[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Notices]
[Pages 53941-53944]
[FR Doc No: 2023-16983]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98050; File No. SR-MIAX-2023-23]

Self-Regulatory Organizations; Miami International Securities
Exchange, LLC; Suspension of and Order Instituting Proceedings To
Determine Whether To Approve or Disapprove Proposed Rule Change To
Increase Fees for the ToM Market Data Product and Establish Fees for
the cToM Market Data Product

August 3, 2023.

I. Introduction

    On June 7, 2023, Miami International Securities Exchange, LLC
(``MIAX'' or ``Exchange'') 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 (File Number SR-MIAX-2023-23) to
increase fees for the MIAX Top of Market (``ToM'') market data product
and establish fees for the MIAX Complex Top of Market (``cToM'') market
data product. The proposed rule change was immediately effective upon
filing with the Commission pursuant to section 19(b)(3)(A) of the
Act.\3\ The proposed rule change was published for comment in the
Federal Register on June 26, 2023.\4\ Pursuant to section 19(b)(3)(C)
of the Act,\5\ the Commission is hereby: (1) temporarily suspending the
proposed rule change; and (2) instituting proceedings to determine
whether to approve or disapprove the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A). A proposed rule change may take
effect upon filing with the Commission if it is designated by the
exchange as ``establishing or changing a due, fee, or other charge
imposed by the self-regulatory organization on any person, whether
or not the person is a member of the self-regulatory organization.''
15 U.S.C. 78s(b)(3)(A)(ii).
    \4\ See Securities Exchange Act Release No. 97768 (June 20,
2023), 88 FR 41423 (``Notice'').
    \5\ 15 U.S.C. 78s(b)(3)(C).
---------------------------------------------------------------------------

II. Background and Description of the Proposed Rule Change

    The Exchange proposes to increase fees for the ToM market data
product and establish fees for the cToM market data product.\6\
According to the Exchange, the ToM feed provides subscribers with top
of book quotations based on options orders and quotes entered into the
System \7\ and resting on the Exchange's Simple Order Book \8\ as well
as administrative messages.\9\ The cToM feed provides subscribers with
the same information as TOM as it relates to the Strategy Book \10\
(i.e., best bid and offer for a complex strategy, with aggregate size,
based on displayable orders in the complex strategy on the Exchange),
plus additional information specific to complex orders (i.e.,
identification of the complex strategies currently trading on the
Exchange, complex strategy last sale information, and the status of
securities underlying the complex strategy).\11\
---------------------------------------------------------------------------

    \6\ The Exchange initially filed the proposed fee change on
December 28, 2022, with an effective date of January 1, 2023. See
Securities Exchange Act Release No. 96626 (January 10, 2023), 88 FR
2699 (January 17, 2023) (SR-MIAX-2022-49). That filing was withdrawn
by the Exchange and the Exchange filed new proposed fee changes with
additional justification (SR-MIAX-2023-07) on February 23, 2023. See
Securities Exchange Act Release No. 97080 (March 8, 2023), 88 FR
15803 (March 14, 2023). The Exchange subsequently withdrew that
filing and replaced it with SR-MIAX-2023-17 on April 11, 2023. See
Securities Exchange Act Release No. 97327 (April 19, 2023), 88 FR
25032 (April 25, 2023). The Exchange subsequently withdrew that
filing and replaced it with the instant filing to provide additional
information and a revised justification for the proposal, which is
discussed herein. See Notice, supra note 4, at 41423.
    \7\ The term ``System'' means the automated trading system used
by the Exchange for the trading of Securities. See Exchange Rule
100.
    \8\ The term ``Simple Order Book'' means ``the Exchange's
regular electronic book of orders and quotes.'' See Exchange Rule
518(a)(15).
    \9\ See Notice, supra note 4, at 41424.
    \10\ The ``Strategy Book'' is each Exchange's electronic book of
complex orders and complex quotes. See MIAX Rule 518(a)(17).
    \11\ See Notice, supra note 4, at 41424. The Exchange states
that cToM is a distinct market data product from ToM. The Exchange
also states that ToM subscribers are not required to subscribe to
cToM, and that cToM subscribers are not required to subscribe to
ToM. See id.
---------------------------------------------------------------------------

    The Exchange proposes to increase the fee for Internal Distributors
\12\ from $1,250 per month to $2,000 per month and External
Distributors \13\ from $1,750 per month to $3,000 per month for the ToM
data feed.\14\ The Exchange also proposes to assess a fee on Internal
Distributors of $2,000 per month and External Distributors of $3,000
per month for the cToM feed.\15\ The Exchange will assess the increased
ToM and new cToM fees on Internal and External Distributors in each
month the Distributor is credentialed to use ToM or cToM, and will
reduce such fees for new Distributors for the first month during which
they subscribe to ToM or cToM based on the number of trading days that
have been held during the month prior to the date on which that
subscriber has been credentialed to use ToM or cToM.\16\
---------------------------------------------------------------------------

    \12\ A ``Distributor'' of the Exchange's data is any entity that
receives a feed or file of data either directly from the Exchange or
indirectly through another entity and then distributes it either
internally (within that entity) or externally (outside that entity).
See MIAX Fee Schedule, Section 6(a). All members or non-members that
determine to receive any market data feed from the Exchange must
first execute, among other things, the MIAX Exchange Group Exchange
Data Agreement (``Exchange Data Agreement''). See Notice, supra note
4, at 41431. Pursuant to the Exchange Data Agreement, ``Internal
Distributors'' are restricted to the ``internal use'' of any market
data they receive, meaning they may only distribute the Exchange's
market data to their officers and employees and their affiliates.
See id.
    \13\ ``External Distributors'' may distribute the Exchange's
market data to persons who are not their officers, employees, or
affiliates, and may charge their own fees for the distribution of
such market data. See Notice, supra note 4, at 41431-32.
    \14\ See Notice, supra note 4, at 41424.
    \15\ See id.
    \16\ New cToM Distributors will be assessed a pro-rata
percentage of the fees described above, which is the percentage of
the number of trading days remaining in the affected calendar month
as of the date on which they have been credentialed to use cToM,
divided by the total number of trading days in the affected calendar
month. See id. at 41424.
---------------------------------------------------------------------------

III. Suspension of the Proposed Rule Changes

    Pursuant to section 19(b)(3)(C) of the Act,\17\ at any time within
60 days of the date of filing of an immediately effective proposed rule
change pursuant to section 19(b)(1) of the Act,\18\ the Commission
summarily may temporarily suspend the change in the rules of a self-
regulatory organization (``SRO'') 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. The Commission believes a temporary suspension of
the proposed rule changes is necessary and appropriate to allow for
additional analysis of the proposed rule changes' consistency with the
Act and the rules thereunder.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78s(b)(3)(C).
    \18\ 15 U.S.C. 78s(b)(1).
---------------------------------------------------------------------------

    In support of the proposal, the Exchange states its belief that the
proposed fees overall are fair and reasonable as a form of ``cost
recovery plus the possibility of a reasonable return'' for the
Exchange's aggregate costs of offering the ToM and cToM data feeds.\19\
Specifically, the Exchange states the fees are based on a ``cost-plus
model'' used to determine a reasonable fee structure that is informed
by the Exchange's understanding of different use of products by
different types of participants.\20\ According to the Exchange,
employing a methodology that is the ``result of an extensive review and
analysis,'' it estimates the total projected annual cost of providing
the ToM and cToM data feeds to be $650,680.\21\ To arrive at these
figures, the Exchange states that it undertook a thorough internal
analysis of nearly every expense in the Exchange's general expense
ledger to determine whether each such expense related to the provision
of ToM and cToM data feeds, and, if such expense did so relate, what
portion (or percentage) of such expense supported the provision of ToM
and cToM data feeds.\22\ The Exchange states that it determined the
total cost for the Exchange and its affiliated markets for each cost
driver \23\ through a company-wide this process that included
discussions with senior management, Exchange department heads, and the
Finance Team.\24\ The Exchange further states that it determined what
portion of the cost allocated to the Exchange pursuant to this
methodology is to be allocated to each core service, including the
appropriate allocation to market data.\25\ The Exchange states that,
through this allocation methodology, the Exchange ``applied an
estimated allocation of each cost driver to each core service'' and
``[e]ach of the [resulting] cost allocations is unique to the Exchange
and represents a percentage of overall cost that was allocation to the
Exchange pursuant to the initial allocation.'' \26\
---------------------------------------------------------------------------

    \19\ See id. 41431.
    \20\ See id. at 41431. In addition, the Exchange states that the
proposed monthly cToM fees for Internal and External Distributors
are identical to the fees that the Exchange proposes to charge for
ToM. See id. at 41424. The Exchange also states that cToM was
provided free of charge for the past six years, since the cToM
market data product was established on the Exchange, the Exchange
absorbed all costs associated with compiling and disseminating cToM
during that time, and the Exchange now proposes to establish fees
for cToM to recoup its ongoing costs going forward. See id. at
41424.
    \21\ See id. at 41426 and 41427. The Exchange states that the
Cost Analysis is based on the Exchange's 2023 fiscal year of
operations and projections. See id. at 41430. The Exchange has
calculated the annual cost for producing ToM to subscribers to be
$371,817, and $278,863 for cToM. See id. at 41424.
    \22\ See id. at 41427.
    \23\ The Exchange defines ``cost drivers'' within the filing as
the costs necessary to deliver each of the core services, see infra
note 25, including infrastructure, software, human resources (i.e.,
personnel), and certain general and administrative expenses. See
Notice supra note 4, at 41426.
    \24\ See id. at 41426. The Exchange states that because the
Exchange's parent company currently owns and operates four separate
and distinct marketplaces, the Exchange's parent company determines
the actual cost for each marketplace, which results in different
allocations and amounts across exchanges for the same cost drivers.
See id. According to the Exchange, its allocation methodology
ensures that no portion of any cost would be allocated twice or
double-counted between the Exchange and its affiliated markets. See
id.
    \25\ See id. at 41426-27. The Exchange describes ``core
services'' as services provided by the Exchange, including
transactions, market data, membership services, physical
connectivity, and ports (which provides order entry, cancellation
and modification functionality, risk functionality, ability to
receive drop copies, and other functionality). See id.
    \26\ Id. at 41427.
---------------------------------------------------------------------------

    The Exchange states that the $650,680 aggregate annual costs for
providing the ToM and cToM data feeds is the sum of to the following
individual line-item costs: (1) Human Resources at $367,278; (2)
Network Infrastructure (fiber connectivity) at $1,695; (3) Data Center
at $17,371; (4) Hardware and Software Maintenance and Licenses at
$21,375; (5) Depreciation at $34,091; and (6) Allocated Shared Expenses
at $208,870.\27\ The Exchange represents that it estimates that the
proposed fees will result in an annual revenue of approximately
$840,000, which is a potential profit margin of 23% over the cost of
providing ToM and cToM market data feeds.\28\
---------------------------------------------------------------------------

    \27\ See id. at 41427.
    \28\ See id. at 41431.
---------------------------------------------------------------------------

    The Exchange states its belief that a 23% rate of return is
reasonable because it allows the Exchange to ``recoup all of its
expenses for providing the ToM and cToM data products'' and that any
additional revenue would represent no more than what the Exchange
believes to be a reasonable rate of return.\29\ In addition, the
Exchange states its belief that the proposed fees are reasonable
because they are generally less than the fees charged by competing
options exchanges for comparable market data products.\30\
---------------------------------------------------------------------------

    \29\ Id. The Exchange also states that an approximately 23%
mark-up is fair and reasonable after taking into account the costs
related to creating, generating and disseminating the ToM and cToM
data feeds and the fact that the Exchange will need to fund future
expenditures. Id. at 41429.
    \30\ Id. at 41431.
---------------------------------------------------------------------------

    In further support of the proposal, the Exchange states its belief
that the fees are reasonable, fair, and equitable, and not unfairly
discriminatory, because they are designed to align fees with services
provided, are allocated fairly and equitably among the various
categories of users of the feeds with any differences among categories
of users being justified and appropriate, and will apply uniformly to
all data recipients that choose to subscribe to the ToM and cToM data
feeds.\31\ Moreover, the Exchange asserts that it is reasonable,
equitable, and not unfairly discriminatory to assess Internal
Distributors fees that are lower than the fees assessed for External
Distributors for subscriptions to the ToM and cToM data feeds because
Internal Distributors have limited, restricted usage rights to the
market data, as compared to External Distributors, which have more
expansive usage rights, including rights to commercialize such market
data.\32\
---------------------------------------------------------------------------

    \31\ See Notice, supra note 4, at 41431.
    \32\ See id. at 41431. In addition, the Exchange argues that it
utilizes more resources to support External Distributors as compared
to Internal Distributors, as External Distributors have reporting
and monitoring obligations that Internal Distributors do not have,
thus requiring additional time and effort of the Exchange's staff.
See id. at 41432.
---------------------------------------------------------------------------

    Finally, the Exchange asserts that the proposed fees would not
cause any unnecessary or inappropriate burden on inter-market
competition because other exchanges already have similar market data
fees and they are free to adopt comparable fee structures subject to
the Commission's rule filing process.\33\ Furthermore, the Exchange
asserts that the allowing the Exchange, or any new market entrant, to
waive fees for a period of time to allow it to become established, such
as the Exchange did with cToM, will encourage market entry and thus
ultimately promote competition.\34\ The Exchange also asserts that the
proposed rule change would not cause any unnecessary or inappropriate
burden on intra-market competition because the proposed fees are
associated with the usage of the data feed by each market participant
based on whether the market participant internally and externally
distributes the Exchange data.\35\
---------------------------------------------------------------------------

    \33\ See id. at 41432.
    \34\ See id.
    \35\ See id.

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

    To date, the Commission has not received any comment letters on the
revised justifications for the increase in ToM market data fees or the
establishment of the cToM market data fees.
    When exchanges file their proposed rule changes with the
Commission, including fee filings like the Exchange's present proposal,
they are required to provide a statement supporting the proposal's
basis under the Act and the rules and regulations thereunder applicable
to the exchange.\36\ The instructions to Form 19b-4, on which exchanges
file their proposed rule changes, specify that such statement ``should
be sufficiently detailed and specific to support a finding that the
proposed rule change is consistent with [those] requirements.'' \37\
---------------------------------------------------------------------------

    \36\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory
Organization's Statement of the Purpose of, and Statutory Basis for,
the Proposed Rule Change'').
    \37\ See id.
---------------------------------------------------------------------------

    Section 6 of the Act, including sections 6(b)(4), (5), and (8),
require the rules of an exchange to: (1) provide for the equitable
allocation of reasonable fees among members, issuers, and other persons
using the exchange's facilities; \38\ (2) perfect the mechanism of a
free and open market and a national market system, protect investors
and the public interest, and not be designed to permit unfair
discrimination between customers, issuers, brokers, or dealers; \39\
and (3) not impose any burden on competition not necessary or
appropriate in furtherance of the purposes of the Act.\40\
---------------------------------------------------------------------------

    \38\ 15 U.S.C. 78f(b)(4).
    \39\ 15 U.S.C. 78f(b)(5).
    \40\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    In temporarily suspending the Exchange's proposed rule change, the
Commission intends to further consider whether the proposal to increase
fees for the ToM market data feeds and establish fees for the cToM
market data feeds are consistent with the statutory requirements
applicable to a national securities exchange under the Act. In
particular, the Commission will consider whether the proposed rule
change satisfies the standards under the Act and the rules thereunder
requiring, among other things, that an exchange's rules provide for the
equitable allocation of reasonable fees among members, issuers, and
other persons using its facilities; not permit unfair discrimination
between customers, issuers, brokers or dealers; and do not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of the Act.\41\
---------------------------------------------------------------------------

    \41\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively.
---------------------------------------------------------------------------

    Therefore, the Commission finds that it is appropriate in the
public interest, for the protection of investors, and otherwise in
furtherance of the purposes of the Act, to temporarily suspend the
proposed rule change.\42\
---------------------------------------------------------------------------

    \42\ For purposes of temporarily suspending the proposed rule
change, the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

IV. Proceedings To Determine Whether To Approve or Disapprove the
Proposed Rule Changes

    In addition to temporarily suspending the proposal, the Commission
also hereby institutes proceedings pursuant to sections 19(b)(3)(C)
\43\ and 19(b)(2)(B) of the Act \44\ to determine whether the
Exchange's proposed rule change should be approved or disapproved.
Institution of proceedings does not indicate that the Commission has
reached any conclusions with respect to any of the issues involved.
Rather, the Commission seeks and encourages interested persons to
provide additional comment on the proposed rule change to inform the
Commission's analysis of whether to approve or disapprove the proposed
rule change.
---------------------------------------------------------------------------

    \43\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily
suspends a proposed rule change, section 19(b)(3)(C) of the Act
requires that the Commission institute proceedings under section
19(b)(2)(B) to determine whether a proposed rule change should be
approved or disapproved.
    \44\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to section 19(b)(2)(B) of the Act,\45\ the Commission is
providing notice of the grounds for possible disapproval under
consideration:
---------------------------------------------------------------------------

    \45\ Id. Section 19(b)(2)(B) of the Act also provides that
proceedings to determine whether to disapprove a proposed rule
change must be concluded within 180 days of the date of publication
of notice of the filing of the proposed rule change. See id. The
time for conclusion of the proceedings may be extended for up to 60
days if the Commission finds good cause for such extension and
publishes its reasons for so finding, or if the exchange consents to
the longer period. See id.
---------------------------------------------------------------------------

     Whether the Exchange has demonstrated how the proposed
fees are consistent with section 6(b)(4) of the Act, which requires
that the rules of a national securities exchange ``provide for the
equitable allocation of reasonable dues, fees, and other charges among
its members and issuers and other persons using its facilities''; \46\
---------------------------------------------------------------------------

    \46\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

     Whether the Exchange has demonstrated how the proposed
fees are consistent with section 6(b)(5) of the Act, which requires,
among other things, that the rules of a national securities exchange
not be ``designed to permit unfair discrimination between customers,
issuers, brokers, or dealers''; \47\ and
---------------------------------------------------------------------------

    \47\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

     Whether the Exchange has demonstrated how the proposed
fees are consistent with section 6(b)(8) of the Act, which requires
that the rules of a national securities exchange ``not impose any
burden on competition not necessary or appropriate in furtherance of
the purposes of [the Act].'' \48\
---------------------------------------------------------------------------

    \48\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    As discussed in section III above, the Exchange made various
arguments in support of their proposal. The Commission believes that
there are questions as to whether the Exchange has provided sufficient
information to demonstrate that the proposed fees are consistent with
the Act and the rules thereunder.
    Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the [Act]
and the rules and regulations issued thereunder . . . is on the [SRO]
that proposed the rule change.'' \49\ The description of a proposed
rule change, its purpose and operation, its effect, and a legal
analysis of its consistency with applicable requirements must all be
sufficiently detailed and specific to support an affirmative Commission
finding,\50\ and any failure of an SRO to provide this information may
result in the Commission not having a sufficient basis to make an
affirmative finding that a proposed rule change is consistent with the
Act and the applicable rules and regulations.\51\
---------------------------------------------------------------------------

    \49\ 17 CFR 201.700(b)(3).
    \50\ See id.
    \51\ See id.
---------------------------------------------------------------------------

    The Commission is instituting proceedings to allow for additional
consideration and comment on the issues raised herein, including as to
whether the proposed fees are consistent with the Act, and
specifically, with its requirements that exchange fees be reasonable
and equitably allocated, not be unfairly discriminatory, and not impose
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.\52\
---------------------------------------------------------------------------

    \52\ See 15 U.S.C. 78f(b)(4), (5), and (8).
---------------------------------------------------------------------------

V. Commission's Solicitation of Comments

    The Commission requests written views, data, and arguments with
respect to the concerns identified above as well as any other relevant
concerns. Such

comments should be submitted by August 30, 2023. Rebuttal comments
should be submitted by September 13, 2023. Although there do not appear
to be any issues relevant to approval or disapproval that would be
facilitated by an oral presentation of views, data, and arguments, the
Commission will consider, pursuant to Rule 19b-4, any request for an
opportunity to make an oral presentation.\53\
---------------------------------------------------------------------------

    \53\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by an SRO. See Securities
Acts Amendments of 1975, Report of the Senate Committee on Banking,
Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th
Cong., 1st Sess. 30 (1975).
---------------------------------------------------------------------------

    The Commission asks that commenters address the sufficiency and
merit of the Exchange's statements in support of the proposal, in
addition to any other comments they may wish to submit about the
proposed rule changes.
    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 (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-MIAX-2023-23 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-MIAX-2023-23. 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 (https://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
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available publicly. We
may redact in part or withhold entirely from publication submitted
material that is obscene or subject to copyright protection. All
submissions should refer to file number SR-MIAX-2023-23 and should be
submitted on or before August 30, 2023. Rebuttal comments should be
submitted by September 13, 2023.

VI. Conclusion

    It is therefore ordered, pursuant to section 19(b)(3)(C) of the
Act,\54\ that File No. SR-MIAX-2023-23, be and hereby is, temporarily
suspended. In addition, the Commission is instituting proceedings to
determine whether the proposed rule change should be approved or
disapproved.
---------------------------------------------------------------------------

    \54\ 15 U.S.C. 78s(b)(3)(C).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\55\
---------------------------------------------------------------------------

    \55\ 17 CFR 200.30-3(a)(57).
---------------------------------------------------------------------------

Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-16983 Filed 8-8-23; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: July 20, 2010 (Volume 75, Number 138)]
[Notices]
[Page 42093-42094]
[DOCID:fr20jy10-55]

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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2010-N-0367]

Agency Information Collection Activities; Proposed Collection;
Comment Request; Information Request Regarding Menthol in Cigarettes

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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

SUMMARY: The Food and Drug Administration (FDA) is announcing an
opportunity for public comment on the proposed collection of certain
information by the agency. Under the Paperwork Reduction Act of 1995
(the PRA), Federal agencies are required to publish notice in the
Federal Register concerning each proposed collection of information,
including each proposed extension of an existing collection of
information, and to allow 60 days for public comment in response to the
notice. This notice solicits comments on an information request
regarding the use of menthol in cigarettes.

DATES: Submit either electronic or written comments on the collection
of information by September 20, 2010.

ADDRESSES: Submit electronic comments on the collection of information
to http://www.regulations.gov. Submit written comments on the
collection of information to the Division of Dockets Management (HFA-
305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061,
Rockville, MD 20852. All comments should be identified with the docket
number found in brackets in the heading of this document.

FOR FURTHER INFORMATION CONTACT: Jonna Capezzuto, Office of Information
Management, Food and Drug Administration, 1350 Piccard Dr. PI50-400B,
Rockville, MD 20850,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Under the PRA (44 U.S.C. 3501-3520), Federal
agencies must obtain approval from the Office of Management and Budget
(OMB) for each collection of information they conduct or sponsor.
``Collection of information'' is defined in 44 U.S.C. 3502(3) and 5 CFR
1320.3(c) and includes agency requests or requirements that members of
the public submit reports, keep records, or provide information to a
third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A))
requires Federal agencies to provide a 60-day notice in the Federal
Register concerning each proposed collection of information, including
each proposed extension of an existing collection of information,
before submitting the collection to OMB for approval. To comply with
this requirement, FDA is publishing notice of the proposed collection
of information set forth in this document.
    With respect to the following collection of information, FDA
invites comments on these topics: (1) Whether the proposed collection
of information is necessary for the proper performance of FDA's
functions, including whether the information will have practical
utility; (2) the accuracy of FDA's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility, and clarity of the information to be collected; and (4) ways
to minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques, when
appropriate, and other forms of information technology.

Information Request Regarding Menthol in Cigarettes--(OMB Control
Number 0910-0662)--Extension

    On June 22, 2009, the President signed the Family Smoking
Prevention and Tobacco Control Act (the Tobacco Control Act) (Public
Law 111-31) into law. The Tobacco Control Act amended the Federal Food,
Drug, and Cosmetic Act by adding a new chapter granting FDA important
new authority to regulate the manufacture, marketing, and distribution
of tobacco products to protect the public health generally and to
reduce tobacco use by minors.
    Section 917 of the Tobacco Control Act requires the Secretary of
Health and Human Services (the Secretary) to establish a Tobacco
Products Scientific Advisory Committee (TPSAC). Section 907(e) of the
Tobacco Control Act requires the TPSAC to submit a report and
recommendations to the Secretary on the impact of the use of menthol in
cigarettes on the public health, including such use among children,
African-Americans, Hispanics, and other racial and ethnic minorities.
To ensure a comprehensive review of this issue, the Center for Tobacco
Products is requesting tobacco industry data and information to support
the work of TPSAC. Under section 907(e) of the Tobacco Control Act,
TPSAC must submit its report and recommendations to the Secretary
within 1 year of its formation, or March 23, 2011.
    In order to provide TPSAC with the information it needs to carry
out its statutory obligation, FDA is requesting that tobacco companies
submit information under section 904(b) of the Tobacco Control Act. OMB
granted emergency processing and approved the information collection on
May 12, 2010. In a letter dated May 26, 2010, FDA asked tobacco
manufacturers to submit documents containing scientific, marketing, and
health-related information pertaining to the use of menthol in
cigarettes.
    FDA has requested that tobacco manufacturers submit all documents
and underlying scientific information relating to research activities,
and research findings, conducted, supported, or possessed by the
manufacturer (or agents thereof) on a specified set of topics.
``Research activities'' may include, but are not limited to, focus
groups, surveys, experimental clinical studies, toxicological and
biochemical assays, taste panels, and assessments of the effectiveness
of product marketing practices. Scientific and health-related
information FDA has requested include

dose-response relationships for physiologic effects and chemosensory
effects of mentholated tobacco smoke. FDA also requested information on
the impact of menthol on the neurobiology of tobacco dependence and
information on dose-related interactions between menthol and nicotine,
including on the uptake and metabolism of nicotine and on various
consumer perceptions of the product.
    FDA has also requested tobacco companies to submit consumer
research data and marketing information pertaining to menthol
cigarettes. FDA requested consumer research data pertaining to use,
cessation, and consumer perception of menthol cigarettes. FDA's request
for documents and underlying scientific information related to
marketing information includes data and information on marketing
strategies for each brand or subbrand of menthol cigarettes, including
strategies targeted to particular demographic groups, strategies aimed
at tobacco-na[iuml]ve consumers, and strategies aimed at recruitment of
former tobacco users.
    FDA estimates the burden of this collection of information as
follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 No. of        Annual Frequency     Total Annual        Hours per                         Total Capital
                 Activity                      Respondents       per Response         Responses         Response         Total Hours          Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Submission of Menthol Documents                          116                   1               116               140            16,240            $1,940
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The capital costs associated with this collection pertain to the
postage for mailing documents in electronic format. Estimating these
costs is problematic because the costs would vary depending on the size
of the document production (e.g. one binder of documents vs. numerous
boxes of paper) and the media type (e.g., compact disk (CD) or digital
video disk (DVD)) chosen to submit documents. Currently, we cannot
identify how many documents will be submitted per response.
    Some sample postage costs are shown for different types of
packages:
     10 CDs in a flat envelope weighing 30 ounces:
Approximately $8 using first class business mail,
     Five-pound parcel containing paper documents:
Approximately $12 using business parcel post mail and delivering to the
furthest delivery zone,
     Ten-pound parcel containing paper documents: Approximately
$17 using business parcel mail and delivering to the furthest delivery
zone, and
     Fifty-pound parcel containing paper documents:
Approximately $52 using business parcel post mail and delivering to the
furthest delivery zone.
    This estimate is based upon: (1) Ninety three submissions (80% of
116 submissions) being submitted by mailing an average of 10 CDs per
envelope (93 x $8 = $744) and (2) Twenty three submissions (20% of the
116 submissions) being submitted by mailing a package of paper
documents weighing an average of 50 pounds (23 x $52 = $1,196.)
Therefore, we estimate the total capital costs associated with this
document submission to be $1,940.

    Dated: July 13, 2010.
Leslie Kux,
Acting Assistant Commissioner for Policy.
[FR Doc. 2010-17607 Filed 7-19-10; 8:45 am]
BILLING CODE 4160-01-S


PAPERWORK REDUCTION ACT SUBMISSION Please read the instructions before completing this form. For additional forms or assistance in completing this form, contact your agency's Paperwork Clearance Officer. Send two copies of this form, the collection instrument to be reviewed, the Supporting Statement and any additional documentation to: Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street NW Washington, DC 20503.

1. U. S. EPA, OECA, Manufacturing, Energy and Transportation Div 2. OMB control number b. G None a_ 2_ 0 _ 6_ 0__ 0_ 1_ 0 _ 6_ __ __ __ __

3. Type of information collection ( check one) a. G New collection b. G Revision of a currently approved collection c. X Extension of a currently approved collection d. G Reinstatement, without change, of a previously approved collection for which approval has expired e. G Reinstatement, with change, of a previously approved collection for which approval has expired f. G Existing collection in use without an OMB control number 4. Type of review requested ( check one) a. X Regular b. G Emergency  Approval requested by: / / c. G Delegated 5. Small entities Will this information collection have a significant economic impact on a substantial number of small entities? G Yes X No For b f, note item A2 of Supporting Statement Instructions 6. Requested expiration date a. X Three years from approval date b. G Other Specify: / /___

7. Title 40 CFR Part 60, Subpart EE   NSPS for Metal Furniture Coating 8. Agency form number( s) ( If applicable) EPA No. 0649.07 9. Keywords Metal Furniture, Organic Coatings, VOCs, control technology, reporting, record keeping.

10. Abstract This information collection request is used to monitor the compliance with 40 CFR part 60, Subpart EE. Affected facilities will report startup, initial performance test, and retest information. Facilities will also report on a regular basis emission exceedences, changes to equipment, and other requirements.

11. Affected public ( Mark primary with " P" and all others that apply with " X") a. Individuals or households d. Farms b. P Business or other for profit e. X Federal Government c. Not for profit institutions f. X State, Local or Tribal Gov. 12. Obligation to respond ( Mark primary with " P" and all others that apply with " X") a. G Voluntary b. G Required to obtain or retain benefits c. X Mandatory 13. Annual reporting and record keeping hour burden a. Number of respondents 553 b. Total annual responses 1600 1. Percentage of these responses collected electronically 10 % c. Total annual hours requested 101,070 d. Current OMB inventory 107,549 e. Difference 6,479 f. Explanation of difference 1. Program Change 2. Adjustment 6,479 14. Annual reporting and record keeping cost burden ( in thousands of dollars) a. Total annualized capital/ startup costs $ 114 b. Total annual costs ( O& M) $ 1,006 c. Total annualized cost requested $ 1,120 d. Current OMB inventory $ 1,186 e. Difference $ 66 f. Explanation of difference 1. Program change 2. Adjustment $ 66 15. Purpose of information collection ( Mark Primary With " P" and all others that apply with " X") a. __ Application for benefits e. X Program planning or management b. X Program evaluation f. __ Research c. __ General purpose statistics g. P Regulatory or compliance d. __ Audit 16. Frequency of record keeping or reporting ( check all that apply) a. X Record keeping b. Q Third party disclosure c. X Reporting 1. Q On occasion 2. Q Weekly 3. Q Monthly 4. X Quarterly 5. X Semi annually 6. Q Annually 7. Q Biannually 8. X Other ( describe) Initial Reporting 17. Statistical methods Does this information collection employ statistical methods?

Q Yes X No 18. Agency contact ( person who can best answer questions regarding the content of this submission) Name: Anthony Raia Phone: 202 564 6045 OMB 83 I 10/ 95 19. Certification for Paperwork Reduction Act Submissions On behalf of this Federal agency, 1 certify that the collection of information encompassed by this request complies with' 5 CFR 1320.9.

NOTE: The text of 5 CFR 1320.9, and the related provisions of 5 CFR 1320.8( b)( 3), appear at the end of the instructions. The certification is to be made with reference to those regulatory provisions as set forth in the instructions.

The following is a summary of the topics, regarding the proposed collection of information, that the certification covers:

( a) It is necessary for the proper performance of agency functions;

( b) It avoids unnecessary duplication;

( c) It reduces burden on small entities;

( d) It uses plain, coherent, and unambiguous terminology that is understandable to respondents;

( e) Its implementation will be consistent and compatible with current reporting and record keeping practices;

( f) It indicates the retention periods for record keeping requirements;

( g) It informs respondents of the information called for under 5 CFR 1320.8( b)( 3): ( i) Why the information is being collected; ( ii) Use of information; ( iii) Burden estimate; ( iv) Nature of response ( voluntary, required for a benefit, or mandatory); ( v) Nature and extent of confidentiality; and ( vi) Need to display currently valid OMB control number;

( h) It was developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected ( see note in Item 19 of the instructions);

( i) It uses effective and efficient statistical survey methodology; and ( j) It makes appropriate use of information technology.

If you are unable to certify compliance with any of these provisions, identify the item below and explain the reason in Item 18 of the Supporting Statement.

Signature of Program Office Official John B. Rasnic Director, Manufacturing, Energy and Transportation Division Date Signature of Senior Official or designee Joseph Retzer, Director Regulatory Information Division Office of Regulatory Management and Information ( OP) Date OMB 83 I 10/ 95


[Federal Register Volume 86, Number 190 (Tuesday, October 5, 2021)]
[Notices]
[Page 55052]
[FR Doc No: 2021-21667]

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

SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meetings

TIME AND DATE: 2:00 p.m. on Thursday, October 7, 2021.

PLACE: The meeting will be held via remote means and/or at the
Commission's headquarters, 100 F Street NE, Washington, DC 20549.

STATUS: This meeting will be closed to the public.

MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners,
the Secretary to the Commission, and recording secretaries will attend
the closed meeting. Certain staff members who have an interest in the
matters also may be present.
    In the event that the time, date, or location of this meeting
changes, an announcement of the change, along with the new time, date,
and/or place of the meeting will be posted on the Commission's website
at https://www.sec.gov.
    The General Counsel of the Commission, or his designee, has
certified that, in his opinion, one or more of the exemptions set forth
in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR
200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10),
permit consideration of the scheduled matters at the closed meeting.
    The subject matter of the closed meeting will consist of the
following topics:

    Institution and settlement of injunctive actions;
    Institution and settlement of administrative proceedings;
    Resolution of litigation claims; and
    Other matters relating to examinations and enforcement proceedings.
    At times, changes in Commission priorities require alterations in
the scheduling of meeting agenda items that may consist of
adjudicatory, examination, litigation, or regulatory matters.

CONTACT PERSON FOR MORE INFORMATION: For further information; please
contact Vanessa A. Countryman from the Office of the Secretary at (202)
551-5400.
    Authority: 5 U.S.C. 552b.

    Dated: September 30, 2021.
Vanessa A. Countryman,
Secretary.
[FR Doc. 2021-21667 Filed 10-1-21; 4:15 pm]
BILLING CODE 8011-01-P