphs (b)(1)(i) of this section and this paragraph (b)(1)(ii),
such credits must be calculated separately); or
* * * * *

0
3. Section 80.310 is amended by revising paragraphs (a) and (b) to read
as follows:

Sec.  80.310  How are credits generated beginning in 2004?

    (a) A refiner for any refinery, or an importer, may generate
credits in 2004 and thereafter if the annual average sulfur level for
gasoline produced or imported for the averaging period is less than
30.00 ppm; or, for refiners that are subject to the small refiner
standards in Sec.  80.240, the small refiner annual average sulfur
standard applicable to that refinery; or, for refiners and importers
subject to the GPA standards in Sec.  80.216, the least of 150.00 ppm,
or the refinery's or importer's 1997-1998 sulfur level calculated under
Sec.  80.295 plus 30.00 ppm, or the refinery's lowest annual average
sulfur level for any year from 2000 through 2003 during which the
refinery generated credits or allotments plus 30.00 ppm.
    (b) Credits are calculated as follows:

CRa = Va x (SCredit - Sa)

Where:

CRa = Credits generated for the averaging period.
Va = Total annual volume of gasoline produced at a
refinery or imported during the averaging period.
SCredit = 30.00 ppm; or the sulfur standard for a small
refinery established under Sec.  80.240; or, for gasoline designated
as GPA gasoline under Sec.  80.219, the least of 150.00 ppm, or the
refinery's or importer's 1997-1998 sulfur level calculated under
Sec.  80.295 plus 30.00 ppm, or the refinery's lowest annual average
sulfur level for any year from 2000 through 2003 during which the
refinery generated credits or allotments plus 30.00 ppm.
Sa = Actual annual average sulfur level, calculated in
accordance with the provisions of Sec.  80.205, for gasoline
produced at a refinery or imported during the averaging period,
exclusive of any credits.
* * * * *

0
4. Section 80.415 is amended by revising paragraph (a)(2)(iii) to read
as follows:

Sec.  80.415  What are the attest engagement requirements for gasoline
sulfur compliance applicable to refiners and importers?

* * * * *
    (a) * * *
    (2) * * *
    (iii) If the annual average sulfur level for any year in which
credits were generated for 2000 through 2003 was less than the baseline
level under paragraph (a)(1) of this section, for small refiners report
as a finding the lowest annual sulfur level as the new baseline value
for purposes of establishing the small refiner standards under Sec.
80.240, and for GPA gasoline report as a finding the lowest annual
sulfur level plus 30.00 ppm as the new sulfur level for purposes of
credit generation under Sec.  80.310, if lower than 150.00 ppm.
* * * * *
[FR Doc. 06-7809 Filed 9-19-06; 8:45 am]

BILLING CODE 6560-50-P