[Federal Register Volume 86, Number 136 (Tuesday, July 20, 2021)]
[Notices]
[Pages 38366-38370]
[FR Doc No: 2021-15344]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92409; File No. SR-BX-2021-030]

Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Amend Equity 4,
Rule 4703

July 14, 2021.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on July 7, 2021, Nasdaq BX, Inc. (``BX'' or ``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I and II below, which Items have been
prepared by the Exchange. The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Equity 4, Rule 4703,\3\ in light of
planned changes to the System, as described further below. The text of
the proposed rule change is available on the Exchange's website at
https://listingcenter.nasdaq.com/rulebook/bx/rules, at the principal
office of the Exchange, and at the Commission's Public Reference Room.
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    \3\ References herein to BX Rules in the 4000 Series shall mean
Rules in BX Equity 4.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

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

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

1. Purpose
    Presently, the Exchange is making functional enhancements and
improvements to specific Order Attributes \4\ that are currently only
available via the RASH Order entry protocol.\5\ Specifically, the
Exchange will be upgrading the logic and implementation of these Order
Types and Order Attributes so that the features are more streamlined
across the Exchange Systems and order entry

protocols, and will enable the Exchange to process these Orders more
quickly and efficiently. Additionally, this System upgrade will pave
the way for the Exchange to enhance the OUCH Order entry protocol \6\
so that Participants may enter such Order Types and Order Attributes
via OUCH, in addition to the RASH Order entry protocols.\7\ The
Exchange plans to implement its enhancement of the OUCH protocol
sequentially, by Order Type and Order Attribute.\8\
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    \4\ An ``Order Attribute'' is a set of variable instructions
that may be associated with an Order to further define how it will
behave with respect to pricing, execution, and/or posting to the
Exchange Book when submitted to the System. See Equity 1, Section
1(a)(11).
    \5\ The RASH (Routing and Special Handling) Order entry protocol
is a proprietary protocol that allows members to enter Orders,
cancel existing Orders and receive executions. RASH allows
participants to use advanced functionality, including discretion,
random reserve, pegging and routing. See http://nasdaqtrader.com/content/technicalsupport/specifications/TradingProducts/rash_sb.pdf.
    \6\ The OUCH Order entry protocol is a proprietary protocol that
allows subscribers to quickly enter orders into the System and
receive executions. OUCH accepts limit Orders from members, and if
there are matching Orders, they will execute. Non-matching Orders
are added to the Limit Order Book, a database of available limit
Orders, where they are matched in price-time priority. OUCH only
provides a method for members to send Orders and receive status
updates on those Orders. See https://www.nasdaqtrader.com/Trader.aspx?id=OUCH.
    \7\ The Exchange designed the OUCH protocol to enable members to
enter Orders quickly into the System. As such, the Exchange
developed OUCH with simplicity in mind, and it therefore lacks more
complex order handling capabilities. By contrast, the Exchange
specifically designed RASH to support advanced functionality,
including discretion, random reserve, pegging and routing. Once the
System upgrades occur, then the Exchange intends to propose further
changes to its Rules to permit participants to utilize OUCH, in
addition to RASH, to enter order types that require advanced
functionality.
    \8\ The Exchange notes that its sister exchange, The Nasdaq
Stock Market, LLC (``Nasdaq''), has already filed similar proposed
rule changes with the Commission. See Securities Exchange Act
Release No. 34-92180 (June 15, 2021), 86 FR 33420 (June 24, 2021)
(SR-NASDAQ-2021-044).
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    To support and prepare for these upgrades and enhancements, the
Exchange recently submitted two rule filings to the Commission that
amended its rules pertaining to, among other things, Market Maker Peg
Orders and Orders with Reserve Size.\9\ The Exchange now proposes to
further amend its Rules governing Order Attributes, at Rule 4703. In
particular, the Exchange proposes to adjust the current functionality
of the Pegging \10\ and Trade Now Attributes,\11\ as described below,
so that they align with how the System, once upgraded, will handle
these Order Attributes going forward.
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    \9\ See Securities Exchange Act Release No. 34-91334 (March 16,
2021), 86 FR 15277 (March 22, 2021) (SR-BX-2021-005); Securities
Exchange Act Release No. 34-90607 (December 8, 2020), 85 FR 80842
(December 14, 2020) (SR-BX-2020-034).
    \10\ See Rule 4703(d).
    \11\ See Rule 4703(l).
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Changes to Pegging Order Attribute
    First, the Exchange proposes to amend Rule 4703(d), which governs
the Pegging Order Attribute. The Exchange offers three types of
Pegging: Primary Pegging, Market Pegging, and Midpoint Pegging.\12\ The
Rule presently provides that if, at the time of entry, there is no
price to which a Pegged Order can be pegged, the Order will be
rejected, provided, however, that a Displayed Order that has Market
Pegging, or an Order with a Non-Display Attribute that has Primary
Pegging or Market Pegging, will be accepted at its limit price. The
Exchange proposes to replace this text by stating that if, at the time
of entry, there is no price to which a Pegged Order, that has not been
assigned a Routing Order Attribute, can be pegged or pegging would lead
to a price at which the Order cannot be posted, then the Order will not
be immediately available on the Exchange Book and will be entered once
there is a permissible price.\13\ The Exchange proposes this change so
as to enhance the manner in which the Exchange presently handles Pegged
Orders in this scenario. Rather than reject such Orders outright, and
require customers to continuously reenter the Orders thereafter until a
pegging price emerges, which may cost them queue priority, the Exchange
believes that it would be more efficient and customer-friendly to
simply hold a Pegged Order until a permissible pegging price
emerges.\14\
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    \12\ See Rule 4703(d) (defining ``Primary Pegging'' as pegging
with reference to the inside quotation on the same side of the
market, ``Market Pegging'' as pegging with reference to the inside
quotation on the opposite side of the market, and ``Midpoint
Pegging'' as pegging with reference to the midpoint between the
inside bid and the inside offer).
    \13\ This change is applicable to Primary, Market and Midpoint
Pegging Orders entered via RASH/FIX; OUCH/FLITE Midpoint Pegging
behavior is not affected by this change. The Exchange also proposes
to amend existing language in this provision which states that ``if
the Inside Bid and Inside Offer are crossed or if there is no Inside
Bid and/or Inside Offer, the Order will be cancelled or rejected.''
The proposed amendment would specify that this language applies only
to Orders with Midpoint Pegging entered through OUCH or FLITE and
also replace the phrase ``will be cancelled or rejected'' with
``will not be accepted'' (to render the text consistent with the
analogous Nasdaq rule). The proposed changes to pegged orders
entered through RASH or FIX will allow the Exchange to handle the
Order more consistent with the customer intended instruction, and
are necessary to facilitate forthcoming System enhancements.
    \14\ Meanwhile, the Exchange proposes to amend the Rule to state
that if a Pegged Order is assigned a Routing Order Attribute, and a
permissible pegging price is not available upon entry, then the
Order will continue to be rejected. The Exchange proposes to retain
existing practice for Pegged Orders with Routing Order Attributes
because the Exchange is not yet prepared to make similar changes to
such Orders, although it contemplates doing so in the near future.
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    A similar rationale applies to the Exchange's proposal to cease
accepting certain Market or Primary Pegged Orders at their limit prices
if no pegging price is available. Because participants presumably
prefer for their orders to post at the pegging price, the Exchange
believes that participants would prefer for the Exchange to hold such
orders until a permissible pegging price emerges, rather than post the
orders at their limit prices.\15\ \16\
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    \15\ When a Pegged Order lacks a pegging price or a permissible
pegging price, the System will not wait indefinitely for a pegging
price or a permissible pegging price to become available. Instead,
the System will cancel the Order if no permissible pegging price
becomes available within one second after Order entry or after the
Order was removed due to the lack of a permissible pegging price and
no longer available on the Book. The Exchange may, in the exercise
of its discretion, modify the length of this maximum time period by
posting advance notice of the applicable new time period on its
website.
    \16\ In this paragraph of Rule 4703(d), the Exchange again
proposes to state that it will continue to reject a Pegged Order
entered through RASH or FIX when a permissible pegging price is
unavailable, if the Pegged Order is assigned a Routing Order
Attribute. The Exchange will continue to accept certain Market and
Primary Pegged Orders at their limit price where they have Routing
Order Attributes. The Exchange proposes to retain existing practice
for Pegged Orders with Routing Order Attributes because the Exchange
is not yet prepared to make similar changes to such Orders, although
it contemplates doing so in the near future.
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    The Exchange proposes similar changes to the paragraph of Rule
4703(d) that applies to Pegged Orders entered through RASH or FIX that
posted to the Exchange Book. The text presently provides that if the
price to which an Order is pegged is not available, the Order will be
rejected. The Exchange proposes instead to state that if the price to
which an Order is pegged becomes unavailable or pegging would lead to a
price at which the Order cannot be posted,\17\ then the Exchange will
remove the Order from the Exchange Book and re-enter it once there is a
permissible price. Again, the Exchange proposes this change to enhance
and make the System more efficient by providing for the Exchange to re-
post the Pegged Orders rather than rejecting them when there is no
permissible pegging price and requiring participants to re-enter them
once a valid price becomes available.\18\ The

Exchange notes that the proposed change will not apply to Pegged Orders
with Routing Attributes assigned to them; the existing Rule
functionality will continue to apply to those Orders.
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    \17\ An example of a scenario where pegging would lead to a
price at which an Order cannot be posted is as follows. Assume that
the NBBO is $0.0002 x $0.0003. A Primary Pegged Order to buy is
entered with a passive offset amount of $0.0003. This would result
in the Order being made unavailable by the Exchange as -$0.0001 is
not a permissible price. Currently, the Exchange accepts such Orders
at its limit price, and will post the Orders to the Exchange Book in
accordance with the parameters that apply to the underlying Order
Type.
    \18\ The Exchange proposes to apply a similar time limitation to
the holding period prescribed above. Similarly, the Exchange
proposes to add that for an Order with Midpoint Pegging, if the
Inside Bid and Inside Offer become crossed, or there is no Inside
Bid or Inside Offer, the System will cancel the Order if no
permissible price becomes available within one second after the
Order was removed and no longer available on the Exchange Book (the
Exchange may, in the exercise of its discretion modify the length of
this one second time period by posting advance notice of the
applicable time period on its website). For an Order with Midpoint
Pegging with a Routing Attribute, the new one second time period
will be applicable. The Exchange notes that it had inadvertently
omitted from the existing Rule portions of this new proposed
language that addresses the handling of Midpoint Pegged Orders if
the Inside Bid or Inside Offer become crossed or if there is no
Inside Bid or Inside Offer, even though this provision was intended
to mirror a corresponding rule 4703(d) in the Nasdaq Rulebook. The
proposal corrects this omission.
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    Rule 4703(d) also subjects Pegging Orders to collars, meaning that
any portion of a Pegging Order that would \19\ execute, either on the
Exchange or when routed to another market center, at a price of more
than $0.25 or 5 percent worse than the NBBO at the time when the order
reaches the System, whichever is greater, will be cancelled. Although
the Rule states that it applies this collar to Orders with Primary and
Market Pegging, the Exchange has always intended for the collar to also
apply to Orders with Midpoint Pegging, and in practice, it does so. The
failure of the Rule to reflect the application of the collar to
Midpoint Pegged Orders was an unintended omission. The Exchange now
proposes to revise Rule 4703(d) to correct this omission.
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    \19\ Additionally, the Exchange proposes to replace the word
``would'' with ``could'' in this provision, so as to clarify that
collars apply in circumstances in which Pegged Orders might execute,
but do not necessarily do so. An example of a circumstance in which
such Orders do not execute is as follows. Assume that the NBBO is
$10.00 x $10.01. A Market Pegged Order to buy posts at $10.01. The
NBBO then updates to $10.00 x $11.00. Because re-pricing and posting
the Market Pegged Order would result in the Order being available on
the Book and executable at $11.00 (outside of the collars), the
Order will be canceled.
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Changes to the Trade Now Order Attribute
    Additionally, the Exchange proposes to amend its rules governing
the Trade Now Attribute, at Rule 4703(l). Pursuant to Rule 4703(l),
Trade Now is an Order Attribute that allows a resting Order that
becomes locked by an incoming Displayed Order to execute against the
available size of a contra-side locking Order as a liquidity taker.
    The Exchange proposes to amend Trade Now by streamlining and
simplifying the instructions that participants must enter to address
the handling of their orders in various locking or crossing
scenarios.\20\ Specifically, rather than require a participant to
manually send a Trade Now instruction whenever an Order entered through
OUCH or FLITE becomes locked, the proposed amended Rule will allow for
a participant to enable Trade Now functionality on a port-level basis
for all Order entry protocols and for all Order Types that support
Trade Now, as well as on an order-by-order basis, for the Non-Displayed
Order Type, when entered through OUCH or FLITE.\21\ For Orders entered
through RASH or FIX, Trade Now will be available on an order-by-order
basis for all Order Types that support Trade Now. The proposal will not
extend Trade Now functionality to new Order Types.\22\
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    \20\ The Exchange notes that the Rule presently does not refer
to crossing scenarios. The Exchange proposes to add such references
for completeness and consistency with the corresponding rules of
Nasdaq and Nasdaq PHLX. An example of a crossing scenario is as
follows. A non-displayed Order to buy rests on the Book at $0.9995.
Thereafter, a Post Only Order to sell is entered at $0.9994, which
would post on the Book and display at $0.0014 [sic], thereby
crossing the non-displayed Order as the price improvement
requirements were not met.
    \21\ This proposed change in functionality for OUCH and FLITE is
enabled by the migration of Trade Now to the Exchange's matching
System.
    \22\ The Exchange proposes to add language to Rule 4703(l) to
state that Trade Now allows a resting Order that becomes locked ``or
crossed, as applicable at its non-displayed price'' by the ``posted
price'' of an incoming Displayed Order to execute against a locking
or crossing Order(s) automatically. The Exchange proposes to add the
phrase ``or crossed, as applicable, at its non-displaced [sic]
price'' for completeness. It also proposes to add the phrase
``posted price'' for purposes of clarity. It merely communicates
that the incoming Displayed Order first posts to the Exchange Book,
thereby locking or crossing the resting Order at its non-displayed
price.
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    The Exchange intends to implement the foregoing changes during the
Third Quarter of 2021. The Exchange will issue an Equity Trader Alert
at least 7 days in advance of implementing the changes.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\23\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\24\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest.
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    \23\ 15 U.S.C. 78f(b).
    \24\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that its proposed amendments to the Pegging
Order Attribute, at Rule 4703(d), are consistent with the Act. The
proposals to eliminate the functionality that provides for the System
to reject certain Pegged Orders that lack a permissible pegging price,
or to post the Orders at their limit price, are consistent with the Act
because they eliminate unwarranted inefficiencies that arise when
participants must repeatedly re-enter rejected Pegged Orders until a
permissible price becomes available.\25\ \26\ It is also consistent
with the Act to maintain the existing practice in the Rule of rejecting
a Pegged Order without a permissible pegging price where the Order has
been assigned a Routing Attribute. The Exchange is not yet prepared to
hold such Orders in the same way that it proposes to do so for Pegged
Orders without Routing Attributes, although it contemplates doing so in
the near future.
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    \25\ The Exchange notes that as part of this proposed change, if
there is no Pegging Price upon entry for a Displayed Order that has
Market Pegging, or an Order with a Non-Display Attribute that has
Primary Pegging or Market Pegging, then it will no longer accept
such Orders at their limit price. The Exchange believes that this
proposed change is consistent with the Act because it better aligns
with customer intentions for Pegged Orders to post at a Pegging
Price. That is, the Exchange believes that participants prefer for
Pegged Orders to be entered at a Pegging Price, rather than its
entered limit price, even if that means that the Order must wait for
a Pegging Price to become available. As discussed above, the
Exchange does not propose this change for Pegged Orders with Routing
Attributes.
    \26\ It is also consistent with the Act to limit the time period
for which the Exchange will hold, without canceling, Pegged Orders
for which there is no pegging price or permissible pegging price
because the Exchange does not believe that customers would want the
Exchange to hold their orders indefinitely. Moreover, holding such
orders indefinitely would encumber the Exchange's System. The
Exchange believes that a one second holding period for such orders
is long enough to provide the above-stated efficiencies for
participants, but not too long as to encumber them. However, the
Exchange believes that it is reasonable to reserve discretion to
alter the holding period, from time to time, should it determine
that doing so better meets the needs of customers or its System
resources.
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    Moreover, the proposal to amend Rule 4703(d) to state expressly
that Midpoint Pegging Orders are subject to price collars, like Orders
with Primary and Market Pegging, will correct an unintended omission
and ensure that the Rule is consistent with existing Exchange practice
and with customer expectations. The application of these collars will
prevent Pegged Orders from having prices that deviate too far away from
where the security was trading when the Order was first entered.\27\
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    \27\ Additionally, the Exchange believes that it is consistent
with the Act to replace the word ``would'' with ``could'' in this
provision, because doing so would clarify that collars apply in
circumstances in which Pegged Orders might execute, but do not
necessarily do so. See supra, n.19.
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    The Exchange's proposals to amend its rules governing the Trade Now
Attribute, at Rule 4703(l), is consistent with the Act. The proposal
will

streamline and simplify the instructions that participants must enter
to address the handling of their orders in various locking or crossing
scenarios. Rather than require a participant to manually send a Trade
Now instruction whenever an Order entered through OUCH or FLITE becomes
locked, the proposed amended Rule will allow for a participant to
enable Trade Now functionality on a port-level basis for all Order
entry protocols and for all Order Types that support Trade Now, as well
as on an order-by-order basis, for the Non-Displayed Order Type, when
entered through OUCH and FLITE.\28\ Furthermore, it is consistent with
the Act to add language to Rule 4703(l) to state that Trade Now allows
a resting Order that becomes locked ``or crossed, as applicable, at its
non-displayed price'' by the ``posted price'' of an incoming Displayed
Order to execute against a locking or crossing Order(s) automatically.
The Exchange proposes to add the phrase ``or crossed, as applicable, at
its non-displayed price'' for completeness. The Exchange also proposes
to add the phrase ``posted price'' for purposes of clarity. It merely
communicates that the incoming Displayed Order first posts to the
Nasdaq Book, thereby locking or crossing the resting Order at its non-
displayed price.
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    \28\ As noted above, for Orders entered through RASH or FIX,
Trade Now will be available on an order-by-order basis for all Order
Types that support Trade Now.
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. As a general principle, the
proposed changes are reflective of the significant competition among
exchanges and non-exchange venues for order flow. In this regard,
proposed changes that facilitate enhancements to the Exchange's System
and order entry protocols as well as those that amend and clarify the
Exchange's Rules regarding its Order Attributes, are pro-competitive
because they bolster the efficiency, integrity, and overall
attractiveness of the Exchange in an absolute sense and relative to its
peers.
    Moreover, none of the proposed changes will unduly burden intra-
market competition among various Exchange participants. Participants
will experience no competitive impact from its proposals to hold (up to
one second), rather than reject (or accept at their limit price),
Pegging Orders (other than those with Routing Attributes) in
circumstances in which no permissible pegging price is available, as
these proposals will merely eliminate unwarranted inefficiencies that
ensue from the System requiring participants to repeatedly re-enter
Pegged Orders until a price becomes available, or the System posting
Pegged Orders at their limit prices, if there is no pegging price.
Moreover, the proposal to amend Rule 4703(d) to state expressly that
Midpoint Pegging Orders are subject to price collars, like Orders with
Primary and Market Pegging, will have no competitive impact as the
proposal is consistent with existing Exchange practice and with
customer expectations.
    The Exchange's proposals to amend its rules governing Trade Now
will have no competitive impact on participants other than by rendering
these Order Attributes more efficient and easier for participants to
utilize.

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

    No written comments were either solicited or received.

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, it has become effective pursuant to Section
19(b)(3)(A) of the Act \29\ and Rule 19b-4(f)(6) thereunder.\30\
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    \29\ 15 U.S.C. 78s(b)(3)(A).
    \30\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of the proposed rule change, at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-BX-2021-030 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-BX-2021-030. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-BX-2021-030, and should be submitted on
or before August 10, 2021.
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    \31\ 17 CFR 200.30-3(a)(12).

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    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-15344 Filed 7-19-21; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 84, Number 32 (Friday, February 15, 2019)]
[Notices]
[Pages 4549-4551]
[FR Doc No: 2019-01368]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

Proposed Collection; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of FOIA Services, 100 F Street NE, Washington, DC
20549-2736.

Extension:
    Regulation S-ID, SEC File No. 270-644, OMB Control No. 3235-0692

    Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (the ``Commission'') is soliciting comments on the
collection of information summarized below. The Commission plans to
submit this existing collection of information to the Office of
Management and Budget for extension and approval.
    Regulation S-ID (17 CFR 248), including the information collection
requirements thereunder, is designed to better protect investors from
the risks of identity theft. Under Regulation S-ID, SEC-regulated
entities are required to develop and implement reasonable policies and
procedures to identify, detect, and respond to relevant red flags (the
``Identity Theft Red Flags Rules'') and, in the case of entities that
issue credit or debit cards, to assess the validity of, and communicate
with cardholders regarding, address changes. Section 248.201 of
Regulation S-ID includes the following information collection
requirements for each SEC-regulated entity that qualifies as a
``financial institution'' or ``creditor'' under Regulation S-ID and
that offers or maintains covered accounts: (i) Creation and periodic
updating of an identity theft prevention program (``Program'') that is
approved by the board of directors, an appropriate committee thereof,
or a designated senior management employee; (ii) periodic staff
reporting to the board of directors on compliance with the Identity
Theft Red Flags Rules and related guidelines; and (iii) training of
staff to implement the Program. Section 248.202 of Regulation S-ID
includes the following information collection requirements for each
SEC-regulated entity that is a credit or debit card issuer: (i)
Establishment of policies and procedures that assess the validity of a
change of address notification if a request for an additional or
replacement card on the account follows soon after the address change;
and (ii) notification of a cardholder, before issuance of an additional
or replacement card, at the previous address or through some other
previously agreed-upon form of communication, or alternatively,
assessment of the validity of the address change request through the
entity's established policies and procedures.
    SEC staff estimates of the hour burdens associated with section
248.201 under Regulation S-ID include the one-time burden of complying
with this section for newly-formed SEC-regulated entities, as well as
the ongoing costs of compliance for all SEC-regulated entities.
    All newly-formed financial institutions and creditors would be
required to conduct an initial assessment of covered accounts, which
SEC staff estimates would entail a one-time burden of 2 hours. Staff
estimates that this burden would result in a cost of $802 to each
newly-formed financial institution or creditor.\1\ To the extent a
financial institution or creditor offers or maintains covered accounts,
SEC staff estimates that the financial institution or creditor also
would also incur a one-time burden of 25 hours to develop and obtain
board approval of a Program, and a one-time burden of 4 hours to train
the financial institution's or creditor's staff, for a total of 29
additional burden hours. Staff estimates that these burdens would
result in additional costs of $14,266 for each financial institution or
creditor that offers or maintains covered accounts.\2\
---------------------------------------------------------------------------

    \1\ This estimate is based on the following calculation: 2 hours
x $401 (hourly rate for internal counsel) = $802. See infra note 2
(discussing the methodology for estimating the hourly rate for
internal counsel).
    \2\ SEC staff estimates that, of the 29 hours incurred to
develop and obtain board approval of a Program and train the
financial institution's or creditor's staff, 10 hours will be spent
by internal counsel at an hourly rate of $401, 17 hours will be
spent by administrative assistants at an hourly rate of $78, and 2
hours will be spent by the board of directors as a whole at an
hourly rate of $4,465. Thus, the estimated $13,858 in additional
costs is based on the following calculation: (10 hours x $401 =
$4,010) + (17 hours x $78 = $1,326) + (2 hours x $4,465 = $8,930) =
$14,266.
     The cost estimate for internal counsel is derived from SIFMA's
Management & Professional Earnings in the Securities Industry 2013,
modified to account for an 1800-hour work-year and multiplied by
5.35 to account for bonuses, entity size, employee benefits, and
overhead, and adjusted for inflation. The cost estimate for
administrative assistants is derived from SIFMA's Office Salaries in
the Securities Industry 2013, modified to account for an 1800-hour
work-year and multiplied by 2.93 to account for bonuses, entity
size, employee benefits, and overhead, and adjusted for inflation.
The cost estimate for the board of directors is derived from
estimates made by SEC staff regarding typical board size and
compensation that is based on information received from fund
representatives and publicly-available sources, and adjusted for
inflation.

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

    SEC staff estimates that approximately 613 SEC-regulated financial
institutions and creditors are newly formed each year.\3\ Each of these
613 entities will need to conduct an initial assessment of covered
accounts, for a total of 1,226 hours at a total cost of $491,626.\4\ Of
these 613 entities, staff estimates that approximately 90% (or 552)
maintain covered accounts.\5\ Accordingly, staff estimates that the
additional initial burden for SEC-regulated entities that are likely to
qualify as financial institutions or creditors and maintain covered
accounts is 16,008 hours at an additional cost of $7,874,832.\6\ Thus,
the total initial estimated burden for all newly-formed SEC-regulated
entities is 17,234 hours at a total estimated cost of $8,366,458.\7\
---------------------------------------------------------------------------

    \3\ Based on a review of new registrations typically filed with
the SEC each year, SEC staff estimates that approximately 1,218
investment advisers, 109 broker dealers, 96 investment companies,
and 2 ESCs typically apply for registration with the SEC or
otherwise are newly formed each year, for a total of 1,425 entities
that could be financial institutions or creditors. Of these, staff
estimates that all of the investment companies, ESCs, and broker-
dealers are likely to qualify as financial institutions or
creditors, and 33% of investment advisers (or 406) are likely to
qualify. See Adopting Release, supra note at n.190 (discussing the
staff's analysis supporting its estimate that 33% of investment
advisers are likely to qualify as financial institutions or
creditors). We therefore estimate that a total of 613 total
financial institutions or creditors will bear the initial one-time
burden of assessing covered accounts under Regulation S-ID.
    \4\ These estimates are based on the following calculations: 613
entities x 2 hours = 1,226 hours; 613 entities x $802 = $491,626.
    \5\ In the Proposing Release, the SEC requested comment on the
estimate that approximately 90% of all financial institutions and
creditors maintain covered accounts; the SEC received no comments on
this estimate.
    \6\ These estimates are based on the following calculations: 552
financial institutions and creditors that maintain covered accounts
x 29 hours = 16,008 hours; 552 financial institutions and creditors
that maintain covered accounts x $14,266 = $7,874,832.
    \7\ These estimates are based on the following calculations:
1,226 hours + 16,008 hours = 17,234 hours; $491,626 + $7,874,832 =
$8,366,458.
---------------------------------------------------------------------------

    Each financial institution and creditor would be required to
conduct periodic assessments to determine if the entity offers or
maintains covered accounts, which SEC staff estimates would entail an
annual burden of 1 hour per entity. Staff estimates that this burden
would result in an annual cost of $401 to each financial institution or
creditor.\8\ To the extent a financial institution or creditor offers
or maintains covered accounts, staff estimates that the financial
institution or creditor also would incur an annual burden of 2.5 hours
to prepare and present an annual report to the board, and an annual
burden of 7 hours to periodically review and update the Program
(including review and preservation of contracts with service providers,
as well as review and preservation of any documentation received from
service providers). Staff estimates that these burdens would result in
additional annual costs of $7,874 for each financial institution or
creditor that offers or maintains covered accounts.\9\
---------------------------------------------------------------------------

    \8\ This estimate is based on the following calculation: 1 hour
x $401 (hourly rate for internal counsel) = $401. See supra note 2
(discussing the methodology for estimating the hourly rate for
internal counsel).
    \9\ Staff estimates that, of the 9.5 hours incurred to prepare
and present the annual report to the board and periodically review
and update the Program, 8.5 hours will be spent by internal counsel
at an hourly rate of $401, and 1 hour will be spent by the board of
directors as a whole at an hourly rate of $4,465. Thus, the
estimated $7,874 in additional annual costs is based on the
following calculation: (8.5 hours x $401 = $3,409) + (1 hour x
$4,465 = $4,465) = $7,874. See supra note 2 (discussing the
methodology for estimating the hourly rate for internal counsel and
the board of directors).
---------------------------------------------------------------------------

    SEC staff estimates that there are 9,922 SEC-regulated entities
that are either financial institutions or creditors, and that all of
these will be required to periodically review their accounts to
determine if they offer or maintain covered accounts, for a total of
9,922 hours for these entities at a total cost of $3,978,722.\10\ Of
these 9,922 entities, staff estimates that approximately 90 percent, or
8,930, maintain covered accounts, and thus will need the additional
burdens related to complying with the rules.\11\ Accordingly, staff
estimates that the additional annual burden for SEC-regulated entities
that qualify as financial institutions or creditors and maintain
covered accounts is 84,835 hours at an additional cost of
$70,314,820.\12\ Thus, the total estimated ongoing annual burden for
all SEC-regulated entities is 94,757 hours at a total estimated annual
cost of $74,293,542.\13\
---------------------------------------------------------------------------

    \10\ Based on a review of entities that the SEC regulates, SEC
staff estimates that, as of September 1, 2018, there are
approximately 13,181 investment advisers, 3,839 broker-dealers,
1,589 active open-end investment companies, and 100 ESCs. Of these,
staff estimates that all of the broker-dealers, open-end investment
companies and ESCs are likely to qualify as financial institutions
or creditors. We also estimate that approximately 33% of investment
advisers, or 4,394 investment advisers, are likely to qualify. See
Adopting Release, supra note at n.190 (discussing the staff's
analysis supporting its estimate that 33% of investment advisers are
likely to qualify as financial institutions or creditors). We
therefore estimate that a total of 9,922 financial institutions or
creditors will bear the ongoing burden of assessing covered accounts
under Regulation S-ID. (The SEC staff estimates that the other types
of entities that are covered by the scope of the SEC's rules will
not be financial institutions or creditors and therefore will not be
subject to the rules' requirements.)
     The estimates of 9,922 hours and $3,784,800 are based on the
following calculations: 9,922 financial institutions and creditors x
1 hour = 9,922 hours; 9,922 financial institutions and creditors x
$401 = $3,978,722.
    \11\ See supra note 5 and accompanying text. If a financial
institution or creditor does not maintain covered accounts, there
would be no ongoing annual burden for purposes of the PRA.
    \12\ These estimates are based on the following calculations:
8,930 financial institutions and creditors that maintain covered
accounts x 9.5 hours = 84,835 hours; 8,930 financial institutions
and creditors that maintain covered accounts x $7,874 = $70,314,820.
    \13\ These estimates are based on the following calculations:
9,922 hours + 84,835 hours = 94,757 hours; $3,978,722 + $70,314,820
= $74,293,542.
---------------------------------------------------------------------------

    The collections of information required by section 248.202 under
Regulation S-ID will apply only to SEC-regulated entities that issue
credit or debit cards. SEC staff understands that SEC-regulated
entities generally do not issue credit or debit cards, but instead
partner with other entities, such as banks, that issue cards on their
behalf. These other entities, which are not regulated by the SEC, are
already subject to substantially similar change of address obligations
pursuant to other federal regulators' identity theft red flags rules.
Therefore, staff does not expect that any SEC-regulated entities will
be subject to the information collection requirements of section
248.202, and accordingly, staff estimates that there is no hour burden
related to section 248.202 for SEC-regulated entities.
    In total, SEC staff estimates that the aggregate annual information
collection burden of Regulation S-ID is 111,991 hours (17,234 hours +
94,757 hours). This estimate of burden hours is made solely for the
purposes of the Paperwork Reduction Act and is not derived from a
quantitative, comprehensive, or even representative survey or study of
the burdens associated with Commission rules and forms. Compliance with

Regulation S-ID, including compliance with the information collection
requirements thereunder, is mandatory for each SEC-regulated entity
that qualifies as a ``financial institution'' or ``creditor'' under
Regulation S-ID (as discussed above, certain collections of information
under Regulation S-ID are mandatory only for financial institutions or
creditors that offer or maintain covered accounts). Responses will not
be kept confidential. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid control number.
    Written comments are invited on: (i) Whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (ii) the accuracy of the agency's estimate of
the burden of the collection of information; (iii) ways to enhance the
quality, utility, and clarity of the information collected; and (iv)
ways to minimize the burden of the collection of information on
respondents, including through the use of automated collection
techniques or other forms of information technology. Consideration will
be given to comments and suggestions submitted in writing within 60
days of this publication.
    Please direct your written comments to Charles Riddle, Acting
Director/Chief Information Officer, Securities and Exchange Commission,
C/O Candace Kenner, 100 F Street NE, Washington, DC 20549; or send an
email to<EMAIL_ADDRESS>
    Dated: February 1, 2019.
Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-01368 Filed 2-14-19; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 176 (Tuesday, September 11, 2012)]
[Rules and Regulations]
[Pages 55693-55695]
[FR Doc No: 2012-22294]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0722]
RIN 1625-AA08

Safety Zone; Miami Paddle Challenge, Biscayne Bay, Miami, FL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing a temporary safety zone on the
waters of Biscayne Bay located west of Key Biscayne and south of
Rickenbacker Causeway in Miami, Florida during the Miami Paddle
Challenge, a series of paddle boat races. The Miami Paddle Challenge is
scheduled to take place on Sunday, September 29, 2012. The temporary
safety zone is necessary for the safety of race participants,
participant vessels, spectators, and the general public during the
event. Persons and vessels are prohibited from entering, transiting
through, anchoring in, or remaining within the safety zone unless
authorized by the Captain of the Port Miami or a designated
representative.

DATES: This rule is effective and will be enforced from 6 a.m. through
4 p.m. on September 29, 2012.

ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2012-7222 and are available online
by going to http://www.regulations.gov, inserting USCG-2012-7222 in the
``SEARCH'' box, and then clicking ``SEARCH.'' Click on Open Docket
Folder on the line associated with this rulemaking. You may also visit
the Docket Management Facility in Room W12-140 on the ground floor of
the Department of Transportation West Building, 1200 New Jersey Avenue
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary final rule, call or email Lieutenant Junior Grade Mike H. Wu,
Sector Miami Prevention Department, Coast Guard; telephone (305) 535-
7576, email<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule, because a safety zone was not determined to
be necessary until August 1, 2012. As a result, the Coast Guard did not
have sufficient time to publish an NPRM and to receive public comments
prior to the Miami Paddle Challenge. Any delay in the effective date of
this rule would be contrary to the public interest as immediate action
is needed to minimize potential danger to the public, race
participants, and spectator craft.
    For the same reason discussed above, under 5 U.S.C. 553(d)(3) the
Coast Guard finds that good cause exists for making this rule effective
less than 30 days after publication in the Federal Register.

B. Basis and Purpose

    The legal basis for the rule is the Coast Guard's authority to
establish regulated navigation areas and other

limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306,
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5;
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
    The purpose of the rule is to provide for the safety of life on
navigable waters of the United States during the Miami Paddle
Challenge.

C. Discussion of the Final Rule

    On Sunday, September 29, 2012, Miami Children's Hospital is
sponsoring the Miami Paddle Challenge. Over 150 paddle boats are
expected to participate in the event. Participant paddle boats will
include: kayaks, surfskis, paddleboards, outriggers, sculls, canoes,
dories, and dragon boats.
    The temporary safety zone encompasses certain waters of Biscayne
Bay located west of Key Biscayne and south of Rickenbacker Causeway in
Miami, Florida. The safety zone will be enforced from 6 a.m. until 4
p.m. on September 29, 2012.
    Non-participant persons and vessels are prohibited from entering,
transiting through, anchoring in, or remaining within the safety zone
unless authorized by the Captain of the Port Miami or a designated
representative. Non-participant persons and vessels desiring to enter,
transit through, anchor in, or remain within the safety zone may
contact the Captain of the Port Miami by telephone at<PHONE_NUMBER>, or
a designated representative via VHF radio on channel 16, to request
authorization. If authorization to enter, transit through, anchor in,
or remain within the safety zone is granted by the Captain of the Port
Miami or a designated representative, all persons and vessels receiving
such authorization must comply with the instructions of the Captain of
the Port Miami or a designated representative. The Coast Guard will
provide notice of the safety zone by Local Notice to Mariners,
Broadcast Notice to Mariners, and on-scene designated representatives.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under that Order.
    The economic impact of this rule is not significant for the
following reasons: (1) The safety zone will be enforced for only ten
hours; (2) although persons and vessels will not be able to enter,
transit through, anchor in, or remain within the event area without
authorization from the Captain of the Port Miami or a designated
representative, they may operate in the surrounding area during the
enforcement period; (3) persons and vessels may still enter, transit
through, anchor in, or remain within the event area during the
enforcement period if authorized by the Captain of the Port Miami or a
designated representative; and (4) the Coast Guard will provide advance
notification of the safety zone to the local maritime community by
Local Notice to Mariners and Broadcast Notice to Mariners.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule may affect the following entities, some of which may be small
entities: the owners or operators of vessels intending to enter,
transit through, anchor in, or remain within that portion of the
Biscayne Bay encompassed within the safety zone from 6 a.m. until 4
p.m. on September 29, 2012. For the reasons discussed in the Regulatory
Planning and Review section above, this rule will not have a
significant economic impact on a substantial number of small entities.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact the person listed in the FOR
FURTHER INFORMATION CONTACT, above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

4. Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and determined
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

7. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such expenditure, we do discuss the effects of this rule elsewhere in
this preamble.

8. Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and

Interference with Constitutionally Protected Property Rights.

9. Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

10. Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and would not create an
environmental risk to health or risk to safety that might
disproportionately affect children.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive
Order 13211, Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions which do not individually
or cumulatively have a significant effect on the human environment.
This rule is categorically excluded, under figure 2-1, paragraph
(34)(g), of the Instruction. This rule involves the establishment of a
temporary safety zone to protect the public on navigable waters of the
United States. An environmental analysis checklist and a categorical
exclusion determination are available in the docket where indicated
under ADDRESSES. We seek any comments or information that may lead to
the discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 165

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

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703;
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.

0
2. Add a temporary Sec.  165.20T07-0722 to read as follows:

Sec.  165.20T07-0722  Safety zone; Miami Paddle Challenge, Biscayne
Bay, Miami, FL.

    (a) Biscayne Bay, Florida. All waters of Biscayne Bay located west
of Key Biscayne and south of Rickenbacker Causeway encompassed within
an imaginary line connecting the following points: starting at Point 1
in position 25[deg]44'43'' N, 80[deg]11'40'' W; thence southwest to
Point 2 in position 25[deg]40'29'' N, 80[deg]14'58'' W; thence
northwest to Point 3 in position 25[deg]40'39'' N, 80[deg]15'14'' W;
thence northeast to Point 4 in position 25[deg]44'45'' N,
80[deg]11'59'' W; thence east back to origin. All coordinates are North
American Datum 1983.
    (b) Definition. The term ``designated representative'' means Coast
Guard Patrol Commanders, including Coast Guard coxswains, petty
officers, and other officers operating Coast Guard vessels, and
Federal, state, and local officers designated by or assisting the
Captain of the Port Miami in the enforcement of the regulated area.
    (c) Regulations.
    (1) Non-participant persons and vessels are prohibited from
entering, transiting through, anchoring in, or remaining within the
safety zone unless authorized by the Captain of the Port Miami or a
designated representative. Non-participant persons and vessels may
request authorization to enter, transit through, anchor in, or remain
within the regulated area by contacting the Captain of the Port Miami
by telephone at<PHONE_NUMBER>, or a designated representative via VHF
radio on channel 16. If authorization is granted by the Captain of the
Port Miami or a designated representative, all persons and vessels
receiving such authorization must comply with the instructions of the
Captain of the Port Miami or a designated representative.
    (2) The Coast Guard will provide notice of the regulated areas by
Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene
designated representatives.
    (d) Effective Date. This rule is effective from 6 a.m. until 4 p.m.
on September 29, 2012.

    Dated: August 23, 2012.
C.P. Scraba,
Captain, U.S. Coast Guard, Captain of the Port Miami.
[FR Doc. 2012-22294 Filed 9-10-12; 8:45 am]
BILLING CODE 9110-04-P


( b) Notice. A notice of each hearing shall be well publicized, and shall also be mailed to the appropriate portions of the list of interested and affected parties required by § 25.4( b)( 5). Except as otherwise specifically provided elsewhere in this chapter, these actions must occur at least 45 days prior to the date of the hearing. However, where EPA determines that there are no substantial documents which must be reviewed for effective hearing participation and that there are no complex or controversial matters to be addressed by the hearing, the notice requirement may be reduced to no less than 30 days. EPA may further reduce or waive the hearing notice requirement in emergency situations where EPA determines that there is an imminent danger to public health. To the extent not duplicative, the agency holding the hearing shall also provide informal notice to all interested persons or organizations that request it. The notice shall identify the matters to be discussed at the hearing and shall include or be accompanied by a discussion of the agency's tentative determination on major issues ( if any), information on the availability of a bibliography of relevant materials ( if deemed appropriate), and procedures for obtaining further information. Reports, documents and data relevant to the discussion at the public hearing shall be available to the public at least 30 days before the hearing. Earlier availability of materials relevant to the hearing will further assist public participation and is encouraged where possible. D 33 EPA Public Participation Policy Review Workgroup ( c) Locations and time. Hearings must be held at times and places which, to the maximum extent feasible, facilitate attendance by the public. Accessibility of public transportation, and use of evening and weekend hearings, should be considered. In the case of actions with Statewide interest, holding more than one hearing should be considered.

( d) Scheduling presentations. The agency holding the hearing shall schedule witnesses in advance, when necessary, to ensure maximum participation and allotment of adequate time for all speakers. However, the agency shall reserve some time for unscheduled testimony and may consider reserving blocks of time for major categories of witnesses.

( e) Conduct of hearing. The agency holding the hearing shall inform the audience of the issues involved in the decision to be made, the considerations the agency will take into account, the agency's tentative determinations ( if any), and the information which is particularly solicited from the public. The agency should consider allowing a question and answer period. Procedures shall not unduly inhibit free expression of views ( for example, by onerous written statement requirements or qualification of witnesses beyond minimum identification).

( f) Record. The agency holding the hearing shall prepare a transcript, recording or other complete record of public hearing proceedings and make it available at no more than cost to anyone who requests it. A copy of the record shall be available for public review.

§ 25.6 Public meetings.

Public meetings are any assemblies or gathering, ( such as conferences, informational sessions, seminars, workshops, or other activities) which the responsible agency intends to be open to anyone wishing to attend. Public meetings are less formal than public hearings. They do not require formal presentations, scheduling of presentations and a record of proceedings. The requirements of § 25.5 ( b) and ( c) are applicable to public meetings, except that the agency holding the meeting may reduce the notice to not less than 30 days if there is good reason that longer notice cannot be provided.

§ 25.7 Advisory groups.

( a) Applicability. The requirements of this section on advisory groups shall be met whenever provisions of this chapter require use of an advisory group by State, interstate, or substate agencies involved in activities supported by EPA financial assistance under any of the three Acts.

( b) Role. Primary responsibility for decision making in environmental programs is vested by law in the elected and appointed officials who serve on public bodies and agencies at various levels of government. However, all segments of the public must have the opportunity to participate in environmental quality planning. Accordingly, where EPA identifies a need for continued attention of an informed core group of citizens in relation to activities conducted with EPA financial assistance, program regulations elsewhere in this chapter will require an advisory group to be appointed by the financially assisted agency. Such advisory groups will not be the sole mechanism for public participation, but will complement other mechanisms. They are intended to assist elected or appointed officials with final decision making responsibility by making recommendations to such officials on important issues. In addition, advisory groups should foster a constructive interchange among the various interests present on the group and enhance the prospect of community acceptance of agency action. D 34 Engaging the American People ( c) Membership.

( 1) The agency receiving financial assistance shall assure that the advisory group reflects a balance of interests in the affected area. In order to meet this requirement, the assisted agency shall take positive action, in accordance with paragraph ( c)( 3) of this section, to establish an advisory board group which consists of substantially equivalent proportions of the following four groups:

( i) Private citizens. No person may be included in this portion of the advisory group who is likely to incur a financial gain or loss greater than that of an average homeowner, taxpayer or consumer as a result of any action likely to be taken by the assisted agency.

( ii) Representatives of public interest groups. A `` public interest group'' is an organization which reflects a general civic, social, recreational, environmental or public health perspective in the area and which does not directly reflect the economic interests of its membership.

( iii) Public officials.

( iv) Citizens or representatives of organizations with substantial economic interests in the plan or project.

( 2) Generally, where the activity has a particular geographic focus, the advisory group shall be made up of persons who are residents of that geographic area.

( 3) In order to meet the advisory group membership requirements of paragraph ( c)( 1) of this section, the assisted agency shall:

( i) Identify public interest groups, economic interests, and public officials who are interested in or affected by the assisted activity.

( ii) Make active efforts to inform citizens in the affected area, and the persons or groups identified under paragraph ( c)( 3)( i) of this section, of this opportunity for participation on the advisory group. This may include such actions as placing notices or announcements in the newspapers or other media, mailing written notices to interested parties, contacting organizations or individuals directly, requesting organizations to notify their members through meetings, newsletters, or other means.

( iii) Where the membership composition set forth in paragraph ( c)( 1) of this section is not met after the above actions, the assisted agency shall identify the causative problems and make additional efforts to overcome such problems. For example, the agency should make personal contact with prospective participants to invite their participation.

( iv) Where problems in meeting the membership composition arise, the agency should request advice and assistance from EPA.

( d) The assisted agency shall record the names and mailing addresses of each member of the advisory group, with the attributes of each in relation to the membership requirements set forth in paragraph ( c)( 1) of this section, provide a copy to EPA, and make the list available to the public. In the event that the membership requirements set forth in paragraph ( c)( 1) of this section are not met, the assisted agency shall append to the list a description of its efforts to comply with those requirements and an explanation of the problems which prevented compliance. EPA shall review the D 35 EPA Public Participation Policy Review Workgroup agency's efforts to comply and approve the advisory group composition or, if the agency's efforts were inadequate, require additional actions to achieve the required membership composition.

( e) Responsibilities of the assisted agency.

( 1) The assisted agency shall designate a staff contact who will be responsible for day to day coordination among the advisory group, the agency, and any agency contractors or consultants. The financial assistance agreement shall include a budget item for this staff contact. Where substantial portions of the assisted agency's responsibilities will be met under contract, the agency shall require a similar designation, and budget specification, of its contractor. In the latter event, the assisted agency does not have to designate a separate staff contact on its own staff, if the Regional Administrator determines that the contractor's designation will result in adequate coordination. The staff contact shall be located in the project area.

( 2) The assisted agency has such responsibilities as providing the advisory group with information, identifying issues for the advisory group's consideration, consulting with the advisory group throughout the project, requesting the advisory group's recommendations prior to major decisions, transmitting advisory group recommendations to decision making officials, and making written responses to any formal recommendation by the advisory group. The agency shall make any such written responses available to the public. To the maximum extent feasible, the assisted agency shall involve the advisory group in the development of the public participation program.

( 3) The assisted agency shall identify professional and clerical staff time which the advisory group may depend upon for assistance, and provide the advisory group with an operating budget which may be used for technical assistance and other purposes agreed upon between the advisory group and the agency. ( 4) The assisted agency shall establish a system to make costs of reasonable out ofpocket expenses of advisory group participation available to group members. Time away from work need not be reimbursed; however, assisted agencies are encouraged to schedule meetings at times and places which will not require members to leave their jobs to attend.

( f) Advisory group responsibilities and duties. The advisory group may select its own chairperson, adopt its own rules of order, and schedule and conduct its own meetings. Advisory group meetings shall be announced well in advance and shall be open to the public. At all meetings, the advisory group shall provide opportunity for public comment. Any minutes of advisory group meetings and recommendations to the assisted agency shall be available to the public. The advisory group should monitor the progress of the project and become familiar with issues relevant to project development. In the event the assisted agency and the advisory group agree that the advisory group will assume public participation responsibilities, the group should undertake those responsibilities promptly. The advisory group should make written recommendations directly to the assisted agency and to responsible decision making officials on major decisions ( including approval of the public participation program) and respond to any requests from the agency or decision making officials for recommendations. The advisory group should remain aware of community attitudes and responses to issues as they arise. As part of this effort, the advisory group may, within the limitations of available resources, conduct public participation activities in conjunction with the assisted agency; solicit outside advice; and establish, in conjunction with the assisted agency, subcommittees, ad hoc groups, or task forces to investigate and develop recommendations on particular issues as they arise. The advisory group should undertake its responsibilities fully and promptly in accordance with the policies and requirements of this part. Nothing shall preclude the right of the advisory group from requesting EPA to perform an evaluation of the assisted agency's compliance with the requirements of this part. D 36 Engaging the American People ( g) Training and assistance. EPA will promptly provide appropriate written guidance and project information to the newly formed advisory group and may provide advice and assistance to the group throughout the life of the project. EPA will develop and, in conjunction with the State or assisted agency, carry out a program to provide a training session for the advisory group, and appropriate assisted agency representatives, promptly after the advisory group is formed. The assisted agency shall provide additional needed information or assistance to the advisory group.

§ 25.8 Responsiveness summaries.

Each agency which conducts any activities required under this part shall prepare a Responsiveness Summary at specific decision points as specified in program regulations or in the approved public participation work plan. Responsiveness Summaries are also required for rulemaking activities under § 25.10. Each Responsiveness Summary shall identify the public participation activity conducted; describe the matters on which the public was consulted; summarize the public's views, significant comments, criticisms and suggestions; and set forth the agency's specific responses in terms of modifications of the proposed action or an explanation for rejection of proposals made by the public. Responsiveness Summaries prepared by agencies receiving EPA financial assistance shall also include evaluations by the agency of the effectiveness of the public participation program. Assisted agencies shall request such evaluations from any advisory group and provide an opportunity for other participating members of the public to contribute to the evaluation. ( In the case of programs with multiple responsiveness summary requirements, these analyses need only be prepared and submitted with the final summary required.) Responsiveness summaries shall be forwarded to the appropriate decision making official and shall be made available to the public. Responsiveness Summaries shall be used as part of evaluations required under this part or elsewhere in this chapter.

§ 25.9 Permit enforcement.

Each agency administering a permit program shall develop internal procedures for receiving evidence submitted by citizens about permit violations and ensuring that it is properly considered. Public effort in reporting violations shall be encouraged, and the agency shall make available information on reporting procedures. The agency shall investigate alleged violations promptly.

§ 25.10 Rulemaking.

( a) EPA shall invite and consider written comments on proposed and interim regulations from any interested or affected persons and organizations. All such comments shall be part of the public record, and a copy of each comment shall be available for public inspection. EPA will maintain a docket of comments received and any Agency responses. Notices of proposed and interim rulemaking, as well as final rules and regulations, shall be distributed in accordance with § 25.4( c) to interested or affected persons promptly after publication. Each notice shall include information as to the availability of the full texts of rules and regulations ( where these are not set forth in the notice itself) and places where copying facilities are available at reasonable cost to the public. Under Executive Order 12044 ( March 23, 1978), further EPA guidance will be issued concerning public participation in EPA rulemaking.

A Responsiveness Summary shall be published as part of the preamble to interim and final regulations. In addition to providing opportunity for written comments on proposed and interim regulations, EPA may choose to hold a public hearing. D 37 EPA Public Participation Policy Review Workgroup ( b) State rulemaking specified in § 25.2( a)( 1) shall be in accord with the requirements of paragraph ( a) of this section or with the State's administrative procedures act, if one exists. However, in the event of conflict between a provision of paragraph ( a) of this section and a provision of a State's administrative procedures act, the State's law shall apply.

§ 25.11 Work elements in financial assistance agreements.

( a) This section is applicable to activities under § 25.2( a)( 5) except as otherwise provided in parts 30 or 35.

( b) Each applicant for EPA financial assistance shall set forth in the application a public participation work plan or work element which reflects how public participation will be provided for, encouraged, and assisted in accordance with this part. This work plan or element shall cover the project period. At a minimum, the work plan or element shall include:

( 1) Staff contacts and budget resources to be devoted to public participation by category;

( 2) A proposed schedule for public participation activities to impact major decisions, including consultation points where responsiveness summaries will be prepared;

( 3) An identification of consultation and information mechanisms to be used;

( 4) The segments of the public targeted for involvement.

( c) All reasonable costs of public participation incurred by assisted agencies which are identified in an approved public participation work plan or element, or which are otherwise approved by EPA, shall be eligible for financial assistance.

( d) The work plan or element may be revised as necessary throughout the project period with approval of the Regional Administrator.

§ 25.12 Assuring compliance with public participation requirements.

( a) Financial assistance programs   ( 1) Applications. EPA shall review the public participation work plan ( or, if no work plan is required by this chapter for the particular financial assistance agreement, the public participation element) included in the application to determine consistency with all policies and requirements of this part. No financial assistance shall be awarded unless EPA is satisfied that the public participation policies and requirements of this part and, any applicable public participation requirements found elsewhere in this chapter, will be met.

( 2) Compliance   ( i) Evaluation. EPA shall evaluate compliance with public participation requirements using the work plan, responsiveness summary, and other available information. EPA will judge the adequacy of the public participation effort in relation to the objectives and requirements of § 25.3 and § 25.4 and other applicable requirements. In conducting this evaluation, EPA may request additional information from the assisted agency, including records of hearings and meetings, and may invite public comment on the agency's performance. The evaluation will be undertaken as part of any mid project review required in various programs under this chapter; where no such review is required the review shall be D 38 Engaging the American People conducted at an approximate mid point in continuing EPA oversight activity. EPA may, however, undertake such evaluation at any point in the project period, and will do so whenever it believes that an assisted agency may have failed to meet public participation requirements.

( ii) Remedial actions. Whenever EPA determines that an assisted agency has not fully met public participation requirements, EPA shall take actions which it deems appropriate to mitigate the adverse effects of the failure and assure that the failure is not repeated. For ongoing projects, that action shall include, at a minimum, imposing more stringent requirements on the assisted agency for the next budget period or other period of the project ( including such actions as more specific output requirements and milestone schedules for output achievement; interim EPA review of public participation activities and materials prepared by the agency, and phased release of funds based on compliance with milestone schedules.) EPA may terminate or suspend part or all financial assistance for noncompliance with public participation requirements, and may take any further actions that it determines to be appropriate in accordance with parts 30 and 35 of this chapter ( see, in particular, § 30.340, Noncompliance and 30.615   3, Withholding of Payments, and subpart H of part 30, Modification, Suspension, and Termination).

( b) State programs approved in lieu of Federal programs. State compliance with applicable public participation requirements in programs specified in § 25.2( a) ( 6) and ( 7) and administered by approved States shall be monitored by EPA during the annual review of the State's program, and during any financial or program audit or review of these programs. EPA may withdraw an approved program from a State for failure to comply with applicable public participation requirements.

( c) Other covered programs. Assuring compliance with these public participation requirements for programs not covered by paragraphs ( a) and ( b) of this section is the responsibility of the Administrator of EPA. Citizens with information concerning alleged failures to comply with the public participation requirements should notify the Administrator. The Administrator will assure that instances of alleged noncompliance are promptly investigated and that corrective action is taken where necessary.

§ 25.13 Coordination and Non duplication.

The public participation activities and materials that are required under this part should be coordinated or combined with those of closely related programs or activities wherever this will enhance the economy, the effectiveness, or the timeliness of the effort; enhance the clarity of the issue; and not be detrimental to participation by the widest possible public. Hearings and meetings on the same matter may be held jointly by more than one agency where this does not conflict with the policy of this paragraph. Special efforts shall be made to coordinate public participation procedures under this part and applicable regulations elsewhere in this chapter with environmental assessment and analysis procedures under 40 CFR part 6. EPA encourages interstate agencies in particular to develop combined proceedings for the States concerned.

§ 25.14 Termination of reporting requirements.

All reporting requirements specifically established by this part will terminate on ( 5 years from date of publication) unless EPA acts to extend the requirements beyond that date.


[Federal Register: September 24, 2008 (Volume 73, Number 186)]
[Notices]
[Page 55174-55175]
[DOCID:fr24se08-148]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58588]

Emergency Order Pursuant to Section 12(k)(2) of the Securities
Exchange Act of 1934 Taking Temporary Action To Respond to Market
Developments

September 18, 2008.
    The Commission is aware of the continued potential of sudden and
excessive fluctuations of securities prices and disruption in the
functioning of the securities markets that could threaten fair and
orderly markets. Given the importance of confidence in our financial
markets as a whole, we have

also become concerned about sudden and unexplained declines in the
prices of securities. Such price declines can give rise to questions
about the underlying financial condition of an issuer, which in turn
can create a crisis of confidence without a fundamental underlying
basis. This crisis of confidence can impair the liquidity and ultimate
viability of an issuer, with potentially broad market consequences.
    As a result of these recent developments, the Commission concluded
that there continues to exist the potential of sudden and excessive
fluctuations of securities prices generally and disruption in the
functioning of the securities markets that could threaten fair and
orderly markets. Based on this conclusion, the Commission is exercising
its powers under Section 12(k)(2) of the Securities Exchange Act of
1934.\1\ Pursuant to Section 12(k)(2), in appropriate circumstances the
Commission may issue summarily an order to alter, supplement, suspend,
or impose requirements or restrictions with respect to matters or
actions subject to regulation by the Commission.
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    \1\ This finding of an ``emergency'' is solely for purposes of
Section 12(k)(2) of the Exchange Act and is not intended to have any
other effect or meaning or to confer any right or impose any
obligation other than set forth in this Order.
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    We have determined that issuer repurchases can represent an
important source of liquidity during times of market volatility.
Exchange Act Rule 10b-18 provides issuers with a safe harbor to effect
repurchases within certain conditions. Historically, issuers generally
have been reluctant to undertake repurchases without the certainty that
their repurchases come within the safe harbor. Temporarily altering the
timing and volume conditions in the safe harbor will provide additional
flexibility and certainty to issuers that consider executing
repurchases during the current market conditions. In these unusual and
extraordinary circumstances, we believe altering the timing and volume
conditions in Exchange Act Rule 10b-18 is necessary in the public
interest and for the protection of investors to maintain fair and
orderly securities markets, and to prevent substantial disruption in
the securities markets.
    It is ordered, pursuant to our Section 12(k)(2) powers, that:
    In connection with a Rule 10b-18 purchase or with a Rule 10b-18 bid
that is made during the period covered by this Order by the use of any
means or instrumentality of interstate commerce or of the mails, or of
any facility of any national securities exchange, an issuer, or an
affiliated purchaser of the issuer, shall not be deemed to have
violated Section 9(a)(2) of the Exchange Act or Rule 10b-5 under the
Exchange Act, solely by reason of the time or price at which its Rule
10b-18 bids or Rule 10b-18 purchases are made or the amount of such
bids or purchases or the number of brokers or dealers used in
connection with such bids or purchases if the issuer or affiliated
purchaser of the issuer meets all of the conditions in Rule 10b-18 with
the exception that:
    (i) The time of purchases condition in paragraphs (b)(2)(i),
(b)(2)(ii), and (b)(2)(iii) of Exchange Act Rule 10b-18 is suspended;
and
    (ii) The volume of purchases condition in paragraph (b)(4) of
Exchange Act Rule 10b-18 is modified so that the amount of Rule 10b-18
purchases must not exceed 100 percent of the ADTV for the security.
    All other provisions of Exchange Act Rule 10b-18, including the
manner and price of purchase conditions of paragraphs (b)(1) and
(b)(3), are not altered by this order. Terms used in this order have
the same meanings as those terms used in Exchange Act Rule 10b-18
unless stated otherwise.
    This Order shall be effective at 12:01 a.m. EDT on September 19,
2008, and shall terminate at 11:59 p.m. on October 2, 2008 unless
further extended by the Commission.

    By the Commission.
J. Lynn Taylor,
Assistant Secretary.
[FR Doc. E8-22370 Filed 9-23-08; 8:45 am]

BILLING CODE 8010-01-P