[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Notices]
[Pages 36357-36361]
[FR Doc No: 2016-13212]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77952; File No. SR-NYSEArca-2016-83]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Reflect a Change
to the Benchmark Index Applicable to the WisdomTree Managed Futures
Strategy Fund

May 31, 2016.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on May 27, 2016, NYSE Arca, Inc. (the ``Exchange'' or
``NYSE Arca'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to reflect a change to the benchmark index
applicable to the WisdomTree Managed Futures Strategy Fund. The
proposed rule change is available on the Exchange's Web site at
www.nyse.com, at the principal office of the Exchange, and at the
Commission's Public Reference Room.

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

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

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

1. Purpose
    The Commission previously approved the listing and trading of the
shares (``Shares'') of the Fund on the Exchange under NYSE Arca
Equities Rule 8.600,\4\ which governs the listing and trading of
``Managed Fund Shares,'' on the Exchange.\5\ The Fund is an actively-
managed exchange traded fund. WisdomTree Asset Management, Inc.
(``WisdomTree Asset Management'') is the investment adviser
(``Adviser'') to the Fund. WisdomTree Investments, Inc. (``WisdomTree
Investments'') is the

parent company of WisdomTree Asset Management. Mellon Capital
Management Corporation (``Mellon'' or ``Sub-Adviser'') serves as the
sub-adviser for the Fund. State Street Bank and Trust Company is the
administrator, custodian and transfer agent for the Fund. Foreside Fund
Services, LLC (``Distributor'') serves as distributor for the Fund.\6\
The Shares are offered by the Trust, which is registered with the
Commission as an investment company.\7\
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    \4\ NYSE Arca Equities Rule 8.600 (c)(1) provides that, among
other criteria, a Managed Fund Share is a security that represents
an interest in an investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a) (``1940 Act'') organized as an
open-end investment company or similar entity that invests in a
portfolio of securities selected by its investment adviser
consistent with its investment objectives and policies. In contrast,
an open-end investment company that issues Investment Company Units,
listed and traded on the Exchange under NYSE Arca Equities Rule
5.2(j)(3), seeks to provide investment results that correspond
generally to the price and yield performance of a specific foreign
or domestic stock index, fixed income securities index or
combination thereof.
    \5\ See Securities Exchange Act Release No. 63598 (December 22,
2010), 75 FR 82106 (December 29, 2010)(SR-NYSEArca-2010-98) (``Prior
Order''). See also Securities Exchange Act Release No. 63292
(November 9, 2010), 75 FR 70319 (November 17, 2010) (``Prior
Notice'', and with the Prior Order, the ``Prior Releases'').
    \6\ The Prior Releases identified The Bank of New York Mellon as
the administrator, custodian and transfer agent for the Fund and
ALPS Distributors, Inc. as the distributor for the Fund.
    \7\ The Trust is registered under the 1940 Act. The Trust
intends to file a prospectus supplement with the Commission or a
post-effective amendment to its registration statement on Form N-1A
under the Securities Act of 1933 (15 U.S.C. 77a) (``Securities
Act'') and under the 1940 Act relating to the Fund (File Nos. 333-
132380 and 811-21864) (the ``Registration Statement''), to reflect
the changes in this proposed rule change upon effectiveness of such
proposed rule change. The descriptions of the operation of the Trust
and the Fund will be reflected in any such filing. In addition, the
Commission has issued an order granting certain exemptive relief to
the Trust under the 1940 Act. See Investment Company Act Release No.
28471 (October 27, 2008) (File No. 812-13458) (``Exemptive Order'').
Investments by the Fund will comply with the conditions in the
Exemptive Order. Share [sic] of the Fund are currently listed and
traded on the Exchange in compliance with all original and continued
listing standards of the Exchange and requirements of the Prior
Releases.
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    The Prior Releases stated that the Adviser would manage the Fund
using a strategy designed to correspond to the performance of the
Diversified Trends IndicatorTM (``Original Benchmark''). In
this proposed rule change, the Exchange proposes to reflect a change to
the benchmark index applicable to the Fund. The new benchmark will be
the WisdomTree Managed Futures Index (``New Benchmark,'' and together
with the Original Benchmark, the ``Benchmarks''), a proprietary index
developed by WisdomTree Investments.\8\ Upon implementation of the
proposed rule change, the Adviser will manage the Fund using a strategy
designed to correspond to the performance of the New Benchmark. The
Adviser anticipates investing Fund assets through the Sub-Adviser based
on the New Benchmark on or around June 30, 2016.
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    \8\ The changes described herein will be effected contingent
upon filing of a prospectus supplement or upon effectiveness of the
Trust's most recent post-effective amendment to its Registration
Statement. See note 7, supra. The Adviser represents that the
Adviser will not implement the changes described herein until the
instant proposed rule change is operative.
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    The Adviser believes that it is in the best interest of the Fund
and its shareholders to replace the Original Benchmark with the New
Benchmark while keeping the Fund's asset exposure and investment
strategies similar, and without changing the Fund's investment
objective. The Adviser believes that the New Benchmark will serve to
optimize the Fund's investment strategy, while seeking to provide
enhanced risk-adjusted returns over time.
Description of the Shares, the Benchmark and the Fund
    According to the Prior Releases, the WisdomTree Managed Futures
Strategy Fund seeks to provide investors with positive total returns in
rising or falling markets that are not directly correlated to broad
market equity or fixed income returns. The Fund is currently managed
using a quantitative, rules-based strategy designed to provide returns
that correspond to the performance of the Original Benchmark. The
Original Benchmark is a widely used indicator designed to capture the
economic benefit derived from rising or declining price trends in
commodity, currency, and U.S. Treasury futures markets.
    Under this proposed rule change, the Exchange seeks to permit the
Fund to be managed using a different, quantitative, rules-based
strategy, described below, that is designed to provide returns that
correspond to the New Benchmark. The New Benchmark is a proprietary
index, developed and owned by WisdomTree Investments that is also
designed to capture the economic benefit derived from rising or
declining price trends in commodity, currency, and U.S. Treasury
futures markets.
    Differences between the Original Benchmark and the New Benchmark
are described below.
The Benchmarks
    The Original Benchmark is a rules-based indicator designed to
capture rising and falling price trends in the commodity, currency and
U.S. Treasury futures markets through long and short positions on U.S.
listed futures contracts. The Original Benchmark consists of U.S.
listed futures contracts on 16 tangible commodities and 8 financial
futures. The 16 commodity futures contracts are: Light crude oil,
natural gas, RBOB gas (``Gasoline''), heating oil, soybeans, corn,
wheat, gold, silver, copper, live cattle, lean hogs, coffee, cocoa,
cotton and sugar. The 8 financial futures contracts are: the Australian
dollar (``AUD''), British pound sterling (``GBP''), Canadian dollar
(``CAD''), Euro (``EUR''), Japanese yen (``JPY''), Swiss franc
(``CHF''), 10-year U.S. Treasury note and 30-year U.S. Treasury bond.
Each contract is sometimes referred to as a ``Component'' of the
Original Benchmark.
    The New Benchmark also is a rules-based indicator designed to
capture rising and falling price trends in the commodity, currency and
U.S. Treasury futures markets through long and short positions on U.S.
listed futures contracts. The New Benchmark consists of U.S. listed
futures contracts on 16 tangible commodities and 8 financial futures.
The 16 commodity futures contracts are: Light crude oil, natural gas,
Gasoline, heating oil, soybeans, corn, wheat, gold, silver, copper,
live cattle, lean hogs, coffee, cocoa, cotton and sugar. The 8
financial futures contracts are: the AUD, GBP, CAD, EUR, JPY, CHF, 10-
year U.S. Treasury note and 30-year U.S. Treasury bond. Each contract
is sometimes referred to as a ``Component'' of the New Benchmark.
(1) Asset Treatment
    Under the Original Benchmark, Components that are similar in nature
(such as gas and oil or gold and silver) are aggregated into
``Sectors.'' There are nine commodity Sectors in the Original
Benchmark: Energy (light crude oil, natural gas, Gasoline, and heating
oil), Grains (soybeans, corn), Precious Metals (gold and silver),
Industrial Metals (copper), Livestock (live cattle, lean hogs), Coffee,
Cocoa, Cotton, and Sugar. Each financial futures contract is considered
to be its own Sector. As a result, there are eight financial Sectors in
the Original Benchmark: The AUD, GBP, CAD, EUR, JPY, CHF, 10-year U.S.
Treasury note and 30-year U.S. Treasury bond.
    Under the New Benchmark, there are no Sectors, but rather each of
the 24 Components is treated separately for weighting and long, short
or flat position determinations. The twenty Components with the lowest
36-month rolling volatility are included. All Components may be long,
short or flat, except for Energy futures (i.e., light crude oil,
natural gas, Gasoline and heating oil), which are held either long or
flat.
(2) Weighting Methodology
    Within the Original Benchmark, Components may be positioned as long
or short, except that the Energy Sector and its Components may never be
positioned short. The Original Benchmark's methodology provides that,
due to significant levels of continuous consumption, limited reserves
and other factors, the Energy Sector can only be long or flat (i.e., no
exposure).
    At the beginning of each calendar year and month, the Original
Benchmark is weighted evenly (i.e., 50/50) between commodity futures
contracts and

financial futures contracts. If the Energy Sector is flat, financial
futures represent approximately 61.5% of the weight of the original
Benchmark and commodity futures represent approximately 38.5% of
weighting of the Original Benchmark. When Energy is long, financial
futures and commodity futures each represent 50% of the weight of the
Original Benchmark.
    If the Energy Sector is flat then the weighting of the other
Sectors and Components within the Benchmark is increased on a pro-rata
basis.\9\ As a result, at the beginning of each calendar year and
month, if Energy is flat, financial futures will represent
approximately 61.5% of the weight of the Original Benchmark and
commodities will represent approximately 38.5% of the weight of the
Original Benchmark.
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    \9\ To arrive at the Sector weightings when Energy is flat,
divide the Sector Base Weight by one minus the Energy Sector Base
Weight (i.e., Sector Base Weight/1--0.1875)).
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    At the beginning of each calendar year and month, each Component
and Sector within the Original Benchmark also has a ``Base Weight,''
depending on whether the Energy Sector is long or flat. If the Energy
Sector is flat, then the Base Weight of the other Sectors and
Components within the Original Benchmark is increased on a pro-rata
basis. Commodity Sector weights are based on, but not exactly
proportional to, historical world production levels. Commodity Sectors
that have higher historical production levels are weighted higher in
the Original Benchmark. Weightings of the financial futures Sectors are
based on, but not directly proportional to, historical gross domestic
product (``GDP''). Larger economic regions (i.e., Europe as measured by
the Euro) should get a higher weighting than smaller regions (i.e.,
Australia as measured by AUD).\10\
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    \10\ The Adviser represents that, as of March 31, 2016, the
Fund's investment in the Components of the Original Benchmark are as
follows: (i) Silver, corn, wheat and coffee were not selected into
the portfolio for April (Nominal exposure, 0.00%) due to their high
realized volatilities, and (ii) although selected into the
portfolio, crude oil, natural gas, heating oil and Gasoline were not
given any weight (nominal exposure, 0.00%) as short positions in
those commodities were not allowed. The selected commodities were
given equal nominal weight (6.25%): Copper, soybeans, cocoa, lean
hogs, CHF and CAD were not fully invested due to lack of total
conviction based on the Composite Momentum Signal methodology. Only
\2/3\ of the nominal exposure was invested into their respective
futures contract (effective weight: 4.17%). Gold, sugar, cotton,
live cattle, EUR, JPY, GBP, AUD, 30-year Treasury bond and 10-year
Treasury note were fully invested (effective weight: 6.25%).
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    Under the New Benchmark, the 20 Components with the lowest realized
36 month rolling volatility will be included.\11\ If Energy futures are
flat, then Energy assets will be excluded. The remaining assets will be
weighted equally prior to the ``Composite Momentum Signal'' (described
below) being applied.
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    \11\ The Adviser represents that the commodity futures contracts
included in the New Benchmark (and therefore anticipated to be
included in the Fund) are heavily traded and are based on some of
the world's most liquid and actively-traded commodities. According
to the Adviser, as of January 1, 2016, the 3-month average daily
trading volume (``ADTV'') of the commodity futures contracts
representing Components in the New Benchmark were as follows: Crude
oil: $20,402,707,680; natural gas: $3,613,649,760); heating oil:
$2,489,853,660; Gasoline: $3,367,039,200; copper: $434,060,000;
sugar: $707,097,600; cotton: $285,940,000; wheat: $1,085,637,500;
corn: $3,619,192,500; soybeans: $3,826,910,000; gold:
$14,866,492,080; silver: $3,122,181,600; cocoa: $429,350,900;
coffee: $452,838,750; live cattle: $1,786,550,000; and lean hogs:
$437,824,000.
     The listed financial futures contracts included in the New
Benchmark (and therefore anticipated to be included in the Fund) are
heavily traded and represent six of the world's most liquid and
actively-traded currencies (as well as the U.S. dollar through
futures on 30-year Treasury bonds and 10-year Treasury notes).
According to the Adviser, as of January 1, 2016, the 3-month ADTV of
the financial futures contracts representing Components in the New
Benchmark were as follows: EUR: $33,014,630,700; AUD:
$7,428,685,500; CAD: $6,686,911,000; GBP: $8,644,461,188; CHF:
$9,904,476,250; 10-year Treasury note: $148,389,752,565; and 30-year
Treasury bond: $38,918,903,603.
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    The New Benchmark determines a Composite Momentum Signal for each
asset, based on the 3-month, 6-month, and 12-month returns (each, a
``Signal'') for the asset, based on its rolling schedule. If the return
is positive, the New Benchmark will assign positive one (+1) to it; if
the return is negative, the New Benchmark will assign a negative one (-
1) to it. The three Signals are aggregated by the New Benchmark, and if
all signals are in the same direction, the Fund will invest the
assigned weight. Otherwise, the Fund will invest two-thirds of the
assigned weight. The direction of the trade (i.e., long or short) will
be based on the direction of the majority of the Signals.\12\
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    \12\ The current weighting of the New Benchmark as of January 1,
2016, is as follows. Silver, corn, wheat and coffee were not
selected due to high volatility. The Energy group is flat as Signals
indicate a short position. The weight of the Energy group is
therefore proportionately assigned to the included assets. Each of
copper, gold, soybeans, sugar, cotton, cocoa, live cattle, lean
hogs, EUR, JPY, GBP, CHF, AUD, CAD, 30-year Treasury bond, and 10-
year Treasury note futures were therefore weighted at 6.25%.
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(3) Rebalancing
    The weight of each Component and Sector in the Original Benchmark
changes throughout each month based upon performance. At the end of
each month, each Sector is reset back to its applicable Base Weight
depending on whether the Energy Sector is long or flat. Within Sectors
that have multiple Components, the weight of each Component relative to
the others is allowed to fluctuate throughout the year and Component
weights are reset back to their respective Base Weights only at year-
end.
    Under the New Benchmark, each month, the 20 assets with the lowest
36-month volatility on a rolling basis are included. If an asset within
the Energy group is short, the value of that asset is flat and
allocated proportionately to the included assets. Weighing is then
determined as discussed above.
(4) Long/Short/Flat Determination
    As stated in the Prior Releases, in order to capture both rising
and falling price trends, at the end of each month each Sector in the
Original Benchmark (other than the Energy Sector) is positioned as
either ``long'' or ``short.'' This determination is made using an
algorithm that compares the Sector's monthly return to the Sector's
historic weighted moving average returns. If the Sector's returns are
above its moving average returns, the Sector is positioned as ``long''
throughout the following month. If the Sector's returns are below its
moving average, the Sector is positioned as ``short'' throughout the
following month (with the exception of the Energy Sector, which would
be positioned flat). All Components within a Sector are held in the
same direction. The value of a Sector and the value of the Original
Benchmark should increase if a long position increases in value or if a
short position decreases in value. For example, if a Sector is long in
the Original Benchmark and the value of its Components goes up intra-
month, the return of the Sector (and therefore the Original Benchmark)
should increase. If a Sector is short in the Original Benchmark, and
the value of its Components goes down intra-month, the return of the
Sector (and therefore the Original Benchmark) should increase.
    Under the New Benchmark, the Fund will be rebalanced each month
based on the Composite Momentum Signal framework described above. Just
as under the Original Benchmark, the New Benchmark should increase if a
long position increases in value or if a short position decreases in
value. For example, if a Component is long in the New Benchmark and its
value goes up intra-month, the return of the Component (and therefore
the New Benchmark) should increase. If a Component is short in the New

Benchmark, and its value goes down intra-month, the return of the
Component (and therefore the New Benchmark) should increase.\13\
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    \13\ Because the New Benchmark does not classify Components into
Sectors, the above explanation of the impact of changes in the value
of long or short assets in the New Benchmark is discussed with
respect to Components, rather than with respect to Sectors.
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    The Adviser represents that the Sub-Adviser will continue to invest
the Fund in the same assets as are contained in the Prior Releases and
will remain subject to, and invest the Fund assets, in accordance [sic]
all of the other requirements and limitations identified in the Prior
Releases. As a condition to continued listing and trading Shares of the
Fund on the Exchange, the Fund will continue to comply with all initial
and continued listing requirements under NYSE Arca Rule 8.600.
    Except for the changes noted above, all other facts presented and
representations made in the Prior Releases are unchanged.
2. Statutory Basis
    The basis under the Exchange Act for this proposed rule change is
the requirement under Section 6(b)(5)\14\ that an exchange have rules
that are designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of a free and open market
and, in general, to protect investors and the public interest. The
Exchange believes that the proposed rule change is designed to prevent
fraudulent and manipulative acts and practices. The Adviser is changing
the representation that it will seek investment returns that correspond
to the Original Benchmark to that it will seek investment returns that
correspond to the New Benchmark.
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    \14\ 15 U.S.C. 78f(b)(5).
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    The Adviser represents that there is no change to the Fund's
investment objective or to the securities or other assets identified in
the Prior Releases that the Fund utilizes in seeking to achieve its
investment objective. The Fund's use of such securities and other
assets will remain subject to all requirements and applicable
limitations identified in the Prior Releases. As a condition to the
continued listing and trading of the Shares on the Exchange, the Fund
will continue to comply with all initial and continued listing
requirements under NYSE Arca Rule 8.600.
    The proposed rule change is designed to promote just and equitable
principles of trade and to protect investors and the public interest in
that the Adviser represents that there is no change to the Fund's
investment objective. The Adviser represents that the allocations of
the Fund's portfolio will remain consistent with the allocation
limitations discussed in the Prior Releases, and that the Fund may
invest in the same instruments as are contained in the Original
Benchmark, as discussed in the Prior Release. However, the Adviser now
represents that the Fund will use portfolio management strategies in
seeking to achieve its investment objective in a manner that allocates
the Fund's investments in those same instruments in a manner to
correspond to the New Benchmark, rather than the Original Benchmark.
    All statements and representations made in this filing and the
Prior Releases regarding (a) the description of the Fund's portfolio,
(b) limitations on portfolio holdings or reference assets, or (c) the
applicability of Exchange rules and surveillance procedures shall
constitute continued listing requirements for listing the Shares on the
Exchange. The Adviser has represented to the Exchange that it will
advise the Exchange of any failure by the Fund to comply with the
continued listing requirements, and, pursuant to its obligations under
Section 19(g)(1) of the Act, the Exchange will monitor for compliance
with the continued listing requirements.\15\ If the Fund is not in
compliance with the applicable listing requirements, the Exchange will
commence delisting procedures under NYSE Arca Rule 5.5(m).
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    \15\ The Commission notes that certain other proposals for the
listing and trading of Managed Fund Shares include a representation
that the exchange will ``surveil'' for compliance with the continued
listing requirements. See, e.g., Securities Exchange Act Release No.
77499 (April 1, 2016), 81 FR 20428 (April 7, 2016) (Notice of Filing
of Amendment No. 2, and Order Granting Accelerated Approval of a
Proposed Rule Change, as Modified by Amendment No. 2, to List and
Trade Shares of the SPDR DoubleLine Short Duration Total Return
Tactical ETF of the SSgA Active Trust), available at: http://www.sec.gov/rules/sro/bats/2016/34-77499.pdf. In the context of this
representation, it is the Commission's view that ``monitor'' and
``surveil'' both mean ongoing oversight of the Fund's compliance
with the continued listing requirements. Therefore, the Commission
does not view ``monitor'' as a more or less stringent obligation
than ``surveil'' with respect to the continued listing requirements.
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    The proposed rule change is designed to perfect the mechanism of a
free and open market and, in general, to protect investors and the
public interest in that the Fund will continue to comply with all
initial and continued listing requirements under NYSE Arca Rule 8.600.
The proposed rule change will permit the Fund to continue to operate in
a manner similar to other Managed Fund Shares that invest primarily in
futures contracts, and will permit continued listing on the Exchange
for the Fund after it begins to utilize the quantitative, rules-based
strategy designed to seek performance that corresponds to the New
Benchmark, which will enhance competition among issues Managed Fund
Shares currently trading on the Exchange. Except for the changes noted
above, all other representations made in the Prior Releases are
unchanged.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purpose of the Exchange Act. The proposed rule
change will permit the continued listing on the Exchange of the Fund
after it begins to utilize the quantitative, rules-based strategy
designed to correspond to the New Benchmark, which will enhance
competition among issues of Managed Fund Shares.

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

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

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

    Because the proposed rule change does not (i) significantly affect
the protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative for 30
days from the date on which it was filed, or such shorter time as the
Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act\16\ and Rule 19b-
4(f)(6) thereunder.\17\
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    \16\ 15 U.S.C. 78s(b)(3)(A).
    \17\ 17 CFR 240.19b-4(f)(6). As required under Rule 19b-
4(f)(6)(iii), the Exchange provided the Commission with written
notice of its intent to file the proposed rule change, along with a
brief description and the text of the proposed rule change, at least
five business days prior to the date of filing of the proposed rule
change, or such shorter time as designated by the Commission.
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the

public interest, for the protection of investors, or otherwise in
furtherance of the purposes of the Act. If the Commission takes such
action, the Commission shall institute proceedings under Section
19(b)(2)(B) of the Act\18\ to determine whether the proposed rule
change should be approved or disapproved.
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    \18\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEArca-2016-83 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEArca-2016-83. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-NYSEArca-2016-83 and should
be submitted on or before June 27, 2016.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\19\
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    \19\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-13212 Filed 6-3-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 246 (Thursday, December 22, 2011)]
[Notices]
[Pages 79760-79761]
[FR Doc No: 2011-32710]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-1999-6156; FMCSA-1999-5748; FMCSA-2005-22194]

Qualification of Drivers; Exemption Applications; Vision

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

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SUMMARY: FMCSA announces its decision to renew the exemptions from the
vision requirement in the Federal Motor Carrier Safety Regulations for
10 individuals. FMCSA has statutory authority to exempt individuals
from the vision requirement if the exemptions granted will not
compromise safety. The Agency has concluded that granting these
exemption renewals will provide a level of safety that is equivalent to
or greater than the level of safety maintained without the exemptions
for these commercial motor vehicle (CMV) drivers.

DATES: This decision is effective January 3, 2012. Comments must be
received on or before January 23, 2012.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) numbers: FMCSA-1999-6156; FMCSA-1999-5748;
FMCSA-2005-22194, using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and
5 p.m., Monday through Friday, except Federal Holidays.
     Fax: 1<PHONE_NUMBER>.
    Instructions: Each submission must include the Agency name and the
docket number for this notice. Note that DOT posts all comments
received without change to http://www.regulations.gov, including any
personal information included in a comment. Please see the Privacy Act
heading below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The Federal Docket Management System (FDMS) is
available 24 hours each day, 365 days each year. If you want
acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review DOT's Privacy Act Statement for the FDMS published in
the Federal Register on January 17, 2008 (73 FR 3316), or you may visit
http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Divison,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption
from the vision requirements in 49 CFR 391.41(b)(10), which applies to
drivers of CMVs in interstate commerce, for a two-year period if it
finds ``such exemption would likely achieve a level of safety that is
equivalent to or greater than the level that would be achieved absent
such exemption.'' The procedures for requesting an exemption (including
renewals) are set out in 49 CFR part 381.

Exemption Decision

    This notice addresses 10 individuals who have requested renewal of
their exemptions in accordance with FMCSA procedures. FMCSA has
evaluated these 10 applications for renewal on their merits and decided
to extend each exemption for a renewable two-year period.
    They are:

Woodrow E. Bohley (MO)
Kenneth E. Bross (MO)
Russell W. Foster (OH)
Kevin Jacoby (NJ)
Richard L. Loeffelholz (WI)
Herman C. Mash (NC)
Frank T. Miller (OH)
Robert G. Rascicot (FL)
Jon H. Wurtele (NE)
Walter M. Yohn, Jr. (AL)

    The exemptions are extended subject to the following conditions:
(1) That each individual has a physical examination every year (a) by
an ophthalmologist or optometrist who attests that the vision in the
better eye continues to meet the requirements in 49 CFR 391.41(b)(10),
and (b) by a medical examiner who attests that the individual is
otherwise physically qualified under 49 CFR 391.41; (2) that each
individual provides a copy of the ophthalmologist's or optometrist's
report to the medical examiner at the time of the annual medical
examination; and (3) that each individual provide a copy of the annual
medical certification to the employer for retention in the driver's
qualification file and retains a copy of the certification on his/her
person while driving for presentation to a duly authorized Federal,
State, or local enforcement official. Each exemption will be valid for
two years unless rescinded earlier by FMCSA. The exemption will be
rescinded if: (1) The person fails to comply with the terms and
conditions of the exemption; (2) the exemption has resulted in a lower
level of safety than was maintained before it was granted; or (3)
continuation of the exemption would not be consistent with the goals
and objectives of 49 U.S.C. 31136(e) and 31315.

Basis for Renewing Exemptions

    Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no
longer than two years from its approval date and may be renewed upon
application for additional two year periods. In accordance with 49
U.S.C. 31136(e) and 31315, each of the 10 applicants has satisfied the
entry conditions for obtaining an exemption from the vision
requirements (64 FR 40404; 64 FR 54948; 64 FR 66962; 65 FR 159; 66 FR
66969; 68 FR 69432; 70 FR 57353; 70 FR 72689; 71 FR 644; 72 FR 71995;
74 FR 65847). Each of these 10 applicants has requested renewal of the
exemption and has submitted evidence showing that the vision in the
better eye continues to meet the requirement specified at 49 CFR
391.41(b)(10) and that the vision impairment is stable. In addition, a
review of each record of safety while driving with the respective
vision deficiencies over the past two years indicates each applicant
continues to meet the vision exemption requirements. These factors
provide an adequate basis for predicting each driver's ability to
continue to drive safely in interstate commerce. Therefore, FMCSA
concludes that extending the exemption for each renewal applicant for a
period of two years is likely to achieve a level of safety equal to
that existing without the exemption.

Request for Comments

    FMCSA will review comments received at any time concerning a
particular driver's safety record and determine if the continuation of
the exemption is consistent with the requirements at 49 U.S.C. 31136(e)
and 31315. However, FMCSA requests that interested parties with
specific data concerning the safety records of these drivers submit
comments by January 23, 2012.
    FMCSA believes that the requirements for a renewal of an exemption
under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially
granting the renewal and then requesting and evaluating, if needed,
subsequent comments submitted by interested parties. As indicated
above, the Agency previously published notices of final disposition
announcing its decision to exempt these 10 individuals from the vision
requirement in 49 CFR 391.41(b)(10). The final decision to grant an
exemption to each of these individuals was made on the merits of each
case and made only after careful consideration of the comments received
to its notices of applications. The notices of applications stated in
detail the qualifications, experience, and medical condition of each
applicant for an exemption from the vision requirements. That
information is available by consulting the above cited Federal Register
publications.
    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315, FMCSA will take immediate steps to revoke the
exemption of a driver.

    Issued on: December 14, 2011.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2011-32710 Filed 12-21-11; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Notices]
[Page 47624]
[FR Doc No: 2012-19517]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER12-2307-000]

Escanaba Green Energy, LLC; Supplemental Notice That Initial
Market-Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding,
of Escanaba Green Energy, LLC's application for market-based rate
authority, with an accompanying rate schedule, noting that such
application includes a request for blanket authorization, under 18 CFR
part 34, of future issuances of securities and assumptions of
liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability is August 24, 2012.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First St. NE., Washington, DC 20426.
    The filings in the above-referenced proceeding(s) are accessible in
the Commission's eLibrary system by clicking on the appropriate link in
the above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive email notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please email<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

    Dated: August 3, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-19517 Filed 8-8-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 86, Number 88 (Monday, May 10, 2021)]
[Notices]
[Page 24861]
[FR Doc No: 2021-09791]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2014-0056; FRL-10022-30-OMS]

Information Collection Request Submitted to OMB for Review and
Approval; Comment Request; NESHAP for Shipbuilding and Ship Repair
Facilities--Surface Coating (Renewal)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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

SUMMARY: The Environmental Protection Agency (EPA) has submitted an
information collection request (ICR), NESHAP for Shipbuilding and Ship
Repair Facilities--Surface Coating (EPA ICR Number 1712.11, OMB Control
Number 2060-0330), to the Office of Management and Budget (OMB) for
review and approval in accordance with the Paperwork Reduction Act.
This is a proposed extension of the ICR, which is currently approved
through May 31, 2021. Public comments were previously requested, via
the Federal Register, on May 12, 2020 during a 60-day comment period.
This notice allows for an additional 30 days for public comments. A
fuller description of the ICR is given below, including its estimated
burden and cost to the public. An agency may neither conduct nor
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.

DATES: Additional comments may be submitted on or before June 9, 2021.

ADDRESSES: Submit your comments, referencing Docket ID Number EPA-HQ-
OECA-2014-0056, online using www.regulations.gov (our preferred
method), or by email to<EMAIL_ADDRESS>or by mail to: EPA Docket
Center, Environmental Protection Agency, Mail Code 28221T, 1200
Pennsylvania Ave. NW, Washington, DC 20460. It is EPA policy is that
all comments received will be included in the public docket without
change, including any personal information provided, unless the comment
includes profanity, threats, information claimed to be Confidential
Business Information (CBI), or other information whose disclosure is
restricted by statute.
    Submit written comments and recommendations to OMB for the proposed
information collection within 30 days of publication of this notice to
www.reginfo.gov/public/do/PRAMain. Find this particular information
collection by selecting ``Currently under 30-day Review--Open for
Public Comments'' or by using the search function.

FOR FURTHER INFORMATION CONTACT: Patrick Yellin, Monitoring,
Assistance, and Media Programs Division, Office of Compliance, Mail
Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax number:
(202) 564-0050; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Supporting documents, which explain in
detail the information that the EPA will be collecting, are available
in the public docket for this ICR. The docket can be viewed online at
www.regulations.gov, or in person at the EPA Docket Center, WJC West,
Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone
number for the Docket Center is<PHONE_NUMBER>. For additional
information about EPA's public docket, visit: http://www.epa.gov/dockets.
    Abstract: The National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Shipbuilding and Ship Repair Facilities--
Surface Coating applies to owners or operators of shipbuilding and ship
repair facilities with primer and top -coat applications in
manufacturing processes and in ship repair processes. Owners or
operators of shipbuilding and ship repair facilities are required to
report startup, initial performance test, and retest information.
Facilities will also periodically report emission exceedances, changes
to equipment, and comply with other requirements of the NESHAP. This
information is being collected to assure compliance with 40 CFR part
63, subpart II.
    Form Numbers: None.
    Respondents/affected entities: Owners or operators of shipbuilding
and ship repair surface coating facilities.
    Respondent's obligation to respond: Mandatory (40 CFR part 63,
subpart II).
    Estimated number of respondents:56 (total).
    Frequency of response: Semiannual.
    Total estimated burden: 28,700 hours (per year). `Burden' is
defined at 5 CFR 1320.3(b).
    Total estimated cost: $3,200,000 (per year), includes $0 in
annualized capital/start up and/or operation & maintenance costs.
    Changes in the Estimates: There is no change in burden on the
respondents from the most-recently approved ICR as currently identified
in the OMB Inventory of Approved Burdens. This is due to two
considerations: (1) The regulations have not changed over the past
three years and are not anticipated to change over the next three
years; and (2) the growth rate for this industry is very low or non-
existent, so there is no significant change in the overall burden.
Since there are no changes in the regulatory requirements and there is
no significant industry growth, there are also no changes in the
capital/startup or operation and maintenance (O&M) costs. There is a
decrease in the reported hour burden due to a correction. The previous
ICR incorrect included burden for federal facilities, which has been
removed in this request.

Courtney Kerwin,
Director, Regulatory Support Division.
[FR Doc. 2021-09791 Filed 5-7-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Rules and Regulations]
[Pages 17081-17082]
[FR Doc No: 2019-08284]

=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

21 CFR Part 4

[Docket No. FDA-2008-N-0424]

Compliance Policy for Combination Product Postmarketing Safety
Reporting; Immediately in Effect Guidance for Industry; Availability

AGENCY: Food and Drug Administration, HHS.

ACTION: Notification of availability.

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

SUMMARY: The Food and Drug Administration (FDA or we) is announcing the
availability of an update to the immediately in effect guidance for
industry entitled ``Compliance Policy for Combination Product
Postmarketing Safety Reporting.'' This guidance describes FDA's
compliance policy for combination product applicants and constituent
part applicants and activities under FDA regulations that addresses
combination product postmarketing safety reporting. FDA is updating
this guidance by extending the period of time during which FDA does not
intend to enforce certain combination product postmarketing safety
reporting requirements.

DATES: The announcement of the updated guidance is published in the
Federal Register on April 24, 2019.

ADDRESSES: You may submit either electronic or written comments on
Agency guidances at any time as follows:

Electronic Submissions

    Submit electronic comments in the following way:
     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Comments submitted
electronically, including attachments, to https://www.regulations.gov
will be posted to the docket unchanged. Because your comment will be
made public, you are solely responsible for ensuring that your comment
does not include any confidential information that you or a third party
may not wish to be posted, such as medical information, your or anyone
else's Social Security number, or confidential business information,
such as a manufacturing process. Please note that if you include your
name, contact information, or other information that identifies you in
the body of your comments, that information will be posted on https://www.regulations.gov.
     If you want to submit a comment with confidential
information that you do not wish to be made available to the public,
submit the comment as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For written/paper comments submitted to the Dockets
Management Staff, FDA will post your comment, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: All submissions received must include the Docket No.
FDA-2008-N-0424 for ``Compliance Policy for Combination Product
Postmarketing Safety Reporting.'' Received comments will be placed in
the docket and, except for those submitted as ``Confidential
Submissions,'' publicly viewable at https://www.regulations.gov or at
the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through
Friday.
     Confidential Submissions--To submit a comment with
confidential information that you do not wish to be made publicly
available, submit your comments only as a written/paper submission. You
should submit two copies total. One copy will include the information
you claim to be confidential with a heading or cover note that states
``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The Agency will
review this copy, including the claimed confidential information, in
its consideration of comments. The second copy, which will have the
claimed confidential information redacted/blacked out, will be
available for public viewing and posted on https://www.regulations.gov.
Submit both copies to the Dockets Management Staff. If you do not wish
your name and contact information to be made publicly available, you
can provide this information on the cover sheet and not in the body of
your comments and you must identify this information as
``confidential.'' Any information marked as ``confidential'' will not
be disclosed except in accordance with 21 CFR 10.20 and other
applicable disclosure law. For more information about FDA's posting of
comments to public dockets, see 80 FR 56469, September 18, 2015, or
access the information at: https://www.gpo.gov/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket to read background documents or
the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in
the heading of this document, into the ``Search'' box and follow the
prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane,
Rm. 1061, Rockville, MD 20852.
    You may submit comments on any guidance at any time (see 21 CFR
10.115(g)(5)).
    Submit written requests for single copies of the guidance to the
Office of Combination Products, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 32, Rm. 5129, Silver Spring, MD 20993. Send one
self-addressed adhesive label to assist that office in processing your
requests. See the SUPPLEMENTARY INFORMATION section for electronic
access to the guidance document.

FOR FURTHER INFORMATION CONTACT: Melissa Burns, Office of Combination
Products, Food and Drug Administration, 10903 New Hampshire Ave.,
Silver Spring, MD 20993,<PHONE_NUMBER>, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    FDA is announcing an update to the immediately in effect guidance
for industry entitled ``Compliance Policy for Combination Product
Postmarketing Safety Reporting.'' This guidance was originally issued
on March 21, 2018 (83 FR 12259). This guidance describes FDA's
compliance policy for combination product applicants and constituent
part applicants and activities under 21 CFR part 4, subpart B, which
was published in the Federal Register of December 20, 2016 (81 FR
92603) and addresses postmarketing safety reporting for combination
products. FDA is updating this guidance by extending the period of time
during which FDA does not intend to enforce certain combination product
postmarketing safety reporting requirements.
    We are updating this guidance consistent with our good guidance
practices (GGP) regulation (Sec.  10.115 (21 CFR 10.115)). We are
implementing this updated guidance without prior public comment because
we have determined that prior public participation is not feasible or
appropriate (see section 701(h)(1)(C)(i) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 371(h)(1)(C)(i)) and Sec.  10.115(g)(2)). We
made this determination because FDA needs to communicate its compliance

policy in a timely manner given the compliance deadlines for certain
provisions in 21 CFR part 4, subpart B, and the amount of time needed
for firms to prepare for them. Although this guidance is immediately
effective, it remains subject to comment in accordance with FDA's GGP
regulation.
    This guidance represents the current thinking of FDA on this topic.
It does not establish any rights for any person and is not binding on
FDA or the public. You can use an alternative approach if it satisfies
the requirements of the applicable statutes and regulations. This
guidance is not subject to Executive Order 12866.

II. Paperwork Reduction Act of 1995

    This guidance refers to previously approved collections of
information found in FDA regulations. These collections of information
are subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The
collections of information in 21 CFR 314.80(c) and (e), as well as for
21 CFR 314.81(b) are approved under OMB control numbers 0910-0001,
0910-0230, and 0910-0291. The information collection provisions for 21
CFR 600.80 and 600.81 are approved under OMB control number 0910-0308.
Those for 21 CFR 606.170 are approved under OMB control number 0910-
0116. Those for 21 CFR 606.171 are approved under OMB control number
0910-0458. The information collection provisions for 21 CFR 803.50,
803.53, and 803.56 are approved under OMB control numbers 0910-0291 and
0910-0437. The information collection provisions for 21 CFR 806.10 and
806.20 are approved under OMB control number 0910-0359. The information
collection provisions for 21 CFR 4.102, 4.103, and 4.105 are approved
under OMB control number 0910-0834.

III. Electronic Access

    Persons with access to the internet may obtain the guidance at
either https://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Guidances/default.htm or
https://www.regulations.gov.

    Dated: April 18, 2019.
Lowell J. Schiller,
Principal Associate Commissioner for Policy.
[FR Doc. 2019-08284 Filed 4-23-19; 8:45 am]
 BILLING CODE 4164-01-P


[Federal Register Volume 77, Number 38 (Monday, February 27, 2012)]
[Notices]
[Page 11526]
[FR Doc No: 2012-4410]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[ Project No. 1992-003--California]

Ken Willis; Notice of Availability of Environmental Assessment

    In accordance with the National Environmental Policy Act of 1969
and the Federal Energy Regulatory Commission's regulations, 18 CFR part
380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has
reviewed the application for a new license for the Fire Mountain Lodge
Hydroelectric Project, located on Fern Spring, near the town of Mill
Creek in Tehama County, California, and has prepared an environmental
assessment (EA). In the EA, Commission staff analyze the potential
environmental effects of the proposed project and conclude that issuing
a new license for the proposed project, with appropriate environmental
measures, would not constitute a major federal action significantly
affecting the quality of the human environment.
    A copy of the EA is on file with the Commission and is available
for public inspection. The EA may also be viewed on the Commission's
Web site at http://www.ferc.gov using the ``eLibrary'' link. Enter the
docket number excluding the last three digits in the docket number
field to access the document. For assistance, contact FERC Online
Support at<EMAIL_ADDRESS>or toll-free at<PHONE_NUMBER>,
or for TTY,<PHONE_NUMBER>.
    You may also register online at  http://www.ferc.gov/esubscribenow.htm to be notified via email of new filings and issuances
related to this or other pending projects. For assistance, contact FERC
Online Support at<EMAIL_ADDRESS>or toll-free at 1-866-208-
3676, or for TTY,<PHONE_NUMBER>.
    Please contact Matt Buhyoff by telephone at<PHONE_NUMBER> or by
email at<EMAIL_ADDRESS>if you have any questions.

    Dated: February 16, 2012.
Kimberly D. Bose,
Secretary.
[FR Doc. 2012-4410 Filed 2-24-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register: April 18, 2007 (Volume 72, Number 74)]
[Rules and Regulations]
[Page 19385-19387]
[DOCID:fr18ap07-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63 and 65

[EPA-HQ-OAR-2004-0094; FRL-8301-2]
RIN 2060-AO40

National Emission Standards for Hazardous Air Pollutants: General
Provisions: Notice of Decision Denying Petition for Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision denying petition for reconsideration.

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

SUMMARY: On April 20, 2006, EPA published final rules entitled,
``National Emission Standards for Hazardous Air Pollutants: General
Provisions.'' Following that final action, the Administrator received a
petition for reconsideration from Coalition for a Safe Environment
(CFASE). CFASE's petition for reconsideration can be found in the
rulemaking docket under Docket ID No. EPA-HQ-OAR-2004-0094. After
carefully considering the petition and information in the rulemaking
docket, EPA is denying CFASE's petition for reconsideration.

ADDRESSES: The docket for EPA's denial of CFASE's petition for
reconsideration is Docket ID No. EPA-HQ-OAR-2004-0094. All documents in
the docket are listed on the http://www.regulations.gov Web site. Although

listed in the index, some information may not be publicly available,
i.e., confidential business information or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
http://www.regulations.gov or in hard copy at the EPA Docket Center, Docket ID

No. EPA-HQ-OAR-2004-0094, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. 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>, and the
telephone number for the EPA Docket Center is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, U.S. EPA Office of
Air Quality Planning and Standards, Sector Policies and Programs
Division, Program Design Group (D205-02), Research Triangle Park, NC
27711; telephone number<PHONE_NUMBER>; fax number<PHONE_NUMBER>; e-
mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

    In addition to being available in the docket, an electronic copy of
today's notice of EPA's decision denying CFASE's petition for
reconsideration will also be available on the WWW through the
Technology Transfer Network (TTN). Following signature, a copy of this
notice will be posted on the TTN's policy and guidance page for newly
promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides

information and technology exchange in various areas of air pollution
control.
    Outline. The information presented in this preamble is organized as
follows:

I. General Information
II. Background Information
III. Basis for Denial of Reconsideration

II. Background Information

    On April 20, 2006, EPA issued certain amendments to the 40 CFR
parts 63 and 65 startup, shutdown, and malfunction (SSM) general
provisions requirements affecting sources subject to the National
Emission Standards for Hazardous Air Pollutants (NESHAP). On June 19,
2006, EarthJustice filed a petition for review challenging those
amendments in the

United States Court of Appeals for the District for Columbia Circuit on
behalf of Environmental Integrity Project, Friends of Hudson, Louisiana
Environmental Action Network and Coalition for a Safe Environment
(CFASE). On the same day, CFASE filed a petition for administrative
reconsideration with EPA pursuant to section 307(d)(7)(B).
    CFASE appears to base its petition for reconsideration on a claim
that it did not receive adequate notice of certain changes EPA made in
the final rule to the SSM recordkeeping and reporting requirements. EPA
made changes to the recordkeeping and reporting requirements in the
final rule to address comments on the proposed rule submitted by
EarthJustice and Environmental Integrity Project. In comments on the
proposed rule, EarthJustice and Environmental Integrity Project
asserted that the proposed rule's elimination of the requirement that a
source implement an SSM plan renders the SSM rule's general duty to
minimize emissions vague and unenforceable and violates the Clean Air
Act (CAA) Title V requirement that permits contain enforceable limits
and standards and conditions necessary to assure compliance. (Docket
number EPA-HQ-OAR-2004-0094, items 29 through 32.)
    The General Provisions to 40 CFR part 63 require that ``at all
times, including periods of startup, shutdown, and malfunction, the
owner or operator must operate and maintain any affected source,
including associated air pollution control equipment and monitoring
equipment, in a manner consistent with safety and good air pollution
control practices for minimizing emissions. During a period of startup,
shutdown, or malfunction, this general duty to minimize emissions
requires that the owner or operator reduce emissions from the affected
source to the greatest extent which is consistent with safety and good
air pollution control practices.'' \1\ In the proposed rule preamble,
we explained that the reporting and recordkeeping requirements would
allow the permitting authority and the public to determine compliance
with the general duty clause. 70 FR at 43394 (July 29, 2005). However,
in an effort to address the above-mentioned concerns raised by
commenters, we reevaluated the recordkeeping and reporting requirements
and made minor revisions to those requirements to clarify that the
information required in SSM records and reports include a description
of the ``actions taken'' at the facility during SSM events that involve
an exceedance of the applicable standard.\2\ The final rule preamble
explained the revisions as follows:
---------------------------------------------------------------------------

    \1\ This petition denial describes the general duty to minimize
emissions as it applies during SSM events and does not address the
application of the general duty to minimize emissions at other
times.
    \2\ EPA responded to the comments by revising 40 CFR
63.10(d)(5)(i) and (ii) to require that a description of actions
taken to minimize emissions be included in SSM reports whether or
not the SSM plan was followed. EPA also revised the recordkeeping
requirement at 40 CFR 63.10(b)(2)(v)(the requirement to keep a
record of ``all information necessary to demonstrate conformance''
with the SSM plan when actions taken during SSM events are
consistent with the SSM plan) to require that such records include
all actions taken during the SSM event to minimize emissions. 70 FR
at 20448.

    With these clarifications, any time there is an exceedance of an
emission limit (or could have been in the case of malfunctions) and
thus a possibility that the general duty requirement was violated,
there will be a report filed that will describe what actions were
taken to minimize emissions that will be available to the public.
    Any member of the public could use the information in these
reports to evaluate whether adequate steps were taken to meet the
general duty requirement. This information is likely to be of as
much if not more use in determining compliance with the general duty
requirement than a facility's general SSM plan because the
information will be specific to the particular SSM event that caused
the exceedance.

71 FR 20448 (April 20, 2006).
    In its petition, CFASE argues that EPA's reliance on the revised
recordkeeping and reporting requirements to assure compliance with the
general duty to minimize emissions is insufficient. CFASE further
argues that the SSM rule violates the CAA section 504(a) requirement
that title V permits contain ``conditions as are necessary to assure
compliance'' with the general duty to minimize emissions and that
reliance on reporting alone does not ``assure compliance.'' CFASE also
asserts that a vague generalized requirement such as the general duty
to minimize emissions must be supplemented with permit conditions
sufficient to explain how the requirement applies specifically to the
permitted facility.

III. Basis for Denial of Reconsideration

    EPA denies CFASE's petition for reconsideration. Section
307(d)(7)(B) of the CAA requires EPA to convene a proceeding for
reconsideration based on objections that were not raised during the
public comment period only if ``it was impracticable to raise such
objection within such time or if the grounds for such objection arose
after the period for public comment * * * and if such objection is of
central relevance to the outcome of the rule * * *''
    Petitioner has failed to establish that the objections raised are
based on grounds that ``arose after the public comment period.'' As
noted above, the preamble to the proposed rule clearly articulates
EPA's reliance on recordkeeping and reporting to allow the permitting
agency and the public to determine compliance with the general duty to
minimize emissions. Specifically, the proposal provides:

    These periodic and immediate SSM reports provide the permitting
authority with adequate information to determine if the facility has
SSM problems above and beyond what might normally be expected. The
types and frequency of SSM events will vary from source category to
source category. Sources that report much higher number of SSM
events than other sources within the same source category would be
subject to higher scrutiny by the permitting authority, by EPA, and
presumably by the public. Inspectors would examine the facility's
records and its SSM plan to determine its adequacy and whether it
conformed to the general duty clause. If not, the facility could be
cited for violating the general duty clause and required to revise
its plan to minimize emissions to the satisfaction of the permitting
authority. As such, the reports identify potential problems that can
be followed up with appropriate action.

70 FR at 43394.
    Nor were CFASE's objections to the recordkeeping and reporting
requirements ``impracticable to raise'' during the public comment
period. Indeed, the arguments raised by CFASE in its petition for
reconsideration are merely a variation of the arguments raised in its
comments on the proposal. The revisions to regulatory language made in
the final rule were made by EPA in direct response to the comments of
EarthJustice and Environmental Integrity project concerning
enforceability of the general duty to minimize emissions.
    As explained in the preamble to the proposed and final rules (70 FR
at 43994 and 71 FR at 20448-9), the recordkeeping and reporting
requirements adequately assure compliance with the general duty to
minimize emissions. As we explained in the preamble to the proposed
rule, the general duty clause is the applicable requirement under MACT
standards for emission reductions during periods of SSM and ``* * * is
designed to recognize that technology-based standards may not always be
met, as technology fails occasionally beyond the control of the owner
or operator * * *. If standards cannot be met during a

period of SSM, then the owner or operator must take steps to minimize
emissions to the extent practicable.'' 70 FR at 43993.
    The exception to technology-based emission standards during SSM
events, which applies when a source cannot meet the technology-based
standard using all practicable steps to minimize emissions that are
consistent with safety and good air pollution control practices, is
appropriate and may be necessary to preserve the reasonableness of the
underlying MACT standards. Essex Chemical Corporation v. EPA, 486 F.2d.
427, 432-33 (D.C. Cir 1973) (addressing exemption from New Source
Performance Standards during SSM events); Portland Cement Association
v. Ruckelshaus, 486 F.2d. 375, 398-99 (D.C. Cir. 1973) (same); Marathon
Oil v. EPA, 564 F.2d. 1253, 1272-73 (9th Cir. 1977) (discussing need to
provide upset defense for technology-based effluent limits to account
for technology failure).
    As discussed above and in the preamble to the proposed and final
rules, the general duty to minimize emissions is sufficiently specific
(71 FR 20448-49), and the SSM recordkeeping and reporting requirements
are sufficient to assure compliance with the general duty clause. We
note that in the Title V context, EPA's regulations specifically
provide that recordkeeping requirements can adequately assure
compliance. In particular, 40 CFR 70.6(a)(3)(i), which implements the
statutory requirement of section 504(a) of the CAA, specifies that
periodic testing and monitoring to determine compliance with an
applicable requirement ``may consist of recordkeeping designed to serve
as monitoring.'' Moreover, 40 CFR 70.6(a)(3)(i)(b) (which requires
title V permits to include monitoring and testing provisions when an
underlying applicable requirement does not contain provisions)
specifies that ``[r]ecordkeeping provisions may be sufficient to meet
the requirements of this paragraph (a)(3)(i)(B).''

    Dated: April 12, 2007.
Stephen L. Johnson,
Administrator.
[FR Doc. E7-7362 Filed 4-17-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 30 (Tuesday, February 14, 2012)]
[Notices]
[Pages 8304-8307]
[FR Doc No: 2012-3328]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66348; File No. SR-CBOE-2011-122]

Self-Regulatory Organizations; Chicago Board Options Exchange,
Incorporated; Order Approving Proposed Rule Change, as Modified by
Amendment No. 1, Related to Trading of FLEX Options

February 7, 2012.

I. Introduction

    On December 12, 2011, the Chicago Board Options Exchange,
Incorporated (``Exchange'' or ``CBOE'') filed with the Securities and
Exchange Commission (``Commission''), pursuant to Section 19(b)(1) of
the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to amend rules pertaining to the
electronic trading of Flexible Exchange Options (``FLEX Options'') and
to eliminate certain European-Capped style settlement and currency
provisions with the FLEX rules that pertain to both electronic and open
outcry trading. The proposed rule change was published for comment in
the Federal Register on December 29, 2011.\3\ On February 7, 2012, the
Exchange filed an Amendment No. 1 to the proposed rule change.\4\ The
Commission received one comment letter regarding the proposal.\5\ This
order approves the proposed rule change, as modified by Amendment No.
1.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 66035 (December 22,
2011), 76 FR 82017 (``Notice'').
    \4\ Amendment No. 1 amended the proposed rule change to provide
an implementation plan of the proposed rule changes. The Exchange
intends to begin implementation by no later than March 30, 2012,
with the specific implementation schedule to be announced via
Regulatory Circular. Since Amendment No. 1 does not alter the
substance of the proposal, it is not subject to notice and comment.
    \5\ See letter from Todd Weingart, Spot On Brokerage Services,
Division of Trading Block, William O'Keefe, Spot On Brokerage
Services, Division of Trading Block, and Steve Stepanek, The SJS
Group, Inc., to Elizabeth M. Murphy, Secretary, Commission, dated
January 20, 2012.

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

II. Description of the Proposal

    The Exchange is in the process of enhancing the FLEX Hybrid Trading
System platform (``FLEX System'') to further integrate it with the
Exchange's existing technology platform for non-FLEX trading.
Accordingly, the Exchange proposes to make certain modifications to the
existing electronic trading processes utilized on the FLEX System
platform. The Exchange does not propose any changes to the open outcry
trading processes for FLEX Options, except for proposed changes
pertaining to foreign currencies as described below.

A. Opening Trading in Existing Series

    The Exchange proposes to revise the procedure for opening FLEX
Option series with existing open interest. Currently there are no
trading rotations conducted at the opening of trading.\6\ Instead, an
initial FLEX Request for Quote (``RFQ'') process is required to open a
particular series for trading each day. Once an RFQ is completed, the
series is established in the FLEX System for the day and FLEX Orders
\7\ may be entered directly into the FLEX electronic book throughout
the day.\8\
---------------------------------------------------------------------------

    \6\ See Rule 24B.3.
    \7\ See Rule 24B.1(j).
    \8\ Resting FLEX Orders may only be entered in the electronic
book as ``day orders'' and are cancelled at the close of each trade
day if unexecuted. Therefore, there would be no orders resting in
the book from the prior day.
---------------------------------------------------------------------------

    Under the proposal, FLEX Option series with existing open interest
will be automatically opened by the Exchange at a randomly selected
time within a number of seconds after 8:30 a.m. (Central Time), at
which point in time FLEX Orders may be entered directly into the
electronic book (if available) and/or FLEX RFQ auctions may be
initiated pursuant to Rule 24B.5. New FLEX Option series will continue
to be subject to the existing requirement that there be an initial RFQ
to initiate trading in the FLEX series on a given trading day.

B. Trade Conditions

    Under Rule 24B.1, a ``Trade Condition'' means a contingency that
has been placed on an RFQ, RFQ Order \9\ or FLEX Order. There are
currently six Trade Conditions available in the FLEX System.\10\ The
Exchange proposes to eliminate the Fill-or-Kill, Minimum Fill, Lots Of,
and Intent to Cross Trade Conditions, as their functions will not be
supported under the FLEX System enhancements. In addition, the Exchange
represents that these Trade Conditions have generally not been actively
used by FLEX Traders. The Exchange also proposes to adopt a new
Immediate-or-Cancel Trade Condition. ``Immediate-or-Cancel'' will be
defined as a condition to execute an RFQ Order or FLEX Order in its
entirety or in part as soon as it is represented or cancel it. Thus,
under the proposal, there will only be three Trade Conditions:
Immediate-or-Cancel, All-or-None, and Hedge.
---------------------------------------------------------------------------

    \9\ See Rule 24B.1(t).
    \10\ See Rule 24B.1(y)(1)-(6).
---------------------------------------------------------------------------

C. Foreign Currency Provisions

    The Exchange also proposes to eliminate the provisions in the FLEX
Rules that permit (i) FLEX Options to be designated with a European-
Capped style exercise and (ii) FLEX Index Options to be designated for
settlement in foreign currencies. In addition, related index multiplier
provisions for foreign currencies will also be eliminated. The changes
will apply to all FLEX trading on the Exchange, whether electronic or
open outcry. According to the Exchange, these European-Capped style and
foreign currency provisions have generally not been actively utilized,
and the Exchange no longer plans to support foreign currency
settlements in the enhanced FLEX System.

D. Electronic Allocation Algorithms

    Further, the Exchange proposes to modify and simplify the
allocation algorithms applicable to the FLEX electronic book and to the
FLEX electronic RFQ process. Generally, the algorithms will be based on
price-time priority, subject to public customer and non-Trading Permit
Holder broker-dealer (``non-TPH broker-dealer'') priority and, if
applicable, any applicable entitlement priority. The specific
allocation algorithms for the FLEX electronic book and the FLEX
electronic RFQ process are described below.
1. FLEX Electronic Book
    Currently, for the FLEX electronic book, all FLEX Orders are ranked
and matched based on price-time priority, unless a FLEX Appointed
Market-Maker is quoting at the best bid (offer) and a FLEX Appointed
Market-Maker participation entitlement has been established.\11\ If a
FLEX Appointed Market-Maker participation entitlement has been
established, priority among multiple bids (offers) at the same price is
as follows: (i) All FLEX Orders for the account of a public customer
ranked ahead of the FLEX Appointed Market-Maker, based on time
priority; (ii) any FLEX Orders that are subject to the FLEX Appointed
Market-Maker participation entitlement, based on a participation
entitlement formula specified in Rule 24B.5(d)(2)(ii); then (iii) all
other FLEX Orders, based on time priority.
---------------------------------------------------------------------------

    \11\ The Exchange may establish from time to time a
participation entitlement formula that is applicable to FLEX
Appointed Market Makers on a class-by-class basis with respect to
open outcry RFQs, electronic RFQs and/or electronic book
transactions. See Rule 24B.5(d)(2)(ii).
---------------------------------------------------------------------------

    As proposed, priority for the FLEX electronic book with multiple
bids (offers) at the same price would be: (i) Public customer and non-
TPH broker-dealers will participate in the execution based on time
priority; (ii) any FLEX Orders that are subject to the FLEX Appointed
Market-Maker participation entitlement, based on a participation
entitlement formula specified in Rule 24B.5(d)(2)(ii); then (iii) all
other FLEX Orders will participate in the execution, based on time
priority.
2. FLEX Electronic RFQs
    Pursuant to the current electronic RFQ process, executions of RFQ
Orders occur at a single price that will leave bids and offers which
cannot trade with each other (referred to as the ``BBO clearing
price''). In determining the priority of bids and offers, the FLEX
System gives priority to FLEX Quotes \12\ and FLEX Orders whose price
is better than the BBO clearing price, then to FLEX Quotes and FLEX
Orders at the BBO clearing price. Priority among multiple FLEX Quotes
and FLEX Orders priced at the BBO clearing price is generally as
follows: (i) Any FLEX Quotes subject to a FLEX Appointed Market-Maker
participation entitlement; (ii) FLEX Orders resting in the electronic
book, based on the current book priority algorithm; (iii) FLEX Quotes
for the account of public customers and non-TPH broker-dealers, based
on time priority; and then (iv) all other FLEX Quotes, based on time
priority.
---------------------------------------------------------------------------

    \12\ See Rule 24B.1(k).
---------------------------------------------------------------------------

    The Exchange proposes to eliminate the concept of a ``BBO clearing
price'' except in the limited scenario where the RFQ Market is locked
or crossed. Thus, an incoming FLEX electronic RFQ Order would be
eligible to trade with FLEX Quotes and FLEX Orders at the best price(s)
(i.e., an incoming RFQ Order could trade at multiple price points). In
general, priority among multiple FLEX Quotes and FLEX Orders at the
same price would be: (i) FLEX Quotes and FLEX Orders for the account of
public customers and non-TPH broker-dealers, based on time priority;
(ii) any FLEX Quotes and FLEX Orders subject to a

FLEX Appointed Market-Maker participation entitlement; and then (iii)
all other FLEX Quotes and FLEX Orders, based on time priority.
a. Lock/Crossed Markets
    Currently, in the event the RFQ Market \13\ is locked or crossed
(e.g., $1.25-$1.20), priority among multiple FLEX Quotes and FLEX
Orders that are priced at the BBO clearing price and are on the same
side of the market as the RFQ Order is as follows: (i) FLEX Orders
resting in the electronic book, based on the current book priority
algorithm; (ii) if applicable, an RFQ Order for the account of a public
customer or non-TPH broker-dealer, then any FLEX Quotes subject to a
FLEX Appointed Market-Maker participation entitlement; (iii) FLEX
Quotes for the account of public customers and non-TPH broker-dealers,
based on time priority; (iv) if applicable, an RFQ Order for the
account of a Trading Permit Holder, then any FLEX Quotes that are
subject to a FLEX Appointed Market-Maker participation entitlement; and
then (v) all other FLEX Quotes, based on time priority.
---------------------------------------------------------------------------

    \13\ The ``RFQ Market'' means the bids or offers, or both, as
applicable, entered in response to an electronic Request for Quotes
and FLEX Orders resting in the electronic book. See Rule 24B.1(s).
---------------------------------------------------------------------------

    As noted above, the Exchange proposes to eliminate the concept of a
``BBO clearing price'' except in the limited scenario where the RFQ
Market is locked or crossed. Under the proposal, in the event the RFQ
Market is locked or crossed, FLEX Quotes and FLEX Orders would be
eligible to trade at a single BBO clearing price pursuant to the
existing BBO clearing price process. The priority among multiple FLEX
Quotes and FLEX Orders that are priced at the same price and are on the
same side of the market as the RFQ Order will be: (i) FLEX Quotes and
FLEX Orders for the account of public customers and non-TPH broker-
dealers, based on time priority; (ii) an RFQ Order, then any FLEX
Quotes and FLEX Orders that are subject to a FLEX Appointed Market-
Maker participation entitlement; and then (iii) all other FLEX Quotes
and FLEX Orders, based on time priority.
b. Intent to Cross Trade Condition
    Currently, in the event the Submitting Trading Permit Holder has
indicated an Intention to Cross in its RFQ request, the Submitting
Trading Permit Holder may obtain a crossing participation entitlement
if certain conditions are met. The incoming RFQ Order will then be
eligible to trade with the FLEX Quotes and FLEX Orders at the BBO
clearing price. Priority among multiple FLEX Quotes and FLEX Orders
that are priced at the BBO clearing price and on the same side of the
market as the crossing participation entitlement is as follows: (i)
FLEX Orders resting in the electronic book based on the current book
priority algorithm; (ii) FLEX Quotes for the account of public
customers and non-TPH broker-dealers, based on time priority; (iii) the
crossing participation entitlement; (iv) any FLEX Quotes subject to a
FLEX Appointed Market-Maker participation entitlement; and then (v) all
other FLEX Quotes, based on time priority.
    Under the proposal, the Exchange would eliminate the ``Intent to
Cross'' Trade Condition. As a result, the Intent to Cross/Crossing
Participation Entitlement scenario under the electronic RFQ process
described above would no longer be applicable.\14\
---------------------------------------------------------------------------

    \14\ See proposed changes to Rule 24B.5(a)(1)(iii)(D) and
(d)(2)(i).
---------------------------------------------------------------------------

E. Electronic RFQ Processing of Complex Orders

    Finally, the Exchange proposes to adopt a new Interpretation and
Policy under Rule 24B.5 to more fully describe the electronic
processing of complex orders. Specifically, complex orders will only be
eligible to electronically trade with other complex orders through the
electronic RFQ process described in Rule 24B.5(a)(1). To the extent the
Exchange determines to make an electronic book available for simple,
resting FLEX Orders, there will be no ``legging'' of complex orders
represented in the electronic RFQ process with FLEX Orders that may be
represented in the individual series legs represented in the electronic
book. In the event there are bids (offers) in any of the individual
component series legs represented in the electronic book when an
electronic RFQ for a complex order strategy is submitted to the System,
the electronic RFQ will not commence. In the event an unrelated FLEX
Order in any of the individual series legs is received during the
duration of an electronic RFQ, such FLEX Order will not be considered
in the electronic RFQ allocation. Further, to the extent that a complex
RFQ Order or responsive FLEX Quote is not executed, any remaining
balance of the complex order or FLEX Quote will be automatically
cancelled if not traded at the conclusion of the electronic RFQ
process.

III. Discussion and Commission Findings

    After careful consideration, the Commission finds that the proposed
rule change is consistent with the requirements of the Act and the
rules and regulations thereunder applicable to a national securities
exchange \15\ and, in particular, the requirements of Section 6 of the
Act.\16\ Specifically, the Commission finds that the proposed rule
change is consistent with Section 6(b)(5) of the Act,\17\ which
requires, among other things, that the rules of a national securities
exchange be designed to promote just and equitable principles of trade,
remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest. The Commission believes that the
proposal should benefit FLEX Traders and investors by providing a more
simplified and efficient trading functionality that competes with the
over-the-counter market in customized options.
---------------------------------------------------------------------------

    \15\ In approving the proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. 15 U.S.C. 78c(f).
    \16\ 15 U.S.C. 78f.
    \17\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Exchange proposes to revise the process for opening electronic
trading in FLEX Option series with existing open interest. The
Commission believes that the proposal to automatically open FLEX Option
series with existing open interest could make the opening process more
efficient for FLEX users. In addition, the Commission notes that new
FLEX Option series will continue to be subject to the existing
requirement that there be an initial RFQ to initiate trading in the
FLEX series.
    In addition, the Exchange proposes to eliminate the Fill-or-Kill,
Minimum Fill, Lots Of, and Intent to Cross Trade Conditions, and to
adopt a new Immediate-or-Cancel Trade Condition. Furthermore, the
Exchange proposes to eliminate European-Capped exercise style and
foreign currency provisions for FLEX Options. The Commission notes that
the proposed changes help to clarify the procedures utilized in the
Exchange's enhanced FLEX System and should help encourage further use
of FLEX Options. The Commission notes that the eliminated Trade
Conditions and foreign currency settlement provisions will not be
supported under the FLEX System enhancements. Also, according to the
Exchange, the eliminated Trade Conditions, as well as the European-
Capped style and foreign currency provisions have generally not been
actively used by FLEX Traders.
    The Exchange also proposes to adopt a new Interpretation and Policy
to Rule 24B.5 to describe the electronic

processing of complex orders. The Commission believes that such a
provision will clarify application of Exchange rules and processes for
CBOE Trading Permit Holders and investors.
    The Exchange further proposes to modify the priority algorithms
applicable to the FLEX electronic book and to the FLEX electronic RFQ
process. The Commission believes that the proposed changes will
simplify the allocation algorithms for FLEX Traders and investors.
Under the proposal, allocation will be based on price-time priority,
subject to public customer and non-TPH broker-dealer priority and, if
applicable, any applicable entitlement priority. The Commission
believes that the priority and allocation rules are reasonable and
consistent with the Act and applies a more consistent allocation
algorithm across these FLEX electronic processes.\18\ Moreover, the
proposed changes regarding public customer priority/non-TPH broker-
dealer priority and price-time priority have previously been found
consistent with the Act.\19\
---------------------------------------------------------------------------

    \18\ The Commission also believes that the amended priority and
allocation rules for electronic FLEX trading are consistent with
Section 11(a) of the Act. 15 U.S.C. 78k(a) Section 11(a)(1)
prohibits a member of a national securities exchange from effecting
transactions on that exchange for its own account, the account of an
associated person, or an account over which it or its associated
person exercises discretion unless an exception applies. The
Commission believes, however, that neither a Submitting Trading
Permit Holder who trades against an electronic RFQ Market nor any
other FLEX Trader who itself submits an RFQ Quote electronically
qualifies for the ``effect-versus execute'' exception to Section
11(a). 17 CFR 240.11a2-2(T). Nevertheless, the Commission believes
that other exceptions may apply. FLEX Market-Makers qualify for the
market-maker exception. With respect to non-market-maker members,
the new System appears reasonably designed to cause RFQ Quotes
constituting the RFQ Market and the RFQ Order that trades against
the RFQ Market to yield to non-member interest, consistent with the
``G'' exception. See 15 U.S.C. 78k(a)(1)(G) (setting forth all
requirements for the ``G'' exception).
    \19\ See e.g., Securities Exchange Act Release Nos. 51822 (June
10, 2005), 70 FR 35321 (June 17, 2005) (SR-CBOE-2004-87) (Adopting
rules pertaining to priority and allocation of trades for index
options) and 56792 (November 15, 2007), 72 FR 65776 (November 23,
2007) (SR-CBOE-2006-99) (Adopting rules providing for the trading of
FLEX Options on an electronic platform).
---------------------------------------------------------------------------

    The Commission received one comment letter regarding the proposed
rule change.\20\ The comment suggested that there be an additional
phase, the Decision Phase, in the RFQ process. During this Decision
Phase, the initiator of an RFQ would have a brief period of time,
during which no changes of any type to market quotes would be
permitted, in order to decide to trade or cancel their RFQ.\21\
According to the Exchange, it previously proposed an RFQ process with a
``locked up RFQ Market,'' similar to the one suggested in the comment
letter, during the Reaction Phase. However the Exchange amended the
process to allow FLEX Quotes and FLEX Orders to be entered, modified or
cancelled during the Reaction Phase.\22\ The Exchange stated that the
amendment was the result of feedback received concerning the risk of
market movements that might occur during the ``locked up RFQ Market.''
\23\ The Commission agrees with the Exchange that the five-minute RFQ
Reaction Period should be sufficient time for the Submitting Trading
Permit Holder to determine whether to trade against the RFQ Market
while at the same time not exposing those who respond to an RFQ to any
unreasonable risks of market movements that may occur during the RFQ
Reaction Period.
---------------------------------------------------------------------------

    \20\ See supra note 4.
    \21\ Id.
    \22\ See Securities Exchange Act Release No. 56792, supra note
19.
    \23\ See SR-CBOE-2006-99 Amendment No. 2, http://www.cboe.com/publish/RuleFilingsSEC/SR-CBOE-2006-099.a2.pdf.
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\24\ that the proposed rule change (File No. SR-CBOE-2011-122), as
amended by Amendment No. 1, be, and hereby is, approved.
---------------------------------------------------------------------------

    \24\ 15 U.S.C. 78s(b)(2).

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

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

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-3328 Filed 2-13-12; 8:45 am]
BILLING CODE 8011-01-P